Can Corporations Sue for Defamation in Australia? Why the ATO Naming Regime Demands a Different Strategy

The Australian Taxation Office’s transparency database for 2024-25 shows more than one-quarter of large companies regularly pay no or little corporate tax in Australia. The list includes Microsoft’s datacentre business, Singtel (Optus’s parent), Netflix, JBS Global Meat Holdings, Adani Mining, the Inpex-led Ichthys LNG project, AGL, Fonterra, Sony Australia and Kogan. The question of whether a corporation can sue for defamation in Australia over such public naming is settled for most large entities. The answer is a flat no. The more useful question is where the real legal exposure sits, and it is almost never with the ATO.

Can Corporations Sue for Defamation in Australia? The Short Answer

According to Australian corporate law, the capacity of a corporation to bring a defamation claim is tightly constrained. The uniform defamation statutes, mirrored across the states and territories, bar most companies from suing. Legal precedent establishes that only not-for-profit corporations and small for-profit entities with fewer than 10 employees and not associated with a larger corporate group can bring proceedings. The Law Handbook sets out the same threshold, and the National Legal Aid defamation guide confirms the exclusion applies to companies outside those categories. Victoria Legal Aid notes that not-for-profits and small businesses with fewer than 10 staff can still sue.

Microsoft, Singtel, AGL and Adani cannot. Their remedy, if any, lies in other causes of action. That distinction determines the strategic response available to a company when its tax affairs become a public talking point, and it should be assessed before any public statement is made.

Why a Statutory Disclosure Is Not Actionable

The ATO does not publish this data by choice. Parliament requires it to report the tax information of every entity generating at least $100m in Australian income. A publication compelled by statute, and made in the discharge of a public duty, sits well outside the ordinary defamation framework. Even if a large company could clear the standing hurdle, a claim against the Commissioner would face defences that are close to unanswerable.

The ATO has also been careful to frame the data. Its report did not explain why individual companies paid zero tax, but noted there could be legitimate reasons, including making a loss or using deductions and offsets to reduce taxable income. That qualification is not a courtesy. It is the kind of contextual statement that makes a claim of false imputation very hard to run. A reader who understands that zero tax can be lawful is not being told the company has done anything wrong.

Where the Actual Reputational Risk Sits

The naming itself is lawful. What follows the naming is where companies should focus. The database drops a fact into the public domain, and third parties then characterise it. Analysts, journalists, activists, competitors and social media commentators supply the meaning. That commentary is not protected by the ATO’s statutory shield, and it is where a corporate claimant has a genuine, if narrow, path.

Three causes of action are worth examining.

Misleading or Deceptive Conduct

Section 18 of the Australian Consumer Law prohibits conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive. Unlike defamation, this provision is not limited to small companies. A corporation can bring proceedings where a third party makes a false statement about its tax conduct in a commercial context. The threshold is high, and the conduct must occur in trade or commerce, but the remedy is available where defamation is not.

Injurious Falsehood

Injurious falsehood targets false statements about a person’s goods, business or property that cause actual damage. The claimant must prove the statement was false, that it was published with malice, and that it caused loss. Malice is the difficult element. A commentator who genuinely believes a company is avoiding tax, even if wrong on the detail, will rarely meet that bar. Where a competitor or campaigner knows a claim is false and publishes anyway, the action becomes viable.

Interference with Business Relations

Where a third party uses false tax claims to induce customers, suppliers or counterparties to withdraw from dealings, a claim for interference with contractual or business relations may arise. These actions are fact-heavy and rarely straightforward, but they capture conduct that defamation cannot reach.

What the 2024-25 Data Actually Shows

The figures themselves are worth understanding, because the reputational risk tracks the numbers. The data is drawn from the ATO’s corporate transparency reporting under the Taxation Administration Act 1953, which requires disclosure of total income, taxable income and tax payable for entities above the $100m threshold. Several companies in the 2024-25 dataset reportedly recorded substantial revenue while paying no or minimal tax. JBS Global Meat Holdings has reportedly generated billions in revenue while paying zero tax, a recurring pattern for the global food company in prior reporting. Adani Mining has reportedly never paid tax since opening the Carmichael thermal coalmine in Queensland in 2021, consistent with prior years’ media coverage. The Ichthys LNG project near Darwin is reported to have generated billions in income without paying tax. AGL is reported to have earned billions and paid none. Fonterra, Sony Australia and Kogan have each been reported to record substantial income without a tax payment. Microsoft’s datacentre business is reported to have generated billions from Australia while reporting no taxable income, while its computer and software arm paid tax on a larger revenue base. Netflix is reported to have paid a relatively small amount of tax on substantial local revenue. TikTok Australia is reported to have paid tax on several hundred million dollars in revenue. Singtel is reported to have moved from regular taxpayer before 2020 to reporting zero taxable income, generating billions in total income in 2024-25.

An Optus spokesperson has previously attributed the company’s negative tax position to infrastructure investments and operating expenses. A Microsoft spokesperson has said the company pays all tax required under Australian laws. Those statements are the company’s own account, and they matter. A company that has a clear, on-the-record explanation is in a far stronger position than one that stays silent while others fill the gap.

The Profit Shifting Dimension

Jason Ward, principal analyst at the Centre for International Corporate Tax Accountability and Research, has said many resource projects reduce their tax bills by shifting profits to lower-taxing jurisdictions. He has identified Singapore as the key destination, noting that companies can sell coal or LNG to a subsidiary there and book the profit on the raw material in Singapore rather than Australia. Singapore’s official corporate rate is 17%, almost half Australia’s, and it operates a system of negotiated tax breaks and discretionary incentives.

Ward has said technology companies use offshore tax havens in a similar way. Placing intellectual property in a haven jurisdiction means the value of a sale is booked where it receives lighter tax treatment rather than in Australia. He has described the practice as easy to execute.

The ATO’s acting deputy commissioner, Michelle Sams, has said the agency is watching digital businesses and supply chains closely, including datacentres, to confirm that tax paid reflects economic activity in Australia. An ATO ruling aimed at profit shifting is expected to raise significant sums from technology companies, though it is also expected to face legal challenges. Parliament has passed revamped media bargaining laws, opening the way for levies on global tech platforms that fail to strike deals with Australian news outlets.

Practical Steps for Companies Named

• Do not assume silence is safe. A clear public explanation of a negative tax position, as Optus has provided, reduces the space for adverse characterisation.
• Monitor third-party commentary, not the database. The ATO entry is lawful. The exposure arises when commentators, competitors or campaigners make false claims about what the entry means.
• Preserve evidence of malice. Injurious falsehood turns on knowledge of falsity. Internal records showing a publisher knew a claim was wrong are the difference between a viable claim and an expensive lesson.
• Assess commercial context. Section 18 of the Australian Consumer Law reaches conduct in trade or commerce. A competitor’s false tax claim made to win business is a different proposition from a journalist’s error.
• Consider the group structure. A subsidiary inside a large group cannot rely on the small business exception. Group entities need to plan on the basis that defamation is unavailable.

The ATO naming regime is not defamation, and treating it as though it were leads companies to look for a remedy that does not exist. The productive work is in the commentary that follows, the commercial conduct behind it, and the speed with which a company puts its own account on the record. For related analysis of how corporate reputation risk plays out beyond defamation, see our discussion of the limits of mutual departure announcements and the MSO v Gillham case.

Our team has successfully recovered millions in damages through strategic application of non-defamation causes of action where traditional defamation claims would have failed. That experience reflects a simple reality. For large corporations, the defamation door is closed, and the work happens in the alternatives.

About Adam ZuchowskiAdam Zuchowski is a litigation partner at Sutton Laurence King. He advises individuals and businesses on construction disputes, contractual matters, defamation, insolvency and debt recovery. Adam takes a calm, practical approach to dispute resolution.