Legal Practice Briefing No. 15

Number 15

8 November 1994


Theophanous v The Herald and Weekly
Times Limited and Another
Stephens and Others v West Australian Newspapers
High Court 12 October 1994

The High Court handed down its decisions in these cases
on 12 October 1994. The Court decided, by a majority
of 4 to 3, that there is implied in the Commonwealth and
the Western Australian Constitutions a freedom to publish

  • discussing government and political matters;
  • of and concerning members of Parliament which relates
    to the performance by such members of their duties as
    members of Parliament or parliamentary committees;
  • in relation to the suitability of persons for office
    as members of Parliament.

The Court further found that, in the light of the freedom
implied in the Constitution, the publication will not be
actionable under the law relating to defamation if the
defendant establishes that:

  • it was unaware of the falsity of the material published;
  • it did not publish the material recklessly, that is,
    not caring whether the material was true or false; and
  • the publication was reasonable in the circumstances.

The Court found that a publication that attracts the implied
freedom can also be described as a publication on an occasion
of qualified privilege. Whether a federal election is about
to be called is not a relevant consideration.

Implications for Clients

Although the Commonwealth does not undertake or fund defamation
claims, it does defend them. Commonwealth officers who
make political statements in the course of their official
duties may be able to rely on the Court's decisions. In
that event, their employing department or agency could
avoid vicarious liability for their statements.


The High Court's decisions have effected a significant
change to defamation law in its application to statements
made in the course of discussion about political matters.
The majority of the Court held that the effect of the implied
constitutional freedom of political communication is that
defamation laws cannot impose liability in damages for
the bona fide and reasonable publication of an untrue and
defamatory statement in the course of political discussion.

It appears that, while the decision in Theophanous was
directed to statements made about a member of the Commonwealth
Parliament and the decision in Stephens related
to statements about members of the Western Australian Parliament,
the High Court's decisions are equally applicable to statements
about members of any Australian Parliament, or indeed,
to statements about other holders of, or candidates for,
any high public office. Statements about others who become
involved in political debate may also be protected. This
is addressed in the commentary on the High Court's decisions
(see opposite page).

Outside the area of political discussion, existing defamation
laws continue to apply.


In Stephens, the Plaintiffs, who were members of
the Western Australian Legislative Council's Standing Committee
on Government Agencies, commenced an action in defamation
against the Defendant, the publisher of the West Australian newspaper,
in the Supreme Court of Western Australia. The Defendant
published in the West Australian a number of articles
in which a member of the Western Australian Legislative
Council described an interstate and overseas trip undertaken
by the Plaintiffs in their capacity as members of the Committee
as a 'junket' and a 'rort'. By way of defence, the Defendant
pleaded, among other things, that the articles complained
of were published pursuant to a freedom said to be guaranteed
by the Commonwealth Constitution and the Constitution
Act 1989 (WA) to publish material concerning
the Members of the Parliament of Western Australia when
acting in their capacity as Members of Parliament.

In Theophanous the first Defendant was the publisher
of The Sunday Herald-Sun newspaper. The Plaintiff
was a Federal Member of Parliament, and the Chairperson
of both the Caucus Immigration Committee and the Joint
Migration Regulations Committee. On 8 November 1992, the
Defendant published in The Sunday Herald-Sun a
letter from Mr Bruce Ruxton in which Mr Ruxton said that,
from reports he had read, the Plaintiff appeared to want
a bias shown towards Greeks as migrants. Mr Ruxton also
referred to the Plaintiff's 'idiotic antics' in reportedly
advocating that the British base of Australian society
be diluted so that English would cease to be the major
language. The Plaintiff commenced proceedings for defamation
in the Victorian County Court. In its defence, the Defendant
pleaded that the publication was protected by a constitutional
freedom to publish material concerning political figures
in the performance of their duties.

Issues Before the High Court

Both cases were removed into the High Court so that that
Court could decide the question whether an implied constitutional
freedom of communication provided a defence to the defamation

In Australian Capital Television Pty Ltd v Commonwealth(1) and Nationwide
News Pty Ltd v Wills(2) the
High Court held that there was a freedom of communication
in relation to 'political matters' and 'public affairs'
which is inherent in the Constitution. The principal
basis for this finding was that the Constitution is predicated
on a system of representative government, and freedom
of communication on political matters is essential to
that system. The implied freedom operated to restrict
the Commonwealth's legislative powers. The Court recognised
that the freedom to communicate on political matters
is not 'an absolute and uncontrolled licence to say or
write anything at all' (Nationwide News at
p.76 per Deane and Toohey JJ; and per Brennan J at pp.
5052). A balance must be struck between the freedom to
communicate and the protection of other legitimate interests.
(See Legal Practice Briefing Number 1, 14 April
1993 for a more detailed explanation of these decisions.)

In Victoria and Western Australia the right to bring an
action for defamation is derived from the common law and
not State legislation. Legislation in both States does,
however, supplement the common law by prescribing several
statutory defences to defamation actions. Accordingly,
the proceedings in Stephens and Theophanous differed
from the Capital Television and Nationwide News cases
in that the validity of legislation was not being directly
challenged. Rather, the Defendants contended that the implied
freedom provides a defence to a common law action for defamation.
Nevertheless, the Commonwealth Attorney-General and Western
Australia, South Australia, New South Wales, Queensland,
Victoria and the Northern Territory intervened in the proceedings
in order to put submissions on the scope of the implied
freedom and its impact on the common law of defamation
as modified by statutory defences under State law.

The High Court's Decisions

In Theophanous Mason CJ, Toohey and Gaudron JJ
delivered a joint judgment in which they held that a defence
to defamation proceedings based on the freedom of communication
implied in the Commonwealth Constitution was available.
If false material was published, this constitutional defence
required the defendant to establish that the material was
published in the course of political discussion, that the
defendant was unaware of the falsity and did not publish
recklessly, and that the publication was reasonable in
the circumstances. The fourth member of the Court forming
the majority, Deane J, would have gone further and held
that, at least in relation to statements about the official
conduct or consequent suitability for office of holders
of high public office, the implied constitutional freedom
completely precluded liability for defamation and did not
require that the publisher of the statement satisfy a court
about matters such as the absence of recklessness or reasonableness.
However, as this approach was not accepted by other members
of the Court, Deane J supported the answers given by Mason
CJ, Toohey and Gaudron JJ.

In Stephens, the same majority found that the defence
to defamation proceedings based on the implied freedom
of communication derived both from the Commonwealth Constitution
and from the State Constitution of Western Australia. It
is apparent from the judgment of MasonCJ, Toohey and Gaudron
JJ and from the earlier decisions of the Court in Nationwide News and Capital
Television that it would not have mattered even if
there had been no corresponding implied freedom in the
State Constitution. This is because the freedom of communication
as to political matters implied in the Commonwealth Constitution
extended to all political discussion, including discussion
of political matters relating to government at a State
level. Further, it is apparent from both the Theophanous and Stephens decisions
that the implied freedom applies to confine the laws and
legislative powers of the States as well as the Commonwealth,
and also shapes and controls the common law.

The Extent of the Implied Freedom

For the purpose of the constitutional defence, 'political
discussion' is not limited to discussion about serving
politicians but includes discussion of the conduct, policies
or fitness for office of government, political parties,
public bodies, public officers and those seeking public
office. In the view of Mason CJ, Toohey and Gaudron JJ,
the concept also includes discussion of the political views
and public conduct of persons who are engaged in activities
that have become the subject of political debate (for example,
trade union leaders, Aboriginal political leaders, and
political and economic commentators). The majority formed
the preliminary view that the defence based on the implied
freedom was not available for defamatory statements made
about government employees and public figures generally,
where the statements were not made in the course of political
discussion. As the two cases before the Court concerned
statements about politicians, Deane J said it was unnecessary
to decide whether the defence to a defamation action based
on the implied freedom of communication extended beyond
holders of high public office such as parliamentarians
and judges.

However, the implied freedom is not absolute. In balancing
the competing interests of free speech and protection of
an individual's reputation, the majority decided that three
criteria should be applied in determining whether the publication
of political matter is non-actionable. If a defendant publishes
false and defamatory material about a plaintiff, the defendant
will be liable in damages unless it can establish:

  • that it was unaware of the falsity;
  • that it did not publish recklessly (that is, not caring
    whether the matter was true or false);
  • that the publication was reasonable in the circumstances.

The majority developed these criteria on the basis that
the public interest served by the implied freedom does
not warrant protecting false statements made irresponsibly.
The onus is on the defendant (the publisher of the defamatory
statement) to establish that the publication falls within
the constitutional protection.

The third criterion ('reasonableness') requires that the
defendant establish that the circumstances were such as
to make it reasonable to publish the impugned material
without ascertaining whether it was true or false, for
example, that it acted reasonably, either by taking some
steps to check the accuracy of the impugned material or
by establishing that it was otherwise justified in publishing
without taking steps which were adequate. Mason CJ, Toohey
and Gaudron JJ said that:

'To require more of those wishing to participate
in political discussion would impose impractical and, sometimes,
severe restraint on commentators and others who participate
in discussion of public affairs. Such a restraint would
severely cramp that freedom of political discussion which
is so essential to the effective and open working of modern
government. At the same time, it cannot be said to be in
the public interest or conducive to the working of democratic
government if anyone were at liberty to publish a false
and damaging defamatory matter free from any responsibility
at all in relation to the accuracy of what is published.'

Effect on Existing Defamation Law

The majority of the Court considered that, in the area
of political discussion, the existing defamation laws (whether
the common law or statute law) infringe the implied freedom
of communication as they do not take sufficient account
of the implied freedom in striking a balance between free
speech and the protection of an individual's reputation.
Mason CJ, Toohey and Gaudron JJ concluded that:

'the common law defences which protect the reputation
of persons who are the subject of defamatory publications
do so at the price of significantly inhibiting free communication.
To that extent, the balance is tilted too far against free
communication and the need to protect the efficacious working
of representative democracy and government in favour of
the protection of individual reputation.'

It is implicit from the High Court's decisions that, although
the High Court was dealing with statements which are untrue,
the implied constitutional protection would extend also
to defamatory statements which are true. However, a defendant
need not establish that the statements were true to benefit
from the constitutional protection. The effect of the constitutional
defence is to extend to the publication of political statements
a new kind of qualified privilege, which applies whether
or not the statements are true. In Victoria, South Australia,
Western Australia and the Northern Territory truth alone
is a defence to an action for defamation. In the other
States and the Australian Capital Territory, however, a
defendant must not only establish that the statement is
true but also that it was published in the public interest
or for the public benefit. In future, that distinction
will not be relevant in relation to the publication of
statements made in the course of political discussion.
Outside this area, the existing defamation laws continue
to apply.

Qualified Privilege Under the Common

Justices Brennan, Dawson and McHugh delivered separate
dissenting judgments. Although each recognised an implied
constitutional freedom of communication, they expressed
differing views on the basis and scope of that freedom
and decided that it was not infringed by the common law
or statutory law of defamation.

Brennan J said that an implied freedom to discuss government,
governmental institutions and political matters was derived
from the system of representative and responsible government
prescribed by the Constitution. It was not a personal freedom
or right but a limitation on the power of Parliaments to
restrict unnecessarily the ability of the people of the
Commonwealth to form and to exercise political judgments.
Against the background of the common law and Australian
history, Brennan J concluded that:

'It is not open to this Court to hold that the
workings of the law of defamation show that the capacity
of the people of the Commonwealth to form and to exercise
political judgments has been damaged by those laws.'

Dawson J observed that, on the majority's approach, the
coming into effect of the Constitution in 1901 had radically
altered the law of defamation in Australia, a change 'which
has entirely escaped attention during the ninety-three
years since federation'. Freedom of communication is implied
only to the extent that it is a requirement of representative
government and the defamation laws do not represent a denial
of representative government.

McHugh J took a narrower approach and rejected the proposition
that a principle of representative government or representative
democracy is implied in the Constitution. Freedom of communication
was guaranteed only to the extent necessary to protect
the rights of the people, derived from sections 7 and 24
of the Constitution, to choose their parliamentary representatives.
There is no general constitutional right of freedom of
expression that overrides defamation laws.

In Theophanous, Mason CJ, Toohey and Gaudron JJ
(with whose answers Deane J agreed) and McHugh J all considered
that the publication without malice of political matters
would generally be protected by the common law defence
of qualified privilege, although McHugh J did not consider
that the defence was available on the facts of that case.
Mason CJ, Toohey and Gaudron JJ considered the point somewhat
academic because of the existence of the constitutional
defence. However, McHugh J said that, in many respects,
the common law defence of qualified privilege goes beyond
the constitutional defence.

Brennan and McHugh JJ dealt with the issue in more detail
in Stephens. Brennan J examined the circumstances
in which a newspaper might properly raise the defence of
qualified privilege. He said that where a newspaper publishes
a defamatory fact as its own statement of the fact, the
defence is unlikely to be available. The newspaper can
usually only avoid liability by proving the truth of what
it has stated. However, where a newspaper publishes a report
of a defamatory allegation by a third party, the defence
of qualified privilege will be available if the publication
is a fair and accurate report of a defamatory statement
made on a matter of public interest (such as matters relating
to government, governmental institutions and politics)
by a third party who is reasonably believed to have particular
knowledge of the defamatory matter and if the defamatory
publication is accompanied by publication of any reasonable
response which the party defamed wishes to make.

McHugh J dealt with the question of when a defamatory
statement on a matter of public interest will be protected
by the common law of qualified privilege if communicated
to the public generally. He said 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. His Honour added that, with the increasing
integration of the social, economic and political life
of Australia, it is difficult to contend that the exercise
of, 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. In the view of McHugh
J, if this legitimate interest of the public is to be properly
served, it must also follow that on occasions persons with
special knowledge concerning the exercise of public functions
or powers or the performance by public representatives
or officials of their duties will have a corresponding
duty or interest to communicate information concerning
such functions, powers and performances to members of the
general public.

McHugh J said that:

'Accordingly, it is now appropriate for the common
law to declare that it is for "the common convenience and
welfare" of Australian society that the existing categories
of qualified privilege be extended to protect communications
made to the general public by persons with special knowledge
concerning the exercise of public functions or powers
or the performance of their duties by public representatives
or officials invested with those functions and powers.'

His Honour gave as examples of circumstances in which
honestly made publications will be protected: the scientist
who discovers that lack of governmental action is threatening
the environment, the 'whistleblower' who observes the bureaucratic
or ministerial 'cover up', and the investigative journalist
who finds that grants of public money have been distributed
contrary to the public interest. Moreover, the defence
of qualified privilege will be available even if the information
is subsequently proved to be incorrect, provided that the
mistake was an honest one.

McHugh J in substance agreed with Brennan J concerning
the availability of the defence to a newspaper which publishes
in good faith apparently reliable information obtained
from a person who has an apparent duty or interest in making
the information available to the public. He added, however,
that the expanded doctrine of qualified privilege which
he put forward should not be extended to cover 'bare defamatory
comment', that is, an expression of opinion unsupported
by any facts (although the comment might still be protected
by the separate common law defence of fair comment).

1.(1992) 177 CLR

2.(1992) 177 CLR

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

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for general information only and should not be relied
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the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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