Lange v Australian Broadcasting Corporation

Facts

The plaintiff, a former Prime Minister of New Zealand, sued the Australian Broadcasting Corporation in defamation over a television broadcast that allegedly imputed serious misconduct in public office. The ABC pleaded a constitutional defence based on an implied freedom of political communication derived from the Commonwealth Constitution. The matter came before the High Court on a demurrer raising questions about the scope and application of that freedom.

Issues

1. Whether the Commonwealth Constitution implies a freedom of communication with respect to governmental and political matters. 2. Whether that implied freedom operates as a defence to a defamation action brought by a public figure, and if so, on what conditions. 3. Whether the earlier formulations of the implied freedom in Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd should be affirmed, modified or overruled.

Holding

A unanimous High Court held that the Constitution does imply a freedom of communication on governmental and political matters, but that freedom is not an individual right; it operates as a limit on legislative and executive power. The Court reformulated the qualified constitutional defence to defamation, requiring that the publisher neither knew the matter was false nor acted with reckless indifference to its truth or falsity, and that the conduct of the publisher was reasonable in the circumstances.

Ratio decidendi

The Commonwealth Constitution, by providing for a system of representative and responsible government, implies a freedom of communication on matters of government and politics; that freedom invalidates laws that effectively burden such communication unless the law is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the constitutionally prescribed system of government. In defamation, a defendant may rely on an extended form of qualified privilege in respect of political communication, which is defeated if the plaintiff proves the defendant did not act reasonably.

Obiter dicta

The Court noted that the implied freedom is not a personal right of free speech analogous to the First Amendment of the United States Constitution but is a restriction on governmental power necessary to maintain the constitutional system. The Court also observed that whether communication about the conduct of foreign governments or foreign public figures falls within the freedom was left open.

Significance

Lange is the foundational High Court authority on the implied constitutional freedom of political communication, establishing the two-step test — burden on the freedom, then reasonable proportionality — that has governed constitutional analysis in this field ever since, and it remains the leading case on the relationship between that freedom and the law of defamation in Australia.

Key authorities

• Theophanous v Herald & Weekly Times Ltd Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104overruled
• Stephens v West Australian Newspapers Ltd Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211overruled
• Australian Capital Television Pty Ltd v Commonwealth Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106followed
• Nationwide News Pty Ltd v Wills Nationwide News Pty Ltd v Wills (1992) 177 CLR 1followed
• Cunliffe v Commonwealth Cunliffe v Commonwealth (1994) 182 CLR 272considered
• Mutual Life & Citizens Assurance Co Ltd v Evatt Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556cited
• Toogood v Spyring Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044considered