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520

HIGH COURT

LANGE

[1997

PLAINTIFF;

CORPOR..

DEFENDANT.

A~D

AUSTRALIAN
ATION

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1997

March 3-7.
July 8
1997

BROADCASTING

Constitutional Law (Cth) - Interpretation - Implications from Constitution


- System of representative and resllonsible govemment prescribed by
Constitution - Implied freedom of communication concerning government and political matters - Whether law infringes implied freedom The Constitution (63 & 64 Vict c 12). ss I, 6. 7, 8,13,24,25,28,49,62,
64,83, 128.

Brennan CJ.
Di.lYt'son.
Touhey',

Gauuflln.
McHugh.
Gummilwand

K>rhy JJ

Defamation - Defences - Qualified privilege - Relationship between


common law and Commonwealth Constitution - Interest of commlwity
in receiving communications concerning government and political
matters Reasonableness of publisher's conduct Malice Defamation Act 1974 (NSW). ss II, 22.
Held, (I) that the Commonwealth Constitution protects that freedom of
communication between the people concerning political or government
matters which enables the people to exercise a free and informed choice
as electors.
Australian Capital Television Pty Ltd v The CommonH'ealth (1992)
177 CLR 106 at 187,232; NatiOlnvide Nell's Pty Ltd v Wills (1992) 177
CLR I at 73; Theophanous v Herald & Weeklv Times Ltd (1994) 182
CLR 104; and StelJhens v West Australian Newspapers Ltd (1994) 182
CLR 21 I, considered.
Per curiam. The freedom to receive and disseminate information
concerning government and political matters is not confined to election
periods.
(2) That the freedom does not invalidate a law whose object is
compatible with the maintenance of the constitutionally prescribed
system of representative and responsible government or with the
procedure for submitting a proposed constitutional amendment to the
people, so long as the law is reasonably appropriate and adapted to
achieving that legitimate object.
Nationwide News Pty Ltd v Wills (1992) 177 CLR I; Australian
Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106;
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104;
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211;
Cunliffe v The Commonwealth (1994) 182 CLR 272; and McGinty v
Western Australia (1996) 186 CLR 140, referred to.
Held, further, (I) that, in proceedings for defamation, the categories of

189 CLR 520]

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qualified privilege in defence of a claim include a communication made


to the public on a government or political matter, including discussion of
government or politics at a State or Territory or local government level.
Toogood v Spyring (1834) I CM & R 181 at 193 [149 ER 1044
at 1050]; Wason v Walter (1868) LR 4 QB 73 at 93; and Stephens v West
Australian Newspapers Ltd (1994) 182 CLR 211 at 264, considered.
(2) That a publisher relying on that category of qualified privilege to
protect a publication that would otherwise have been held to have been
made to too wide an audience must establish that its conduct in making
the publication was reasonable in all the circumstances. As a general
rule, a defendant's conduct in publishing defamatory material will not be
reasonable unless the defendant had reasonable grounds for believing the
defamatory imputation was true, took proper steps so far as they were
reasonably open to verify the accuracy of the material, and did not
believe the imputation to be untrue. The privilege will be defeated if the
plaintiff proves that the publication was actuated by ill will or other
improper motive.
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
at 136-137 and Stephens v West Australian Newspapers Ltd (1994) 182
CLR 211 at 252-253, considered.
CASE STATED under the Judiciary Act 1903 (Cth), s 18.
The Rt Hon David Russell Lange (the plaintiff) was at all material
times a resident of New Zealand and a New Zealand citizen. Between
July 1984 and August 1989 he was the Prime Minister of New
Zealand. On 30 April 1989 he was a member of the New Zealand
Parliament and a Minister of State in New Zealand. On that day the
Australian Broadcasting Corporation broadcast a "Four Comers"
television programme throughout each of the States and Territories of
Australia. The plaintiff commenced defamation proceedings against
the Corporation in the Supreme Court of New South Wales in respect
of the broadcast. He alleged that the matter complained of conveyed
imputations including that he was guilty of abuse of public office and
was unfit to hold public office. By par 10 of its amended defence, the
Corporation pleaded that the matter complained of was published
"(a) pursuant to a freedom guaranteed by the Commonwealth
Constitution to publish material: (i) in the course of discussion of
government and political matters; (ii) of and concerning members of
the parliament and government of New Zealand which relates to the
perfonnance by such members of their duties as members of the
parliament and government of New Zealand; (iii) in relation to the
suitability of persons for office as members of the parliament and
government of New Zealand; (b)(i) in the course of discussion of
government and political matters; (ii) of and concerning the plaintiff as
a member of the parliament of New Zealand and as Prime Minister of
New Zealand; (iii) in respect of the plaintiff's suitability for office as a
member of the parliament of New Zealand and as Prime Minister of

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New Zealand; (iv) in respect of the plaintiff's performance, conduct


and fitness for office as a member of the parliament of New Zealand
and as Prime Minister of New Zealand; (c) in circumstances such that:
(i) if the matter was false (which is not admitted) the defendant was
unaware of its falsity; (ii) the defendant did not publish the matter
recklessly, that is, not caring whether the material was true or false;
(iii) the publication was reasonable; and, by reason of each of the
matters aforesaid, the matter complained of is not actionable." The
Corporation later abandoned sub-pars (a)(ii), (iii), (b)(ii), (iii) and (iv).
The Corporation also pleaded common law qualified privilege in
par 6 of its amended defence, the particulars of which were that
"(a) the matter complained of related to the subjects set out pursuant
to SCR Part 67 rule 18( I )(a) which were subjects of public interest and
political matters; (b) the matter complained of was published to
viewers of 'Four Corners' in the course of a discussion of political
matters and the defendant had a moral and/or social duty to publish the
matter complained of to those members of the public who had a
legitimate interest in the subjects of the matter complained of; (c) the
viewers of the said programme had a reciprocal interest in receiving
this information in relation to the subjects of the matter complained
of". The "subjects of public interest and political matters" referred to
in the particulars were "(a) the economic and social policies of the
Lange and Palmer governments in New Zealand; (b) fund raising by
political parties in New Zealand; (c) donations by businessman to the
New Zealand Labour Party; (d) the role of the plaintiff as Prime
Minister in the Lange Government in New Zealand; (e) the role of the
Plaintiff as a Minister in the Palmer Government in New Zealand;
([) the economic and social policies promoted by the Business Round
Table in New Zealand; (g) the sale of state owned enterprises in New
Zealand to the private sector; (h) the funding of its election campaign
by the New Zealand Labour Party; (i) the relationship between
Ministers in the Lange and Palmer Governments in New Zealand and
leading businessmen in that country; (j) the obligations of a Prime
Minister in New Zealand in relation to the holding of shares; (k) the
awarding of government advertising contracts by the Lange and
Palmer Governments in New Zealand".
On 13 September 1996 the action was removed into the High Court
by order of Toohey, Gaudron and Gummow 11 pursuant to s 40 of the
Judiciary Act 1903 (Cth). On 18 October 1996 Brennan CJ stated a
case reserving the following questions for the consideration of the Full
Court: "(I) Is the defence pleaded in paragraph IO of the Defendant's
Amended Defence bad in law? (2) Is the defence pleaded in
paragraph 6 of the Defendant's Amended Defence bad in law?" The
second question was amended by the Court in the course of argument.

189 CLR 520]

OF AUSTRALIA

The Court heard a demurrer in Levy v Victoria (1) concurrently with


the hearing of this case. At the commencement of the argument a
number of media organisations, an industrial organisation and the
Australian Press Council sought leave to intervene or to appear as
amicus curiae. Submissions made on behalf of those bodies and on
behalf of intervening Attorney-Generals which repeated the arguments
presented by the other parties have been omitted. The submissions
made on the applications for leave to intervene or to appear as amicus
curiae are included in the report of Levy v Victoria (2).

D Graham QC, Solicitor-General for the State of Victoria, (with


him B J Shaw QC and D G Collins), for the Attorney-General for that
State, intervening. Theophanous v Herald & Weekly Times Ltd (3) and
Stephens v West Australian Newspapers Ltd (4) stand for the
proposition that there is a freedom of communication and discussion as
to political matters to be implied from the Commonwealth Constitution
and from the Western Australian Constitution which extends to all
political discussion including that relating solely to State political
matters, and which invalidates all laws including State laws and the
common law which are inconsistent with that freedom. We seek leave
to argue that those decisions are wrong and no such freedom is implied
from either the Commonwealth or the Victorian Constitution. The
decisions concern a fundamental matter of constitutional interpretation
and matters of great importance and wide application. They are not
supported by a long established stream of authority nor do they
represent the settled outcome of a long period of judicial debate. Their
reasoning is contrary to strong dissenting judgments and has been
questioned in later decisions. The majority Justices were divided in
their views. The decisions are fundamentally wrong; they concern the
construction and interpretation of the Constitution; they cannot be
confined to a precise question or circumstances. [He referred to
McGinty v Western Australia (5); Queensland v The Commonwealth (6); Babaniaris v Lutony Fashions Pty Ltd (7); The Commonwealth v Cigamatic Pty Ltd (In liq) (8); Stevens v Head (9); and John v
Federal Commissioner of Taxation (10).]
The Commonwealth Constitution does not expressly refer to
representative government or any freedom of political discussion.

(I)

(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)

(1997) 189 CLR 520.


(1997) 189 CLR 520.
(1994) 182CLR 104.
(l994)182CLR211.
(1996) 186 CLR 140 at 169-170.230-236,289-291.
(1977) 139 CLR 585 at 594, 599, 621, 625.
(1987) 163 CLR 1 at 14.
(1962) 108 CLR 372.
(1993) 176 CLR 433 at 461-462.
(1989) 166 CLR 417 at 438.

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What it refers to is to be found in ss 7 and 24 and, in the case of the


States, ss 106, 107 and 108. Implications can be drawn from those
provisions so far as they are logically or practically necessary, but it is
impermissible to imply a notion of representative government beyond
what the actual language requires and then to make further
implications from that implication (II). Such a process of reasoning
goes beyond matters which are implicit in the text and structure of the
Constitution. It might extend to affect eg planning laws about political
advertising, offensive publications laws or privacy laws. [DAWSON J.
Are you challenging the correctness of Australian Capital Television
Pty Ltd v The Commonwealth (12) and Nationwide News Pty Ltd v
Wills (l3)?] We do not need to. Those cases can be explained as
finding an implied limitation on Commonwealth power alone. There
can be derived from the Constitution a limitation upon legislative and
executive powers which precludes restrictions on communication to
the extent necessary to ensure that the choice made by electors at
federal elections is free and informed, consistent with the system of
representative governments which the Constitution established. Sections 7 and 24 cannot support the implication of a freedom of all
political discussion because some political discussion may relate only
to matters irrelevant to the election of members of the federal
Parliament. [He referred to Theophanous's Case (14).] Nor can they
support the implication of a freedom of political discussion about a
matter on which the Commonwealth has no power, or about the
behaviour of members of a State Parliament in relation to the
performance of their duties. The only proper implication is one
necessary to give effect to ss 7 and 24. Section 49 confers on members
speaking in Parliament exemption from liability for defamation, and it
would be odd if there were also to be found in the Constitution a
further freedom from such liability more generally available, arising
only by implication.
G O'L Reynolds (with him A S Bell), for the plaintiff. [GUMMOW J.
Are we concerned about the Codes as well as the common law?] The
question has been framed to determine whether the defence is good at
common law. The issue might be dealt with by adding the words "in
respect of the publication complained of in New South Wales" at the
end of the second question reserved. [BRENNAN CJ. I make an order
amending the stated case to that effect.]
The orders in Theophanous are in very broad terms. It was not
necessary to decide whether a defence existed relating to discussion of

(II) Theophanous v Herald & Weekly Times Ltd (1994) 182 'CLR 104 at 190. 206;
McGinty v Western Australia (1996) 186 CLR 140 at 168-171, 175-176, 180-185,
230-235, 289-291.
(12) (1992) 177 CLR 106.
(13) (1992) 177 CLR I.
(14) (1994) 182 CLR 104 at 123-124,201.

189 CLR 520]

government and political matters generally, rather than a defence


limited to discussion relating to members of Parliament and the
suitability of persons for office as members. The orders must be read
subject to the discussion of "reasonableness" in the joint judgment (15). They must also be read by reference to the fact that Deane J
expressed his concurrence only with the application of the
constitutional implication to statements about the conduct or suitability
for office of members of Parliament (16). The same applies to his
concurrence in Stephens (17). Alternatively, there is no ratio to the two
cases. [BRENNAN CJ. Deane J agreed with the majority as to the scope
of the constitutional protection but would have gone further.] Our
primary submission is that the essential reasoning is the same.
It was common ground in Theophanous that Nationwide News and
ACTV established that the Constitution contained an implied freedom
of political communication (18). To determine the reasoning of the
four majority Justices on that issue it is necessary to refer to the
judgments in Nationwide News and ACTV. [He referred to Nationwide
News (19); ACTV(20) and Theophanous (21).] [DAWSON J. What is
left of Nationwide News and ACTV on the basis of your submissions?]
That there is an implied freedom of political communication operating
as an inhibition on Commonwealth legislative power. Certain sections
were held to be invalid in the two cases. Beyond that, there is no ratio
because there is no common reasoning among the majority judgments.
Alternatively, they could be upheld on the reasoning of McHugh 1.
Theophanous implies an abstract concept of representative democracy into the Constitution which can be drawn only from the perceived
requirements of the concept of representative democracy. An
implication should not be drawn which is not the result of interpreting
specific language of the Constitution (22). It is impermissible for the
Court to frame an implication from the Constitution which cannot be
said to be necessary for its operation (23). The notion of desirability is

Theophanous's Case (1994) 182 CLR 104 at 137.


Theophanous's Case (1994) 182 CLR 104 at 179.
(1994) 182 CLR 211 at 257.
Theophanous's Case (1994) 182 CLR 104 at 163.
(1992) 177 CLR I at 70-73, 75.
(1992) 177 CLR 106 at 138, 140, 168, 174, 175,210,212.
(1994) 182 CLR 104 at 123, 125, 128, 130, 133,134.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR
129 at 145; McGinty v Western Australia (1996) 186 CLR 140 at 269; Queensland
Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 231.
(23) Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65-67, 118;
McGinty v Western Australia (1996) 186 CLR 140 at 231-236, 269-270; Langer v
The Commonwealth (1996) 186 CLR 302; Australian Capital Television Pty Ltd v
The Commonwealth (the AC1V Case) (1992) 177 CLR 106 at 135; Theophanous's
Case (1994) 182 CLR 104 at 126; Leeth v The Commonwealth (1992) 174 CLR
455 at 486; Queensland Electricity Commission v The Commonwealth (1985) 159
CLR 192 at 212; Victoria v Australian Building Construction Employees' and
Builders' Labourers Federation (1982) 152 CLR 25 at 93; Victoria v The
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)

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antipathetical to the notion of necessity. The Court will not draw


implications from the Constitution which raise political issues. [He
referred to Theophanous (24), Leask v The Commonwealth (25) and
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (26).]
The implication drawn in Theophanous is inconsistent with the power
of Parliament to punish breaches of parliamentary privilege involving
libel on Parliament, conferred by s 49; it has also been suggested that
s 16(3) of the Parliamentary Privileges Act 1987 (Cth), enacted
pursuant to s 49, is inconsistent with the implied freedom (27). That
would make the implied freedom inconsistent with the express terms
of the Constitution, meaning that the implication is impermissible (28).
Deane J in Theophanous (29) did not cite or apply a test of
necessity. The preclusion of an area from the operation of State
defamation laws could not be viewed as a necessary implication from
the Constitution. Holders of high public office are able to sue for
defamation throughout the common law world. [He referred to New
York Times Co v Sullivan (30).] The majority judgment in
Theophanous (31) does not cite or apply a test of necessity. The
defence found by the majority could not be viewed as necessary, given
that it is arguably not a desirable defence. [He referred to
Stephens (32); Manning v Hill (33); Bollinger, Images of a Free Press
(1991), pp 35-36; Soloski and Bezanson, Reforming a Libel Law
(1992); and Australian Law Reform Commission Report, Unfair
Publication: Defamation and Privacy (1979), pars 126, 146.] The
defence is so broad that it cannot be necessary. It applies to political
speech as very broadly defined. It encompasses statements of fact as
well as comments. A potential plaintiff is at great risk as to costs
because the reasonableness of the defendant's conduct cannot be
assessed until interlocutory processes have been completed. The
practical effect will be that the plaintiffs in the area of political speech
will not be protected. That is inimical to representative democracy, not
necessary for its operation.

(23) cont
Commonwealth (1971) 122 CLR 353 at 423; Melbourne Corporation v The
Commonwealth (1947) 74 CLR I at 99; Merchant Service Guild of Australasia v
Commonwealth Steam Ship Owners' Association (1920) 28 CLR 436 at 451;
Atlorney-General (Q) v Attorney-General (Cth) (1915) 20 CLR 148 at 171.
(24) (1994) 182 CLR 104 at 143.
(25) (1996) 187 CLR 579.
(26) (1920) 28 CLR 129 at 142,145,151-152,155,160.
(27) Laurance v Katler (1996) 141 ALR 447 at 482.
(28) Queen.fland Electricity Commission v The Commonwealth (1985) 159 CLR 192
at 212.
(29) (1994) 182 CLR 104 at 178-179, 185-186.
(30) (1964) 376 US 254.
(31) (1994) 182 CLR 104 at 129, 134-135, 137.
(32) (1994) 182 CLR 211 at 244-246.
(33) [199512 SCR 1130 at 1182, 1183-1184; (1995) 12'6. DLR (4th) 129.

189 CLR 520]

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Theophanous is also inconsistent with Nationwide News because, by


inserting defences in the Queensland and Tasmanian Codes, the
decision effectively reads down those Codes, whereas the Court in
Nationwide News (34) held that it was impossible to read down the
legislation in that case and insert a "defence" to save it from
invalidity. The proper question in Theophanous, in so far as the Code
States were concerned, was whether or not the Codes were reasonably
appropriate and adapted to the freedom.
The pleaded particulars of both the constitutional and the common
law defences concern New Zealand rather than Australian government
and political matters, and New Zealand rather than Australian
members of Parliament. Even if the constitutional defence articulated
in Theophanous is good law, the defence as pleaded goes beyond its
ambit. The defendant has purported to abandon certain paragraphs of
its defence by deleting references to New Zealand but there has been
no formal amendment of the defence or the stated case. Once
discussion of New Zealand political matters is protected by the
Constitution, there is nowhere a line can be drawn. The Constitution
draws the line at the territorial boundary. The judgments in
Theophanous talk about Australian politics. The freedom is ultimately
derived from ss 7 and 24 and focuses on the election of parliamentary
representatives in Australia. The fact that the line is difficult to draw is
a reason why the implication should not be drawn in the first place.
[He referred to 50S (Mowbray) Pty Ltd v Mead (35).]
These arguments were not put in Theophanous. A decision can be
overruled when important arguments were not dealt with. The decision
is fundamentally erroneous and raises important constitutional
questions (36). Possible future consequences of the reasoning of the
majority include the implication of further rights based on the concept
of representative democracy, moving beyond defamation to areas like
freedom of movement and association, contempt and governmental
secrecy (37). There are substantial differences in the reasoning of the
majority (38). That reasoning does not rest on a principle worked out
in a series of cases (39). The Court cannot refuse to overrule a
decision which is fundamentally erroneous.

(34) (1992) 177 CLR 1 at 34, 61,80,95,105.


(35) (1972) 124 CLR 529 at 574-575.
(36) Queensland v The Commonwealth (1977) 139 CLR 585 at 599; The
Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 56; AttorneyGeneral (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 244.
(37) ACTV Case (1992) 177 CLR 106 at 212; John Fairfax Publications Pty Ltd v Doe
(1995) 37 NSWLR 81 at 109-110.
(38) Hughes & Vale Pty Ltd v New South Wales [No 1J (1953) 87 CLR 49 at 99-105;
The Commonwealth v Hospital Contribution Fund (1982) t50 CLR 49 at 56-57,
65; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 439.
(39) Australian Agricultural Co v Federated Engine-Drivers and Firemen's
Association of Australasia (1913) 17 CLR 261 at 278; The Commonwealth v
Hospital Contribution Fund (1982) 150 CLR 49 at 56; John v Federal

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The Constitution is concerned with the powers and functions of


government and the restraints upon their exercise, not with the private
rights of individuals under the civil law (40). Section 92 provides an
example. It is difficult to suggest that an implied freedom should be
given a wider operation than the express freedom in s 92. The
Australian Constitution does not contain the language of the United
States Fourteenth Amendment which has caused the Supreme Court to
hold that the Bill of Rights affects some State common law rules
relating to private rights and obligations. [He referred to New York
Times Co v Sullivan (41 ).] To interpret express or implied freedoms in
the Australian Constitution so that they restrain the operation of the
general law upon private rights and obligations would depart from
accepted methods of constitutional interpretation (42).
The common law defence pleaded states that the publisher had a
moral and/or social duty to publish the material to the public who are
said to have a legitimate interest in the subjects of the broadcast. Such
a plea requires particularisation of facts, matters and circumstances
capable of supporting the averment that the publisher was under a
relevant duty to publish the broadcast and the recipients had a
corresponding interest in receiving it. That duty and interest are said to
arise solely by reason of the categorisation of the broadcast as relating
to "subjects of public interest and political matters". Each such
subject and matter relates solely to New Zealand politics. Such a
pleading can be upheld only if the defendant was under a relevant duty
to publish the New Zealand political matters which were the subject of
the broadcast and the Australian public as a whole had a corresponding
interest in receiving such matter. Even if discussion of political matters
is an occasion of qualified privilege at common law, it cannot extend
to the publication to the Australian public of matters relating to New
Zealand politics.
In any event, such a qualified privilege defence is bad in law (43). A
plea of common law qualified privilege must not be made by reference

(39) cont
Commissioner of Taxation (1989) 166 CLR 417 at 438-439; Mellitimt v AttorneyGeneral (Q) (1991) 173 CLR 289 at 328.
(40) James v South Australia (1927) 40 CLR I at 32; James v The Commonwealth
(1938) 62 CLR 339 at 362.
(41) (1964) 376 US 254.
(42) McGinty v Western Australia (1996) 186 CLR 140 at 291; Theophanolls's Case
(1994) 182 CLR 104 at 140, 161-162.
(43) Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749; Nationwide News Pty
Ltd v Wiese (1990) 4 WAR 263; Telegraph Newspapers Co Ltd v Bedford (1934)
50 CLR 632 at 660; Lang v Willis (1934) 52 CLR 637 at 667; Loveday v Sun
Newspapers Ltd (1938) 59 CLR 503 at 513; Truth (NZ) Ltd v Holloway [1960]
NZLR 69; Templeton v Jones [1984] I NZLR 448; Globe & Mail Ltd v Boland
(1960) 22 DLR (2d) 277; Douglas v Tucker [1952] 1 DLR 657; Duncombe v
Daniell (1837) 8 Car & P 222 [173 ER 470]; Blackshaw v Lord [1%4J QB
at 26.

189 CLR 520]

to a broad general fonnula but must be stated by reference to a close


scrutiny of the circumstances of the case, the situation of the parties
and the events surrounding the publication (44). To sanction false and
defamatory comments about candidates for public office would do the
public more hann than good (45). If "political discussion" were the
test, it would potentially protect almost all discussion. Bare defamatory
comment would be protected and the defence of fair comment would
become superfluous (46). A broad plea of discussion of political
matters would, subject only to proof of malice, protect a report which
was not a fair and accurate report of a defamatory statement by a third
party, even where the publisher did not reasonably believe that the
third party had special knowledge of the defamatory matter (47). Any
expansion of the common law along these lines should be left for the
legislature. These matters have regularly been reviewed by law refonn
bodies on behalf of legislatures, which must be taken to have decided
not to change the law (48). Courts should not trespass where a
statutory balance has been adopted. [BRENNAN CJ. The Court has no
option but to detennine the issues before it, which may involve a
development of the common law consistently with any statutory
balance. But fonnulating views on policy questions is no business of
the Court.]
G Griffith QC, Solicitor-General for the Commonwealth, (with him
S G E McLeish and G R Kennett), for the Attorney-General for the
Commonwealth, intervening. The practical result of the decisions in
Theophanous and Stephens was correct, but the majority in each case
reached the result by an inappropriate method. Implications may be
drawn from the text or structure of the Constitution, but not from
assumptions as to the underlying premises or overarching principles
upon which the Constitution is asserted to be founded (49). The
limitation identified in ACTV and Nationwide News restricts the
exercise of State as well as Commonwealth legislative and executive
power, but the principle does not extend to laws relating to the
discussion of matters which are relevant solely to government at the
State level. [DAWSON J. Do you tie the freedom at Commonwealth
level to elections?] Yes, we accept the reasoning of Dawson and
McHugh JJ. The results in ACTV and Nationwide News can be
supported on that basis. Statements in ACTV suggesting that the

(44) Guise v Kouvelis (1947) 74 CLR 102 at 116.


(45) Globe & Mail Ltd v Boland (1960) 22 DLR (2d) 277 at 281; Stephens' Case

(1994) 182 CLR 211

at

245.

(46) Stephens' Case (1994) 182 CLR 211 at 267.


(47) Stephens' Case (1994) 182 CLR 211 at 252, 260.
(48) Reynolds v Times Newspaper Ltd (unreponed; Queen's Bench Division
(French 1); 25 November 1996); C v Director ot Public Prosecutions [1996] 1 AC
1 at

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28.

(49) ACTV Case (1992) 177 CLR 106 at 135; Theophanous's Case (1994) 182 CLR
104 at 198; McGinty v Western Australia (1996) 186 CLR 140 at 188,231-232.

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principle was not limited to freedom of discussion in relation to


Commonwealth matters were obiter and should not be accepted (50).
Even if the interrelationship between different levels of government
makes it impractical or unrealistic to divide matters of public
discussion between those levels, that does not provide the basis for any
further constitutional implication, being a consideration of policy and
circumstance rather than text or structure. The question of whether a
matter of discussion is relevant to the Commonwealth must be
answered when it arises. That part of the decision in Stephens which
held that the freedom of communication identified in ACTV extends
per se to public discussion of the performance, conduct and fitness for
office of members of a State legislature should be overruled (51). That
part of Theophanous which is to the same effect was obiter, as the
plaintiff was a member of the Commonwealth Parliament (52).
There is to be implied from the Commonwealth Constitution a
limitation upon State legislative and executive power which protects
political communication in respect of matters relevant to government
at the State level. This limitation is analogous to that identified in
ACTV and Nationwide News but stands upon different foundations.
The underlying reasoning is the same: a system of representative
government is mandated for the States, as it is for the Commonwealth,
and this requires that laws do not infringe the freedom of political
communication which underpins that system. The implication is
derived from three sets of provisions. The first set refers to State
Parliaments: ss 7, 9, la, 15, 51(xxxvii), (xxxviii), 95, 107, 108, III,
123, 124. The Constitution operates on the footing that each State shall
have a Parliament (53). "Parliament" takes its meaning for these
purposes from the characteristics of colonial legislatures immediately
before federation. In each case, there was a system of representative
government under which ultimate power rested with the people, to be
exercised by their representatives elected periodically in free elections
to a legislature (54). Secondly, other provisions of the Constitution
refer to electors or elections for State Parliaments: ss 10, 25, 29, 30,
31, 41, 128. [BRENNAN CJ. Why does the existence of an elected
Parliament require an informed choice by electors?] The constitutional
mandate requires democratic elections. Thirdly, the Constitution refers
to "the people" as having taken the decision to create an
"indissoluble Commonwealth". In giving their assent to the Constitution, from which the State Constitutions now derive their authority,
the people did not empower State Parliaments to abandon representa-

AC7VCase(1992) 177CLR 106 at 142, 168-169,216-217.


StepheTlS' Case (1994) 182 CLR 211 at 232, 257.
Theophanous's Case (1994) 182 CLR 104 at 122-123,164.
McGinty v Western Australia (1996) 186 CLR 140 at 293; Kable v Director of
Public Prosecutions (NSW) (1996) 189 CLR 51.
(54) McGinty v Western Australia (1996) 186 CLR 140 at 242-243, 272-273; see also
at 182, 201, 247-248.
(50)
(51)
(52)
(53)

189 CLR 520]

tive government. This character of the constituent bodies of the


federation is essential to the integrity of the constitutional structure.
[He referred to ACTV (55) and McGinty (56).] [DAWSON J. Section
106 allows the State constitutions to be changed according to their
terms.] The Constitution requires representative government at State
level. [DAWSON J. Section 10 mentions both Houses of State
Parliaments. Must a Parliament have two Houses?] No. But Clayton v
Heffron (57) perhaps is wrong to hold that one House can be
abolished.
The protection afforded to communications relating to political
matters is not absolute. A test of proportionality determines whether a
law which restricts political communication contravenes the
constitutional implication (58). Where the law restricts the communication of particular ideas, it will require a compelling justification, but
where only the manner of communication is restricted the law will be
more easily upheld (59). The Defamation Act 1974 is appropriate and
adapted to the achievement of the legitimate purpose of protecting
reputation. Parliament must be given a measure of latitude in
determining the appropriate balance between the interests of society
and those of the individual.
The implication is a guarantee of representative government not of
individual rights. It operates as a limitation on legislative power but is
not truly a personal freedom or guarantee (60). It has no automatic
effect upon private rights and obligations under the common law.
There can be no inconsistency between the implied limitation and the
common law because each operates in a separate sphere (61). It is
therefore not appropriate to require the Constitution and the common
law to conform in this context. The common law may bend to
accommodate the Constitution but the resulting legal principle does
not become a doctrine of constitutional law. In any event, the common
law is not inconsistent with the limitation even if a proportionality test
were to be applicable. The accumulated wisdom of the courts on the
question of where the balance is to be struck regarding free speech and
reputation is not inconsistent with the existence of representative
government in the form required by the Constitution. Like other
statutes, the Constitution is presumed not to alter the common law
unless the intention to do so is plain (62).

(55)
(56)
(57)
(58)
(59)

531

OF AUSTRALIA

(1992) 177 CLR 106 at 135, 138.


(1996) 186 CLR 140 at 168,231.
(1960) 105 CLR 214.
Nationwide News Case (1992) 177 CLR I at 50, 77, 95.
ACTV Case (1992) 177 CLR 106 at 143, 150-151, 169; Cunliffe v The
Commonwealth (1994) 182 CLR 272 at 299, 337, 383, 388.
(60) Theophanous's Case (1994) 182 CLR 104 at 147-149.
(61) Theophanous's Case (1994) 182 CLR 104 at 153-155; Hill v Church of
Scientology [1995] 2 SCR 1130 at 1l70-117 I.
(62) Theophanous's Case (1994) 182 CLR 104 at 126-128, 165-166.

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If the implication entered the sphere of common law rights, it must


be in principle be capable of founding actions as well as defences,
such an action against a defendant alleged to have prevented the
plaintiff from engaging in political discussion. The express freedoms
found in the Constitution operate instead as limitations on legislative
power; an implication which operates as a source of private law rights
would be inconsistent with that general framework of the Constitution,
rather than necessary to support it. This is also the position in Canada.
[He referred to the Constitution, ss 51 (ii), 51 (xxxi), 90, 92, 99, 116,
117; Re Alberta Statutes (63); Switzman v Elbling (64); Manning v
Hill (65); and Santow, "Aspects of Judicial Restraint" (66).] An
argument that the implications limit the common law because they
limit judicial power, in the same way as legislative or executive power,
is misconceived. The exercise of judicial power consists in the
ascertainment of legal rules and their application to disputes between
parties. Limitations on the decisions of a court are derived from
common law and statute but not from limitations upon judicial power
itself. The different United States position derives from the language
of the Fourteenth Amendment which has no Australian counterpart (67). Moreover, the notion of representative government involves
the legislative and executive branches, but not the judiciary. The
requirement of free elections has no direct bearing on the judicial
function.
The common law defence of qualified privilege should be extended
to cases where the defamatory material is published in the course of
discussion of governments and political matters. It is proper to modify
the common law so as to make it operate more fairly or efficiently and
keep it consonant with contemporary values (68). Courts have taken a
restricted view of the defence of qualified privilege (69). The analysis
of McHugh J in Stephens shows that the reciprocity of duty or interest
which is the conceptual foundation of the common law defence is not
absent merely because the communication is made to the public at
large. There is no conceptual leap in extending the common law
defence to embrace communications made to the public in the course
of discussion of political matters. The quality of life and freedom of

(63)
(64)
(65)
(66)
(67)

[1938] SCR 100; [1938] 2 DLR 81.


[1957] SCR 285; (1957) 7 DLR (2d) 337.
[1995] 2 SCR 1130; (1995) 126 DLR (4th) 129.
Australian Bar Review, vol 13 (1995) 116, at p 140.
See New York Times v Sullivan (1963) 376 US 254 at 265; Shelley v Kraemer
(1948) 334 US 1 at 17-19; Griffin v Maryland (1964) 378 US 130; Evans v
Newton (1966) 382 US 296; Barrows v Jackson (1953) 346 US 249; Moose LodRe
v lrvis (1972) 407 US 163.
(68) Dietrich v The Queen (1992) 177 CLR 292 at 319-320.
(69) Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 513; Radio 2UE Sydney Pry
Ltd v Parker (1992) 29 NSWLR 448 at 461; Australian BroadcastinR Corporation
v Comalco Ltd (1986) 12 FCR 510; Stephens' Case (1994) 182 CLR 211 at 242245.264.

189 CLR 520]

OF AUSTRALIA

ordinary Australians depends on the exercise of functions and powers


by government bodies and officials, and it should be recognised that
the common law defence protects communications which playa role in
informing citizens about governments and political matters. [He
referred to Lingens v Austria (70).] The common law should recognise
that every member of the community has a protected interest in
sharing his or her knowledge of and views on political matters, and a
social duty to share that knowledge and those views, and that every
member of the community shares the interest of other members in
propagating statements about such matters. Statements about such
matters should be regarded as made on occasions of qualified
privilege, irrespective of how widely published, unless they are shown
to be actuated by malice. An ancillary privilege should extend to
media organisations which publish statements of the kinds
mentioned (71). There is no reason to distinguish for these purposes
between different levels of government, or to exclude discussion of
political affairs in other countries or the affairs of international
organisations.

P A Keane QC, Solicitor-General for the State of Queensland, (with


him R W Campbell), for the Attorney-General for that State,
intervening. To rely upon doctrines underlying the Constitution is to
rely upon suppositions and expectations outside the Constitution,
inconsistently with the approach affirmed in the Engineers' Case (72).
An implied licence to publish defamatory matter is not supported by
the text and structure of the Commonwealth or any State Constitution (73). The constitutional implication of free speech does not
affect the rights and duties of individuals under the general law (74).
An implication of freedom of communication in respect of political
matters may be derived from the text and structure of either the
Commonwealth or a State Constitution (75). An implication of
freedom of communication may exist with respect to federal
elections (76). The majority approach in Theophanous and Stephens
should be reconsidered and overruled. [He referred to Brisbane TV Ltd

(70) (1986) 8 EHRR 407.


(71) Stephens' Case (1994) 182 CLR 211 at 266.
(72) Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR
129.
(73) AC7V Case (1992) 177 CLR 106 at 150, 186-187,233-234; Theophanous's Case
(1994) 182 CLR 104 at 153, 190-191, 196; Stephens' Case (1994) 182 CLR 211
at 235-236,258,259; McGinty v Western Australia (1996) 186 CLR 140 at 168170, 175, 180-185, 230-236, 285, 291.
(74) James v The Commonwealth (1938) 62 CLR 339 at 362; the ACTV Case (1992)
177 CLR 106 at 150; Theophanous's Case (1994) 182 CLR 104 at 153-154, 159,
192-193, 196,205; Stephens' Case (1994) 182 CLR 211 at 235-236; McGinty v
Western Australia (1996) 186 CLR 140 at 233-234, 286, 289-290.
(75) McGinty v Western Australia (1996) 186 CLR 140 at 175-176,269,279,284-286.
(76) AC7V Case (1992) 177 CLR 106 at 227, 231-233, 235.

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v Criminal Justice Commission (77);


Gobitis (78) and West Virginia Board
The Commonwealth Constitution does
with the requirements of ss 7 and
Commonwealth is affected.

[1997

Minersville School District v


of Education v Barnette (79).]
not purport to affect the States
24 in the same way as the

B M Selway QC, Solicitor-General for the State of South Australia,


(with him J P Gill), for the Attorney-General for that State,
intervening. If the decision or the reasoning of the majority in
Theophanous is reconsidered, it should not be followed. A principle of
representative government is implied in the Commonwealth Constitution. This involves certain further implications, including that the
people are informed about what their representatives are doing, that
they can communicate with each other about their representatives, that
they can communicate with their representatives, and that they can
make a true choice when electing them (80). The majority in
Theophanous were in error. First, the implication identified cannot be
construed from the context or text of the Constitution (81). The
implied freedom of communication in relation to political discussion,
creating a right and not just consisting in a limitation on power, cannot
logically or necessarily be implied. Issues such as reputation cannot be
taken into account in a balancing exercise to identify a constitutional
implication because the Constitution does not protect reputation. The
correct implication was identified by Brennan J (82). There is a
freedom from any legislative or executive infringement of the
discussion of governments and political matters except to the extent
necessary to protect other legitimate interests. A restriction on
communication is valid if it is appropriate and adapted, or reasonably
capable of being viewed as appropriate and adapted, to a legitimate
purpose and is not disproportionate to the object sought to be
achieved (83). [DAWSON J. Do not ss 7 and 24 require only a choice
by electors?] They require more: representatives. Because of the
relationship between representative and represented, there needs to be
a freedom of communication of the kind suggested. The only

(77)
(78)
(79)
(80)

Unreported; Court of Appeal Q; 17 September 1996, at 3-6.


(1940) 310 US 586.
(1943) 319 US 624.
Nationwide News Case (1992) 177 CLR I at 72; the AC1V Case (1992) 177 CLR
106 at 138-139, 174,212,231-232.
(81) ACTV Case (1992) 177 CLR 106 at 135, 181-182, 227; Theophanous's Case
(1994) 182 CLR 104 at 149-150, 193-194, 194-195; the Nationwide News Case
(1992) 177 CLR 1 at 41; Stephens' Case (1994) 182 CLR 211 at 232.
(82) Nationwide News Case (1992) 177 CLR I at 50-51; Theophanous's Case (1994)
182 CLR 104 at 147150; Muldowney v South Australia (1996) 186 CLR 352
at 365-366.
(83) ACTV Case (1992) 177 CLR 106 at 143-144, 150, 157, 159, 160, 217-221;
Cunliffe v The Commonwealth (1994) 182 CLR 272 at 300, 302-303, 323-324,
371-372, 387-388; Langer v The Commonwealth (1996) 186 CLR 302 at 318,
334; Muldowney v South Australia (1996) 186 CLR 352 at 366-367,374,375-376.

189 CLR 520]

OF AUSTRALIA

implication of representative government within the Constitution


relates to the representative government of the Commonwealth. There
is no implication of representative government at State level (84). The
question of whether a matter is a Commonwealth or a State matter or
both is one of fact (85).
Even if the majority in Theophanous were correct in identifying an
implication at variance with the common law and statute law
respecting defamation, the methodology used to determine the effect
of that implication upon the common law was wrong. The common
law is "abrogated" to the extent it is inconsistent with the
Constitution or a statute (86). The majority "reformed" the common
law by a "balancing" exercise to ensure that it still applied to the
greatest extent possible for the protection of reputation. While the
Constitution may permit the protection of reputation by the common
law or statute, it does not logically or necessarily require it. The
majority should have held that the implication abrogated the common
law of defamation to the extent that it applied to relevant
communications. If the common law is to be developed in this area, it
is not clear why that should happen only in the context of the
constitutional implication.
R J Meadows QC, Solicitor-General for the State of Western
Australia, (with him P D Quinlan), for the Attorney-General for that
State and for the Attorney-General for the Northern Territory,
intervening. The ratio of ACTV is confined to the maintenance of
freedom of communication in the context of Commonwealth electoral
processes (87). The decision in Nationwide News may be supported on
the basis that the law could not be characterised as a law within the
meaning of s 51(xxxv) or s 51(xxxix) (88). In extending the principle
in ACTV beyond Commonwealth electoral processes and holding that
the implication affected the common law, Theophanous and Stephens
were incorrect and should be reconsidered.
The constitutional implication is anchored in ss 7 and 24 and is
limited by those provisions, extending only to ensure their efficacy. To
derive an implication from a principle of representative democracy or
representative government departs impermissibly from the text and
structure of the Constitution. A limitation is not to be implied in a
grant of constitutional power if the words of the grant can be construed

(84)

(85)
(86)
(87)
(88)

Theophanous's Case (1994) 182 CLR 104 at 201; Stephens' Case (1994) 182
CLR 211 at 235; McGinty v Western Australia (1996) 186 CLR 140 at 206-210,
216, 289-294; Muldowney v South Australia (1996) 186 CLR 352 at 365, 370,
373-374, 375.
Theophanous's Case (1994) 182 CLR 104 at 156.
Theophanous's Case (1994) 182 CLR 104 at 153.
ACTVCase(l992) 177CLR 106 at 187,230-232.
Nationwide News Case (1992) 177 CLR I at 34, 91, 105; cf at 95.

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without it (89). Sections 7 and 24 are principally concerned with


electoral processes. Voting and participation in electoral processes are
the basis for the implication (90). It is not logically or practically
necessary for the proper exercise of the constitutional function of
voting that freedom of political communication extend beyond the
context of a citizen's electoral choice. While a law operating outside
an election period may affect electoral choice inconsistently with the
requirements of ss 7 and 24, such cases will be rare. The same
approach applies to the Constitution Act 1889 (WA), with the
qualification that the State provisions must be interpreted and applied
in the context of a plenary grant of power rather than a grant limited to
particular subject matters (91).
The majority approach in Theophanous should not be followed. It
fails to have regard to the common law's built-in mechanism for
change to reflect contemporary values generally, rather than only
values associated with representative government. The common law
develops as values change and is not limited to "necessary" changes.
The majority approach posits that the common law may be
inconsistent with the structures created by the Constitution. It is
axiomatic that the common law reflects contemporary values, and so
the balance it strikes between freedom of communication and other
values cannot be inconsistent with the Constitution. The common law
as the antecedent jurisprudence informs the content of any implied
freedom derived from the Constitution (92). A statute is presumed not
to affect common law rights or depart from the general law without
express words or necessary implication (93). A constitutional standard
not dictated by the text and structure of the Constitution or by the
common law must impermissibly be derived from principles or
theories extrinsic to the Constitution.
Since the content of the implication is limited to protection of the
electoral process, the possibility of a State law undermining the
freedom is minimal, if it exists at all. R v Smithers; Ex parte

(89) Amalgamated Society III Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR
129 at 145, 162; the AC7VCase (1992) 177 CLR 106 at 215.
(90) AC7V Case (1992) 177 CLR 106 at 145, 187, 218, 231-232; Nationwide News
Case (1992) 177 CLR I at 50-51; Theophanous's Case (1994) 182 CLR 104
at 149, 190,204.
(91) Western Australia v Wilsmore (1981) 149 CLR 79 at 99.
(92) Cheatle v The Queen (1993) 177 CLR 541 at 552.
(93) Poller v Minahan (1908) 7 CLR 277 at 304; Balog v Independent Commission
Against Corruption (1990) 169 CLR 625 at 635-636; Coco v The Queen (1994)
179 CLR 427 at 436.

189 CLR 520]

OF AUSTRALIA

Benson (94) concerned movement of persons within the federation and


offers no support for an implied freedom confining State legislative
power. The limitations restricting State legislative power are only
those necessary for the protection of the structures of the Commonwealth (95). To confine the powers of the States generally by reference
to limitations on Commonwealth power would be contrary to the
plenary nature of State power. The existence of provisions limiting
Commonwealth but not State power shows that a limitation imposed at
one level need not apply at another. [He referred to the Constitution,
ss 51 (xxxi), 80, 116; Barron v Baltimore (96); and Malloy v
Hogan (97).] A State law which interfered with a constitutionally
mandated aspect of Commonwealth representative government would
operate to destroy or curtail the continued existence of the
Commonwealth or its capacity to function as a government (98). A
law which impacts adversely on freedom of expression may for that
reason not be able to be characterised as a law with respect to a
particular head of power (99).
L S Katz SC (with him C J Birch), for the Attorney-General for
New South Wales, intervening. The Court should not reconsider the
correctness of Theophanous and Stephens. They have been acted upon
by those publishing statements concerning federal and State Parliamentarians. There is no suitable vehicle to reconsider their correctness.
The Court should not reconsider its decisions unless circumstances
compel it (100). The ratio of Theophanous is found in the legal
propositions in the answers to the questions. However, the authority of
Theophanous does not extend beyond cases in which the plaintiff is a
member of the Commonwealth Parliament (101). The answers to
question 1 in Theophanous are to be read so that to make out the
defence par (a) must be established along with either par (b) or
(c) (102). In Stephens, Deane J did not adhere to his previous views

(94) (1912) 16 CLR 99.


(95)

McGinty v WesTern AUSTralia (1996) 186 CLR 140 at 176. 189.210,251.293:


Muldowney v SoulhAusTralia (1996) 186 CLR 352 at 365, 377.

(96) (1833) 7 Pet 242 at 247.


(97) (1964) 378 US I at 4.
(98)

Re Australian Education Unioll; Ex parle Victoria (1995) 184 CLR 188 at 231:
ACTV (1992) 177 CLR 106 at 243: Theophanous (1994) 182 CLR 104 at 190:
Queenslalld Electricity Commissioll v The CommonwealTh (1985) 159 CLR 192

at 214.
(99) Davis v The Commollwealth (1988) 166 CLR 79.
(100) H C Slei[?h Ltd v South Australia (1977) 136 CLR 475 at 513: Hu[?hes & Vale Pty
Ltd v New South Wales (1953) 87 CLR 49 at 102: Arizolla v Rumsey (1984) 467

US 203 at 212.
(101) Theophanous's Case (1994)

182 CLR 104 at 134, 187-188: Cassimatis,


"Defamation - The Constitutional Public Officer Defence", TorI Law Rnielt',
vol 4 (1996) 27.
(102) Theophallous's Case (1994) 182 CLR 104 at 133-138.

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and accepted the reasons of the joint judgment (103). However, the
authority of Stephens does not extend beyond cases where the plaintiff
is a member of a State Parliament. Stephens is not authority for the
conclusion that the Western Australian Constitution contains an
implication affecting defamation law (104) or one like that identified
in ACTV and Nationwide News. In so far as Stephens provides
majority obiter support for the proposition that a State Constitution
may contain an implication like that in ACTV and Nationwide News,
the proposition depends on the Constitution's containing an entrenched
"chosen directly by the people" clause (105). If there is no ratio in
Theophanous or Stephens, the Court is bound to apply the decisions in
circumstances which are not reasonably distinguishable from those
which gave rise to the cases (106). In either event, neither case allows
for a defence where the publication does not concern Australian
political discussion. Hence there is no basis for reconsidering them.
The references in the judgments to the indivisibility of political
discussion depend on the Australian federal system and do not
embrace discussion of overseas political matters (107).
If the Court reconsiders Theophanous and Stephens and decides to
overrule them, it should adopt the approach to the common law of
defamation contended for by the Attorney-General for the Commonwealth.

J J Spigelman QC (with him M G Sexton and S J Gageler), for the


defendant. The plaintiff's submissions and the judicial criticisms of
Theophanous do not accept the reasoning of ACTV and Nationwide
News and must be rejected on that basis. Each Justice who held the
constitutional freedom to exist, other than McHugh J, reasoned that the
structure and text of the Constitution (including ss 7 and 24) embody a
system of representative government or democracy (108). The efficacy
of that system requires the implication of a constitutional freedom of
political communication (109). That freedom cannot be limited to
communication during an election campaign or in relation to matters

(103) Stephens' Cuse (1994) 182 CLR 211 at 257.


(104) Stephens' Cuse (1994) 182 CLR 211 at 236,257-258,259.
(105) Stephens' Cuse (1994) 182 CLR 211 at 236; Brisbune TV Ltd v Criminul Justice
Commission (unreported; Court of Appeal (Q); 17 September 1996) at 15ff.
(106) Re lyler; Ex purte Foley (1994) 181 CLR 18 at 35-37,39.
(107) Nutionwide News Cuse (1992) 177 CLR I at 75-76; the ACTV Case (1992) 177
CLR 106 at 142. 168-169,215-217; Theophunous's Cuse (1994) 182 CLR 104
at 122-123, 164; Stephens' Cuse (1994) 182 CLR 211 at 232.
(108) ACTV Cuse (1992) 177 CLR 106 at 135, 137-138, 140, 162-163,208-210,212;
the Nutionwide News Cuse (1992) 177 CLR I at 47,70-72; Theoplll1nou.'s Cuse
(1994) 182 CLR 104 at 126, 130, 184-187.
(109) ACTV Case (1992) 177 CLR 106 at 138-140,212-214; the Nationwide News Case
(1992) 177 CLR I at 47-50, 72-73; TheophilllOuS'S Cuse (1994) 182 CLR 104
at 122-123, 125, 128, 130, 133, 137; Melbourne Corporatio/l v The
COl1ll1lo!Hreulth (1947) 74 CLR 31 at 83.

189 CLR 520]

OF AUSTRALIA

of merely Commonwealth concern (110). The decision in


Theophanous is correct because the freedom of communication
necessary for the integrity and efficacy of the system of government
mandated by the Constitution could otherwise be rendered ineffective
by a rule of common law or statute. [He referred to Theophanous's
Case (III ).] Accordingly, all laws with such an operation are
impermissible to the extent of the inconsistency with the implied
freedom. Alternatively, the constitutional freedom limits the judicial
power to create and define the common law, and not only legislative
and executive power (112). Likewise, a constitutional freedom from
impediments upon electors informing themselves and receiving
information and comment upon matters of political interest (113), or a
freedom essential to ensure a genuine choice of representatives by
electors as posited by Dawson and McHugh 11, must both be intended
to be effective and the common law and statute must not impede them.
It is not correct that the Constitution does not affect private rights and
obligations. Section 49 expressly confers parliamentary privilege,
including the privilege not to be impeached in any Court concerning
what is said in Parliament (114), and Ch III impliedly confers judicial
immunity from suit (115). The constitutional freedom is properly
characterised as an immunity not a right (116). It is subject to express
terms including s 49.
The majority in Theophanous and Stephens did not identify any
free-standing right in the Constitution (117). Deane J adopted the same
scope for the freedom as the majority but would have gone
further (118). Both majority judgments ask first what is the implication
and then whether there is inconsistency between the freedom and the
common law, applying the Constitution to particular rules of law. They
then identify an area within which the common law can operate
consistently with the freedom. The judgments applied a test of

(110) ACTV Case (1992) 177 CLR 106 at 142. 162-163, 168-169,215,216-217; the
Nationwide News Case (1992) 177 CLR I at 50, 53, 72, 75-76.
(111)(1994) 182CLR 104 at 130.
(112) Shelley v Kraemer (1948) 334 US 1; Cohen v Cowles Media Co (1991) 115 Law
Ed 586 at 596.
(113) McGinty v Western Australia (1996) 186 CLR 140 at 286.
(114) Sankey v Whitlam (1978) 142 CLR I at 37; R v Richards; Ex parte Fitzpatrick &
Browne (1955) 92 CLR 157 at 164; Holding v Jennings [1979] VR 289 at 290291; Australian Broadcasting Corporation v Challerton (1986) 46 SASR 1 at 1718; Chenard & Co v Arissol [1949] AC 127 at 133-134; Aboriginal Legal Service
ot" Western Australia v Western Australia (1993) 9 WAR 297 at 310-312.
(115) Gallo v Dawson (1988) 63 ALJR 121; 82 ALR 401; Gallo v Dawson (No 2J
(1992) 66 ALJR 859; 109 ALR 319; Yeldham v Rajski (1989) 18 NSWLR 48
at 58-59.
(116) A CTV Case (1992) 177 CLR 106 at 150; Theopl1l1nous's Case (1994) 182 CLR
104 at 167-168.
(117) Theophanous's Case (1994) 182 CLR 104 at 120-121; Stephens' Case (1994) 182
CLR 211 at 232.
(118) Theophallous's Case (1994) 182 CLR 104 at 166.177,187-188,208.

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necessity to the first step; it was not necessary to do so in relation to


the second or third. [BRENNAN CJ. Does not the second step proceed
on the footing of an articulation different from the constitutional text'?]
The judgments use representative government as a shorthand
description but apply the text (119). Deane and Toohey JJ in ACTV
and Nationwide News did not rely solely on an implication at a
secondary level drawn from the implication of representative
government (120). Even if they had, that approach is not wrong. Once
a term is implied, as in a contract, it is part of the document available
to be used and for other parts of the document to operate on it. Taking
into account an implication in that way is not relying on something
external in the Engineers sense. [DAWSON J. How do you choose
which form of representative government is implied in the Constitution'?] The problem is the same as with s 92; there are many forms of
freedom of trade. It is to be worked out through development of the
law.
The ratio of Theophanous is contained in the orders but goes
further. The case is authority for three propositions. First, the
Constitution prevails over the common law in the case of inconsistency. Secondly, there is an inconsistency between the Constitution and
the common law of defamation. Thirdly, the inconsistency applies to
all political communications not protected by the area of immunity
referred to in the defence in order 2. The paragraphs in the answer to
question 1 are to be read disjunctively. The beginning to question 2
indicates this. Paragraph (a) is the constitutional provision in its fullest
breadth, restating what was identified in ACTV and Nationwide
News (121). In question 2 the Court was asked whether the freedom
was subject to a condition that the publication would not be actionable.
It declined to subject the freedom to a condition but held that the
publication would not be actionable in the light of the freedom. It
thereby avoided constitutional ising the facts. The effect of the
constitutional implication on State defamation statutes is determined
by interpretation of legislation provisions. [He referred to the Acts
Interpretation Act 1954 (Q), s 9 and the Acts Interpretation Act 1931
(Tas), s 3.]
The Court has recognised that the Constitution embodies significant
principles which are not exhaustively spelt out but are implied from its
language and structure, each giving rise to specific limitations and
immunities: the rule of law (122); the separation of judicial

(119) The0l'}wnou.<s Case (1994) 182 CLR 104 at 149.


(120) Nationwide News Case (1992) 177 CLR 1 at 69-72: 77: the ACTV Case (1992)

177 CLR 106 at 168.


(121) Theol'hwlOus's Case (1994) 182 CLR 104 at 119.121,186.
(122) Australian Communist Party v The Commonwealth (1951) 83 CLR I at 193:
Victoria v The Commonwealth (1975) 134 CLR 338 at 379-380; O'Toole v
Charles David Pty Ltd (1991) 171 CLR 232 at 251-252.

189 CLR 520J

OF AUSTRALIA

power (123); and federalism (124). The implication of freedom of


political communication is a fourth such principle. It is not contrary to
the reasoning in the Engineers' Case but complements it. The majority
judgment in the Engineers' Case is partly based on the notion that the
political system established by the Constitution provides the primary
mechanism for constraining the exercise of government power. By
protecting the operation of the political system, the implication of
freedom of political communication reinforces that constraint.
Responsible government was described in the Engineers' Case as
something which must be taken into account in determining the
meaning of the language of the Constitution (125). [He referred to
Federal Commissioner of Taxation v Munro (126); Sawer, "State
Statutes and the Commonwealth" (127); Gageler, "Foundations of
Australian Federalism and the Role of Judicial Review" (128); Zines,
The High Court and the Constitution (129); Fraser, "In Defence of
Republicanism: A Reply to George Williams" (130); ACTV (131 ).]
Leave should not be granted to reopen Theophanous. There were no
substantial differences in the reasoning of the majority. It rests on
principles expounded in ACTV and Nationwide News. The decision
was reaffirmed in Stephens. It has been criticised only by Dawson and
McHugh 11, who dissented. It does not necessarily have the effect of
implying further rights into the Constitution, as McGinty shows. [He
referred to Queensland v The Commonwealth (132).J The whole Court
heard full argument and gave reasoned judgments dealing with the
arguments including the matters now put on behalf of the plaintiff. [He
referred to Stephens (133) and Theophanous(l34).] Brennan J agreed
with the majority that the Constitution prevailed over inconsistent

(123) R v Kirby; Ex parte Boilermakers' Society o(Australia (1956) 94 CLR 254 at 289;
(1957) 95 CLR 529 at 544; Grol/o v Palmer (1995) 184 CLR 348; Wilson v
Minister filf Abori/?inal and Torres Strait Islander Aflilirs (1996) 189 CLR I;
Kable v Director (i( Public Prosecutions (1996) 189 CLR 51.
(124) Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; Queensland
Electricity Commission v The Commonwealth (1985) 159 CLR 192; Westem
Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373
at 476-482; Re Australian Education Union; Ex parte Victoria (1995) 184 CLR
188; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187
CLR 416 at 518-521.
(125) Amal/iammed Society of En/iineers v Adelaide Steamship Co Ltd (1920) 28 CLR
129 at 146; Commofl\vealth v Krer;lin/ier & Fernau Ltd (1926) 37 CLR 393
at 413.
(126) (1926) 38 CLR 153 at 178.
(127) Tasmanian University Law Review, vol I (1962) 580, at p 585.
(128) Federal Law Review, vol 17 (1987) 162, at pp 181-190.
(129) 4th ed (1997), p II.
(130) Federal Law Reriew, vol 23 (1995) 362, at pp 272-373.
(131) (1992) 177 CLR 106 at 139- I40.
(132) (1977) 139 CLR 585 at 599-600, 603.
(133) (1994) 182 CLR 211 at 220, 222, 223, 224.
(134) (1994) 182 CLR 104 at 108, I 12, 117.

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common law, but saw no inconsistency. This is a matter on which


differences of opinion are to be expected (135). The only change that
has occurred is in the composition of the Court. The media have
adapted their practice to accord with the constitutional freedom,
without evidence of adverse consequences.
If leave is given, Theophanous should not be overruled. [He referred
to John v Federal Commissioner of Taxation (136); Queensland v The
Commonwealth (137); Jones v The Commonwealth (138); Pratt,
"When Will a Supreme Court Overrule its Own Decision?" (139);
Harris, ''Towards Principles of Overruling - When Should a Final
Court of Appeal Second Guess?" (140); and Horrigan, ''Towards a
Jurisprudence of High Court Overruling" (141 ).]
It is impossible to limit the implied freedom to political discussion
on matters of merely Australian domestic affairs or to matters of
merely Commonwealth concern, or to subdivide political discussion
generally (142). The flow of political information, ideas and debate
relevant to Australian political discussion extends to include information, ideas and debate in relation to other countries, especially those
with which Australia has close relations and those with similar
political systems. Discussion of political matters within New Zealand
is directly relevant to representative government in Australia because
Australia's relationship with New Zealand is a subject of political
discussion in Australia. Alternatively, experience of political matters
within New Zealand can inform debate within Australia about the
same subject matter. [He referred to Webb v Times Publishing Co
Ltd (143) and Kirby and Joseph, ''Trans-Tasman Relations Towards 2000 and Beyond" in Joseph, Essays on the Constitution (144).]
The Court should recognise that publication of political matter is a
category of qualified privilege and that the relationship between the
media and its audience satisfies the test of reciprocity with respect to
political communication. [He referred to Theophanous (145);
Stephens (146); Toogood v Spy ring (147); Harrison v Bush (148);

(135)
(136)
(137)
(138)
(139)
(140)
(141)
(142)

(143)
( 144)
(145)
(146)
(147)
(148)

Queensland v The CO/ll/llo/HI'ealth (1977) 139 CLR 585 at 603,


(1989) 166 CLR 417 at 438-439.
(1977) 139 CLR 585 at 599-600,603.
(1987) 61 ALJR 348 at 349.
Australian Law Journal, vol 52 (1978) 304, at pp 310-315.
Oxtilrd Journal otLelial Studies, vol 10 (1990) 135.
Australian Law Journal, vol 66 (1992) 199.
ACTV Case (1992) 177 CLR 106 at 215-217; Theophanous's Case (1994) 182
CLR 104 at 122-125.
[1960] 2 QB 535 at 563, 568-570.
(1995), pp 129-157
(1994) 182 CLR 104 at 140.
(1994) 182 CLR 21 I at 251-252. 264-266.
(1834) 1 CM & R 181 at 193 [149 ER 1044 at 1049-1050].
(1855) 5 EI & BI 344 at 348 [119 ER 509 at 512].

189 CLR 520]

Adam v Ward (149); Howe & McColough v Lees (150); and the
Australian Broadcasting Corporation Act 1983 (Cth), ss 6(1)(a), 27.]
The line of authority which restricts the availability of qualified
privilege finds its origins in a time when the role of the media in
transmitting information and opinion was not as significant as now, or
not recognised to be so. The media has become the point of first
recourse for a large area of political debate by persons in government,
those attacking government and representatives of community organisations. Since the defence is founded on the common convenience and
welfare of society (151), it should be available to protect the flow of
information and ideas about political issues, which flow is an essential
part of the proper functioning of the Australian political system.
[BRENNAN CJ. Might not equally the influence of the media put
individual reputation more greatly at risk than before?] That is part of
the contribution of the media. It cannot play its proper role in the
political system if it always runs the risk of having to prove truth. [He
referred to Theophanous's Case (152).] Proof of truth involves time
and resources. The prospect of lengthy trials to prove the truth of
publications is a deterrent to publication even where the publisher
believes material to be true and capable of proof. The Court may also
draw on international law to influence the common law in this
direction, especially Art XIX of the International Covenant on Civil
and Political Rights which provides for a freedom of expression,
including a freedom to seek, receive and impart information and ideas
of all kinds. It is also relevant that governmental institutions are not
entitled to sue for libel. [He referred to Mabo v Queensland
{No 2] (153); Teoh v Minister for Immigration and Ethnic Affairs (154); Dietrich v The Queen (155); Attorney-General v Times
Newspaper Ltd (156); Hector v Attorney-General (Antigua and
Barbuda) (157); Derbyshire County Council v Times Newspapers
Ltd (158); Attorney-General v Guardian Newspapers (No 2] (159);
and Bal/ina Shire Council v Ringland (160).] Many cases have
indicated that, contrary to earlier authority, qualified privilege may be
available for a publication to the general public (161). Qualified

(149)
(150)
(151)
(152)
(153)
(154)
(155)
(156)
(157)
(158)
(159)
(160)
(161)

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OF AUSTRALIA

[1917] AC 309 at 334.


(1910) 11 CLR 361 at 369.
Too!iood v Spvrin!i (1834) I CM & R 181 at 193 [149 ER 1044 at 1050].
(1994) 182 CLR 104 at 131-132, 176-177, 184.
(1992) 175 CLR I at 42.
(1995) 183 CLR 273 at 288. 304. 315.
(1992) 172 CLR 292 at 300. 307. 323-325. 349. 360.
[1974] AC 273 at 320.
[1990] 2 AC 313 at 318.
[1993J AC 534 at 547.
[1990] I AC 109 at 214.
(1994) 33 NSWLR 680 at 691. 710-713.
Calwell v IPEC Australia Ltd (1973) 135 CLR 321 at 331. 335-336; John Fair/ilX
& SOllS Ltd v Punch (1980) 47 FLR 458; 31 ALR 624 at 469-470.634; Ronald v

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privilege should also be available as a common law defence where


there has been communication of information on a political matter to a
section of the community or the public generally, in the absence of
malice, in circumstances where the information was accurately
attributed by the publisher to a third person, provided that person had
an apparent duty or interest in conveying the material to a section of
the public or the public generally. The requirement of "special
knowledge" suggested by McHugh J in Stephens is too restrictive. In
a democratic society, everyone's opinions should be accepted as of
equal value. [He referred to Calwell v [PEC Australia Ltd (162).]
[McHuGH J. There must be some limitation on a publisher beyond just
acting honestly; otherwise every ill-informed person has a licence to
defame.] The common convenience and welfare of society is to be
judged by what is never published, not only by what harm is done to
reputation by false publications. There is no public interest in the
publication of untruthful information, but there is a public interest in
the publication of all truthful information. The balance before
Theophanous was struck against the latter interest. The defendant will
always have to show that the publication was within the occasion of
privilege involving a public duty on the part of the publisher (163).
D F Jackson QC (with him M A Dre)lus), for John Fairfax
Publications Pty Ltd, David Syme & Co Ltd, Illawarra Newspapers
Holdings Pty Ltd, Newcastle Newspapers Pty Ltd, Fairfax Community
Newspapers Pty Ltd and West Australian Newspapers Ltd, intervening
by leave. Leave to reargue the correctness of Theophanous and
Stephens should be refused. The jurisdiction to grant leave should be
exercised sparingly (164). This is not a suitable vehicle for
reconsidering the cases, because its subject matter is New Zealand
rather than Australian politics. The cases were correctly decided, in so
far as they held that there is a defence to defamation arising from the
implied constitutional freedom of communication on matters of
political discussion and debate. To find otherwise would require that
the decisions in Nationwide News and ACTV also be found to be bad
in law in relation to the principle of representative government or
democracy.
The challenged decisions were correct. Implications can be drawn

cont
Harrer (1910) 11 CLR 63 at 73.80; Crick v Butler (1891) 12 NSWLR 75 at 78;
Toyne v Everin[;lwlIl (1993) 3 NTLR I; Ctlvanalih v Northern Territory News
Service (1989) 96 FLR 268; O'Sullivan v Schubert [1963] VR 143; Orr v Isles
(1%4) 82 WN (NSW) (Pt 1) 103 at 113; (1966) WN (NSW) (Pt 1) 303 at 317;
Clines v Australian Consolidated Press (1966) WN (NSW) (Pt 2) 86 at 96-97,
103-104; LW1[;e v Atkinson [1997] 2 NZLR 22 at 46-47, 51.
(162) (1975) 135 CLR 321 at 336.
(163) Adam v Ward [1917] AC 309 at 320-321. 326.
(164) Tridenr General Insurance Co Lid v McNiece Bros Pty Lid (1988) 165 CLR 107
at 131.

(161)

189 CLR 520]

OF AUSTRALIA

from the actual terms or structure of the Constitution. A doctrine of


representative government is such an implication and was affirmed in
the Engineers' Case (165). Representative government requires there
to be a free flow of information to enable the community to be
informed about the performance of their representatives and to
communicate with each other and their representative about governmental matters so as to make an informed choice at elections.
[DAWSON J. By "free" do you mean subject only to restrictions
necessary to an ordered society?] Yes.
The majority in Theophanous and in Stephens held that there is an
occasion of qualified privilege arising in the discussion of political
matters (166). The "occasion" referred to in the answer to question 3
in Theophanous is defined by the circumstances referred to in par I. If
Theophanous and Stephens are overruled, the common law defence of
qualified privilege should be held to cover defamatory material
published in the course of discussion of government and political
matters, including defamatory comment as well as factual material.
[He referred to Stephens (167); Bellino v Australian Broadcasting
Corporation (168); Telegraph Newspaper Co Ltd v Bedford (169);
Macintosh v Dun (170); and Howe & McColough v Lees (171).] This
is a modest extension of the common law. In a limited number of
cases publication to the general public has been held to be an occasion
of qualified privilege. The defence should not be limited to factual
material. Fact and comment cannot be clearly distinguished in political
discussion. Australians have an interest in receiving the comments of
others in political matters (172).

W H Nicholas QC, for Nationwide News Pty Ltd, intervening by


leave. This is not a suitable vehicle to debate the correctness of
Theophanous or Stephens. The plaintiff is not an Australian citizen and
has never run for office in a State or federal election. The words
"political matters" in Theophanous must be read with the gloss
"Australian". The defendant requires an extension to the reasoning in
Theophanolls which cannot logically be derived from the Constitution.
Theophanolls and Stephens are the logical product of a line of cases
beginning with Nationwide News. They have not led to inconvenience;
the implication found by the joint judgment is similar to the

(165) Nationwide News Case (1992) 177 CLR I at 47; AmalRwnated Society of
EnRineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 147.
(166) Stephens' Case (1994) 182 CLR 211 at 213-214, 216-217, 229-231, 234, 265;
Theophanous's Case (1994) 182 CLR 104 at 140.
(167) (1994) 182 CLR 211 at 237-243, 260-270.
(168) (1996) 185 CLR 183 at 190-192
(169) (1934) 50 CLR 632 at 656.
(170) [1908] AC 390 at 399.
(171) (1910) II CLR 361 at 369.
(172) Calwell v IPEC Australia Ltd (1975) 135 CLR 321 at 335; Allorney-General v
Times Newspapers Ltd [1974] AC 273 at 315.

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longstanding Defamation Act 1974 (NSW), s 22. Media organisations


and governments have ordered their affairs on the basis that the
decisions are correct. [He referred to the Tobacco Advertising
Prohibition Amendment Act 1995 (Cth); Defamation Bill 1996 (NSW);
and Capital Duplicators Pty Ltd v Australian Capital Territory
[No 2J (173).]
Theophanous and Stephens are correct and rest on the earlier
decisions which are not challenged. The purpose of the implication
cannot be met if it only applies to legislative or executive but not to
private action. The distinction between legislative and executive
actions and the common law is a false dichotomy. Covering cl 5 to the
Constitution applies to common law and statute alike.
Alternatively, there is a constitutional implication protecting
freedom of communication on the basis that ss 7 and 24 provide that
representatives shall be directly chosen by the people, and so mandate
a system of representative government. Implicit in their text is a
requirement of freedom of communication among Australians to the
extent that such freedom is necessary to the effective operation of the
mandated system of representative government. That freedom overrides inconsistent laws. The implication is supported by the test of
necessity. The right to choose representatives is meaningless unless it
can be exercised on an informed basis (174). By analogy with the
common law the burden of proof of malice would lie on the plaintiff.
We adopt the submissions of the Attorney-General for the
Commonwealth, the defendant and Herald & Weekly Times Pty Ltd
about qualified privilege. It is no more than a corollary of the system
of representative government mandated by ss 7 and 24. Media
organisations have a social duty to disseminate information on political
matters, including an obligation to pass on information originally
published by third parties even where they may not believe the truth of
the original statements and may actually disbelieve them. The
possibility of showing malice acts as a check upon publishers. [He
referred to Bellino v Australian Broadcasting Corporation (175).]
[BRENNAN CJ. How is such a limited exception in the public interest?]
The defence will be lost if there is little substance in what has been
published. The publisher's state of mind and whether or not there was
reckless indifference to the truth or falsity of the material would also
be relevant. The mechanism of qualified privilege achieves an
effective balance in this and other contexts. The privilege is qualified;
there is no licence to publish. It is clear from Bellino that a mass

(173) (1993) 178 CLR 561 at 593.


(174) McGinty \' Weslem Au.Ufalia (1996) 186 CLR 140 at 169,231-232; Cunliffe \' The
Commonl\'ealth (1994) 182 CLR 272 at 360-364; the Nalionl\'ide Nell'S Case
(199-2) 177 CLR 1 at 72; the ACTV Case (1992) 177 CLR 106 at 231:
Theophanous's Case (1994) 182 CLR 104 at 149
(175) (1996) 185 CLR 183 at 190-191.

189 CLR 520]

547

OF AUSTRALIA

media publisher may enjoy a qualified privilege but that it may be lost
on a number of grounds. [McHuGH J. Does the constitutional defence
in Theophanous in practice add anything to s 22, which contains a
requirement of reasonableness?] No.

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R A Finkelstein QC, for The Herald & Weekly Times Ltd,


intervening by leave. Leave to reconsider Theophanous and Stephens
should be refused. The case is not appropriate for the purpose and can
be described without reference to them. The decisions are correct; they
elaborate, rather than establish, the relevant constitutional implications.
They achieve an appropriate and balanced position in the law of
defamation by allowing for freedom of communication within limits
which protect reputational interests; deliberately false statements are
not protected. If the Court overrules the majority reasoning in
Theophanous and Stephens, it should adopt that of Deane J.
Alternatively, a defence arises from ss 7 and 24 of the Constitution.
They require representative government and therefore that there be
freedom of communication to the extent necessary for it. In modern
society the role of the media in fostering political discussion is pivotal
and defamation laws prevent a full and informed level of discussion.
Sections 7 and 24 protect both accurate and inaccurate information (176). This alternative defence is narrower than that established
in Theophanous and Stephens and would apply only in relation to
discussion concerning the election of candidates for Commonwealth
parliamentary office, suitability for office and of incumbents, and the
policies and other matters affecting the voting choices made by
electors. It would not be limited to election periods (177). By
"freedom' , of communication we mean that the communication
cannot be inhibited. The question is whether a law which inhibits
communication effectively takes away the elector's right to receive the
communication. It is unnecessary to ask whether the law is
proportionate or reasonably adapted to its purpose.
The Court should develop the law of qualified privilege to protect
political discussion, either by developing a "political discussion"
category of qualified privilege or by recognising that the public has an
interest in political discussion which satisfies the requirement of
reciprocity of duty and interest. Australian, English, European,
Canadian and United States jurisprudence indicates that political
discussion of the type envisaged in Theophanous is embodied in the
concept of, and required to maintain, representative democracy. [He
also referred to A CTV (178); Nationwide News (179); The Common-

(176) Gertz v Robert Welch file (1974) 418 US 323 at 340. 365.
(177) Theophallous's Case (1994) 182 CLR 104 at 123, 181: ACTV Case (1992) 177
CLR 106 at 215.
(178) (1992) 177 CLR 106 at 139, 159, 168-169,211-212.
(179) (1992) 177 CLR I at 31, 47-50, 72-76.

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wealth v John Fairfax & Sons Ltd (180); Attorney-General v Times


Newspapers Ltd (181); Re Alberta Statutes (182); Retail, Wholesale
and Department Store Union, Local 580 v Dolphin Delivery Ltd (183);
Switzman v Elbling (184); New York Times Co v Sullivan (185);
Rosenblatt v Baer (186); Mills v Alabama (187); National Association
for the Advancement of Colored People v Button (188); Sweezy v New
Hampshire (189); Garrison v Louisiana (190); Handyside v United
Kingdom (191); and Lingens v Austria (192).] Defendants would still
have to show that the publication was not malicious.
J T Gleeson, for the Seven Network Ltd, intervening by leave. The
Court should not reconsider Theophanous or Stephens. There must be
compelling reasons to depart from a recent decision which was fully
argued; the Court should consider whether the principle in those cases
has proved intolerable or defied practical workability and whether it
has been subject to reliance, whether it has been left behind by related
principles and whether the facts have changed so as to rob the
principle of its application (193). The majority did not reason from an
abstract implication of representative government but commenced with
the implied freedom of communication found in Nationwide News and
ACTV and asked whether the law of defamation struck a balance
within the range of legitimate outcomes between that freedom and the
competing interest of protection of the individual. The same kind of
question was asked in the earlier cases. There is a two-stage test in
respect of necessity. The first is to ask whether the implication is
necessary; the second, whether the impugned law unnecessarily
restricts the operation of the implication. The inquiry is similar to that
required under the Constitution, s 1]7. The law of defamation deals
directly with the subject matter of the implication and so is more likely
to restrict the implication impermissibly than a law in a different field.
If the Court overrules Theophanous and Stephens, it should declare
that the common law recognises political discussion as an occasion of
qualified privilege which will provide a complete defence to a
defamation action, subject only to the plaintiff's proving malice in

(180)
(181)
(182)
(183)
(184)
(185)
(186)
(187)
(188)
(189)
(190)
(191)
(192)

(1980) 147 CLR 39 at 52.


[1974] AC 273 at315.
[1938] SCR 100 at 145-146; [1938]2 DLR 81 at 119.
[1987]1 SCR 573 at 584; (1986) 33 DLR (4th) 174 at 183.
[1957] SCR 285 at 306-307, 326; (1957) 7 DLR (2d) 337 at 358. 369.
(1964) 376 US 254 at 297.
(1965) 383 US 75 at 85.
(1966) 384 US 214 at218-219.
(1963) 371 US 415 at 431.
(1957) 354 US 234 at 250-251.
(1964) 379 US 64 at 74-75.
(1976) I EHRR 737 at 754-755.
(1986) 8 EHRR 407 at418-419.
(193) Planned Pllrenrhood of" Sourh Easrem Pennsylvania v Casey (1992) 505 US 833
at 854.

189 CLR 520]

OF AUSTRALIA

549

reply. We adopt the submissions of the Attorney-General for the


Commonwealth in this respect.

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D K Cattems QC (with him G J Williams), seeking leave to appear


on behalf of the Media, Entertainment and Arts Alliance as amicus
curiae. [BRENNAN CJ. Leave is granted but it is desirable to limit the
acceptance of your submissions to written submissions so as to give
other parties a right of reply.] Theophanous and Stephens should not
be reopened. It is never appropriate to reopen a decision of the Court
so as merely to overrule the mode of reasoning adopted rather than the
result of the principle it establishes. This case does not concern the
freedom of Australian political communication implied in the
Constitution. It involves no relevant element of political discourse. The
decision in Theophanous has been followed or a similar result reached
both in Australia and overseas (194). Alternatively, the results in
Theophanous and Stephens can be reached by reliance on ss 7 and 24.
If the Court departs from the majority decision in Theophanous, it
should start from the point that the Constitution is primarily an
instrument of government defining the rights of Australians as against
governments rather than as between each other. The Constitution
should therefore intrude into the rights and liabilities of individuals
inter se only where those rights or liabilities raise matters pertaining to
government. This state action doctrine would be similar to that
adopted by the United States Supreme Court in the Civil Rights
Cases (195); Shelley v Kraemer (196); Lugar v Edmondson Oil Co
Inc (197) and Lebron v National Railroad Passenger Corporation (198). In the United States, there are two relevant lines of
inquiry; first, is the private person sufficiently entangled with or
"like" the state to consider private conduct "state action" and thus
attract constitutional protection, and second, would the application of
the constitutional guarantee to the private person unduly impinge on
the private interest in being free to behave in ways constitutionally
barred to the State? This doctrine reflects both what is necessary to
make effective the implied freedom recognised in ACTV, and the
proper role of the Constitution.
Alternatively, the submissions of the Attorney-General for the
Commonwealth concerning the extension of the common law
defamation defence should be accepted.

LANGE

D E Flint, on behalf of the Australian Press Council, amicus curiae,


filed a written submission.

(194) Ho!omisa v ArRus Newspapers Ltd [1996] 2 SA 588; RajoRopa! v State or Tamil
Nadu (unreported; Supreme Court of India; 7 October 1994).
(195) (1883) 109 US 3.
(196) (1948) 334 US I.
( 197) (1982) 457 US 922.
(198) (1995) 130 Law Ed 2d 902 at 922-923.930.

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B J Shaw QC, in reply. If the Constitution is inconsistent with and


overrides the common law of defamation in Australia, equally the
English electoral law must be inconsistent with and override the
English common law of defamation. That has not been suggested.
The Commonwealth Constitution does not mandate a system of
representative government for the States. It makes no assumptions and
imposes no requirements as to the system of government which is to
operate at State level (199). We adopt the argument in Zines, The High
Court and the Constitution (200). There is a fundamental difference
between assuming State electoral systems and prescribing them.

e O'L Re.vnolds, in reply. The statutory defamation laws could not


be read down by application of statutory interpretation laws. [He
referred to Nationwide News (201) and Brisbane TV Ltd v Criminal
Justice Commission (202).] It is apparent from Nationwide News that
the implied freedom operates to invalidate laws in the ordinary manner
of judicial review, rather than create an area of immunity in which
inconsistent laws are inapplicable.
Cur adv vult
8 July 1997
THE COURT delivered the following written judgment:The principal questions arising from this case stated by Brennan CJ
are whether the Court should reconsider two decisions which hold that
there is implied in the Constitution a defence to the publication of
defamatory matter relating to government and political matters and, if
so, whether those decisions are correct.
The case stated arises out of a defamation action brought in the
Supreme Court of New South Wales by Mr David Lange, a former
Prime Minister of New Zealand, (the plaintiff) against the Australian
Broadcasting Corporation (the defendant) (203).
The defendant has relied on the decisions of this Court in
Theophanous v Herald & Weekly Times Ltd (204) and Stephens v West
Australian Newspapers Ltd (205) to plead a defence against an action
brought by the plaintiff in respect of matters published when he was a

(199) Theo"hanous's Case (1994) 182 CLR 104 at 201; McGinty \' Western Australia
(1996) 186 CLR 140 at 293.
(200) 4th ed (1997). p 390.
(201) (1992) 177 CLR I at 61, 80.
(202) Unreported; Court of Appeal (Q); 17 September 1996 at 13.
(203) Section 5 of the Australian Broadcasting Cor"oration Act 1983 (Cth) continues
under the name Australian Broadcasting Corporation the body corporate
previously in existence under the name Australian Broadcasting Commission.
(204) (1994) 182 CLR 104.
(205) (1994) 182 CLR 211.

189 CLR 520]

OF AUSTRALIA

member of the New Zealand Parliament. Paragraph 10 of the amended


defence initially alleged that the matter complained of was published:
"(a) pursuant to a freedom guaranteed by the Commonwealth
Constitution to publish material:
(i) in the course of discussion of government and political
matters;
(ii) of and concerning members of the parliament and
government of New Zealand which relates to the performance
by such members of their duties as members of the parliament
and government of New Zealand;
(iii) in relation to the suitability of persons for office as
members of the parliament and government of New Zealand.
(b) (i) in the course of discussion of government and political
matters;
(ii) of and concerning the plaintiff as a member of the
parliament of New Zealand and as Prime Minister of New
Zealand;
(iii) in respect of the plaintiff's suitability for office as a
member of the parliament of New Zealand and as Prime
Minister of New Zealand;
(iv) in respect of the plaintiff's performance, conduct and
fitness for office as a member of the parliament of New
Zealand and as Prime Minister of New Zcaland;
(c) in circumstances such that:
(i) if the matter was false (which is not admitted) the
defendant was unaware of its falsity;
(ii) the defendant did not publish the matter recklessly, that is,
not caring whether the material was true or false;
(iii) the publication was reasonable
and, by reason of each of the matters aforesaid, the matter
complained of is not actionable."
Subparagraphs (a)(ii), (iii), (b)(ii), (iii) and (iv) were subsequently
abandoned by the defendant.
Paragraph 6 of the amended defence pleads a defence of common
law qualified privilege. The particulars of this defencc allege that the
matters complained of related to subjects of public interest and
political matters and that the defendant had a duty to publish the
material tb viewers who had a legitimate interest in the subjccts of the
mattcr complained of and a reciprocal interest in receiving information
relating to those subjects. The subjects of public interest and political
matters are particularised. They relate to political, social and economic
matters occurring in New Zealand.
The plaintiff alleges that the defences are bad in law. He contends
that neither the decision in Theophanous nor the decision in Stephens
has any application to the discussion of the conduct of a member of
the Parliament of New Zealand or the discussion of New Zealand
government and political matters. He asscrts that in any event both

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Theophanous and Stephens were wrongly decided and that this Court
should examine the correctness of the decisions.
In addition to hearing submissions from the plaintiff and defendant,
the Court also heard submissions as to the desirability of re-arguing
the correctness of Theophanous and Stephens from a large number of
parties who were given leave to intervene in the proceedings and from
two parties who were given leave to put submissions as amici curiae.
Concurrently, with the hearing of this case stated, the Court heard a
demurrer in Levy v Victoria where similar questions concerning the
correctness of Theophanous and Stephens were raised.
Theophanous
In Theophanous (206), this Court by majority (207), in answerIng
the first question reserved in a case stated, declared that:
"There is implied in the Commonwealth Constitution a freedom to
publish material:
(a) discussing government and political matters;
(b) of and concerning members of the Parliament of the
Commonwealth of Australia which relates to the perfonnance by
such members of their duties as members of the Parliament or
parliamentary committees;
(c) in relation to the suitability of persons for office as members of
the Parliamen t."
By the same majority, the Court answered (208) a second question
reserved as follows:
"In the light of the freedom implied in the Commonwealth
Constitution, the publication will not be actionable under the law
relating to defamation if the defendant establishes that:
(a) it was unaware of the falsity of the material published;
(b) it did not publish the material recklessly, that is, not carIng
whether the material was true or false; and
(c) the publication was reasonable in the circumstances."
The answer by that majority to a third question reserved was a
declaration (209) that:
"A publication that attracts the freedom implied in the Commonwealth Constitution 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."

(206) (1994) 182 CLR 104 at 208.


(207) Mason CJ, Deane, Toohey and Gaudron JJ, Brennan, Dawson and McHugh JJ
dissenting.
(208) Theophallolls's Case (1994) 182 CLR 104 at 209.
(209) TheoplwllollS'S Case (1994) 182 CLR 104 at 209.

189 CLR 520]

OF AUSTRALIA

In answer to a fourth question, the majority declared (210) that two


paragraphs of the statement of defence to a defamation action brought
by a federal member of Parliament were not bad in law. Those
paragraphs stated (21 1):

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"11. In further answer to the whole of the Statement of Claim:


(a) the words were published pursuant to a freedom guaranteed by
the Commonwealth Constitution to publish material: (i) in the
course of discussion of government and political matters; (ii) of and
concerning members of the Parliament of the Commonwealth of
Australia which relates to the performance by such members of their
duties as members of the Parliament or parliamentary committees;
(iii) in relation to the suitability of persons for office as members of
the Parliament. (b) The publication of the words was: (i) in the
course of discussion of government and political matters; (ii) of and
concerning the plaintiff as a member of the House of Representatives and as Chairperson of the Joint Parliamentary Standing
Committee on Migration Regulation and the Australian Labor
Party's Federal Caucus Immigration Committee; (iii) in respect of
the plaintiff's performance of his duties as a member and as
Chairperson as aforesaid; (iv) in relation to the plaintiff's suitability
for office as a member of Parliament; (v) without malice;
(vi) reasonable in the circumstances; (vii) not made without an
honest belief in the truth of the words or made with reckless
disregard for the truth or untruth of the words; (viii) made at a time
when it was publicly anticipated that a federal election was about to
be cal1ed. (c) By reason of each of the matters aforesaid the said
publication is not actionable. 12. Further and alternatively, by
reason of the freedom guaranteed by the Commonwealth Constitution as aforesaid, the words were published on an occasion of
qualified privilege."

Stephens
On the same day that judgment was delivered in Theophanous, the
Court delivered judgment in Stephens. By the same majority, the Court
held that defences based on the Constitution of the Commonwealth
and the Constitution Act 1889 (WA) were good defences to an action
brought by a State member of Parliament in respect of a publication
that criticised an overseas trip being made by a six-member committee
of the Legislative Council of Western Australia, of which the plaintiff
was a member.

(210) Theoplwllo!ls's elise (1994) 182 CLR 104 at 209.


(211) TheophlllloUS'S elise (1994) 182 CLR 104 at 106.

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Reconsidering a previous decision of the Court


This Court is not bound by its previous decisions (212). Nor has it
laid down any particular rule or rules or set of factors for re-opening
the correctness of its decisions. Nevertheless, the Court should
reconsider a previous decision only with great caution and for strong
reasons (213). In Hughes & Vale Pty Ltd v New South Wales (214),
Kitto J said that in constitutional cases "it is obviously undesirable
that a question decided by the Court after full consideration should be
re-opened without grave reason". However, it cannot be doubted that
the Court will re-examine a decision if it involves a question of "vital
constitutional importance" (215) and is "manifestly wrong" (216).
Errors in constitutional interpretation are not remediable by the
legislature (217), and the Court's approach to constitutional matters is
not necessarily the same as in matters concerning the common law or
statutes. But these general statements concerning the occasions when
the Court will reconsider one of its previous decisions give little
guidance in this case when the judgments and orders in Theophanous
and Stephens are examined.
The principal reason why these general statements provide little
guidance is that it is arguable that neither Theophanous nor Stephens
contains a binding statement of constitutional principle. Both cases
came before the Full Court of this Court on a case stated in which
particular questions were reserved. The orders of the Full Court in
each case consisted of answers to those questions. Of the seven
Justices who heard Theophanolls, Brennan, Dawson and McHugh JJ
held that the defences pleaded in that case were bad in law. Mason CJ,
Toohey and Gaudron JJ in a joint judgment held that the defences
were good in law. With two qualifications, their judgment is reflected
in the answers that the Court gave to the case stated. The first
qualification is that the joint judgment (218), but not the answer of the

(212) Baker v Campbell (1983) 153 CLR 52 at 102; Damjanovic & SlIIlS Pty Ltd v The
Commonwealth (1968) 117 CLR 390 at 395-396; Queensland v The
Commlllm'ealth ( 1977) 139 CLR 585 at 610.
(213) Hughes & Vale Pty Ltd v New South Wales (1953) 87 CLR 49 at 102; Queensland
v The Commonwealth (1977) 139 CLR 585 at 602, 620; Jones v The
COIllflwm"ealt!z (1987) 61 ALJR 348 at 349; 71 ALR 497 at 498.
(214) (1953) 87 CLR 49 at 102. See also H C Sleigh Ltd v South Australia (1977) 136
CLR 475 at 501; The CommOll>\'ealth " Hospital Contribution Fund (1982) 150
CLR 49 at 56.
(215) Queensland v The Commonwealth (1977) 139 CLR 585 at 630. See also The
Commoll\vealth,' CiglUnatic Pty Ltd (/nliq) (1962) 108 CLR 372 at 377,
(216) Australian Agricullllral Co v Federated Engine-Drivers and Firemen's
Association or Australasia (1913) 17 CLR 261 at 278-279; The Trwmmys Case
[No 11 (1914) 18 CLR 54 at 58, 69. 83; but cf Queensland v The Commonwealth
(1977) 139 CLR 585 at 62 L
(217) Queensland v The Commonwealth (1977) 139 CLR 585 at 630; Street v
Queensland Bar Association (1989) 168 CLR 461 at 588.
(218) Theophanous's Case (1994) 182 CLR 104 at 137.

189 CLR 520]

Court, gives definition to the tenn "reasonable" which appears in


Answer 2(c) of the case stated. The second qualification is that, while
the conditions of the defence contained in pars (a), (b) and (c) of the
answer to the first question in the case stated suggest that the
paragraphs are alternatives, or that par (a) subsumes pars (b) and (c),
the joint judgment focuses on the suitability of persons for office
rather than the wider discussion of government and political matters.
Deane J, the seventh member of the Court in Theophanous, also
held that the defences were good in law. However, he took a view of
the scope of the freedom that was significantly different from that of
Mason CJ, Toohey and Gaudron 11. His Honour said (219):
"I am quite unable to accept that the freedom which the
constitutional implication protects is, at least in relation to
statements about the official conduct or consequent suitability for
office of holders of high government office, conditioned upon the
ability of the citizen or other publisher to satisfy a court of matters
such as absence of recklessness or reasonableness."
His Honour said (220) that the Constitution contained an implication
which precluded the imposition of liability in damages under State
defamation laws to the extent to which they would cover a publication
such as that involved in that case.
Deane J also said (221) that, whilst the overall effect of the joint
judgment and his judgment was that' 'the constitutional implication of
political communication and discussion" precluded "an unqualified
application of the defamation laws of Victoria to impose liability in
damages in respect of political communications and discussion", there
was disagreement within that majority as to "what flows from that
conclusion for the purposes of the present case" .
His Honour concluded (222) that "the appropriate course for me to
follow is to lend my support for the answers which [Mason CJ,
Toohey and Gaudron 11] give to the questions reserved by the stated
case". Although Deane J may have intended his concurrence with the
answers in Theophanous to extend to the explanation of them in the
joint judgment, the absence of an express agreement with the reasons
in that judgment raises a question as to the extent to which he
concurred with the terms of the answers. But, assuming that his
Honour intended to agree with those answers as read in the light of the
joint judgment, nevertheless the reasoning which gave rise to the
answers in Theophanous had the direct support of only three of the
seven Justices.
In Stephens, an identical division of opinion among the Justices

(219)
(220)
(221)
(222)

Theophallous
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Case
Case
Case
Case

(1994)
(1994)
(1994)
(1994)

182
182
182
182

CLR
CLR
CLR
CLR

104
104
104
104

at
at
at
at

188.
188.
187.
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occurred. Once again Deane J agreed with the answers proposed by


Mason CJ, Toohey and Gaudron JJ in the case stated. He said (223):
"In view of the division between the other members of the Court. it
would, to that extent, be inappropriate for me to adhere to [my
views] for the purposes of this case."
Accordingly his Honour expressed (224) his "concurrence in the
answers which Mason CJ, Toohey and Gaudron JJ propose to the
questions stated". In these circumstances, Theophanous and Stephens
do not have the same authority which they would have if Deane J had
agreed with the reasoning of Mason CJ, Toohey and Gaudron JJ in
each case.
However, for the reasons set out below, Theophanous and Stephens
should be accepted as deciding that in Australia the common law rules
of defamation must conform to the requirements of the Constitution.
Those cases should also be accepted as deciding that, at least by
1992 (225), the constitutional implication precluded an unqualified
application in Australia of the English common law of defamation in
so far as it continued to provide no defence for the mistaken
publication of defamatory matter concerning government and political
matters to a wide audience. The full argument we heard in the present
case and the illumination and insights gained from the subsequent
cases of McGinty v Western Australia (226), Langer v The Commonwealth (227) and Muldowney v South Australia (228) now satisfy us,
however, that some of the expressions and reasoning in the various
judgments in Theophanous and Stephens should be further considered
in order to settle both constitutional doctrine and the contemporary
common law of Australia governing the defence of qualified privilege
in actions of libel and slander.
Having regard to the foregoing discussion, the appropriate course is
to examine the correctness of the defences pleaded in the present case
as a matter of principle and not of authority. The starting point of that
examination must be the terms of the Constitution illuminated by the
assistance which is to be obtained from Theophanous and the other
authorities (229) which have dealt with the question of "implied
freedoms" under the Constitution.

(223) Stephens' Case (1994) 182 CLR 211 at 257.


(224) Stephens' Case (1994) 182 CLR 211 at 257.
(225) The year in which the articles. the subject of the proceedings in Theoplwnous and
Stephens. were published.

(226) (1996) 186 CLR 140


(227) (1996) 186 CLR 302.
(228) (1996) 186 CLR 352.
(229) Nationwide News Ptv Ltd v Wills (1992) 177 CLR l. Australian Capital
Teln'ision Pty Ltd 'v The Commonwealth (ACTV) (1992) 177 CLR 106;
Theophanous (1994) 182 CLR 104; Stephens (1994) 182 CLR 21 I; Cunliffe ,. The
Commonwealth (1994) 182 CLR 272: McGinty (1996) 186 CLR 140: Langer
(1996) 186 CLR 302; Muldowney (1996) 186 CLR 352.

189 CLR 520]

OF AUSTRALIA

Representative and responsible government


Sections 7 and 24 of the Constitution, read in context, require the
members of the Senate and the House of Representatives to be directly
chosen at periodic elections by the people of the States and of the
Commonwealth respectively. This requirement embraces all that is
necessary to effectuate (230) the free election of representatives at
periodic elections. What is involved in the people directly choosing
their representatives at periodic elections, however, can be understood
only by reference to the system of representative and responsible
government to which ss 7 and 24 and other sections of the
Constitution give effect (231).
That the Constitution intended to provide for the institutions of
representative and responsible government is made clear both by the
Convention Debates and by the terms of the Constitution itself. Thus,
at the Second Australasian Convention held in Adelaide in 1897, the
Convention, on the motion of Mr Edmund Barton, resolved that the
purpose of the Constitution was "to enlarge the powers of selfgovernment of the people of Australia" (232).
Sections I, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect
to the purpose of self-government by providing for the fundamental
features of representative government. As Isaacs J put it (233):
"[T]he Constitution is for the advancement of representative
government.' ,
Section I of the Constitution vests the legislative power of the
Commonwealth in a Parliament "which shall consist of the Queen, a
Senate, and a House of Representatives". Sections 7 and 24 relevantly
provide:
"7 The Senate shall be composed of senators for each State, directly
chosen by the people of the State, voting, until the Parliament
otherwise provides, as one electorate.
24 The
directly
number
number

House of Representatives shall be composed of members


chosen by the people of the Commonwealth, and the
of such members shall be, as nearly as practicable, twice the
of the senators."

Section 24 does not expressly refer to elections, but s 25 makes it


plain that the House of Representatives is to be directly chosen by the

(230) Gra1l1wll v Marrickville MarKarine Pty Ltd (1955) 93 CLR 55 at 77.


(231) Attorney-General (Cth); Ex rei McKinlay v The Commonwealth (1975) 135 CLR
I at 56; Nationwide News (1992) 177 CLR 1 at 46-47, 70-72; ACTV (1992) 177
CLR 106 at 137, 184-185, 210, 229-230; Theophanous (1994) 182 CLR 104
at 146-147, 189-190, 195-197; McGinty (1996) 186CLR 140 at 201-202.
(232) Official Report of the National Australasian COIlvention Debates (Adelaide),
(1897), p 17.
(233) Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 178.

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people of the Commonwealth voting at elections. Other provisions of


the Constitution ensure that there shall be periodic elections. Thus,
under s 13, six years is the longest term that a senator can serve before
his or her place becomes vacant. Similarly, by s 28, every House of
Representatives is to continue for three years from the first meeting of
the House and no longer. Sections 8 and 30 ensure that, in choosing
senators and members of the House of Representatives, each elector
shall vote only once. The effect of ss I, 7, 8, 13, 24, 25, 28 and 30
therefore is to ensure that the Parliament of the Commonwealth will be
representative of the people of the Commonwealth.
Other sections of the Constitution establish a formal relationship
between the Executive Government and the Parliament and provide for
a system of responsible ministerial government (234), a system of
government which, "prior to the establishment of the Commonwealth
of Australia in 1901 ... had become one of the central characteristics
of our polity" (235). Thus, s 6 of the Constitution requires that there
be a session of the Parliament at least once in every year, so that
twelve months shall not intervene between the last sitting in one
session and the first sitting in the next. Section 83 ensures that the
legislature controls supply. It does so by requiring parliamentary
authority for the expenditure by the Executive Government of any
fund or sum of money standing to the credit of the Crown in right of
the Commonwealth, irrespective of source (236). Sections 62 and 64
of the Constitution combine to provide for the executive power of the
Commonwealth, which is vested in the Queen and exercisable by the
Governor-General, to be exercised "on the initiative and advice" (237) of Ministers and limit to three months the period in which
a Minister of State may hold office without being or becoming a
senator or member of the House of Representatives. Section 49 of the
Constitution, in dealing with the powers, privileges and immunities of
the Senate and of the House of Representatives, secures the freedom of
speech in debate which, in England, historically was a potent
instrument by which the House of Commons defended its right to
consider and express opinions on the conduct of affairs of State by the
Sovereign and the Ministers, advisers and servants of the Crown (238).
Section 49 also provides the source of coercive authority for each

(234) Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR


129 at 147; Victorian Stevedoring and General Contracting Co Pty Ltd and
Meakes v Dignan (1931) 46 CLR 73 at 114; R v Kirby; Ex parte Boilermaker.'
Society or Australia (1956) 94 CLR 254 at 275; New South Wales v The
Commonwealth (1975) 135 CLR 337 at 364-365. See also FAr rnsurances Ltd v
Winneke (1982) 151 CLR 342 at 364.
(235) Dignan (1931) 46 CLR 73 at 114.
(236) Northem Suburbs General Cemetery Reserve Trust v The Commoll\\-'ealth (1993)
176 CLR 555 at 572-573, 580-581. 590-591, 597-598.
(237) Theodore v Duncan [19191 AC 696 at 706.
(238) See Campbell, "Parliament and the Executive", in Zines (ed), Commentaries on
the Australian Constitution (1977) 88, at p 91.

189 CLR 520]

OF AUSTRALIA

chamber of the Parliament to summon witnesses, or to require the


production of documents, under pain of punishment for contempt (239).
The requirement that the Parliament meet at least annually, the
provision for control of supply by the legislature, the requirement that
Ministers be members of the legislature, the privilege of freedom of
speech in debate, and the power to coerce the provision of information
provide the means for enforcing the responsibility of the Executive to
the organs of representative government. In his Notes on Australian
Federation: Its Nature and Probable Effects (240), Sir Samuel Griffith
pointed out that the effect of responsible government "is that the
actual government of the State is conducted by officers who enjoy the
confidence of the people". That confidence is ultimately expressed or
denied by the operation of the electoral process, and the attitudes of
electors to the conduct of the Executive may be a significant
determinant of the contemporary practice of responsible government (241).
Reference should also be made to s 128 which ensures that the
Constitution shall not be altered except by a referendum passed by a
majority of electors in the States and in those Territories with
representation in the House of Representatives, taken together, and by
the electors in a majority of States.

Freedom of communication
Freedom of communication on matters of government and politics is
an indispensable incident of that system of representative government
which the Constitution creates by directing that the members of the
House of Representatives and the Senate shall be "directly chosen by
the people" of the Commonwealth and the States, respectively. At
federation, representative government was understood to mean a
system of government where the people in free elections elected their
representatives to the legislative chamber which occupies the most
powerful position in the political system (242). As Birch points
out (243), "it is the manner of choice of members of the legislative
assembly, rather than their characteristics or their behaviour, which is
generally taken to be the criterion of a representative form of
government". However, to have a full understanding of the concept of
representative government, Birch also states that (244):
"we need to add that the chamber must occupy a powerful position

See R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157.


(1896), P 17.
Reid and Forrest, Australia's Commonweal1h Parliament (1989), pp 319, 337-339.
Birch, Representative and Responsible Government (1964), p 17; AC7V (1992)
177 CLR 106 at 230; Theophanous ( 1994) 182 CLR 104 at 200.
(243) Representative and Responsible Government (1964), P 17.
(244) Representative and Responsible Government (1964), p 17.
(239)
(240)
(241)
(242)

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Dawson J
Toohey J
Gaudron J
McHugh J
Gummnw]

Kirhy J

560
H

HIGH COURT
COF

1997
LANGE
V

AUSTRALlA..1\!
BROADCASTING
CORPORATION

Brennan CJ
Dawson J
Toohey J
GauJron J
McHugh J
Gummow J
Kirhy J

[1997

in the political system and that the elections to it must be free, with
all that this implies in the way of freedom of speech and political
organisation.' ,
Communications concerning political or government matters between the electors and the elected representatives, between the electors
and the candidates for election and between the electors themselves
were central to the system of representative government, as it was
understood at federation (245). While the system of representative
government for which the Constitution provides does not expressly
mention freedom of communication, it can hardly be doubted, given
the history of representative government and the holding of elections
under that system in Australia prior to federation, that the elections for
which the Constitution provides were intended to be free elections in
the sense explained by Birch. Furthermore, because the choice given
by ss 7 and 24 must be a true choice with "an opportunity to gain an
appreciation of the available alternatives", as Dawson J pointed out in
Australian Capital Television Pty Ltd v The Commonwealth (246),
legislative power cannot support an absolute denial of access by the
people to relevant information about the functioning of government in
Australia and about the policies of political parties and candidates for
election.
That being so, ss 7 and 24 and the related sections of the
Constitution necessarily protect that freedom of communication
between the people concerning political or government matters which
enables the people to exercise a free and informed choice as electors.
Those sections do not confer personal rights on individuals. Rather
they preclude the curtailment of the protected freedom by the exercise
of legislative or executive power. As Deane J said in
Theophanou5 (247), they are "a limitation or confinement of laws and
powers [which] gives rise to a pro tanto immunity on the part of the
citizen from being adversely affected by those laws or by the exercise
of those powers rather than to a 'right' in the strict sense". In Cunliffe
v The Commonwealth (248), Brennan J pointed out that the freedom
confers no rights on individuals and, to the extent that the freedom
rests upon implication, that implication defines the nature and extent
of the freedom. His Honour said (249):
"The implication is negative in nature: it invalidates laws and
consequently creates an area of immunity from legal control,
particularly from legislative control."

(245) R v Smithers; Ex f'arte Benson (1912) 16 CLR 99 at 108. 109-110: Natio/lwide


(1992) I77CLR I at 73; ACTV (1992) 177CLR 106 at 232.
(246) (1992) 177 CLR 106 at 187
(247) (1994) 182 CLR 104 at 168. See also at 146-148.
(248) (1994) 182 CLR 272 at 326.
(249) Cunliffe (1994) 182 CLR 272 at 327.

189 CLR 520]

OF AUSTRALIA

If the freedom is to effectively serve the purpose of ss 7 and 24 and


related sections, it cannot be confined to the election period. Most of
the matters necessary to enable "the people" to make an informed
choice will occur during the period between the holding of one, and
the calling of the next, election. If the freedom to receive and
disseminate information were confined to election periods, the electors
would be deprived of the greater part of the information necessary to
make an effective choice at the election.
In addition, the presence of s 128, and of ss 6, 49, 62, 64 and 83, of
the Constitution makes it impossible to confine the receipt and
dissemination of information concerning government and political
matters to an election period. Those sections give rise to implications
of their own. Section 128, by directly involving electors in the States
and in certain Territories in the process for amendment of the
Constitution, necessarily implies a limitation on legislative and
executive power to deny the electors access to information that might
be relevant to the vote they cast in a referendum to amend the
Constitution. Similarly, those provisions which prescribe the system of
responsible government necessarily imply a limitation on legislative
and executive power to deny the electors and their representatives
information concerning the conduct of the executive branch of
government throughout the life of a federal Parliament. Moreover, the
conduct of the executive branch is not confined to Ministers and the
public service. It includes the affairs of statutory authorities and public
utilities which are obliged to report to the legislature or to a Minister
who is responsible to the legislature. In British Steel v Granada
Television (250), Lord Wilberforce said that it was by these reports
that effect was given to "[t]he legitimate interest of the public" in
knowing about the affairs of such bodies. Whatever the scope of the
implications arising from responsible government and the amendment
of the Constitution may be, those implications cannot be confined to
election periods relating to the federal Parliament.
However, the freedom of communication which the Constitution
protects is not absolute (251). It is limited to what is necessary for the
effective operation of that system of representative and responsible
government provided for by the Constitution. The freedom of
communication required by ss 7 and 24 and reinforced by the sections
concerning responsible government and the amendment of the
Constitution operates as a restriction on legislative power. However,
the freedom will not invalidate a law enacted to satisfy some other
legitimate end if the law satisfies two conditions. The first condition is

(250) [1981] AC 1096 at 1168.


(251) Nationwide (1992) 177 CLR 1 at 51, 76-77, 94-95; ACTV (1992) 177 CLR 106
at 142-144. 159. 169, 217-218; Theophanous (1994) 182 CLR 104 at 126;
Stephens (1994) 182 CLR 211 at 235; Cunliffe (1994) 182 CLR 272 at 336-337.
387: LanKer (1996) 186 CLR 302 at 333-334.

561
H COF A
1997
LANGE

v
AUSTRALIAN
BROADCASTING
CORPORATION

Brennan CJ
Dawson J
Toohey J
Gaudron J
McHugh J
Gummow J
Kirby J

562

HIGH COURT

H COF A

1997
LAl'OGE
V

AUSTRALlAi"l
BROADCASTING
C()RPORATION

Brennan CJ

Dawson J
Tuohey J
Gaudron J

McHugh)
Gummow J
Klrhy)

[1997

that the object of the law is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible
government or the procedure for submitting a proposed amendment to
the Constitution to the informed decision of the people which the
Constitution prescribes. The second is that the law is reasonably
appropriate and adapted to achieving that legitimate object or end.
Different formulae have been used by members of this Court in other
cases to express the test whether the freedom provided by the
Constitution has been infringed. Some judges have expressed the test
as whether the law is reasonably appropriate and adapted to the
fulfilment of a legitimate purpose. Others have favoured different
expressions, including proportionality. In the context of the questions
raised by the case stated, there is no need to distinguish these concepts.
For ease of expression, throughout these reasons we have used the
formulation of reasonably appropriate and adapted.

The common law and the Constitution


A person who is defamed must find a legal remedy against those
responsible for publishing defamatory matter either in the common law
or in a statute which confers a right of action. The right to a remedy
cannot be admitted, however, if its exercise would infringe upon the
freedom to discuss government and political matters which the
Constitution impliedly requires. It is necessary, therefore, to consider
the relationship between the Constitution and the freedom of
communication which it requires on the one hand and the common law
and the statute law which govern the law of defamation on the other.
It is appropriate to begin with the Parliament at Westminster. To say
of the United Kingdom that it has an "unwritten constitution" is to
identify an amalgam of common law and statute and to contrast it with
a written constitution which is rigid rather than fluid. The common law
supplies elements of the British constitutional fabric. Sir Owen Dixon
wrote (252):
"The British conception of the complete supremacy of Parliament
developed under the common law; it forms part of the common law
and, indeed, it may be considered as deriving its authority from the
common law rather than as giving authority to the common law.
But, after all, the common law was the common law of England. It
was not a law of nations. It developed no general doctrine that all
legislatures by their very nature were supreme over the law."
With the establishment of the Commonwealth of Australia, as with
that of the United States of America, it became necessary to
accommodate basic common law concepts and techniques to a federal
system of government embodied in a written and rigid constitution.

(252) "Sources of Legal Authority", reprinted in JeslinR Pi/ale (1965) 1<)8, at pp 1<)<)200.

189 CLR 520]

OF AUSTRALIA

The outcome in Australia differs from that in the United States. There
is but one common law in Australia which is declared by this Court as
the final court of appeal. In contrast to the position in the United
States, the common law as it exists throughout the Australian States
and Territories is not fragmented into different systems of
jurisprudence, possessing different content and subject to different
authoritative interpretations (253). The distinction is important for the
present case and may be illustrated as follows.
The First Amendment to the United States Constitution prohibits
Congress from making any law abridging "the freedom of speech, or
of the press". This privilege or immunity of citizens of the United
States may not be abridged by the making or "the enforcement" by
any State of "any law". That is the effect of the interpretation placed
on the Fourteenth Amendment (254). A civil lawsuit between private
parties brought in a State court may involve the State court in the
enforcement of a State rule of law which infringes the Fourteenth
Amendment. If so, it is no answer that the law in question is the
common law of the State, such as its defamation law (255). The
interaction in such cases between the United States Constitution and
the State common laws has been said to produce "a constitutional
privilege" against the enforcement of State common law (256).
This constitutional classification has also been used in the United
States to support the existence of a federal action for damages arising
from certain executive action in violation of "free-standing"
constitutional rights, privileges or immunities (257). On the other
hand, in Australia, recovery of loss arising from conduct in excess of
constitutional authority has been dealt with under the rubric of the
common law, particularly the law of tort (258).
It makes little sense in Australia to adopt the United States doctrine
so as to identify litigation between private parties over their common
law rights and liabilities as involving" State law rights". Here, "[ w]e
act every day on the unexpressed assumption that the one common law
surrounds us and applies where it has not been superseded by
statute" (259). Moreover, that one common law operates in the federal

(253) cf Black & White Taxi Co v Brown & Yellow Taxi Co (1928) 276 US 518 at 533534; Erie Railroad Co v Toml'kiflS (1938) 304 US 64 at 78-79.
(254) New York Times Co v Sullivan (1964) 376 US 254 at 264-265; Time Inc v Hill
(1967) 385 US 374 at 387-388, 409-410; Time Inc v Firestone (1976) 424 US 448
at 452-453; Dun & Bradstreet Inc v Greenmoss Builders Inc (1985) 472 US 749
at 755, 765-766; Tribe, American Constitutional Law, 2nd ed (1988), par 18-6.
(255) New York Times Co v Sullivan (1964) 376 US 254 at 265.
(256) Gertz v Robert Welch Inc (1974) 418 US 323 at 327, 330, 332, 342-343.
(257) Bivens v Six Unknown Federal Narcotics Alients (1971) 403 US 388.
(258) Northern Territor,V v Menlie! (1995) 185 CLR 307 at 350-353, 372-373.
(259) Dixon, "The Common Law as an Ultimate Constitutional Foundation",
Australian Law Journal, vol 31 (1957) 240, at p 241, reprinted in Jesting Pilate
(1965) 203, at p 205. See also Western Australia \. The Commonwealth (Narive
Title ACT Case) (1995) 183 CLR 373 at 487.

563
H COF A

1997
LANGE
V

AUSTRALIAN

BROADCASTING
CORPORATION

Brennan CJ

Dawson J
Toohey J
Gaudron J

McHugh J
Gummow J

Kirhy J

HIGH COURT

564
H COF A

1997
LANGE
V

AUSTRALIAN
BROAOCASllNG
CORPORAnON

Brennan CJ

Dawson J
Toohey J
Gaudron J

McHugh J
Gummow J

Klrhy J

[1997

system established by the Constitution. The Constitution displaced, or


rendered inapplicable, the English common law doctrine of the general
competence and unqualified supremacy of the legislature. It placed
upon the federal judicature the responsibility of deciding the limits of
the respective powers of State and Commonwealth governments (260).
The Constitution, the federal, State and territorial laws, and the
common law in Australia together constitute the law of this country
and form "one system of jurisprudence" (261). Covering cI 5 of the
Constitution renders the Constitution "binding on the courts, judges,
and people of every State and of every part of the Commonwealth,
notwithstanding anything in the laws of any State". Within that single
system of jurisprudence, the basic law of the Constitution provides the
authority for the enactment of valid statute law and may have effect on
the content of the common law.
Conversely, the Constitution itself is informed by the common law.
This was explained extra-judicially by Sir Owen Dixon (262):
"We do not of course treat the common law as a transcendental
body of legal doctrine, but we do treat it as antecedent in operation
to the constitutional instruments which first divided Australia into
separate colonies and then united her in a federal Commonwealth.
We therefore regard Australian law as a unit. Its content comprises
besides legislation the general common law which it is the duty of
the courts to ascertain as best they may ... The anterior operation of
the common law in Australia is not just a dogma of our legal
system, an abstraction of our constitutional reasoning. It is a fact of
legal history."
And in Cheatle v The Queen (263), this Court said:
"It is well settled that the interpretation of a constitution such as
ours is necessarily influenced by the fact that its provisions are
framed in the language of the English common law, and are to be
read in the light of the common law's history."
Under a legal system based on the common law, "everybody is free
to do anything, subject only to the provisions of the law", so that one
proceeds "upon an assumption of freedom of speech" and turns to the
law "to discover the established exceptions to it" (264). The common
law torts of libel and slander are such exceptions. However, these torts
do not inhibit the publication of defamatory matter unless the

(260) R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254


at 267-268.
(261) McArthur v Williams (1936) 55 CLR 324 at 347; cf Thompson v The Queen
(1989) 169 CLR I at 34-35.
(262) "Sources of Legal Authority", reprinted in Jesting Pilare (1965) 198. at p 199.
(263) (1993) 177 CLR 541 at 552. See also Theophanolls (1994) 182 CLR 104 at 141142.
(264) Alfomey-General v Guardian Newspapers [No 2J [1990] lAC 109 at 283.

189 CLR 520]

OF AUSTRALIA

publication is unlawful - that is to say, not justified, protected or


excused by any of the various defences to the publication of
defamatory matter, including qualified privilege. The result is to confer
upon defendants, who choose to plead and establish an appropriate
defence (265), an immunity to action brought against them. In that
way, they are protected by the law in respect of certain publications
and freedom of communication is maintained.
The issue raised by the Constitution in relation to an action for
defamation is whether the immunity conferred by the common law, as
it has traditionally been perceived, or, where there is statute law on the
subject the immunity conferred by statute, conforms with the freedom
required by the Constitution. In 1901, when the Constitution of the
Commonwealth took effect (266) and when the Judicial Committee
was the ultimate Court in the judicial hierarchy, the English common
law defined the scope of the torts of libel and slander. At that time, the
balance that was struck by the common law between freedom of
communication about government and political matters and the
protection of personal reputation was thought to be consistent with the
freedom that was essential and incidental to the holding of the
elections and referenda for which the Constitution provided. Since
190 I, the common law - now the common law of Australia - has
had to be developed in response to changing conditions. The
expansion of the franchise, the increase in literacy, the growth of
modern political structures operating at both federal and State levels
and the modern development in mass communications, especially the
electronic media, now demand the striking of a different balance from
that which was struck in 1901. To this question we shall presently
return.
The factors which affect the development of the common law
equally affect the scope of the freedom which is constitutionally
required. "[T]he common convenience and welfare of society" is the
criterion of the protection given to communications by the common
law of qualified privilege (267). Similarly, the content of the freedom
to discuss government and political matters must be ascertained
according to what is for the common convenience and welfare of
society. That requires an examination of changing circumstances (268)
and the need to strike a balance in those circumstances between
absolute freedom of discussion of government and politics and the

(265) cf as to waiver of the right or privilege with respect to trial by jury. which is
conferred by s 80 of the Constitution, Brown v The Queen (1986) 160 CLR 171
at 180-182, 190-191, 195-196,204-205.214-215.
(266) Covering cl 3 of the Constitution.
(267) Toogood v Spyring (1834) 1 CM & R 181 at 193 [149 ER 1044 at 1050].
(268) Jumbunna Coal Mine NL v ViCTorian Coal Miners' AssociaTion (1908) 6 CLR 309
at 367-368; AUSTralian NaTional Airways PTy LTd v The CommonwealTh (1945)
71 CLR 29 at 81.

565
He (IF A
1997
LANGE

v
AUSTRALIAN
BROAOCASTING
CORPORATION

Brennan CJ
Dawson]
Toohey J
Gaudron J
McHugh J
Gummow J

Kirhy J

566

HIGH COURT

H COF A
1997
LANGE

v
AVSTRALIAN
BROAOCASTING
CORPORATION

Brennan CJ
Dawson J
Toohey J
Gaudron J
McHugh J
Gummow J

Kirby J

[1997

reasonable protection of the persons who may be involved, directly or


incidentally, in the activities of government or politics.
Of necessity, the common law must conform with the Constitution.
The development of the common law in Australia cannot run counter
to constitutional imperatives (269). The common law and the
requirements of the Constitution cannot be at odds. The common law
of libel and slander could not be developed inconsistently with the
Constitution, for the common law's protection of personal reputation
must admit as an exception that qualified freedom to discuss
government and politics which is required by the Constitution.
In any particular case, the question whether a publication of
defamatory matter is protected by the Constitution or is within a
common law exception to actionable defamation yields the same
answer. But the answer to the common law question has a different
significance from the answer to the constitutional law question. The
answer to the common law question prima facie defines the existence
and scope of the personal right of the person defamed against the
person who published the defamatory matter; the answer to the
constitutional law question defines the area of immunity which cannot
be infringed by a law of the Commonwealth, a law of a State or a law
of those Territories whose residents are entitled to exercise the federal
franchise. That is because the requirement of freedom of communication operates as a restriction on legislative power. Statutory regimes
cannot trespass upon the constitutionally required freedom.
However, a statute which diminishes the rights or remedies of
persons defamed and correspondingly enlarges the freedom to discuss
government and political matters is not contrary to the constitutional
implication. The common law rights of persons defamed may be
diminished by statute but they cannot be enlarged so as to restrict the
freedom required by the Constitution. Statutes which purport to define
the law of defamation are construed, if possible, conformably with the
Constitution. But, if their provisions are intractably inconsistent with
the Constitution, they must yield to the constitutional norm.
The common law may be developed to confer a head or heads of
privilege in terms broader than those which conform to the
constitutionally required freedom, but those terms cannot be any
narrower. Laws made by Commonwealth or State Parliaments or the
legislatures of self-governing territories which are otherwise within
power may therefore extend a head of privilege, but they cannot
derogate from the common law to produce a result which diminishes
the extent of the immunity conferred by the Constitution.
Constitutional text and structure

Since McGinty it has been clear, if it was not clear before, that the
Constitution giv~s effect to the institution of "representative govern-

(269) Theophanous's Case (1994) 182 CLR 104

at

140.

189 CLR 520J

OF AUSTRALIA

ment" only to the extent that the text and structure of the Constitution
establish it (270). In other words, to say that the Constitution gives
effect to representative government is a shorthand way of saying that
the Constitution provides for that form of representative goveroment
which is to be found in the relevant sections. Under the Constitution,
the relevant question is not, "What is required by representative and
responsible government?" It is, "What do the terms and structure of
the Constitution prohibit, authorise or require?"
Moreover, although it is true that the requirement of freedom of
communication is a consequence of the Constitution's system of
representative and responsible government, it is the requirement and
not a right of communication that is to be found in the Constitution.
Unlike the First Amendment to the United States Constitution, which
has been interpreted to confer private rights, our Constitution contains
no express right of freedom of communication or expression. Within
our legal system, communications are free only to the extent that they
are left unburdened by laws that comply with the Constitution.
To the extent that the requirement of freedom of communication is
an implication drawn from ss 7, 24, 64, 128 and related sections of the
Constitution, the implication can validly extend only so far as is
necessary to give effect to these sections. Although some statements in
the earlier cases might be thought to suggest otherwise, when they are
properly understood, they should be seen as purporting to give effect
only to what is inherent in the text and structure of the Constitution.

The test for determining whether a law infringes the constitutional


implication
When a law of a State or federal Parliament or a Territory
legislature is alleged to infringe the requirement of freedom of
communication imposed by ss 7, 24, 64 or 128 of the Constitution,
two questions must be answered before the validity of the law can be
determined. First, does the law effectively burden freedom of
communication about government or political matters either in its
terms, operation or effect (271)? Second, if the law effectively burdens
that freedom, is the law reasonably appropriate and adapted to serve a
legitimate end the fulfilment of which is compatible with the
maintenance of the constitutionally prescribed system of representative
and responsible government and the procedure prescribed by s 128 for
submitting a proposed amendment of the Constitution to the informed
decision of the people (272) (hereafter colIectively "the system of
government prescribed by the Constitution"). If the first question is

(270) McGinty (1996) 186 CLR 140 at 168. 182-183,231,284-285.


(271) cf CWlliffe (1994) 182 CLR 272 at 337.
(272) Cunliffe (1994) 182 CLR 272 at 300,324,339,387-388. In this context, there is
little difference between the test of "reasonably appropriate and adapted" and the
test of proportionality: see at 377, 396.

567
H COF A
1997
LPu"l'GE

v
AVSTRAUAl'
BROADC ASTING
CORPORATION

Brennan CJ
Dawson J
Toohey J
Gaudrun J
McHugh J
Gummow J
Kirby J

HIGH COURT

568
H COF A
1997
LANGE
V

AUSTRALIA."'J

BROADCASTING
CORPORATION

Brennan CJ
Dawson J
Toohey J

Gauuron J
McHugh J
Gummow

[1997

answered "yes" and the second is answered "no", the law is invalid.
In ACTV, for example, a majority of this Court held that a law
seriously impeding discussion during the course of a federal election
was invalid because there were other less drastic means by which the
objectives of the law could be achieved. And the common law rules, as
they have traditionally been understood, must be examined by
reference to the same considerations. If it is necessary, they must be
developed to ensure that the protection given to personal reputation
does not unnecessarily or unreasonably impair the freedom of
communication about government and political matters which the
Constitution requires.

Kirby J

The law of defamation


The law of defamation does not contain any rule that prohibits an
elector from communicating with other electors concerning government or political matters relating to the Commonwealth. Nevertheless,
in so far as the law of defamation requires electors and others to pay
damages for the publication of communications concerning those
matters or leads to the grant of injunctions against such publications, it
effectively burdens the freedom of communication about those
matters. That being so, the critical question in the present case is
whether the common law of defamation as it has traditionally been
understood, and the New South Wales law of defamation in its
statutory form, are reasonably appropriate and adapted to serving the
legitimate end of protecting personal reputation without unnecessarily
or unreasonably impairing the freedom of communication about
government and political matters protected by the Constitution.
The purpose of the law of defamation is to strike a balance between
the right to reputation and freedom of speech (273). It is not to be
supposed that the protection of reputation is a purpose that is
incompatible with the requirement of freedom of communication
imposed by the Constitution (274). The protection of the reputations of
those who take part in the government and political life of this country
from false and defamatory statements is conducive to the public
good (275). The constitutionally prescribed system of government does
not require - to the contrary, it would be adversely affected by - an
unqualified freedom to publish defamatory matter damaging the
reputations of individuals involved in government or politics (276).
The question then is whether the common law of defamation, as it has
traditionally been understood, and the statute law regulating the
publication of defamatory matter are reasonably appropriate and
adapted to the protection of reputation having regard to the

(273)
(274)
(275)
(276)

Theophanous's
Theophanous's
Theophanous's
Theophanous's

Case
Case
Case
Case

(1994)
(1994)
(1994)
(1994)

182
182
182
182

CLR
CLR
CLR
CLR

104 at
104 at
104 at
104 at

131-132, 154-155, 178.


153.
192.
192.

189 CLR 520]

569

OF AUSTRALIA

requirement of freedom of communication about government and


political matters required by the Constitution.
Theophanous and Stephens decided that in particular respects the
law of defamation throughout Australia was incompatible with the
requirement of freedom of communication imposed by the Constitution (277). However, those cases did so without expressly
determining whether the law of defamation in its common law and
statutory emanations has developed to the point that it is reasonably
appropriate and adapted to achieving a legitimate end that is
compatible with the system of government prescribed by the
Constitution. Because that is so, those cases ought not to be treated as
conclusively determining that question, which should be examined
afresh. In the present case, however, it is necessary to examine only
the effect of the defamation law of New South Wales on government
and political matters. This is because the argument in this Court was
conducted on the footing that the plaintiff's action was to be
determined solely by regard to the defamation law of that State.
In New South Wales, the principal defences to the publication of
defamatory matter concerning government and political matters are
truth in respect of a matter that is related to a matter of public interest
or an occasion of qualified privilege, fair comment on a matter relating
to the public interest, fair report of parliamentary and similar
proceedings, common law qualified privilege (278) and the statutory
defence of qualified privilege contained in s 22 of the Defamation Act
1974 (NSW) (279). Without the statutory defence of qualified
privilege, it is clear enough that the law of defamation, as it has
traditionally been understood in New South Wales, would impose an
undue burden on the required freedom of communication under the
Constitution. This is because, apart from the statutory defence, the law
as so understood arguably provides no appropriate defence for a
person who mistakenly but honestly publishes government or political

(277) Theophanous's Case (1994) 182 CLR 104 at 136,


(278) Section II of the Det'amalion Act 1974 (NSW) states that the provision of a
statutory defence "does not of itself vitiate, diminish or abrogate any defence or
exclusion of liability available apart from this Act", As a result, the common law
defence of qualified privilege still applies in New South Wales.
(279) Section 22 states: "(I) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some
subject; (b) the matter is published to the recipient in the course of giving to him
information on that subject; and (c) the conduct of the publisher in publishing that
matter is reasonable in the circumstances, there is a defence of qualified privilege
for that publication, (2) For the purposes of subsection (I). a person has an
apparent interest in having information on some subject if, but only if, at the time
of the publication in question, the publisher believes on reasonable grounds that
that person has that interest. (3) Where matter is published for reward in
circumstances in which there would be a qualified privilege under subsection (I)
for the publication if it were not for reward, there is a defence of qualified
privilege for that publication notwithstanding that it is for reward."

COF

1997
LANGE
V

AL'STRALIAN

BROA.IX:'ASTING
CORf'()RATION

Brennan CJ

Dawson J
Touhey J
GauJron J
McHugh J
Gummuw J
Kirby J

570

HIGH COURT

H COF A

1997
LAJ'>lGE

v
AUSTRALIAN
BROAIX"ASTING
CORP<lRAT[()N

Brennan CJ
Dawson J
Tnllhcy J
GauJron J
McHugh J
Gummnw J
Kirhy J

[1997

matter to a large audience (280). In Lang v Willis (281), this Court


held that election speeches made to large audiences of unidentified
persons are not necessarily privileged even if the speeches deal with
matters of general interest to the electors. In that respect, the common
law as hitherto understood in Australia has simply reflected the
English common law.
The basis of this common law rule is that reciprocity of interest or
duty is essential to a claim of qualified privilege at common law (282).
Only in exceptional cases has the common law recognised an interest
or duty to publish defamatory matter to the general public (283).
However, the common law doctrine as expounded in Australia must
now be seen as imposing an unreasonable restraint on that freedom of
communication, especially communication concerning government and
political matters, which "the common convenience and welfare of
society" (284) now requires. Equally, the system of government
prescribed by the Constitution would be impaired if a wider freedom
for members of the public to give and to receive information
concerning government and political matters were not recognised. The
"varying conditions of society" of which Cockburn CJ spoke in
Wason v Walter (285) now evoke a broadening of the common law
rules of qualified privilege. As McHugh J pointed out in
Stephens (286), that has come about in a number of ways:
"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 thc cxercise 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

(280)
(281)
(282)
(283)

But see Stephens' Case (1994) 182 CLR 211 at 242-251, per Brennan J.
(1934) 52 CLR 637.
Adam v Ward [1917] AC 309 at 334.
Duncombe v Daniell (1837) 8 Car & P 222 [173 ER 470]; Adam ~. Ward [1917]
AC 309; Chapman v Ellesmere (Lord) [1932] 2 KB 431; Tele/;wph Newspaper
Co Ltd v Bedfilrd (1934) 50 CLR 632; Lan/; v Willis (1934) 52 CLR 637; Radio
2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Stephens (1994) 182 CLR
211 at 261.
(284) To()/;()od v Spyrin/; (1834) I CM & R 181 at 193 [149 ER 1044 at 1050J.
(285) (1868) LR 4 QB 73 at 93.
(286) (1994) 182 CLR 211 at 264

189 CLR 520]

571

OF AUSTRALIA

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."
Because the Constitution requires "the people" to be able to
communicate with each other with respect to matters that could affect
their choice in federal elections or constitutional referenda or that
could throw light on the performance of Ministers of State and the
conduct of the executive branch of government, the common law rules
concerning privileged communications, as understood before the
decision in Theophanous, had reached the point where they failed to
meet that requirement. However, the common law of defamation can
and ought to be developed to take into account the varied conditions to
which McHugh J referred. The common law rules of qualified
privilege will then properly reflect the requirements of ss 7, 24, 64,
128 and related sections of the Constitution.
Accordingly, this Court should now declare that each member of the
Australian community has an interest in disseminating and receiving
information, opinions and arguments concerning government and
political matters that affect the people of Australia. The duty to
disseminate such information is simply the correlative of the interest in
receiving it. The common convenience and welfare of Australian
society are advanced by discussion - the giving and receiving of
information - about government and political matters. The interest
that each member of the Australian community has in such a
discussion extends the categories of qualified privilege. Consequently,
those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may
be that, in some respects, the common law defence as so extended
goes beyond what is required for the common law of defamation to be
compatible with the freedom of communication required by the
Constitution. For example, 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.
Similarly, discussion of government or politics at State or Territory
level and even at local government level is amenable to protection by
the extended category of qualified privilege, whether or not it bears on
matters at the federal level. Of course, the discussion of matters at
State, Territory or local level might bear on the choice that the people
have to make in federal elections or in voting to amend the
Constitution, and on their evaluation of the performance of federal
Ministers and their departments. The existence of national political

COF

1997
LANGE
V

ACSTRALlAl"l

BROAOCASTI"G
CORPORATION

Brennan CJ

Dawson J
Toohey J
Gaudron J

McHugh J
Gummow J
KIf~Y J

572

HIGH COURT

COF

1997
LANGE
V

AUSTRALIAN
BROADCASTING
CORPORATION

Brennan CJ

Dawson J
Toohey J
Gaudron J
McHugh J
Gummow J

Kirhy J

[1997

parties operating at federal, State, Territory and local government


levels, the financial dependence of State, Territory and local
governments on federal funding and policies, and the increasing
integration of social, economic and political matters in Australia make
this conclusion inevitable. Thus, the extended category of common law
qualified privilege ensures conformity with the requirements of the
Constitution. The real question is as to the conditions upon which this
extended category of common law qualified privilege should depend.
At common law, once an occasion of qualified privilege is found to
exist, the privilege traditionally protects a communication made on
that occasion unless the plaintiff is actuated by malice in making the
communication (287). But, apart from a few exceptional cases (288),
the common law categories of qualified privilege protect only
occasions where defamatory matter is published to a limited number of
recipients. If a publication is made to a large audience, a claim of
qualified privilege at common law is rejected unless, exceptionally, the
members of the audience all have an interest in knowing the truth.
Publication beyond what was reasonably sufficient for the occasion of
qualified privilege is unprotected (289). Because privileged occasions
are ordinarily occasions of limited publication - more often than not
occasions of publication to a single person - the common law has
seen honesty of purpose in the publisher as the appropriate protection
for individual reputation. As long as the publisher honestly and
without malice uses the occasion for the purpose for which it is given,
that person escapes liability even though the publication is false and
defamatory. But a test devised for situations where usually only one
person receives the publication is unlikely to be appropriate when the
publication is to tens of thousands, or more, of readers, listeners or
viewers.
No doubt it is arguable that, because qualified privilege applies only
when the communication is for the common convenience and welfare
of society, a person publishing to tens of thousands should be able to
do so under the same conditions as those that apply to any person
publishing on an occasion of qualified privilege. But the damage that
can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few
recipients. Because the damage from the former class of publication is
likely to be so much greater than from the latter class, a requirement of
reasonableness as contained in s 22 of the Defamation Act, which goes
beyond mere honesty, is properly to be seen as reasonably appropriate

(287) Mowld., v Fergusson (1939) 40 SR (NSW) 311 at 327-329; Horrocks \' Lowe
[1975] AC 135 at 149.
(288) eg, Adam v Ward [1917] AC 309; Loveday \' 5un New,papers Ltd (1938) 59 CLR

503.
(289) Telegraph Newspaper Co Ltd \' BedffJrd (1934) 50 CLR 632.

189 CLR 520]

573

OF AUSTRALIA

and adapted to the protection of reputation and, thus, not inconsistent


with the freedom of communication which the Constitution requires.
Reasonableness of conduct is the basic criterion in s 22 of the
Defamation Act which gives a statutory defence of qualified privilege.
It is a concept invoked in one of the defences of qualified protection
under the Defamation Codes of Queensland and Tasmania (290). And
it was the test of reasonableness that was invoked in the joint
judgment in Theophanous (291). Given these considerations and given,
also, that the requirement of honesty of purpose was developed in
relation to more limited publications, reasonableness of conduct seems
the appropriate criterion to apply when the occasion of the publication
of defamatory matter is said to be an occasion of qualified privilege
solely by reason of the relevance of the matter published to the
discussion of government or political matters. But reasonableness of
conduct is imported as an element only when the extended category of
qualified privilege is invoked to protect a publication that would
otherwise be held to have been made to too wide an audience. For
example, reasonableness of conduct is not an element of that qualified
privilege which protects a member of the public who makes a
complaint to a Minister concerning the administration of his or her
department. Reasonableness of conduct is an element for the judge to
consider only when a publication concerning a government or political
matter is made in circumstances that, under the English common law,
would have failed to attract a defence of qualified privilege.
In Theophanous (292), the joint judgment also required the
defendant to prove that it was unaware of the falsity of the matter
published and that it did not publish the matter recklessly. That is a
requirement that has little practical significance. The defendant must
establish that its conduct in making the publication was reasonable in
all the circumstances of the case. In all but exceptional cases, the proof
of reasonableness will fail as a matter of fact unless the publisher
establishes that it was unaware of the falsity of the matter and did not
act recklessly in making the publication.
It may be that, if a statutory provision were to require the additional
elements of want of knowledge of falsity and absence of recklessness,
as required by Theophanous, it would not, on that account, infringe the
freedom of communication which the Constitution requires. For
present purposes, it is necessary only to state that their absence from
s 22 of the Defamation Act cannot have the consequence that the
provisions of that Act infringe the constitutional freedom. Moreover,
these are not requirements of the common law, as it has traditionally
been understood, and there is no reason why they should be engrafted
on the expanded common law defence of qualified privilege.

(290) Criminal Code (Q), s 377; Defamation Act 1957 (Tas), s 16.
(291) (1994) 182 CLR 104 at 136-137.
(292) (1994) 182 CLR 104 at 137.

H COF A

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Brennan CJ

Dawson J
Toohey J
Gaudron J

McHugh J
Gummow J
Kirhy J

574

HIGH COURT

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1997
LANGE
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Brennan CJ

Dawson J
Toohey J
Gaudron J

McHugh J
Gummow J
Kirby J

[1997

Having regard to the interest that the members of the Australian


community have in receiving information on government and political
matters that affect them, the reputations of those defamed by
widespread publications will be adequately protected by requiring the
publisher to prove reasonableness of conduct. The protection of those
reputations will be further enhanced by the requirement that the
defence will be defeated if the person defamed proves that the
publication was actuated by common law malice to the extent that the
elements of malice are not covered under the rubric of reasonableness.
In the context of the extended defence of qualified privilege in its
application to communications with respect to political matters,
"actuated by malice" is to be understood as signifying a publication
made not for the purpose of communicating government or political
information or ideas, but for some improper purpose.
In Theophanous (293), the Court held that, once the publisher
proved it was unaware of the falsity of the material, had not acted
recklessly, and had acted reasonably, malice could not defeat the
constitutional defence. But once the concept of actuating malice is
understood in its application to government and political communications, in the sense indicated, we see no reason why a publisher who
has used the occasion to give vent to its ill will or other improper
motive should escape liability for the publication of false and
defamatory statements. As we have explained, the existence of ill will
or other improper motive will not itself defeat the privilege. The
plaintiff must prove that the publication of the defamatory matter was
actuated by that ill will or other improper motive (294). Furthermore,
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 attaek or the
pungency of a defamatory statement, without more, discharge the
plaintiff's onus of proof of this issue.
Whether the making of a publication was reasonable must depend
upon all the circumstances of the case. But, as a general rule, a
defendant's conduct in publishing material giving rise to a defamatory
imputation will not be reasonable unless the defendant had reasonable
grounds for believing that the imputation was true, took proper steps,
so far as they were reasonably open, to verify the accuracy of the
material and did not believe the imputation to be untrue. Furthermore,
the defendant's conduct will not be reasonable unless the defendant
has sought a response from the person defamed and published the
response made (if any) except in cases where the seeking or
publication of a response was not practicable or it was unnecessary to
give the plaintiff an opportunity to respond (295).

(293) (1994) 182 CLR 104 at 137.


(294) Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329.
(295) S/ephellS Cuse (1994) 182 CLR 211 at 252-253.

189 CLR 520]

575

OF AUSTRALIA

Once the common law is developed in this manner, the New South
Wales law of defamation cannot be said to place an undue burden on
those communications that are necessary to give effect to the choice in
federal elections given by ss 7 and 24 and the freedom of
communication implied by those sections and ss 64 and 128 of the
Constitution. It is true that the law of defamation in that State
effectively places a burden on those communications although it does
not prohibit them. Nevertheless, having regard to the necessity to
protect reputation, the law of New South Wales goes no further than is
reasonably appropriate and adapted to achieve the protection of
reputation once it provides for the extended application of the law of
qualified privilege. Moreover, even without the common law
extension, s 22 of the Defamation Act ensures that the New South
Wales law of defamation does not place an undue burden on
communications falling within the protection of the Constitution. That
is because s 22 protects matter published to any person where the
recipient had an interest or apparent interest in having information on a
subject, the matter was published in the course of giving information
on that subject to the recipient, and the conduct of the publisher in
publishing the matter was reasonable in the circumstances.

Other statutory defences


As already indicated, it is common ground that this matter is to be
determined by reference to the law as it applies in New South Wales.
However, the need to develop the common law to conform with the
constitutional implication may require that defamation legislation in
other States be re-evaluated. It is unnecessary in this case to consider
whether, when so evaluated, that legislation is reasonably appropriate
and adapted in the sense indicated and, if not, the extent to which it is
invalid.
The pleaded defences
In so far as the amended defence in the present case rests on the
claim that the defamatory matter was published pursuant to a freedom
guaranteed by the Constitution of the Commonwealth, the defence
fails. For the reasons that we have given, the Constitution itself confers
no private right of defence and the New South Wales law of
defamation action places no undue burden on the freedom of
communication required by the Constitution. In so far as the amended
defence relies on the common law of qualified privilege to defend the
publication, different considerations apply. The argument with respect
to that matter was made in the context of qualified privilege as it has
been traditionally understood, albeit as modified in Theophanous. The
argument was not made by reference to the expanded defence of
qualified privilege which must now be recognised. Nor, of course,
were particulars provided in that context. The particulars which have
been provided do not, in our view, bring the publication within the
extended defence.

H COF A
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LA"..:GE

AL:STRALlAt~

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C()RP'()RATION

Brennan CJ
Dawson J
Toohey J
Gauurnll J
McHugh J
Gummow J
Klfhy J

576

HIGH COURT

H COF A
1997
LANGE

v
AUSTRALJA..'J

BROADCASTIN(,
C()RPORATI()N

Brennan CJ
Dawson J
Touhey J
Gauurnn J
McHugh J
Gummow J
Kirhy J

[1997

By reason of matters of geography, history, and constitutional and


trading arrangements, however, the discussion of matters concerning
New Zealand may often affect or throw light on government or
political matters in Australia. That being so, it may be that further and
better particulars can be provided which bring the publications within
the expanded defence. We express no view as to whether the
publication can be brought within that defence, but the possibility
should not be regarded as foreclosed by the orders that the Court now
makes.

Orders
I.
The case stated should be answered as follows:
"I. Q. Is the defence pleaded in par 10 of the Defendant's
Amended Defence bad in law?"
A. Yes.
"2. Q. Is the defence pleaded in par 6 of the Defendant's
Amended Defence bad in law in respect of the publication
complained of in New South Wales?"
A. No. But the particulars given do not bring the publication
within that defence.
2. The matter is remitted to the Supreme Court of New South Wales
to proceed therein in accordance with the answers to the
questions.
3. The defendant pay the plaintiff's costs of the proceedings in the
High Court including the costs of the removal of the matter under
s 40 of the Judiciary Act 1903 (Cth).
4. The Commonwealth, New South Wales, Queensland, South
Australia and Western Australia pay to the plaintiff and to the
defendant a proportion of the costs incurred by each of them to be
taxed as between party and party in relation to the proceedings in
the High Court other than the application to remove the matter
under s 40 of the Judiciary Act 1903 (Cth), the proportion to be
determined by the taxing officer by reference to the time by
which the hearing of the matter before the Full Court was
extended by submissions made on behalf of those interveners.
5. The corporations described as "the Fairfax interests", Nationwide News Pty Ltd, the Herald & Weekly Times Ltd, and the
Seven Network Ltd pay to the plaintiff and to the defendant a
proportion of the costs incurred by each of them to be taxed as
between party and party in relation to the proceedings in the High
Court other than the application to remove the matter under s 40
of the Judiciary Act 1903 (Cth), the proportion to be determined
by the taxing officer by reference to the time by which the
hearing of the matter before the Full Court was extended by
submissions made on behalf of those interveners.
6. Any payment made to the plaintiff pursuant to par 4 or par 5 shall
be made in relief of the defendant's obligation under par 3.

189 CLR 520]

577

OF AUSTRALIA
I. The case stated should be answered as follows:
"I. Q. Is the defence pleaded in par 10 of the

2.

3.

4.

5.

6.

Defendant's Amended Defence bad in law?"


A. Yes.
"2. Q. Is the defence pleaded in par 6 of the
Defendant's Amended Defence bad in law in
respect of the publication complained of in
New South Wales?"
A. No. But the particulars given do not bring
the publication within that defence.
The matter is remitted to the Supreme Court of
New South Wales to proceed therein in accordance with the answers to the questions.
The defendant pay the plaintiff's costs of the
proceedings in the High Court including the costs
of the removal of the matter under s 40 of the
Judiciary Act 1903 (Cth).
The
Commonwealth,
New
South
Wales,
Queensland, South Australia and Western
Australia pay to the plaintiff and to the defendant
a proportion of the costs incurred by each of
them to be taxed as between party and party in
relation to the proceedings in the High Court
other than the application to remove the matter
under s 40 of the Judiciary Act 1903 (Cth), the
proportion to be determined by the taxing officer
by reference to the time by which the hearing of
the matter before the Full Court was extended by
submissions made on behalf of those interveners.
The corporations described as "the Fairfax
interests", Nationwide News Pry Ltd. the Herald
& Weekly Times Ltd, and the Seven Network Ltd
pay to the plaintiff and to the defendant a
proportion of the costs incurred by each of them
to be taxed as between party and party in relation
to the proceedings in the High Court other than
the application to remove the matter under s 40
of the Judiciary Act 1903 (Cth). the proportion to
be determined by the taxing officer by reference
to the time by which the hearing of the matter
before the Full Court was extended by submissions made on behalf of those interveners.
Any payment made to the plaintiff pursuant to
par 4 or par 5 shall be made in relief of the
defendant's obligation under par 3.

He OF 1\
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[1997

Solicitors for the plaintiff, Phillips Fox.


Solicitor for the defendant, Judith Walker.

LAJ"GE

v
AUSTRALl.AJ"
BROADCASTING
CORPORATIO!'J

Solicitors for the intervening Attorney-Generals, R C Beazley,


Victorian Government Solicitor; Australian Government Solicitor;
B T Dunphy, Crown Solicitor for the State of Queensland;
M D Walter, Crown Solicitor for the State of South Australia;
P A Panegyres, Crown Solicitor for the State of Western Australia;
Solicitor for the Northern Territory; I V Knight, Crown Solicitor for
the State of New South Wales.
Solicitors for the other interveners, John Fairfax Publications Pty
Ltd, David Syme & Co Ltd, Illawarra Newspapers Holdings Pty Ltd,
Newcastle Newspapers Pty Ltd, Fairfax Community Newspapers Pty
Ltd and West Australian Newspapers Ltd, Freehill Hollingdale &
Page; Nationwide News Pty Ltd, Gallagher de Reszke; Herald &
Weekly Times Ltd, Arthur Robinson & Hedderwicks; Seven Network
Ltd, Clayton Utz.
Solicitor for the Media, Entertainment and Arts Alliance, Public
Interest Advocacy Centre.
S G E McL