Federal Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Federal Law Review |
|
In Lange v Australian Broadcasting Corporation[2] the High Court, in a single unanimous judgment, clarified the nature of the implied freedom of political communication and reformulated its effect on the law of defamation. Five years on, the Court has given a judgment displaying considerable uncertainty as to the impact of the Lange decision on the common law defence of qualified privilege.
In Roberts v Bass,[3] the High Court by majority allowed an appeal brought by two political campaigners who had published defamatory material in the lead-up to a South Australian election. The majority judgments of the Court mark an important clarification of what is required to establish malice, particularly in the electoral context.
There was disagreement among the members of the Court as to the extent to which their conclusions were affected by the implied constitutional freedom of political communication. More fundamentally, there were different views as to the state of the common law of qualified privilege after its development in Lange, and ongoing uncertainties were revealed as to the nature of common law development of the kind that occurred in Lange.
The common law of defamation recognises various categories of privilege that protect publishers of publications, which would otherwise be defamatory. The defence of qualified privilege, unlike absolute privilege, is defeated if the plaintiff can prove that the publication was actuated by malice. A publication will only be an occasion of qualified privilege if it was made in the performance of a legal, social or moral duty or to protect the publisher's interest, and if the material was published to recipients who had a corresponding duty or interest to receive it—that is, if there was 'reciprocity'.[4] Generally, publications to the world at large do not fulfil the 'reciprocity' requirement, and so traditionally it has been difficult for the mass media to rely on the qualified privilege defence in respect of publications made to a wide audience. This traditional position was changed significantly by the High Court's decisions in Theophanous v Herald & Weekly Times Ltd,[5] its companion case Stephens v West Australian Newspapers Ltd,[6] and Lange.
In Theophanous and Stephens, a High Court majority of four recognised a defence to defamation actions arising from an implied constitutional freedom of discussion about government and political matters, members of Parliament and the suitability of candidates for Parliament. Justice Deane differed from the other majority Justices as to the scope of this 'constitutional freedom'. In his view, statements falling within the implied freedom were protected by an absolute privilege.[7] However, Mason CJ, Toohey and Gaudron JJ held that the defence would only succeed if the defendant established that it was unaware of the falsity of the statement and was not reckless as to its truth or falsity, and that the publication was reasonable in the circumstances.[8] Two members of the minority in Stephens, Brennan and McHugh JJ, held that the common law defence of qualified privilege extended or should be extended to communications about political and government matters where those communications would otherwise fail the 'reciprocity' requirement.[9]
In Lange, the High Court reconsidered Theophanous and Stephens and reformulated the defence available to a defamation action in respect of communications about government or political matters. The Court did not follow the view of the majority in Theophanous and Stephens that the implied constitutional freedom supported a 'constitutional defence' available to members of Parliament and other public figures. It held that the sections of the Constitution that gave rise to the implied freedom precluded curtailment of the freedom by legislative or executive action, but were not a source of personal rights.[10] The Court held that the common law must conform to the Constitution and because the existing law of qualified privilege did not so conform, it must be reformulated.[11]
In reformulating the common law of qualified privilege, the Court in Lange held that each member of the Australian community had an interest in receiving information, opinions and arguments about government and political matters that affected Australia, and that on the basis of this interest, the making of such publications about government and political matters was an occasion of qualified privilege (even though the traditional 'reciprocity' requirement may not be satisfied).[12] However, where a publication was made to too wide an audience for 'reciprocity' to be established, a publisher relying on qualified privilege must establish that its conduct in making the publication was reasonable in all the circumstances.[13] This 'reasonableness' requirement was said to be necessary because the damage done by a publication to a large number of recipients could be much greater than that of a publication to only a few recipients.[14] The Court confirmed that this extended form of 'qualified privilege' would be defeated if the publication was actuated by malice; that is, ill will or other improper motive.[15] The Court said that malice would not be proved simply on the basis that the publisher did not have a positive belief in the truth of what was published, nor simply on the basis that the publisher's motive was to damage the political success of the defendant.[16]
Theophanous, Stephens and Lange each involved publications by the mass media that would have failed to meet the 'reciprocity' requirement of traditional common law qualified privilege because they were made to too wide an audience. In the context of an election campaign, statements by and about particular candidates to large numbers of voters might similarly fail to be recognised as an occasion of traditional qualified privilege because of the absence of 'reciprocity'. However, aside from the High Court's developments of qualified privilege in Theophanous, Stephens and Lange, the common law authorities on this point differ. There is English authority supporting the view that statements by candidates in an electoral contest may be occasions of qualified privilege, even if made to a large number of electors if those statements are relevant to matters that the electors will consider in deciding how to vote,[17] but in an earlier case in the High Court, the Court held that election speeches made to large audiences were not necessarily privileged even if the speeches dealt with matters of general importance to electors.[18]
There is no doubt that publications about the respective merits of political candidates in the lead-up to an election[19] are the kind of communications that enjoy the protection of the implied freedom of political communication. But if such publications were covered by common law qualified privilege as it existed before Theophanous, Stephens and Lange, how does the High Court's extension of qualified privilege in Lange apply to such publications? More generally, how do the pre-Lange common law rules of qualified privilege fit together with the extension of qualified privilege made by the High Court in Lange? Roberts v Bass presented an opportunity, albeit a somewhat awkward one, for the resolution of these issues.
Mr Bass, the respondent before the High Court, stood as a candidate for election to the seat of Florey in the South Australian House of Assembly in 1997. Mr Bass was the sitting member for that seat. The appellants, Mr Roberts and Mr Case, were both involved in campaigning against Mr Bass in the election campaign, and Mr Roberts authorised the publication of documents during the campaign making various statements about Mr Bass. The appellants had both been politically active and had previously opposed Mr Bass' actions on issues such as gun control (in the case of the first appellant, Mr Roberts) and the privatisation of a hospital (in the case of both appellants).
Mr Roberts prepared and authorised the publication of three documents as part of the campaign against Mr Bass. The first was in the form of a postcard from Nauru, and contained a statement that Mr Bass was enjoying a holiday in Nauru at taxpayers' expense. The second document was a pamphlet headed 'Free Travel Times' making various statements to the effect that as Member for Florey, Mr Bass had had numerous free overseas trips and earned Frequent Flyer points for himself and his family, and containing a mock-up of an Ansett Frequent Flyer statement in Mr Bass' name. These two documents were distributed at Mr Roberts' request to around 12,000 households in the electorate of Florey prior to polling day. The third document was in the form of a 'how to vote' card, and urged voters to 'put Sam Bass last'. It contained statements that Mr Bass had taken numerous 'junkets' at taxpayers' expense, had failed to stop 'secret deals' at Modbury Hospital, and had 'put gun rights ahead of your family's safety'. The only involvement of the second appellant, Mr Case, in the distribution of the documents was on polling day, when he handed out the 'how to vote' card at a polling booth.
Prior to polling day, Mr Bass had become aware that the 'Free Travel Times' pamphlet was being distributed, and complained to the State Electoral Officer. The Electoral Officer wrote to Mr Roberts pursuant to his powers under the Electoral Act 1985 (SA) requiring him to cease distributing this document as it was misleading, and to publish a retraction. Mr Roberts failed to do so. On polling day, the Electoral Officer also contacted Mr Roberts in similar terms about the 'how to vote' card. Mr Roberts was subsequently charged with breaches of the Electoral Act and pleaded guilty.
Mr Bass lost the seat of Florey in the 1997 election. Mr Bass brought proceedings against the appellants in the District Court of South Australia, claiming that the three documents were defamatory of him, and seeking damages.
An unusual feature of this case was the significance that the conduct of the proceedings in the South Australian courts assumed before the High Court. Chief Justice Gleeson described the conduct of the proceedings as 'in some respects artificially shap[ing]' the issues before the High Court,[20] and Kirby J lamented the complicated course that had been taken by a case that should essentially have been 'relatively straightforward'.[21]
The trial judge, Lowrie J, found for Mr Bass and awarded him $64,800 damages against Mr Roberts and $5,400 against Mr Case.[22] The Full Court of the Supreme Court of South Australia dismissed an appeal by the appellants and allowed a cross-appeal by Mr Bass, increasing the award of damages against Mr Roberts to $100,000.[23] The dominant issue at all levels of the proceedings was whether the publications made by the appellants were protected by the defence of qualified privilege, and whether malice (which would negate the defence of qualified privilege) had been established.
The trial judge, having found that each of the three documents was defamatory,[24] went on to consider what he regarded as two separate defences of qualified privilege.[25] The appellants had pleaded that the three documents 'were published on occasions of qualified privilege and was a matter concerning government and political matters affecting the electors of Florey and the choice for electors at an election'.[26] Justice Lowrie said that he regarded the appellants as having pleaded qualified privilege on two alternative bases; first, the 'traditional' defence of qualified privilege and second, the extended form of privilege for political communications as established in Lange.[27]
In Lowrie J's view, to rely on 'traditional' qualified privilege, the appellants needed to establish:[28]
(a) reciprocity—that is, that there was a duty on the part of the publisher and a reciprocal interest on the part of the recipient, and hence an occasion of qualified privilege; and
(b) absence of malice—for the privilege would be lost if the publication by the defendant was actuated by malice.
Justice Lowrie held in the appellants' favour in relation to reciprocity, concluding that the audience to which the publications were made (which was intended only to include constituents of Florey) was not too wide to be an occasion of qualified privilege.[29] However, Lowrie J held that malice had been established and so the 'traditional' defence failed.[30]
Justice Lowrie then considered the 'extended' form of qualified privilege established in Lange, describing it as an 'expanded form of common law duty-interest qualified privilege where a publisher has published defamatory material concerning government and political matters to the public at large'.[31] In his view, the elements of this defence were:
(1) that the publication was about government or political matters; and
(2) reasonableness—that is, that the publication was reasonable in all the circumstances; and
(3) absence of malice.
Justice Lowrie accepted that the publications made by the appellants were about government and political matters. However, he found that the appellants' actions in publishing the documents were not reasonable in all the circumstances and so the 'extended' defence of qualified privilege also failed.[32] In relation to element (3), he said that the test for malice was narrower in the 'extended' defence than the 'traditional' defence, for in 'extended' qualified privilege malice could not be established by showing that a defendant did not have a belief in the truth of what was published, nor by showing that the publisher's motive was to cause political damage to the defendant.
Before the Supreme Court, Mr Bass did not challenge the trial judge's conclusion in relation to reciprocity (element (a) of the 'traditional' defence). Also, the appellants did not challenge the trial judge's conclusion that 'reasonableness' (element (2) of the 'extended' defence) was not established and so the 'extended' defence failed. Thus, the Supreme Court considered only 'traditional' qualified privilege and not the 'extended' defence as established in Lange.[33]
The issues of reciprocity and reasonableness were not before the High Court because of their abandonment by Mr Bass and the appellants respectively. This significantly constricted the High Court's consideration of the elements of qualified privilege. As to reciprocity, even though the publications were made to approximately 12,000 electors, it was not open to the High Court to find that this was too wide an audience to attract 'traditional' qualified privilege.[34] As to reasonableness, the reasoning of the Justices other than Callinan J[35] suggests that they may have overturned the trial judge's finding that the appellants' conduct was not reasonable in the circumstances. Moreover, in Kirby J's view the trial judge should not have considered the 'reasonableness' requirement at all, because that requirement only applied in situations that were held not to be an occasion of 'traditional' qualified privilege because the publication was made to too wide an audience to establish 'reciprocity'.[36] Nevertheless, because of the trial judge's finding on reasonableness, the appellants had abandoned the 'extended' qualified privilege defence before the Supreme Court and they did not seek to rely on the 'extended' defence before the High Court (even though there was oral argument as to the impact of the Constitution on qualified privilege, particularly by the Attorney-General for Western Australia who intervened in the appeal).
Despite constricting the High Court's consideration of the issues, the abandonment of reciprocity and reasonableness drew into focus the nature of qualified privilege after Lange. A fundamental issue that arose was whether in the context of political communications there indeed are two separate defences. As will be seen, the judgments in the High Court parted ways as to the nature of the 'traditional' and the 'extended' defences and their application in the case before the Court.
In considering the 'traditional' qualified privilege defence, Lowrie J held that malice was established in the absence of a genuine belief by the publisher in the truth of the defamatory statement, or where the publisher used the privileged occasion for an improper or foreign motive.[37] The appellants argued, relying on comments by the High Court in Lange,[38] that a motive to injure a candidate's chances of re-election could not be an improper motive.[39] However, Lowrie J said that these comments had been in the context of the 'reasonableness' requirement in the extended defence of qualified privilege and were not relevant to 'traditional' qualified privilege.[40]
In any case, Lowrie J found that, on the evidence, the appellants' dominant purpose went far beyond the mere desire to damage Mr Bass' re-election prospects, and extended to an intention to lower people's views of Mr Bass generally.[41] He also found that the appellants had published allegations against Mr Bass without caring whether they were true or not, and said that a failure to inquire as to the truth of allegations was relevant to malice, even though it did not of itself constitute malice.[42]
In the Supreme Court, all three Justices held that malice by both appellants had been established and so the defence of qualified privilege failed. Justice Williams disagreed with the trial judge's conclusion that the appellants were motivated by an improper purpose,[43] saying that there was nothing in the evidence to support a conclusion that either appellant aimed to injure Mr Bass other than with respect to his electoral prospects.[44] However, Williams J held that because it was established that the appellants had held no honest belief in what they published it was unnecessary to identify their dominant motive, for the absence of an honest belief defeated the qualified privilege.[45]
Justice Martin considered that the trial judge was correct in finding that Mr Roberts possessed an improper motive, but said that Mr Case's primary concern was to achieve Mr Bass' electoral defeat and that 'targeting' a political opponent as he did, did not amount to an improper motive.[46] However, because Mr Case was indifferent to the truth of the defamatory statements apparent from the 'how to vote' card, he did not possess an honest belief in the statements and so his defence of qualified privilege failed.[47] The third Justice, Prior J, held that malice had been established in respect of both appellants because Mr Case was recklessly indifferent to the truth or falsity of the material that he published, and Mr Roberts had an improper motive and no honest belief in the truth of what he published.[48]
The central issue before the High Court with respect to malice was whether the absence of an honest belief in the truth of what is published can of itself amount to malice. As will be seen, however, questions of the applicable test of malice were interlinked with questions as to the nature of 'traditional' and 'extended' qualified privilege.
The High Court allowed the appeal, by a majority of four (Gaudron, McHugh, Gummow and Kirby JJ) in respect of Mr Roberts, and by a majority of six (with Callinan J dissenting) in respect of Mr Case. Justices Gaudron, McHugh and Gummow gave joint reasons, with the other members of the Court giving separate reasons. The Court ordered that there be a new trial of the action against Mr Roberts, but that there be judgment for Mr Case.
Despite the abandonment by the appellants of what was said to be the 'extended' defence of qualified privilege, Gaudron, McHugh and Gummow JJ said that the Court's task was to determine the extent to which the common law rules of traditional qualified privilege were consistent with the implied constitutional freedom.[49] They held that in the present case there was a burden on the freedom, but that the applicable common law rules governing traditional qualified privilege were reasonably appropriate and adapted to serving a legitimate end, and so there was no inconsistency with the implied constitutional freedom.[50]
Justice Kirby's conclusions were also guided by consideration of the implied constitutional freedom. However, Kirby J went further than Gaudron, McHugh and Gummow JJ in his recognition of the role of the Constitution in the appeal, saying that parties to litigation could not agree between themselves that the Constitution was to be ignored.[51] In Kirby J's view, in cases where the implied constitutional freedom arose, the 'traditional' common law rules of qualified privilege could not survive to the extent that they were inconsistent with the requirements of the freedom.[52]
The remaining Justices took a different view as to 'traditional' and 'extended' qualified privilege and the role of the implied constitutional freedom in the case before them. Chief Justice Gleeson held that the appeal could not be resolved on the basis of the implied constitutional freedom, because the parties must be held to the way that they had conducted the litigation in the South Australian courts.[53] This was so even though he considered the co-existence of two defences of qualified privilege ('traditional' common law qualified privilege and 'extended' qualified privilege as recognised in Lange) to be 'difficult to understand as a matter of principle'.[54]
Justice Hayne agreed with Gleeson CJ's view that the parties must be held to the way that the case was conducted before the South Australian courts.[55] However, he suggested that this had unfortunate consequences for the resolution of the issues. Justice Hayne not only took the view that the 'extended' defence of qualified privilege should not have been abandoned in the present case, but also that it was incorrect to apply 'traditional' qualified privilege to situations involving widespread publications about government or political matters, even if they were only to electors.[56] If 'traditional' qualified privilege applied to cases where material was distributed to large numbers of voters in an election campaign, the extension of the defence by the High Court in Lange would hardly have been necessary.[57]
Justice Callinan agreed with Gleeson CJ and Hayne J that the defence of 'extended' qualified privilege had been abandoned and could not have been argued before the High Court. Unlike the other members of the court, however, Callinan J reiterated a view that he had expressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[58] regarding the Lange decision and the recognition of an implied constitutional freedom of political communication as incorrect.[59]
Justices Gaudron, McHugh and Gummow held that neither lack of honest belief in the truth of a publication, nor knowledge that the publication was false, themselves destroyed the defence of qualified privilege.[60] Both were simply matters that supported an inference that a publication by a publisher was actuated by an improper motive, and malice was established against the publisher.[61] However, knowledge of falsity would be 'almost conclusive evidence' of improper motive,[62] but the absence of an honest belief was not to be equated with knowledge of falsity.[63]
Justices Gaudron, McHugh and Gummow said that the impact of the implied constitutional freedom was relevant to their conclusions on the law of malice, as it established that where statements were published about political matters, intending political damage to an election candidate did not of itself amount to improper motive.[64] They held that the evidence did not support a finding of improper purpose in respect of either Mr Roberts or Mr Case, and so allowed the appeal in respect of both appellants.
Justice Kirby agreed with the joint judgment's conclusions in relation to the relevance of different states of mind to a finding of malice, at least in situations where the implied constitutional freedom applies.[65] He differed slightly from the joint judgment in considering that the finding against Mr Roberts in relation to the 'Free Travel Times' should stand, particularly since Mr Roberts proceeded to publish that document after being told not to by the Electoral Commissioner.[66] However, Kirby J decided not to treat the 'Free Travel Times' separately from the other documents, and so agreed that the appeal should be allowed in respect of both appellants.
Chief Justice Gleeson held that the applicable test for malice in the present case was the test for 'traditional' qualified privilege, and that test was whether a publication was published for the purpose of the honest expression of views about a candidate for election.[67] It would be inconsistent with the purpose of the privilege to use the occasion not for the honest expression of views, but for the publication of matter that the publisher knew to be false, or was reckless as to whether it was true or false.[68] He agreed that proof of the absence of an honest belief did not suffice to establish malice, but did not regard this as determinative in the case of either appellant.[69] This was because the evidence against Mr Roberts clearly established recklessness on his part as to the truth or falsity of the publications, whereas Mr Case's situation was quite different and the evidence did not support a finding that he was recklessly indifferent.[70] Therefore, Gleeson CJ held that the appeal should be allowed with respect to Mr Case, but dismissed with respect to Mr Roberts.
Justice Hayne agreed with Gleeson CJ's conclusions that Mr Roberts acted with malice but Mr Case did not, and agreed with the orders proposed by the Chief Justice.[71]
Justice Callinan took a different approach, considering that both appellants had been reckless as to the truth or falsity of the material that they published, and concluded that the appeal should be dismissed in respect of both Mr Roberts and Mr Case. He accepted that a motive of damaging a candidate's political prospects did not necessarily constitute malice,[72] but said that the law did not accept as a defence utter indifference or recklessness to the truth or falsity of defamatory matter, even in electoral situations.[73] He also said that because of the appellants' recklessness, the 'reasonableness' requirement of the 'extended' defence of qualified privilege had clearly not been satisfied.[74]
The High Court divided sharply as to the effect of the appellants' abandonment of an 'extended' qualified privilege defence. In the view of Gleeson CJ,[75] Hayne[76] and Callinan JJ,[77] this abandonment meant that the Lange principles had no role to play in the Court's decision, as the parties must be held to what they had argued in the courts below. Chief Justice Gleeson and Hayne J expressed dissatisfaction with this situation, with Hayne J describing it as providing 'an artificial and flawed basis for consideration of the arguments'.[78] Justice Callinan took a more robust view, saying that a party was never bound to rely on 'every apparently available defence, whether ... constitutional ... or not.'[79]
The other members of the Court held that, regardless of how the parties had conducted the litigation, the Court's task was to determine whether the applicable common law rules of qualified privilege conformed to the Constitution.[80] While accepting that the appellants could not depart from their acceptance of the finding against them on 'reasonableness', Gaudron, McHugh and Gummow JJ nevertheless regarded the implied constitutional freedom as central to their consideration of 'traditional' qualified privilege.[81] In Kirby J's view, this was so because courts could not accept an incorrect understanding of the law as agreed between parties, and nor could parties agree that the Constitution was to be overlooked,[82] for the High Court was 'not involved in a game of legal charades'.[83]
All members of the Court agreed to the basic principle that parties generally could not present on appeal an argument that they had abandoned in the courts below. Similarly, they agreed that Lange had established the existence and nature of the implied constitutional freedom and its role in developing the common law of defamation (although Callinan J indicated that were Lange to be re-opened he would not recognise any implied freedom of political communication). Their disagreement seems to have arisen from differing views as to the effect of Lange on the defence of qualified privilege.
On one view, Lange developed the common law defence of qualified privilege as it relates to political communications. Although this development occurred because of the Constitution, it was the same in its effect as any other development of the common law—that is, the common law was modified and it would be incorrect to rely on the law as it was prior to the modification. The reasoning of Gaudron, McHugh, Gummow and Kirby JJ could be seen to accord with this view. They regarded it as the Court's task to apply the common law as it now stood after being developed in Lange, and to modify that common law if it impermissibly burdened the implied constitutional freedom. Although the conduct of the litigation could affect whether certain arguments could be relied upon, it could not affect the Court's role of applying and, if necessary, developing the common law.
On another view, however, Lange created an 'extended' defence of qualified privilege in respect of political communications, which is now available for defendants to rely upon in addition to 'traditional' common law privilege. This was the view taken by the trial judge and apparently also the Supreme Court, and Gleeson CJ and Hayne J reluctantly followed this approach in deciding the appeals. Justice Callinan adopted this view more wholeheartedly, referring to a defence based on Lange as a 'constitutional defence'.[84] On this view, if Lange had created a new type of qualified privilege defence, then the appellants must be held to their abandonment of that defence. If a party chose not to rely on the defence that had been created because of the implied constitutional freedom, then the case did not involve the freedom and was to be determined on the basis of 'traditional' qualified privilege only.
If, as a result of Lange, there were two defences of qualified privilege in respect of political communications, a rough outline of their elements would be as follows:
'Traditional' qualified privilege
'Extended' qualified privilege
It should be remembered that the 'extended' defence applies only to communications about government and political matters whereas the 'traditional' defence also applies to other types of communication.
When the elements of the two 'defences' are set out as above, it is not difficult to see how a defendant might, for strategic reasons, pursue only the 'traditional' defence. As long as a defendant can establish that a political communication was not to too wide an audience to establish 'reciprocity', the 'traditional' defence appears less onerous than the 'extended' defence in that there is no 'reasonableness' requirement. Clearly this situation is not what was intended by the Court in Lange. On the contrary, the Court said in Lange that the question whether a publication of defamatory matter was protected by the Constitution or whether it was within a common law exception would yield the same answer.[88]
Is it correct to say that after Lange there are two coexisting defences? Although Gleeson CJ and Hayne J accepted for the purposes of the appeal that there were two separate defences, both expressed considerable unease with this proposition. In Gleeson CJ's view, there appeared to be no basis in principle for the existence of two defences. He said that the law of defamation had struck a balance between competing interests, including the public interest in freedom of political debate[89] (a balance which has been changed by Lange). It is difficult to see why that balance should be different 'when a newspaper with a wide circulation publishes an article about the Prime Minister, or the Leader of the Opposition' (and only the 'extended' defence applies because the 'reciprocity' requirement cannot be met) from 'when someone distributes throughout an electorate a pamphlet urging electors to vote against the sitting member' (and the 'traditional' defence applies).[90] Justice Hayne regarded it as 'artificial and flawed' to approach the issues on the basis that 'extended' qualified privilege, as a separate defence, did not apply.[91] Justice Callinan also expressed doubts as to the coexistence of two defences, but in his view this supported the conclusion that the 'constitutional defence' based on the implied constitutional freedom should be abandoned.[92] In acknowledging these difficulties, Gleeson CJ and Hayne J (and possibly Callinan J) were perhaps suggesting that if the practical result of Lange were the coexistence of two qualified privilege defences in respect of political communications, that result was unfortunate and unfounded in principle.
The High Court's reasoning in Lange itself indicates that what it was doing was not creating a new defence of qualified privilege, but developing the existing common law defence. This was one of the crucial ways in which the unanimous Court in Lange differed from the majority in Theophanous. In Theophanous, the majority had recognised a 'constitutional defence' which protected public figures from defamation actions in certain circumstances.[93] The Court in Lange rejected the notion of a constitutional defence, preferring instead to develop the common law so that it conformed to the requirements of the implied constitutional freedom.[94] Justice Callinan's references in Roberts v Bass to 'the constitutional defence' suggest a view of the High Court's development of the law in Lange that was rejected by the Court in that case.
Once it is recognised that the Court in Lange was developing the common law, rather than creating or recognising a 'constitutional defence', it seems strange to conclude that that development formed a new, discrete defence rather than modifying the elements of the existing defence. The view that there are two defences effectively requires defendants seeking to invoke the 'traditional' defence to plead their case according to the pre-Lange common law of qualified privilege. However, the common law of qualified privilege cannot remain frozen in the state it was in immediately before Lange, particularly since it applies to various types of communications outside the field of political communication. If the 'traditional' common law defence develops and changes over time, as common law doctrines tend to do, it is difficult to see any basis for requiring future defendants to rely on the defence in its pre-Lange state, rather than the contemporary defence. But if they are to rely on the contemporary defence, why could the Court not consider whether that defence conforms to the implied constitutional freedom, and develop the common law if it did not? Would a subsequent development by the Court of the 'traditional' defence to make it conform to the Constitution result in a third defence of qualified privilege?
The nature of the common law is that it is developed, as a body of law, by the courts, and parties cannot choose to rely on the law as it was prior to certain developments. There is no reason in principle why the High Court's development of the common law of defamation to ensure conformity with the Constitution should be treated as though it were something other than a development of the common law. Of course, such development differs from other changes in the common law in that it is grounded in constitutional principle and so is not vulnerable to subsequent modification by the legislature or, to some extent, the judiciary.[95] Nevertheless, it does not seem to have been the High Court's intention in Lange that aspects of a common law doctrine that have been developed for constitutional reasons should be quarantined from other parts of the common law and treated as separate doctrines altogether.
The following, then, is an outline of the common law defence of qualified privilege as it applies to political communications:
Qualified privilege in respect of political communications
In the view of the trial judge, the test for malice in the 'extended' defence was narrower than the test in the 'traditional' defence, in that it could neither be established by showing an absence of an honest belief in the truth, nor by the motive of causing political damage.[96] Perhaps, on that view, the coexistence of two different tests for malice could indicate the existence of two separate defences. However, Gaudron, McHugh, Gummow[97] and Kirby JJ[98] applied the test for malice as established in Lange, holding that the pre-Lange test would impermissibly burden the implied constitutional freedom and no longer applied to qualified privilege in the context of political communications. Thus, to the extent that the test for malice in this context was modified by the Court in Lange, the previous test for malice (in which absence of an honest belief could establish malice) was no longer part of the law of qualified privilege in its application to political communications.
Despite the different approaches taken by the members of the Court to doctrinal issues, there were considerable similarities in their treatment of the context of Mr Roberts' and Mr Case's conduct. The context of a political campaign in the lead-up to an election was considered by all members of the Court in their consideration of the principles of malice in qualified privilege. The Court's understanding of the realities of modern Australian electoral contests guided their reasoning in at least three ways.
Firstly, all Justices accepted (as the Court had held in Lange), that a motive of damaging an opposing candidate's electoral prospects did not necessarily amount to malice.[99] Chief Justice Gleeson described statements intended to damage a candidate's electoral prospects as 'the stuff of which political debate is made'.[100] In other spheres of life, the sort of behaviour used to advance such political motives may clearly demonstrate 'ill will' and malice, but intending to damage a candidate's political standing and even 'targeting' a particular candidate did not necessarily defeat the privilege.[101]
Secondly, the Justices referred to the passionate and sometimes irrational nature of political views and political debate. Justice Kirby described political communication in contemporary Australia as often being 'robust, exaggerated, angry, mixing fact and comment and commonly appealing to prejudice, fear and self-interest'.[102] Justice Callinan also acknowledged the relevance of the 'heat of the emotions' in politics,[103] with the joint judgment describing irrational reasoning as 'typical' in political debate[104] and Hayne J referring to the existence of a broad range of political views.[105] Underlying these comments seems to be a concern to ensure that courts do not enter the political realm by judging the correctness or fairness of individuals' political views.[106]
The third aspect of a recognition of political reality arose from the situation of Mr Case who (in contrast to Mr Roberts) had not designed and printed the documents about Mr Bass, but had simply handed out copies of the 'how to vote' card at a polling booth. Justices Gaudron, McHugh and Gummow[107] and Kirby J[108] expressed concern that requiring proof of honest belief in the truth of a publication in order to negate malice would have the effect of discouraging political participation by volunteers during an election. Interestingly, however, Callinan J took the opposite view, suggesting that requiring volunteers at polling booths to check the veracity of the contents of the 'how to vote' cards they were handing out would not stifle political communication and participation. Rather, requirements that such persons hold honest beliefs and take reasonable care in publishing electoral material could only 'enhance the electoral process and good, responsible and representative government'.[109]
These comments could all be seen to belong within a consideration of the Constitution's role in protecting political communications and of the various aspects of electoral campaigning that enhance the exercise of the vote by members of the Australian community. Thus, for Kirby J, the need for qualified privilege to conform to the Constitution entailed a need for the doctrine of malice to be shaped to electoral realities.[110] Justices Gaudron, McHugh and Gummow said that if irrational political reasoning could form the basis of malice and could defeat the qualified privilege defence, that would render the implied constitutional freedom 'little more than a grand idea of no practical importance'.[111]
However, the other members of the Court did not regard the implied constitutional freedom as applying to the case, and so it would be wrong to treat their comments in such a light. For Gleeson CJ, consideration of the realities of electoral contests guided the way that questions of malice should be determined in respect of common law qualified privilege. Justice Hayne took a similar view, although he referred to the development of the 'reasonableness' requirement in Lange as necessary to acknowledge the fact that political views may often be irrational but genuinely held.[112] Justice Callinan, as noted above,[113] regarded a requirement of honest belief in the truth of a publication as enhancing rather than burdening political communication. Even though the comments of Gleeson CJ, Hayne and Callinan JJ on this aspect of the case were not tied to any development of constitutional doctrine, the Court's consideration of the unique context of political campaigning may serve as a guide to courts deciding future defamation actions in this context.
In Lange, the High Court recognised the implied constitutional freedom of communication between people concerning political or government matters which enables the people to exercise their choice as electors at federal elections.[114] The Court nevertheless said that the discussion of State or Territory political matters would be covered by the extended qualified privilege defence, even it did not bear on matters at federal level.[115] However, the defence of qualified privilege in defamation law is only one field in which the implied constitutional freedom operates, and so what was said in Lange did not necessarily mean that the freedom generally protected communications about State government and political matters. In Levy v Victoria,[116] two Justices suggested that in areas other than qualified privilege, the freedom only protects communications about State matters where those matters are shown to have federal significance.[117]
Because Roberts v Bass concerned qualified privilege, the question whether the implied constitutional freedom extends to State matters in other fields did not arise. It is interesting to note, however, that there were references in the joint judgment and by Kirby J to communications in (State) electoral campaigns as being 'the very heartland'[118] of and 'at the heart of'[119] the freedom itself. It remains to be seen whether these comments signal an acceptance of the view that communications solely about State government or political matters are protected by the implied constitutional freedom in fields outside qualified privilege. It is possible that they simply highlight that political communications about candidates in electoral contests are exactly the kind of communications that the implied constitutional freedom protects, and are more obviously within the scope of the freedom than communications outside the electoral context.
Although the High Court's unanimous judgment in Lange clarified many of the issues left unresolved because of the diversity of views in Theophanous and Stephens, Roberts v Bass revealed ongoing uncertainties as to the role of the implied constitutional freedom in defamation matters. To some extent, these uncertainties resulted from the way that the litigation had been conducted in the South Australian courts. It may be that, in the absence of such complications, all members of the Court other than Callinan J would have agreed on the test for malice in cases where qualified privilege is relied on to defend publications made as part of an election campaign.
However, the peculiarities of the case drew out interesting issues as to the elements of qualified privilege after Lange and as to the nature of the development that the High Court made in Lange, on which the Court was divided. For Callinan J, this division was symptomatic of the uncertainties arising from the recognition of the implied constitutional freedom, and he despaired that:[120]
[i]t will take years, years of uncertainty and diverse opinion for the Court to reach a settled view of the elements of the defence and the way in which it is to be applied. Lange certainly does not exhaustively define its impact on the law of defamation. I doubt whether any case, or series of cases will ever do so, and, as defamation is not a head of federal constitutional power, legislation can never be enacted to resolve the recurrent uncertainties to which it gives rise.
While it is to be hoped that this pessimistic prediction will not prove true, it is nevertheless clear that Lange did not mark the final chapter in the High Court's consideration of defamation law as it relates to political communication.
[1] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 164-5, [11] (Gleeson CJ).
[*] Lawyer, Australian Government Solicitor. The views expressed in the article are those of the author, and do not necessarily represent the views of the Commonwealth. Thanks are due to Graeme Hill and Jenny Burnett for their comments on earlier drafts of this article.
[2] [1997] HCA 25; (1997) 189 CLR 520 ('Lange').
[3] [2002] HCA 57; (2003) 194 ALR 161.
[4] Toogood v Spyring [1834] EngR 363; (1834) 1 CM & R 181; Adam v Ward [1917] AC 309.
[5] [1994] HCA 46; (1994) 182 CLR 104 ('Theophanous').
[6] [1994] HCA 45; (1994) 182 CLR 211 ('Stephens').
[7] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 185–6 (Deane J); Stephens [1994] HCA 45; (1994) 182 CLR 211, 257 (Deane J).
[8] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 137–41 (Mason CJ, Toohey and Gaudron JJ); Stephens [1994] HCA 45; (1994) 182 CLR 211, 234 (Mason CJ, Toohey and Gaudron JJ).
[9] Stephens [1994] HCA 45; (1994) 182 CLR 211, 255–6 (Brennan J), 261–7 (McHugh J).
[10] Lange [1997] HCA 25; (1997) 189 CLR 520, 560.
[11] Ibid 566–75.
[12] Ibid 570–1.
[13] Ibid 572–4.
[14] Ibid 572.
[15] Ibid 574.
[16] Ibid.
[17] Braddock v Bevins [1948] 1 KB 580.
[18] Lang v Willis [1934] HCA 51; (1934) 52 CLR 637.
[19] As to the possible relevance of the distinction between State and federal elections, see Part 5 below.
[20] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 162, [2] (Gleeson CJ).
[21] Ibid 195, [126] (Kirby J).
[22] Bass v Roberts & Case [2000] SADC 35.
[23] Roberts & Case v Bass [2000] SASC 297; (2000) 78 SASR 302.
[24] Bass v Roberts & Case [2000] SADC 35, [185], [214], [222], [228].
[25] The appellants also relied upon two other defences (fair comment and a 'Polly Peck' defence), which were unsuccessful and which were not at issue before the High Court.
[26] Bass v Roberts & Case [2000] SADC 35, [24].
[27] Ibid [242].
[28] For the purpose of this discussion, questions as to whom the onus of proving malice falls upon are not considered.
[29] Bass v Roberts & Case [2000] SADC 35, [246].
[30] Ibid [260].
[31] Ibid [261].
[32] Ibid [271].
[33] See Roberts & Case v Bass [2000] SASC 297; (2000) 78 SASR 302, [46] (Williams J).
[34] Justice Hayne doubted that a publication to such a wide audience could properly be regarded as being an occasion of traditional qualified privilege: Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 218-19, [224] (Hayne J).
[35] See below, Part 2(C).
[36] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 203, [161] (Kirby J). See also Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 218, [222] (Hayne J); Lange [1997] HCA 25; (1997) 189 CLR 520, 573.
[37] Bass v Roberts & Case [2000] SADC 35, [250].
[38] [1997] HCA 25; (1997) 189 CLR 520, 574.
[39] Bass v Roberts & Case [2000] SADC 35, [252]–[253].
[40] Ibid [253].
[41] Ibid [254].
[42] Ibid [257].
[43] Roberts & Case v Bass [2000] SASC 297; (2000) 78 SASR 302, [42] (Williams J).
[44] Ibid [42]–[43] (Williams J).
[45] Ibid [39] (Williams J).
[46] Ibid [94]–[96] (Martin J).
[47] Ibid [102] (Martin J).
[48] Ibid [2] (Prior J).
[49] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 177, [65] (Gaudron, McHugh and Gummow JJ).
[50] Ibid 178, [70] (Gaudron, McHugh and Gummow JJ).
[51] Ibid 199, [143] (Kirby J).
[52] Ibid 199, 203, [144], [160] (Kirby J).
[53] Ibid 162, [2] (Gleeson CJ).
[54] Ibid [4].
[55] Ibid 216, [213] (Hayne J).
[56] Ibid 221, [224] (Hayne J).
[57] Ibid 219, [225].
[59] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 236-7, [285] (Callinan J).
[60] Ibid 181, [78] (Gaudron, McHugh and Gummow JJ).
[61] Ibid 180, 181-2, [76], [79] (Gaudron, McHugh and Gummow JJ).
[62] Ibid 183, [83] (Gaudron, McHugh and Gummow JJ).
[63] Ibid 183-4, [87] (Gaudron, McHugh and Gummow JJ).
[64] Ibid 179, [74] (Gaudron, McHugh and Gummow JJ).
[65] Ibid 209, [185] (Kirby J).
[66] Ibid 211-12, [193] (Kirby J).
[67] Ibid 164-5, [13] (Gleeson CJ).
[68] Ibid.
[69] Ibid 166, [15].
[70] Ibid 172, [45] (Gleeson CJ).
[71] Ibid 220, [230]–[231] (Hayne J).
[72] Ibid 238, [291] (Callinan J).
[73] Ibid 241, [303] (Callinan J).
[74] Ibid 237, [287] (Callinan J).
[75] Ibid 162, [2] (Gleeson CJ).
[76] Ibid 216, [213] (Hayne J).
[77] Ibid 237, [286] (Callinan J).
[78] Ibid 216, [213] (Hayne J).
[79] Ibid 237, [286] (Callinan J).
[80] Ibid 177, 178, [65], [71] (Gaudron, McHugh and Gummow JJ), 199, [143]–[144] (Kirby J).
[81] Ibid 177, 178 [65], [71] (Gaudron, McHugh and Gummow JJ).
[82] Ibid , 196, 199 [130], [143] (Kirby J).
[83] Ibid 202, [158] (Kirby J).
[84] Ibid 236-7, [285], [286] (Callinan J).
[85] Lange [1997] HCA 25; (1997) 189 CLR 520, 570–1.
[86] Ibid 572–4.
[87] Ibid 574.
[88] Ibid 566.
[89] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 163, [4] (Gleeson CJ).
[90] Ibid.
[91] Ibid 216, [213] (Hayne J).
[92] Ibid 236-7, [285] (Callinan J).
[94] See Adrienne Stone, 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219.
[95] See Lange [1997] HCA 25; (1997) 189 CLR 520, 566. See, for a discussion of this process of 'constitutionalising' the common law, Graeme Hill and Adrienne Stone, 'The Constitutionalisation of the Common Law' (forthcoming, copy on file with author).
[96] Bass v Roberts & Case [2000] SADC 35, [263], [264].
[97] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 178, [69] (Gaudron, McHugh and Gummow JJ).
[98] Ibid 212, [195] (Kirby J).
[99] Ibid 164-5, [11] (Gleeson CJ), 304-5 [68] (Gaudron, McHugh and Gummow JJ), [184] 327 (Kirby J), 335 [230] (Hayne J), 346-7 [291] (Callinan J).
[100] Ibid 164-5, [11] (Gleeson CJ).
[101] Ibid 171, [39] (Gleeson CJ).
[102] Ibid 200, [171] (Kirby J).
[103] Ibid 240, [301] (Callinan J).
[104] Ibid 190-1, [110] (Gaudron, McHugh and Gummow JJ).
[105] Ibid 219, [227] (Hayne J).
[106] See, eg, ibid 170, [35] (Gleeson CJ).
[107] Ibid 187, [100], [101] (Gaudron, McHugh and Gummow JJ).
[108] Ibid 210, [188] (Kirby J).
[109] Ibid 241-2, [305] (Callinan J).
[110] Ibid 206, [172] (Kirby J).
[111] Ibid 190-1, [110] (Gaudron, McHugh and Gummow JJ).
[112] Ibid 219, [227] (Hayne J).
[113] See above, n 109 and accompanying text.
[114] The Court in Lange confirmed that the implied freedom arose from specific sections of the Constitution establishing a system of government where representatives are chosen directly by the people at periodic elections, not from a general concept of representative government: Lange [1997] HCA 25; (1997) 189 CLR 520, 557–9.
[115] Lange [1997] HCA 25; (1997) 189 CLR 520, 571.
[116] [1997] HCA 31; (1997) 189 CLR 579.
[117] Ibid 596 (Brennan CJ), 626 (McHugh J). See, in this regard, Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 381.
[118] Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 205-6, [170] (Kirby J). See also Roberts v Bass [2002] HCA 57; (2002) 194 ALR 161, 202-3, [159] (Kirby J).
[119] Ibid 176, [64], 179, [73] (Gaudron, McHugh and Gummow JJ).
[120] Ibid 236-7, [285] (Callinan J).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/FedLawRw/2003/7.html