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This is an incredibly detailed case note that I used for an assessment in my first year (I scored an HD in case you're wondering, so it's fairly reliable). Case notes are not generally this long and do not always include an in-depth analysis, but this case is an important one and I thought it might be a good read for you.

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Please also excuse the bizarre formatting and the lack of footnotes (I had to take them out).

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Lange v The Australian Broadcasting Corporation (1997) 189 CLR 520

The High Court of Australia

Brennan CJ,

Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ

Rt Hon David Russell Lange … Plaintiff

Australian Broadcasting Corporation … Defendant

Date of Judgement: 8 July 1997

The Case
Material Facts

David Lange was the Prime Minister of New Zealand from 1984-89. During this time the Australian Broadcasting Corporation broadcast a television programme which the plaintiff alleged conveyed imputations that he had abused, and was unfit to hold, public office. The plaintiff further contended that the defendant was aware of the material’s falsity and had acted recklessly. The program was broadcast to all States and Territories of Australia.

Procedural History

Lange commenced defamation proceedings in the Supreme Court of New South Wales against the Corporation in response to the programme. The action was removed to the High Court in September 1996, that the Court might determine whether aspects of the defence were bad in law. The matter came before the Court in March 1997, before a decision was passed down on 8 July that same year.

Defence

The Corporation’s defence relied upon the decisions in Theophanous v Weekly Times Ltd and Stephens v West Australian Newspapers Ltd. The plaintiff alleged that paragraphs 6 and 10 of the defence were bad in law. The matter came to the High Court in the interest of clarifying common law.

Paragraph 6 claimed the publication was protected under the common law qualified privilege defence. Qualified privilege protects one from defamation charges on occasions that they have a duty to make the defamatory statement, provided the recipient has an ‘interest to receive it’. This protection is only ‘partial’, contingent on malicious intent. The Corporation maintained they ‘had a duty to publish the matter’, and had proceeded to do so without malice.

Paragraph 10 claimed that the broadcast was in agreement with the freedom implied in the Australian Constitution to publish material discussing political matters, including members of parliament, and whether they were fit for office.

Judgement and Orders

As stated by Brennan CJ, the ‘principle questions … 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 … political matters’. In order to make clear the scope of this implied freedom, and to clarify common law in the wake of Theophanous and Stephens, the Court re-examined their previous decisions.

The Court, in a unanimous judgement, stated that paragraph 10 of the defence was bad in law and that the matter was not within the defence of paragraph 6. They instructed the defendant to pay the plaintiff’s cost of proceedings, before remitting the matter to the Supreme Court of New South Wales.

Ratio Decidendi

The Court acknowledged the system of representative government outlined in the Constitution implies freedom of political communication. The ratio, contained on pages 571-74, stated that, in a unanimous judgement, the Court declared;

…each member of the Australian community has an interest in… receiving information … concerning government and political matters…

thus the category of qualified privilege must be extended. Qualified privilege provisions include that all recipients have an interest in the information, and that the publisher must act without malice. Their Honours continued that requiring the defendant to prove unawareness of falsity of material was unnecessary, but rather ‘as a general rule’ they must prove reasonableness. This ‘reasonableness’ involves verifying whether the material is true, and seeking a response from the person defamed.

Obiter Dicta

The obiter dicta explain that the implications of the Australian Constitution extend beyond those in Australian Parliaments. The Court explained that ‘the discussion of matters concerning New Zealand may often affect or throw light on government or political matters in Australia’. They reasoned that this applied also to other nations; hence discussions would be protected by qualified privilege.

Analysis
Introduction

The freedom of political communication in Australia has long been a topic of debate centred around the need to find a balance between this freedom and defamation laws. This note will examine the concept and purpose of defamation law, the shortcomings of implied freedoms, and the consequences of the decision in Lange.

Defamation Law and the Freedom of Political Communication

The concept of defamation law is simple. It seeks to strike the balance between the right to protect one’s reputation and to freedom of expression. Commentators often berate this concept, however, as it appears to merely hinder free speech. Since the recognition of an implied constitutional freedom of political communication in 1992, the relationship between defamation law and the freedom has been continually clarified. Lange, in particular, was instrumental in this process, as it clarified that all legislation – federal, State and Territory – as well as common law must adhere to the implied freedom in the Constitution. This brought about the examination of the Defamation Act 1974 (NSW), which they concluded observed the freedom in the Constitution adequately. Defamation laws have since been altered and compiled in federal legislation, all the while abiding by this concept of freedom of political communication. Clarifying this relationship is not only important for the understanding of the people, but also for the Court’s understanding of the authority of implied Constitutional freedoms over legislation and common law.

Shortcomings

There is little dispute over the existence of implied rights and freedoms in the Constitution, however many regard them as being ambiguous and subject to inconsistent interpretation. Indeed the shortcomings of having rights implied rather than explicitly stated are obvious. To begin with, one must remember that our Constitution was drafted more than a century ago. ‘Reading between the lines’has become necessary to provide relevance to the document. It is no surprise, however, that the idea is criticised.

A downfall of implied freedoms made apparent in Lange was the reality of inconsistent interpretation. The need for the Court to extrapolate how far an implied freedom extends warrants some criticism, as it seems with each different Court comes new laws regarding these freedoms. This subjectivity and ever-fluctuating nature of interpretation within the Court is grounds for the argument that we ought to have an explicitly stated list of rights. This would provide clarity to confusing aspects of law, such as discussed in the political defamation cases of the 1990s, and would likely significantly reduce the time spent in High Court deliberating over what is implied in the Constitution. Such a list of rights, however, would have to be crafted with extraordinary care and precision, lest it becomes yet another point of discrepancy, as arguably is the case in the United States of America.

Implications of Lange

Lange contributed a great deal to constitutional and defamation law within Australia. Incidentally, there is a chance his claims would have brought about a different outcome had he commenced proceedings in New Zealand rather than New South Wales. Regardless of this, however, the case successfully clarified what had previously been vague. Interpreting what is implied in the Constitution, and asserting that it is the supreme source of law within Australia, narrowed the scope for claims of defamation in regards to political matters and figures fairly significantly. The freedom to communicate and publish information about such matters, on the other hand, became exceedingly broader, now extending to include discussions of matters outside of Australian politics. This was a significant development on communication laws during the 1990s as the means of communication, particularly internationally, expanded beyond what was likely thought possible at the drafting of the Constitution. Subsequent cases, such as that of Levy v Victoria three weeks later, saw the admittedly excessive scope of this freedom further clarified and truncated in order that politicians were not constantly abused and publicly defamed, however Lange was a step in the right direction. The democratic representative system of government in Australia is the backbone to our successful, progressive society and any action to restrict the workings of such a system must always be considered unconstitutional and, thus, legally invalid. Had Lange and other political defamation cases not been brought before the High Court in the 1990s, the possibility of a corrupt, manipulative government may indeed have been a reality.

Conclusion

In Lange v Australian Broadcasting Corporation the High Court took the opportunity to clarify common law relating to defamation and the freedom of political communication implied within the Constitution. In doing so, the Court struck the healthy and appropriate balance between the aim and purpose of defamation law and the freedom of communication. Not only was this case necessary for the clarification of law that had proved befuddling previously, but also the decision made possible the invalidation of statue and common law that impinged upon the freedom implied in the Commonwealth Constitution. This, to anyone who values freedom of speech and expression, is a positive outcome. This case, as discussed, brought to light the downfalls of having implied rights in the Constitution, rather than a Charter or Bill of Rights, however proved that for the functioning of our democratic representative system of government, interpretation of the well-crafted document is sufficient.

Bibliography

Secondary Sources

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (DP80), Defences and Exceptions – Qualified Privilege, No 10 (2014) <http://www.alrc.gov.au/publications/10-defences-and-exemptions/qualified-privilege>

Burns, Rupert, ‘Political discussion as a defense to defamation: Lange v Australian Broadcasting Commission’ (1997) ePublications@bond: Bond University High Court Review 4[10] <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1012&context=hcourt>

French, Robert, The Constitution and the Protection of Human Rights (20 November 2009) Edith Cowan University, <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj20nov09.pdf >

Gibbs, Harry, ‘Chapter 7: Does Australia Need a Bill of Rights?’ (1995) 6 Upholding the Australian Constitution <http://www.samuelgriffith.org.au/papers/html/volume6/v6conts.htm>

Lindell, Geoffrey, Theophanous and Stephens Revisited, (1997) UNSW Law Journal (online), 195-203 <http://www.unswlawjournal.unsw.edu.au/sites/default/files/18_lindell_1997.pdf>

Martin, Brian, Defamation Law and Free Speech (November 1996) Suppression of Dissent <https://www.uow.edu.au/~bmartin/dissent/documents/defamation.html>

Rolph, David, A Critique of the nation, uniform defamation laws (2008) Torts Law Journal <http://www.lpclrd.justice.nsw.gov.au/agdbasev7wr/lpclrd/documents/pdf/defamation_act_submission_-_associate_professor_rolph_attached_article.pdf>

Stone, Adrienne, Australia’s Constitutional Rights and the Problem of Interpretive Disagreement (17 August 2010) University of Melbourne Law School Research Series <http://www.austlii.edu.au/au/journals/UMelbLRS/2005/3.html#fn2>

Tyree, Alan, Mistake and Qualified Privilege <http://austlii.edu.au/~alan/aktas.html>

Walker, Sally, Lange v ABC: The High Court rethinks the “constitutionalism” of defamation law (March 1998) Murdoch University Electronic Journal of Law <http://www.austlii.edu.au/au/journals/MurUEJL/1998/3.html#t37>

Case Law

Australian Capital Television Pty Ltd & New South Wales v Commonwealth (1992) 177 CLR 106

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 521

Levy v Victoria (1997) 189 CLR 579

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211

Theophanous v Weekly Times Ltd (1994) 182 CLR 104

Legislation

Australian Constitution

Defamation Act 1974 (NSW)

Defamation Act 2005 (NSW)

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