Misleading and deceptive conduct: immunising the intermediary - the conduit defence

This article examines the circumstances in which an intermediary who passes on information supplied by Party A to Party B breaches s 52 of the Trade Practices Act 1974 (Cth) and its cognates. It posits that the courts, by a process of statutory construction, have erected immunity for the intermediary, one extending further than the quite narrow statutory immunities provided to corporations alleged to have infringed s 52 and other provisions, and analyses the elements of this immunity (or "conduit defence"). The article proposes that the High Court, in its 2004 decision in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592, has expressly articulated a policy-based control on the intermediary's liability, one sufficiently broad to qualify the absolute liability imposed upon s 52 and its cognates. It queries whether a general defence of honest and reasonable mistake should, consistently with this line of authority, be provided for in the Act. To do so would be to replace absolute liability, where it is provided for by the Act (eg in respect of s 52) with strict liability.