4 December 1997
FREEDOM OF SPEECH AND DEFAMATION
Lange v Australian Broadcasting Corporation
Commonwealth officers who make public statements in the course of their official duties may be able to rely on the defence of qualified privilege (1) as recently formulated by the High Court in Lange v Australian Broadcasting Corporation.(2)
In that event, their employing department or agency could avoid liability for their statements. It is a longstanding Government policy that the Commonwealth does not undertake or fund defamation claims. The Commonwealth of course does defend them.
Outcome of the Decision
In the 1994 Theophanous and Stephens decisions (3) a majority of the High Court decided that the implied constitutional freedom of political communication can itself provide a defence to a defamation action. (4)
In Lange a joint judgment of all seven High Court Justices re-examined the constitutional basis of the implied freedom and its effect on defamation law. The outcome of the Court's decision in Lange is that:
- there is to be derived from the text and structure of the Constitution concerning Commonwealth elections a 'freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors'; (5)
- this implied constitutional freedom operates as a restriction on legislative and executive powers but does not confer personal rights on individuals;
- therefore, departing from the decisions in Theophanous and Stephens (which had established a constitutional defence to a defamation action), the implied freedom does not itself provide a defence to a defamation action;
- instead, the common law of defamation was developed by the Court to conform with the constitutional freedom of political communication and provide a defence of qualified privilege to a defamation action involving communications to the general public on government or political matters where the conduct of the publisher was reasonable and not actuated by malice.
The Commonwealth's submissions in Lange had supported the departure from the Theophanous and Stephens constitutional defence and the development of the common law defence of qualified privilege along these lines as the appropriate mechanism for the protection of free political speech in the defamation context.
Defamation Law and the Constitution
In Lange the High Court said that the Theophanous and Stephens decisions 'should be accepted as deciding that in Australia the common law rules of defamation must conform to the requirements of the Constitution.' (6)
The Court said that those cases should also be accepted as deciding that the constitutional implication of freedom of political communication was inconsistent with the continued application of the common law position that the defence of qualified privilege does not protect 'the mistaken publication of defamatory matter concerning government and political matters to a wide audience.'(7)
Reform of Common Law Necessary
Although recognising that the protection of reputation need not be incompatible with the constitutional freedom, the Court concluded that the failure to protect the mistaken but honest publication of defamatory matter concerning government and political matters to a wide audience meant that the common law of defamation in its present form unreasonably burdened the freedom of political communication required under the Constitution. This necessitated the reformulation of the common law defence of qualified privilege so that it did conform to the constitutional guarantee.
The Court then went on to consider how the common law of defamation should be developed to conform with the freedom to communicate on government and political matters that is required by the Constitution.
The Court said that this necessitated striking a balance 'between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics.' (8)
The Court expressly adopted (9) the following passage from the judgment of McHugh J in Stephens:
In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.(10)
Extended Defence of Qualified Privilege
The Court decided that the common law should now recognise a defence of qualified privilege for communications to the public on government and political matters, as each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments on these matters.
The Court noted that, in some respects, this defence may go beyond what is required for the common law of defamation to be compatible with the constitutional freedom of communication:
Forexample, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.(11)
Similarly, the Court said that discussion of government or politics at State, Territory and even local government level could be protected by the extended defence of qualified privilege although not relevant to matters at the federal level.
Limitations on the Reformulated Common Law Defence of Qualified Privilege
The High Court in Lange then went on to consider the conditions upon which the reformulated defence of common law qualified privilege in its application to the publication of government or political material to the general public should depend.
Conduct of Publisher Must be Reasonable
The Court decided that to establish a defence of qualified privilege in this context the conduct of the publisher of the defamatory material must have been reasonable in that the publisher must have:
- had reasonable grounds for believing that the defamatory imputation in the matter published was true,
- taken proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe that the imputation was untrue, and
- sought a response from the person defamed and published the response made, if any, except in cases where this was not practicable or was unnecessary.(12)
Publication Must Not be Actuated by Malice
The Court also stated that, as is the case generally in regard to the defence of qualified privilege, the defence would be defeated by proof that the publication of the defamatory matter was actuated by malice. This was a retreat from Theophanous where the Court had held that malice could not defeat the constitutional defence formulated in that case.
In Lange, the Court said that 'actuating malice' would be established for this purpose if the publication was made not for the purpose of communicating government or political information or ideas, but for some improper purpose such as to give vent to ill will.
Therefore, the existence of ill will or other improper motive will not defeat the defence of qualified privilege unless the plaintiff proves that the publication of the defamatory matter was actuated by the improper motive.
Furthermore, the Court said that 'having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff's onus of proof of this issue'.(13)
1 Qualified privilege in general is a defence against liability for defamation extended to the maker of a statement in the course of a duty, provided that it was not actuated by malice, nor excessively published.
The decision in Lange was one of a series of important High Court decisions handed down in July and August 1997. These decisions were reported collectively in the first issue of Litigation Notes published by the Australian Government Solicitor on 23 August 1997.
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