Defamation Law Revised

The Press Council's Chairman, Prof David Flint, in his regular column, looks at the High Court's decision, reviewing its decisions on the implications for defamation law of the implied freedom of political communication.

In 1994, the High Court decided, by a narrow majority, that the guarantee of freedom of political communication, implied in the Constitution, actually modified the law of defamation. (See Theophanous v. The Herald and Weekly Times and anor (1994) 182 CLR 104 and Stephens and ors v. West Australian Newspapers (1994) 182 CLR 211; and Australian Press Council News, Vol. 6 No. 4, November 1994.)

So a new defence then became available in matters of political communication. This required a defendant to show that it did not know that what it published was untrue, that it was not reckless in making the publication and that its conduct was reasonable. Unlike the American "public figure" concept, the onus was to be on the defendant to prove these matters.

In the interim, it became clear that three or four High Court judges had reservations about those decisions and their consequences. The 1994 decisions were reviewed by the Court recently in Lange v. The Australian Broadcasting Corporation.

In this case, former New Zealand Prime Minister David Lange invited the Court to remove the constitutional protection the media has enjoyed in reporting political matters since those 1994 decisions. Had the Court agreed, the media would have been exposed to an increasing number of defamation actions. The judges would also have indicated to politicians, as well as to the disaffected, that the life of the Court's decisions depended entirely on who sits on the Court. At least three vacancies will occur during this government's term. The pressure to appoint conservative lawyers would have been irresistible. Yet experience suggests that appointing "conservative" lawyers does not always achieve the desired result. Thus Sir William Deane proved the most radical judge in Theophanous and Stephens and Justice Gummow was part of the majority in the Wik case, which decided that native title was not extinguished by the grant of pastoral lease. Both had been seen as conservative appointments.

A Divided Court

Most commentators had expected a divided court in Lange. After all, the 1994 decisions commanded only a bare majority. Then only three judges had proposed a limited constitutional defence where defamation occurred in the course of political communication. Sir William Deane would have gone further. Three judges had dissented. One, Justice McHugh, offered a tantalising, and apparently broader concept of common law qualified privilege. In David Lange's case, it was widely thought that Justices Toohey and Gaudron would reaffirm the 1994 decision but that Justices Dawson, McHugh and, possibly, Gummow would seek to reverse it. Sir Gerard Brennan, a dissentient in 1994, was thought likely to feel himself bound by the precedent. On this hypothesis, Justice Kirby could have decided the issue.

How wrong all that was. The Court did not reverse Theophanous and Stephens - it has "re-examined" them. In its unanimity, it has strengthened, while rebottling, the 1994 decisions. And the judges have also defended the more controversial Wik judgment against attack.

Intervention

Because of the importance of the case, the Commonwealth, New South Wales, South Australia and Western Australia intervened as of right. Leave was granted to various media interests (including John Fairfax Publications, West Australian newspapers, Nationwide News, the Herald and Weekly Times and the Seven Network) to intervene as well. The Media, Entertainment and Arts Alliance was refused leave to intervene but permitted to appear as an amicus curiae. Leave was also given to the Australian Press Council Chairman to file written submission as an amicus curiae. The acceptance of the Council's submission by written brief, rather than by appearance, creates a precedent - this is believed to be the first time the Court has accepted such a brief.

In its judgment in Lange, the Court proceeds from the incontrovertible fact that the Constitution intended to create a system of representative and responsible government. And it cites the arch federationist, Sir Samuel Griffiths, in support. But the Constitution itself doesn't say that in so many words.

And an indispensable incident of responsible, representative government is - freedom of political communication. The Court then reminds parliamentarians that they have no power to pass legislation which is contrary to the Constitution. In assessing the compatibility of both the common law and statute law with the Constitution, the Court of course has to balance free speech against the protection of reputation which defamation law offers. Changing circumstances (increasing literacy, modern political structures operating at both federal and state levels, and technology) require the structuring of a different balance than in 1901.

Qualified Privilege

The Court held that the old common law of defamation imposes an unreasonable restraint on freedom of political communication. Qualified privilege - the protection the law offers say to the writer of a reference - was inadequate. As each member of the Australian community has an interest in receiving political opinion and arguments, the common law must be developed to cover this. So the court brings in Justice McHugh's dream of an expanded qualified privilege. This is not as generous as some hoped because it still requires the media's conduct to be reasonable. A similar development in New Zealand - ironically also arising out of a matter brought by David Lange - only requires the media to have an "honest belief" in the truth of what is published. (This is, of course, more attractive to the media.)

Reasonableness

The other two requirements of the constitutional defence set out in Theophanous - that the publisher was unaware of the falsity of the matter and did not act recklessly - are effectively absorbed into the concept of reasonableness. But the media would say that NSW experience with a similar statutory provision (section 22 of the Defamation Act) shows that it doesn't work, because judges with the benefit of hindsight have had an unreasonable view of what is in fact reasonable. The High Court anticipates this by giving some guidelines on reasonableness, not only for the media, but one suspects for the benefit of the lower courts.

The High Court says that it can be reasonable to publish something which turns out subsequently to be untrue. Media defendants will still have difficulties with the defence if they rely on confidential sources. And the media must seek and publish a response from the person allegedly defamed. The Court does not, of course, tell us when, and how often, a response should be sought, whether publication should be delayed until a response is prepared, and whether the response should be published in full. No doubt the Court would say the concept of reasonableness is the key.

The common law privilege is lost if the defendant is actuated by malice. Again there is a clear signal to litigants and lower courts - the Court says the plaintiff must prove the publication was actuated by malice. 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 in itself be considered as improper. Nor can the "vigour of an attack, or the pungency of a defamatory statement, without more, discharge the plaintiff's onus of proof".

It is apparent that while the Court says that NSW statutory qualified privilege is consistent with the Constitution, it is in effect adding the qualification that the NSW provision needs to be made to work by the courts.

As a result, the new freedom to report and comment in political matters which so tentatively saw the light of day in 1994 is now more strongly entrenched into our jurisprudence.

DAVID FLINT

see also
Index on defamation material

Index of David Flint's articles

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