Lange v. ABC: Still Dancing in the Streets?
Max Spry
Law and Bills Digest Group
August 1997
On 8 July 1997 the High Court handed down its decision in Lange v
ABC, a case involving a defamation action by former New Zealand Prime
Minister, Mr Lange, against the Australian Broadcasting Corporation for
allegations made about him on the current affairs program, Four Corners.
Somewhat unusually, the decision was unanimous and the judgment relatively
short. Nevertheless, after a cursory reading of the newspaper headlines,
one could easily be forgiven for being confused about what the High Court
decided. On 9 July the Canberra Times, for example, announced 'Judges
protect free speech', but the Financial Review on 9 July said 'High
Court shift in defamation law for media' and on 11 July it stated 'Judges
take a firmer line on the freedom to publish'.
This Research Note sets out the High Court decision in Lange,
noting two key aspects:
-
- the consolidation of the implied constitutional freedom of political
communication; and
- the refinement of the law of defamation.
Background
In 1992 in Australian Capital Television v Commonwealth [(1992)
177 CLR 106] and in Nationwide News Pty Ltd v Wills [(1992) 177
CLR 1] the High Court recognised, on the basis of representative democracy
provi-ded for in the Commonwealth Constitution, an implied guarantee of
political communication.
In 1994 in Theophanous v Herald and Weekly Times Ltd [(1994) 182
CLR 104] and in Stephens v West Australian Newspapers Ltd [(1994)
182 CLR 211] the High Court considered the relationship between the implied
constitut-ional freedom and the State defamation laws. The Court in Theophanous
held that the implied freedom of political communication may, in certain
circumstances, be a valid defence in defamation proceedings. Mason CJ,
Toohey and Gaudron JJ considered that an alleged defamatory publication
will not be actionable where the defendant shows:
-
- it was unaware that the information it published was false;
- it 'did not publish the material recklessly, that is, not caring whether
the material was true or false'; and
- in the circumstances, publication was reasonable (Theophanous
p 141).
Lange v ABC
The High Court made it very clear in Lange that the Constitution
provides for a system of representative and responsible government. Sections
7 and 24 of the Constitution, for example, require the Australian people
to choose their representatives at regular elections. Sections 13 and
28 set limits on parliamentary terms before members and senators must
return to the electors. In short, 'the effect of ss 1, 7, 8, 13, 24, 25,
28 and 30 ... is to ensure that the Parliament of the Commonwealth will
be representative of the people of the Commonwealth.'
That the Constitution also provides for responsible government (that
is the Executive is responsible to Parliament and through Parliament to
the people) may be established by, for example, section 6 (requiring parliament
to meet at least once each year) and section 83 (no appropriation may
be made except by law).
Indispensable to this system of representative and responsible government,
the High Court stated, is the freedom to discuss governmental and political
matters. The Court acknowledged that the freedom of communication is not
expressly stated in the Constitution. Nevertheless, it said that given
the nature of representative government, and Australia's political history
before Federation, it could not be doubted that the Constitution provides
for free elections involving free speech on political matters. The Court
stated:
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.
However, the Court continued:
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.
In other words the constitutional implication of freedom of political
communication does not establish in Australia a general or personal right
of free speech. Rather, it acts as a brake on governmental or parliamentary
efforts to limit what may be said on political matters. Importantly, the
Court also re-affirmed earlier cases that had held that the implied freedom
is not absolute.
It is limited to what is necessary for the effective operation of that
system of representative and responsible government provided for by
the Constitution.
Defamation
The law of defamation in Australia is found in legislation and in the
common law. Both sources of law are subject to the implied constitutional
freedom of political communication. The High Court stated that '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.' Similarly, 'statutory regimes cannot trespass upon
the constitutionally required freedom.'
In Lange, the Court had to consider whether the common law and
the relevant NSW legislation '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 Court stated forcefully that the Australian people have an interest
in receiving and discussing information on government and political matters
that affect them. Further, the Court, endorsing McHugh J in Stephens,
did not consider that the issues or topics that fell within 'government
or political matters' should be narrowly defined.
Bearing in mind the interest the Australian people have in the publication
of information on political matters, 'the reputations of those defamed
by widespread publications will be adequately protected by requiring the
publisher to prove reasonableness of conduct.' Further, the publication
cannot be 'actuated by malice'. What is reasonable depends on the facts
in each case. However, the Court stated:
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 the imputation to be 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 defend-ant's conduct will not be reasona-ble 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.
Defamation law in NSW does not infringe the implied constitutional freedom
of political communication. The High Court remitted the matter to the
NSW Supreme Court to decide whether Mr Lange was defamed by the ABC.
Conclusion
Lange clearly establishes the implied freedom of political communication
in the Common-wealth Constitution. In respect of defamation it places
a more onerous test on those who publish defamatory material than that
set out in Theophanous, but it expands the common law action of
qualified privilege and effectively entrenches it in the Constitution.
How this test will be worked out in practice is yet to be seen.
When the High Court decided Theophanous there were some who, like
Alexander Meiklejohn referring to the United States Supreme Court's decision
in New York Times Co v Sullivan, considered it 'an occasion for
dancing in the streets.' Although the implications of Lange in
the area of defamation law have yet to be worked through, it is premature
to suggest that the decision puts an end to the dancing in the streets.
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