Legal Practice Briefing

Number 15

8 November 1994


Theophanous v The Herald and Weekly Times Limited and Another
Stephens and Others v West Australian Newspapers Limited
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 material:

  • 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 actions.

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 Law

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 106

2.(1992) 177 CLR 1

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

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact 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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