Legal Briefing No. 40

Number 40

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.

2 (1997) 145
ALR 96; High Court, 8 July 1997

3 (1994) 182 CLR 104
and (1994) 182 CLR 211

4 See Legal
Practice Briefing No. 15, 8 November 1994
(return
to text)

5 145 ALR at 106-107

6,
7 145 ALR at 103

8 145 ALR at 111

9 145 ALR at 115

10 182 CLR 211 at 264

11 145 ALR at 115-116

12 145 ALR at 118

13 145 ALR at 118

Note

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.

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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