Defamation and the Right to Political Communication

NB. This briefing paper is a guide only.
If members have any concerns regarding the matters raised they should seek legal advice.

  • There is no right to political communication but State and Federal Parliaments are not able to legislate to unreasonably restrict it.
  • Each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia.
  • That interest gives rise to a defence of qualified privilege for such communication against defamation, although such a defence may be defeated if the publication is unreasonable or actuated by malice.

The High Court of Australia first recognised an implied guarantee of communication on political matters in the Constitution in the early 1990s (Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1). With regard to defamation, it has been established that the implied freedom of political communication in the Australian Constitution covers discussion of the conduct, policies or fitness for office of government members, political parties, public bodies, public officers and those seeking public office. In Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 140 it was held by the majority that:

There is implied in the Commonwealth Constitution a freedom to publish material:
(a) discussing government and political matters;
(b) of an concerning members of the Parliament of the Commonwealth of Australia which relates to the performance of their duties as members of the Parliament or parliamentary committees; and
(c) in relation to the suitability of persons for office as members of the Parliament.

The majority (Mason CJ, Toohey and Gaudron JJ) also argued that any defence to an action in defamation based on the implied freedom of communication in the Constitution was subject to certain condictions. They held that such a defence was available even if the material published was proved to be false so long as the material was published in the course of political discussion, that the defendant was unaware of the falsity and did not publish recklessly, and that the publication was reasonable in the circumstances (at 137).

The case of Stephens v West Australian Newspapers Ltd related the freedom of communication defence to members of State Parliaments. In this case, Thomas Stephens and five other members of the Legislative Council of Western Australia, who were members of the Standing Committee on Government agencies, took an action in defamation against West Australian Newspapers Ltd for publishing assertions made by another member of the Council that the members had gone on an overseas trip without the knowledge of Parliament and that the trip was a "junket of mammoth proportions" (at 212-3).

In Lange v Australian Broadcasting Corporation (1997) CLR 520 the High Court revisited its decision in Theophanous and Stephens and held that qualified privilege attaches to statement made to the general public about matters of government, and specifically to political discussion which is discussion that, by developing and encouraging views upon government, bears upon the function of electors in a representative democracy.

As with Stephens the High Court considered that the extended category of qualified privilege embraced discussion of government or politics not only at a Federal level but also at a State or Territory level, and even at a local government level, whether or not it bore directly on matters at a Federal level. The judgment also recognised that the extension of qualified privilege could go beyond what was required for the law of defamation to be compatible with the freedom of communication required by the Constitution. It was held in this case that by reason of matters of geography, history and constitutional and trading arrangements, the discussion of matters concerning New Zealand may often affect or throw light on government or political matters in Australia.

In Lange v Australian Broadcasting Corporation the High Court also rejected the proposition that a right to free speech could be implied in the Constitution. It was held that the relevant sections of the Constitution do not confer personal rights on individuals but that it precludes the curtailment of the freedom of communication between the people of the Commonwealth concerning political or government matters, which enables the people to exercise a free and informed choice as electors. In other words, the freedom of political communication is not absolute but limited to what is necessary for the effective operation of representative and responsible government provided for by the Federal Constitution.

It should be noted that since Lange v Australian Broadcasting Corporation there has been a clear trend towards narrowing the coverage of the freedom of political communication defence in Australia. For example, in Levy v Victoria (1997) 189 CLR 579 the finding of the High Court departed from an earlier majority position that the defence would generally cover discussion of State political matters.