• Any

3.The defendant pay the plaintiff's costs of the proceedings in the HighCourt including the costs of the removal of the matter unders 40 oftheJudiciary Act1903 (Cth).

4.The Commonwealth, New South Wales, Queensland, South Australia andWestern Australia pay to the plaintiff and to the defendanta proportion of thecosts incurred by each of them to be taxed as between party and party inrelation to the proceedings in the HighCourt other than the application toremove the matter unders 40 of theJudiciary Act 1903 (Cth), theproportion to be determined by the taxing officer by reference to the time bywhich the hearing of the matter before theFull Court was extended bysubmissions made on behalf of those interveners.

5.The corporations described as "the Fairfax interests", Nationwide NewsPty Ltd, the Herald and Weekly Times Ltd, and the SevenNetwork Ltd pay to theplaintiff and to the defendant a proportion of the costs incurred by each ofthem to be taxed as between partyand party in relation to the proceedings inthe High Court other than the application to remove the matter unders 40 oftheJudiciary Act 1903 (Cth), the proportion to be determined by thetaxing officer by reference to the time by which the hearing of the matterbefore theFull Court was extended by submissions made on behalf of thoseinterveners.

6.Any payment made to the plaintiff pursuant to par 4 or par 5 shall bemade in relief of the defendant's obligation under par 3.

8 July 1997

FC 97/021

S 109/1996

Representation:

G O'L Reynolds with A S Bell for the plaintiff (instructed by Phillips Fox)

J J Spigelman QC with M G Sexton and S J Gageler for the defendant (instructedby Judith Walker, Australian Broadcasting Corporation)

Interveners:

G Griffith QC with S G E McLeish and G R Kennett intervening on behalf of theAttorney-General for the Commonwealth (instructed bythe Australian GovernmentSolicitor)

P A Keane QC with R W Campbell intervening on behalf of the Attorney-Generalfor the State of Queensland (instructed by the CrownSolicitor forQueensland)

D Graham QC with B J Shaw QC and D G Collins intervening on behalf of theAttorney-General for the State of Victoria (instructedby the VictorianGovernment Solicitor)

R J Meadows QC with P D Quinlan intervening on behalf of the Attorney-Generalfor the State of Western Australia (instructed by theCrown Solicitor forWestern Australia) and on behalf of the Attorney-General for the NorthernTerritory (instructed by the Solicitorfor the Northern Territory)

B M Selway QC with J Gill intervening on behalf of the Attorney-General for theState of South Australia (instructed by the CrownSolicitor for SouthAustralia)

L S Katz SC with C J Birch intervening on behalf of the Attorney-General forthe State of New South Wales (instructed by the CrownSolicitor for New SouthWales)

D F Jackson QC with M A Dreyfus intervening on behalf of John FairfaxPublications Pty Limited, David Syme & Co Limited, IllawarraNewspapersHoldings Pty Limited, Newcastle Newspapers Pty Limited, Fairfax CommunityNewspapers Pty Limited and West Australian NewspapersLimited (instructed byFreehill Hollingdale & Page)

W H Nicholas QC intervening on behalf of Nationwide News Pty Ltd (instructed byGallagher de Reszke)

R A Finkelstein QC intervening on behalf of The Herald and Weekly Times Limited(instructed by Arthur Robinson & Hedderwicks)

J T Gleeson intervening on behalf of the Seven Network Limited (instructed byClayton Utz)

Amici Curiae:

D K Catterns QC with G J Williams amicus curiae on behalf of the Media,Entertainment and Arts Alliance (instructed by the PublicInterest AdvocacyCentre)

D E Flint amicus curiae on behalf of the Australian Press Council

Notice: This copy of the Court's Reasons for Judgment is subject to formalrevision prior to publication in the Commonwealth LawReports.

CATCHWORDS

David Russell Lange v Australian Broadcasting Corporation

Constitutional law - Constitutional implication - Implication from text andstructure ofConstitution - System of representative and responsible governmentprescribed byConstitution - Implication of freedom of communication ongovernment and political matters - Test for determining whether law infringesimplication.

Constitutional law - Interpretation - Relationship betweenConstitution andcommon law.

Defamation - Defences - Qualified privilege - Extension of common law defenceof qualified privilege - Reasonableness of publisher'sconduct - Whether commonlaw and statutory defences of qualified privilege reasonably appropriate andadapted to achieve protectionof reputation.

Constitution of the Commonwealth,ss 1,6,7,8,13,24,25,28,49,62,64,83,128.

Defamation Act 1974 (NSW),ss 11,22.

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ. Theprincipal questions arising from this case stated by BrennanCJ are whether theCourt should reconsider two decisions which hold that there is implied in theConstitution a defence to the publication of defamatory matter relating togovernment and political matters and, if so, whether those decisionsarecorrect.

The case stated arises out of a defamation action brought in the Supreme Courtof New South Wales by Mr David Lange, a former PrimeMinister of New Zealand,("the plaintiff") against the Australian Broadcasting Corporation ("thedefendant")[1].

The defendant has relied on the decisions of this Court inTheophanous vHerald & Weekly Times Ltd[2] andStephens vWest Australian Newspapers Ltd[3] to plead a defence against an action brought by theplaintiff in respect of matters published when he was a member of the NewZealandParliament. Paragraph 10 of the Amended Defence initially alleged thatthe matter complained of was published:

"(a) pursuant to a freedom guaranteed by the CommonwealthConstitution topublish material:-

(i)in the course of discussion of government and political matters;

(ii)of and concerning members of the parliament and government of New Zealandwhich relates to the performance by such membersof their duties as members ofthe parliament and government of New Zealand;

(iii)in relation to the suitability of persons for office as members of theparliament and government of New Zealand.

(b)(i)in the course of discussion of government and political matters;

(ii)of and concerning the plaintiff as a member of the parliament of NewZealand and as Prime Minister of New Zealand;

(iii)in respect of the plaintiff's suitability for office as a member of theparliament of New Zealand and as Prime Minister ofNew Zealand;

(iv)in respect of the plaintiff's performance, conduct and fitness for officeas a member of the parliament of New Zealand andas Prime Minister of NewZealand;

(c)in circumstances such that:

(i)if the matter was false (which is not admitted) the defendant was unawareof its falsity;

(ii)the defendant did not publish the matter recklessly, that is, not caringwhether the material was true or false;

(iii)the publication was reasonable

and, by reason of each of the matters aforesaid, the matter complained of isnot actionable."

Subparagraphs (a)(ii), (iii), (b)(ii), (iii) and (iv) were subsequentlyabandoned by the defendant.

Paragraph 6 of the Amended Defence pleads a defence of common law qualifiedprivilege. The particulars of this defence allege thatthe matters complainedof related to subjects of public interest and political matters and that thedefendant had a duty to publishthe material to viewers who had a legitimateinterest in the subjects of the matter complained of and a reciprocal interestin receivinginformation relating to those subjects. The subjects of publicinterest and political matters are particularised. They relate topolitical,social and economic matters occurring in New Zealand.

The plaintiff alleges that the defences are bad in law. He contends thatneither the decision inTheophanous nor the decision inStephenshas any application to the discussion of the conduct of a member of theParliament of New Zealand or the discussion of New Zealandgovernment andpolitical matters. He asserts that in any event bothTheophanous andStephens were wrongly decided and that this Court should examine thecorrectness of the decisions.

In addition to hearing submissions from the plaintiff and defendant, the Courtalso heard submissions as to the desirability ofre-arguing the correctness ofTheophanous andStephensfrom a large number of parties who weregiven leave to intervene in the proceedings and from two parties who were givenleave to putsubmissions asamici curiae. Concurrently, with thehearing of this case stated, the Court heard a demurrer inLevy v The Stateof Victoria & Ors where similar questions concerning the correctness ofTheophanous andStephenswere raised.

Theophanous

InTheophanous[4],this Court bymajority[5], in answering the first questionreserved in a case stated, declared that:

"There is implied in the CommonwealthConstitution a freedom to publishmaterial:

(a)discussing government and political matters;

(b)of and concerning members of the Parliament of the Commonwealth ofAustralia which relates to the performance by such membersof their duties asmembers of the Parliament or parliamentary committees;

(c)in relation to the suitability of persons for office as members of theParliament."

By the same majority, the Court answered[6] a second question reserved as follows:

"In the light of the freedom implied in the CommonwealthConstitution, thepublication will not be actionable under the law relating to defamation if thedefendant establishes that:

(a)it was unaware of the falsity of the material published;

(b)it did not publish the material recklessly, that is, not caring whetherthe material was true or false; and

(c)the publication was reasonable in the circumstances."

The answer by that majority to a third question reserved was a declaration[7] that:

"A publication that attracts the freedom implied in the CommonwealthConstitution can also be described as a publication on an occasion of qualifiedprivilege. Whether a federal election is about to be called isnot a relevantconsideration."

In answer to a fourth question, the majority declared[8] that two paragraphs of the statement of defence to adefamation action brought by a federal member of Parliament were not bad inlaw. Those paragraphs stated[9]:

"11.In further answer to the whole of the Statement of Claim: (a) the wordswere published pursuant to a freedom guaranteed bythe CommonwealthConstitution to publish material: (i) in the course of discussion ofgovernment and political matters; (ii) of and concerning members of theParliament of the Commonwealth of Australia which relates to the performance bysuch members of their duties as members of the Parliamentor parliamentarycommittees; (iii) in relation to the suitability of persons for office asmembers of the Parliament. (b) The publicationof the words was: (i) in thecourse of discussion of government and political matters; (ii) of andconcerning the plaintiff as amember of the House of Representatives and asChairperson of the Joint Parliamentary Standing Committee on MigrationRegulation andthe Australian Labor Party's Federal Caucus ImmigrationCommittee; (iii) in respect of the plaintiff's performance of his dutiesas amember and as Chairperson as aforesaid; (iv) in relation to the plaintiff'ssuitability for office as a member of Parliament;(v) without malice; (vi)reasonable in the circumstances; (vii) not made without an honest belief in thetruth of the words or madewith reckless disregard for the truth or untruth ofthe words; (viii) made at a time when it was publicly anticipated that afederalelection was about to be called. (c) By reason of each of the mattersaforesaid the said publication is not actionable. 12. Furtherandalternatively, by reason of the freedom guaranteed by the CommonwealthConstitution as aforesaid, the words were published on an occasion of qualifiedprivilege."

Stephens

On the same day that judgment was delivered inTheophanous, the Courtdelivered judgment inStephens. By the same majority, the Court heldthat defences based on theConstitution of the Commonwealth and theConstitution Act 1889 (WA) were good defences to an action brought by aState member of Parliament in respect of a publication that criticised anoverseastrip being made by a six-member committee of the Legislative Councilof Western Australia, of which the plaintiff was amember.

Reconsidering a previous decision of the Court

This Court is not bound by its previous decisions[10]. Nor has it laid down any particular rule or rules or setof factors for re-opening the correctness of its decisions. Nevertheless,theCourt should reconsider a previous decision only with great caution and forstrong reasons[11]. InHughes and Vale PtyLtd v State of New South Wales[12], KittoJ said that in constitutional cases "it is obviously undesirable that aquestion decided by the Court after full considerationshould be re-openedwithout grave reason". However, it cannot be doubted that the Court willre-examine a decision if it involvesa question of "vital constitutionalimportance"[13] and is "manifestly wrong"[14]. Errors in constitutional interpretationare not remediable by the legislature[15], andthe Court's approach to constitutional matters is not necessarily the same asin matters concerning the common law or statutes. But these general statementsconcerning the occasions when the Court will reconsider one of its previousdecisions give little guidancein this case when the judgments and orders inTheophanous andStephens are examined.

The principal reason why these general statements provide little guidance isthat it is arguable that neitherTheophanous norStephenscontains a binding statement of constitutional principle. Both cases camebefore the Full Court of this Court on a case stated inwhich particularquestions were reserved. The orders of the Full Court in each case consistedof answers to those questions. Ofthe seven Justices who heardTheophanous, Brennan, Dawson and McHugh JJ held that the defencespleaded in that case were bad in law. Mason CJ, Toohey and Gaudron JJ in ajoint judgment held that the defences were good in law. With twoqualifications, their judgment is reflected in the answers thatthe Court gaveto the case stated. The first qualification is that the joint judgment[16], but not the answer of the Court, givesdefinition to the term "reasonable" which appears in Answer 2(c) of the casestated. Thesecond qualification is that, while the conditions of the defencecontained in pars (a), (b) and (c) of the answer to the first questionin thecase stated suggest that the paragraphs are alternatives, or that par (a)subsumes pars (b) and (c), the joint judgment focuseson the suitability ofpersons for office rather than the wider discussion of government and politicalmatters.

Deane J, the seventh member of the Court inTheophanous, also held thatthe defences were good in law. However, he took a view of the scope of thefreedom that was significantly differentfrom that of Mason CJ, Toohey andGaudron JJ. His Honour said[17]:

"I am quite unable to accept that the freedom which the constitutionalimplication protects is, at least in relation to statementsabout the officialconduct or consequent suitability for office of holders of high governmentoffice, conditioned upon the abilityof the citizen or other publisher tosatisfy a court of matters such as absence of recklessness orreasonableness."

His Honour said[18] that theConstitutioncontained an implication which precluded the imposition of liability in damagesunder State defamation laws to the extent to whichthey would cover apublication such as that involved in that case.

Deane J also said[19] that, whilst theoverall effect of the joint judgment and his judgment was that "theconstitutional implication of political communicationand discussion" precluded"an unqualified application of the defamation laws of Victoria to imposeliability in damages in respectof political communications and discussion",there was disagreement within that majority as to "what flows from thatconclusion forthe purposes of the present case".

His Honour concluded[20] that "theappropriate course for me to follow is to lend my support for the answers which[Mason CJ, Toohey and Gaudron JJ] giveto the questions reserved by the statedcase". Although Deane J may have intended his concurrence with the answers inTheophanousto extend to the explanation of them in the joint judgment,the absence of an express agreement with the reasons in that judgmentraises aquestion as to the extent to which he concurred with the terms of the answers.But, assuming that his Honour intended toagree with those answers as read inthe light of the joint judgment, nevertheless the reasoning which gave rise tothe answers inTheophanous had the direct support of only three of theseven Justices.

InStephens,an identical division of opinion among the Justicesoccurred. Once again Deane J agreed with the answers proposed by Mason CJ,Tooheyand Gaudron JJ in the case stated. He said[21]:

"In view of the division between the other members of the Court, it would, tothat extent, be inappropriate for me to adhere to [myviews] for the purposesof this case."

Accordingly his Honour expressed[22] his"concurrence in the answers which Mason CJ, Toohey and Gaudron JJ propose tothe questions stated". In these circumstances,Theophanous andStephens do not have the same authority which they would have if Deane Jhad agreed with the reasoning of Mason CJ, Toohey and Gaudron JJin eachcase.

However, for the reasons set out below,Theophanous andStephensshould be accepted as deciding that in Australia the common law rules ofdefamation must conform to the requirements of theConstitution. Those casesshould also be accepted as deciding that, at least by 1992[23], the constitutional implication precluded an unqualifiedapplication in Australia of the English common law of defamation in so farasit continued to provide no defence for the mistaken publication of defamatorymatter concerning government and political mattersto a wide audience. Thefull argument we heard in the present case and the illumination and insightsgained from the subsequentcases ofMcGinty v Western Australia[24],Langer v The Commonwealth[25] andMuldowney v South Australia[26] now satisfy us, however, that some of theexpressions and reasoning in the various judgments inTheophanousandStephens should be further considered in order to settle bothconstitutional doctrine and the contemporary common law of Australia governingthe defence of qualified privilege in actions of libel and slander.

Having regard to the foregoing discussion, the appropriate course is toexamine the correctness of the defences pleaded in the presentcase as a matterof principle and not of authority. The starting point of that examination mustbe the terms of theConstitution illuminated by the assistance which is to beobtained fromTheophanousand the other authorities[27] which have dealt with the question of "implied freedoms"under theConstitution.

Representative and responsible government

Sections 7 and24 of theConstitution, read in context, require the members ofthe Senate and the House of Representatives to be directly chosen at periodicelectionsby the people of the States and of the Commonwealth respectively.This requirement embraces all that is necessary to effectuate[28] the free election of representatives at periodicelections. What is involved in the people directly choosing theirrepresentativesat periodic elections, however, can be understood only byreference to the system of representative and responsible government towhichss 7 and24 and other sections of theConstitution give effect[29].

That theConstitution intended to provide for the institutions ofrepresentative and responsible government is made clear both by the ConventionDebatesand by the terms of theConstitution itself. Thus, at the SecondAustralasian Convention held in Adelaide in 1897, the Convention, on the motionof Mr Edmund Barton,resolved that the purpose of theConstitution was "toenlarge the powers of self-government of the people of Australia"[30].

Sections 1,7,8,13,24,25,28 and30 of theConstitution give effect to thepurpose of self-government by providing for the fundamental features ofrepresentative government. As IsaacsJ put it[31]:

"[T]heConstitution is for the advancement of representative government".

Section 1 of theConstitution vests the legislative power of the Commonwealthin a Parliament "which shall consist of the Queen, a Senate, and a House ofRepresentatives".Sections 7 and24 relevantly provide:

"7The Senate shall be composed of senators for each State, directly chosen bythe people of the State, voting, until the Parliamentotherwise provides, asone electorate.

...

24The House of Representatives shall be composed of members directly chosen bythe people of the Commonwealth, and the number ofsuch members shall be, asnearly as practicable, twice the number of the senators."

Section 24 does not expressly refer to elections, buts 25 makes it plain thatthe House of Representatives is to be directly chosen by the people of theCommonwealth voting at elections. Other provisions of theConstitution ensurethat there shall be periodic elections. Thus, unders 13, six years is thelongest term that a senator can serve before his or her place becomes vacant.Similarly, bys 28, every House of Representatives is to continue for threeyears from the first meeting of the House and no longer.Sections 8 and30ensure that, in choosing senators and members of the House of Representatives,each elector shall vote only once. The effect ofss 1,7,8,13,24,25,28and30 therefore is to ensure that the Parliament of the Commonwealth will berepresentative of the people of the Commonwealth.

Other sections of theConstitution establish a formal relationship between theExecutive Government and the Parliament and provide for a system of responsibleministerialgovernment[32], a system ofgovernment which, "prior to the establishment of the Commonwealth of Australiain 1901 ... had become one of the centralcharacteristics of our polity"[33]. Thus,s 6 of theConstitution requiresthat there be a session of the Parliament at least once in every year, so that12 months shall not intervene between thelast sitting in one session and thefirst sitting in the next.Section 83 ensures that the legislature controlssupply. It does so by requiring parliamentary authority for the expenditure bythe ExecutiveGovernment of any fund or sum of money standing to the credit ofthe Crown in right of the Commonwealth, irrespective of source[34].Sections 62 and64 of theConstitution combine toprovide for the executive power of the Commonwealth, which is vested in theQueen and exercisable by the Governor-General,to be exercised "on theinitiative and advice"[35] of Ministers andlimit to three months the period in which a Minister of State may hold officewithout being or becoming a senatoror member of the House of Representatives.Section 49 of theConstitution, in dealing with the powers, privileges andimmunities of the Senate and of the House of Representatives, secures thefreedom ofspeech in debate which, in England, historically was a potentinstrument by which the House of Commons defended its right to considerandexpress opinions on the conduct of affairs of State by the Sovereign and theMinisters, advisers and servants of the Crown[36].Section 49 also provides the source of coerciveauthority for each chamber of the Parliament to summon witnesses, or to requirethe productionof documents, under pain of punishment for contempt[37].

The requirement that the Parliament meet at least annually, the provision forcontrol of supply by the legislature, the requirementthat Ministers be membersof the legislature, the privilege of freedom of speech in debate, and the powerto coerce the provisionof information provide the means for enforcing theresponsibility of the Executive to the organs of representative government. InhisNotes on Australian Federation: Its Nature and Probable Effects[38], Sir Samuel Griffith pointed out that theeffect of responsible government "is that the actual government of the State isconductedby officers who enjoy the confidence of the people". That confidenceis ultimately expressed or denied by the operation of the electoralprocess,and the attitudes of electors to the conduct of the Executive may be asignificant determinant of the contemporary practiceof responsiblegovernment[39].

Reference should also be made tos 128 which ensures that theConstitutionshall not be altered except by a referendum passed by a majority of electors inthe States and in those Territories with representationin the House ofRepresentatives, taken together, and by the electors in a majority of States.

Freedom of communication

Freedom of communication on matters of government and politics is anindispensable incident of that system of representative governmentwhich theConstitution creates by directing that the members of the House ofRepresentatives and the Senate shall be "directly chosen by the people" oftheCommonwealth and the States, respectively. At federation, representativegovernment was understood to mean a system of governmentwhere the people infree elections elected their representatives to the legislative chamber whichoccupies the most powerful positionin the political system[40]. As Birch points out[41], "it is the manner of choice of members of thelegislative assembly, rather than their characteristics or their behaviour,whichis generally taken to be the criterion of a representative form ofgovernment." However, to have a full understanding of the conceptofrepresentative government, Birch also states that[42]:

"we need to add that the chamber must occupy a powerful position in thepolitical system and that the elections to it must be free,with all that thisimplies in the way of freedom of speech and political organization."

Communications concerning political or government matters between the electorsand the elected representatives, between the electorsand the candidates forelection and between the electors themselves were central to the system ofrepresentative government, as itwas understood at federation[43]. While the system of representative government for whichtheConstitution provides does not expressly mention freedom of communication,it can hardly be doubted, given the history of representative governmentandthe holding of elections under that system in Australia prior to federation,that the elections for which theConstitution provides were intended to be freeelections in the sense explained by Birch. Furthermore, because the choicegiven byss 7 and24 must be a true choice with "an opportunity to gain anappreciation of the available alternatives", as Dawson J pointed out inAustralian Capital Television Pty Ltd v The Commonwealth[44], legislative power cannot support an absolute denial ofaccess by the people to relevant information about the functioning ofgovernmentin Australia and about the policies of political parties andcandidates for election.

That being so,ss 7 and24 and the related sections of theConstitutionnecessarily protect that freedom of communication between the people concerningpolitical or government matters which enables thepeople to exercise a free andinformed choice as electors. Those sections do not confer personal rights onindividuals. Ratherthey preclude the curtailment of the protected freedom bythe exercise of legislative or executive power. As Deane J said inTheophanous[45], they are "a limitationor confinement of laws and powers [which] gives rise to a pro tantoimmunity on the part of the citizen from being adversely affected by thoselaws or by the exercise of those powers rather than toa 'right' in the strictsense". InCunliffe v The Commonwealth[46], Brennan J pointed out that the freedom confers no rightson individuals and, to the extent that the freedom rests upon implication,thatimplication defines the nature and extent of the freedom. His Honour said[47]:

"The implication is negative in nature: it invalidates laws and consequentlycreates an area of immunity from legal control, particularlyfrom legislativecontrol."

If the freedom is to effectively serve the purpose ofss 7 and24 and relatedsections, it cannot be confined to the election period. Most of the mattersnecessary to enable "the people" to makean informed choice will occur duringthe period between the holding of one, and the calling of the next, election.If the freedomto receive and disseminate information were confined to electionperiods, the electors would be deprived of the greater part of theinformationnecessary to make an effective choice at the election.

In addition, the presence ofs 128, and ofss 6,49,62,64 and83, of theConstitution makes it impossible to confine the receipt and dissemination ofinformation concerning government and political matters to an electionperiod.Those sections give rise to implications of their own.Section 128, bydirectly involving electors in the States and in certain Territories in theprocess for amendment of theConstitution, necessarily implies a limitation onlegislative and executive power to deny the electors access to information thatmight be relevantto the vote they cast in a referendum to amend theConstitution. Similarly, those provisions which prescribe the system ofresponsible government necessarily imply a limitation on legislativeandexecutive power to deny the electors and their representatives informationconcerning the conduct of the executive branch ofgovernment throughout thelife of a federal Parliament. Moreover, the conduct of the executive branch isnot confined to Ministersand the public service. It includes the affairs ofstatutory authorities and public utilities which are obliged to report to thelegislature or to a Minister who is responsible to the legislature. InBritish Steel v Granada Television[48],Lord Wilberforce said that it was by these reports that effect was given to"[t]he legitimate interest of the public" in knowingabout the affairs of suchbodies. Whatever the scope of the implications arising from responsiblegovernment and the amendment oftheConstitution may be, those implicationscannot be confined to election periods relating to the federal Parliament.

However, the freedom of communication which theConstitution protects is notabsolute[49]. It is limited to what isnecessary for the effective operation of that system of representative andresponsible government providedfor by theConstitution. The freedom ofcommunication required byss 7 and24 and reinforced by the sections concerningresponsible government and the amendment of theConstitution operates as arestriction on legislative power. However, the freedom will not invalidate alaw enacted to satisfy some other legitimateend if the law satisfies twoconditions. The first condition is that the object of the law is compatiblewith the maintenance ofthe constitutionally prescribed system ofrepresentative and responsible government or the procedure for submitting aproposed amendmentto theConstitution to the informed decision of the peoplewhich theConstitution prescribes. The second is that the law is reasonablyappropriate and adapted to achieving that legitimate object or end. Differentformulae have been used by members of this Court in other cases to express thetest whether the freedom provided by theConstitution has been infringed. Somejudges have expressed the test as whether the law is reasonably appropriate andadapted to the fulfilmentof a legitimate purpose. Others have favoureddifferent expressions, including proportionality. In the context of thequestionsraised by the case stated, there is no need to distinguish theseconcepts. For ease of expression, throughout these reasons we haveused theformulation of reasonably appropriate and adapted.

The common law and theConstitution

A person who is defamed must find a legal remedy against those responsible forpublishing defamatory matter either in the commonlaw or in a statute whichconfers a right of action. The right to a remedy cannot be admitted, however,if its exercise would infringeupon the freedom to discuss government andpolitical matters which theConstitution impliedly requires. It is necessary,therefore, to consider the relationship between theConstitution and thefreedom of communication which it requires on the one hand and the common lawand the statute law which govern the law ofdefamation on the other.

It is appropriate to begin with the Parliament at Westminster. To say of theUnited Kingdom that it has an "unwritten constitution"is to identify anamalgam of common law and statute and to contrast it with a writtenconstitution which is rigid rather than fluid. The common law supplieselements of the British constitutional fabric. Sir Owen Dixon wrote[50]:

"The British conception of the complete supremacy of Parliament developed underthe common law; it forms part of the common law and,indeed, it may beconsidered as deriving its authority from the common law rather than as givingauthority to the common law. But,after all, the common law was the common lawof England. It was not a law of nations. It developed no general doctrinethat alllegislatures by their very nature were supreme over the law."

With the establishment of the Commonwealth of Australia, as with that of theUnited States of America, it became necessary to accommodatebasic common lawconcepts and techniques to a federal system of government embodied in a writtenand rigid constitution. The outcomein Australia differs from that in theUnited States. There is but one common law in Australia which is declared bythis Court asthe final court of appeal. In contrast to the position in theUnited States, the common law as it exists throughout the AustralianStates andTerritories is not fragmented into different systems of jurisprudence,possessing different content and subject to differentauthoritativeinterpretations[51]. The distinction isimportant for the present case and may be illustrated as follows.

The First Amendment to the United StatesConstitution prohibits Congress frommaking any law abridging "the freedom of speech, or of the press". Thisprivilege or immunity of citizensof the United States may not be abridged bythe making or "the enforcement" by any State of "any law". That is the effectof theinterpretation placed on the Fourteenth Amendment[52]. A civil lawsuit between private parties brought in aState court may involve the State court in the enforcement of a State ruleoflaw which infringes the Fourteenth Amendment. If so, it is no answer that thelaw in question is the common law of the State,such as its defamation law[53]. The interaction in such cases between theUnited StatesConstitution and the State common laws has been said to produce"a constitutional privilege" against the enforcement of State common law[54].

This constitutional classification has also been used in the United States tosupport the existence of a federal action for damagesarising from certainexecutive action in violation of "free-standing" constitutional rights,privileges or immunities[55]. On the otherhand, in Australia, recovery of loss arising from conduct in excess ofconstitutional authority has been dealt withunder the rubric of the commonlaw, particularly the law of tort[56].

It makes little sense in Australia to adopt the United States doctrine so asto identify litigation between private parties overtheir common law rights andliabilities as involving "State law rights". Here, "[w]e act every day on theunexpressed assumptionthat the one common law surrounds us and applies whereit has not been superseded by statute"[57].Moreover, that one common law operates in the federal system established by theConstitution. TheConstitution displaced, or rendered inapplicable, theEnglish common law doctrine of the general competence and unqualified supremacyof the legislature. It placed upon the federal judicature the responsibilityof deciding the limits of the respective powers of State and Commonwealthgovernments[58]. TheConstitution, thefederal, State and territorial laws, and the common law in Australia togetherconstitute the law of this country and form "onesystem of jurisprudence"[59]. Covering cl 5 of theConstitution renderstheConstitution "binding on the courts, judges, and people of every State andof every part of the Commonwealth, notwithstanding anything in thelaws of anyState". Within that single system of jurisprudence, the basic law of theConstitution provides the authority for the enactment of valid statute law andmay have effect on the content of the common law.

Conversely, theConstitution itself is informed by the common law. This wasexplained extra-judicially by Sir Owen Dixon[60]:

"We do not of course treat the common law as a transcendental body of legaldoctrine, but we do treat it as antecedent in operationto the constitutionalinstruments which first divided Australia into separate colonies and thenunited her in a federal Commonwealth. We therefore regard Australian law as aunit. Its content comprises besides legislation the general common law whichit is theduty of the courts to ascertain as best they may. ... The anterioroperation of the common law in Australia is not just a dogmaof our legalsystem, an abstraction of our constitutional reasoning. It is a fact of legalhistory."

And inCheatle v The Queen[61], thisCourt said:

"It is well settled that the interpretation of a constitution such as ours isnecessarily influenced by the fact that its provisionsare framed in thelanguage of the English common law, and are to be read in the light of thecommon law's history."

Under a legal system based on the common law, "everybody is free to doanything, subject only to the provisions of the law", sothat one proceeds"upon an assumption of freedom of speech" and turns to the law "to discover theestablished exceptions to it"[62]. The commonlaw torts of libel and slander are such exceptions. However, these torts donot inhibit the publication of defamatorymatter unless the publication isunlawful - that is to say, not justified, protected or excused by any of thevarious defences tothe publication of defamatory matter, including qualifiedprivilege. The result is to confer upon defendants, who choose to pleadandestablish an appropriate defence[63], animmunity to action brought against them. In that way, they are protected bythe law in respect of certain publications and freedomof communication ismaintained.

The issue raised by theConstitution in relation to an action for defamationis whether the immunity conferred by the common law, as it has traditionallybeen perceived,or, where there is statute law on the subject the immunityconferred by statute, conforms with the freedom required by theConstitution.In 1901, when theConstitution of the Commonwealth took effect[64] and when the Judicial Committee was the ultimate Court inthe judicial hierarchy, the English common law defined the scope of thetortsof libel and slander. At that time, the balance that was struck by the commonlaw between freedom of communication about governmentand political matters andthe protection of personal reputation was thought to be consistent with thefreedom that was essentialand incidental to the holding of the elections andreferenda for which theConstitution provided. Since 1901, the common law -now the common law of Australia - has had to be developed in response tochanging conditions. The expansion of the franchise, the increase in literacy,the growth of modern political structures operating at both federal andStatelevels and the modern development in mass communications, especially theelectronic media, now demand the striking of a differentbalance from thatwhich was struck in 1901. To this question we shall presently return.

The factors which affect the development of the common law equally affect thescope of the freedom which is constitutionally required. "[T]he commonconvenience and welfare of society" is the criterion of the protection given tocommunications by the common law ofqualified privilege[65]. Similarly, the content of the freedom to discussgovernment and political matters must be ascertained according to what is forthe common convenience and welfare of society. That requires an examination ofchanging circumstances[66] and the need tostrike a balance in those circumstances between absolute freedom of discussionof government and politics and thereasonable protection of the persons who maybe involved, directly or incidentally, in the activities of government orpolitics.

Of necessity, the common law must conform with theConstitution. Thedevelopment of the common law in Australia cannot run counter to constitutionalimperatives[67]. The common law and therequirements of theConstitution cannot be at odds. The common law of libeland slander could not be developed inconsistently with theConstitution, forthe common law's protection of personal reputation must admit as an exceptionthat qualified freedom to discuss government andpolitics which is required bytheConstitution.

In any particular case, the question whether a publication of defamatorymatter is protected by theConstitution or is within a common law exception toactionable defamation yields the same answer. But the answer to the common lawquestion hasa different significance from the answer to the constitutional lawquestion. The answer to the common law question prima facie definestheexistence and scope of the personal right of the person defamed against theperson who published the defamatory matter; the answerto the constitutionallaw question defines the area of immunity which cannot be infringed by a law ofthe Commonwealth, a law ofa State or a law of those Territories whoseresidents are entitled to exercise the federal franchise. That is because therequirementof freedom of communication operates as a restriction onlegislative power. Statutory regimes cannot trespass upon the constitutionallyrequired freedom.

However, a statute which diminishes the rights or remedies of persons defamedand correspondingly enlarges the freedom to discussgovernment and politicalmatters is not contrary to the constitutional implication. The common lawrights of persons defamed maybe diminished by statute but they cannot beenlarged so as to restrict the freedom required by theConstitution. Statuteswhich purport to define the law of defamation are construed, if possible,conformably with theConstitution. But, if their provisions are intractablyinconsistent with theConstitution, they must yield to the constitutionalnorm.

The common law may be developed to confer a head or heads of privilege interms broader than those which conform to the constitutionallyrequiredfreedom, but those terms cannot be any narrower. Laws made by Commonwealth orState Parliaments or the legislatures ofself-governing territories which areotherwise within power may therefore extend a head of privilege, but theycannot derogate fromthe common law to produce a result which diminishes theextent of the immunity conferred by theConstitution.

Constitutional text and structure

SinceMcGintyit has been clear, if it was not clear before, that theConstitution gives effect to the institution of "representative government"only to the extent that the text and structure of theConstitution establishit[68]. In other words, to say that theConstitution gives effect to representative government is a shorthand way ofsaying that theConstitution provides for that form of representativegovernment which is to be found in the relevant sections. Under theConstitution, the relevant question is not, "What is required by representativeand responsible government?" It is, "What do the terms and structureof theConstitution prohibit, authorise or require?"

Moreover, although it is true that the requirement of freedom of communicationis a consequence of the Constitution's system ofrepresentative and responsiblegovernment, it is the requirement and not a right of communication that is tobe foundin theConstitution. Unlike the First Amendment to the United StatesConstitution, which has been interpreted to confer private rights, ourConstitution contains no express right of freedom of communication orexpression. Within our legal system, communications are free only to theextent that they are left unburdened by laws that comply with theConstitution.

To the extent that the requirement of freedom of communication is animplication drawn fromss 7,24,64,128 and related sections of theConstitution, the implication can validly extend only so far as is necessary togive effect to these sections. Although some statements in theearlier casesmight be thought to suggest otherwise, when they are properly understood, theyshould be seen as purporting to giveeffect only to what is inherent in thetext and structure of theConstitution.

The test for determining whether a law infringes the constitutionalimplication

When a law of a State or federal Parliament or a Territory legislature isalleged to infringe the requirement of freedom of communicationimposed byss7,24,64 or128 of theConstitution, two questions must be answered before thevalidity of the law can be determined. First, does the law effectively burdenfreedomof communication about government or political matters either in itsterms, operation or effect[69]? Second, ifthe law effectively burdens that freedom, is the law reasonably appropriate andadapted to serve a legitimate end thefulfilment of which is compatible withthe maintenance of the constitutionally prescribed system of representative andresponsiblegovernment and the procedure prescribed bys 128 for submitting aproposed amendment of theConstitution to the informed decision of the people[70] (hereafter collectively "the system ofgovernment prescribed by theConstitution"). If the first question is answered"yes" and the second is answered "no", the law is invalid. InACTV, forexample, a majority of this Court held that a law seriously impeding discussionduring the course of a federal election wasinvalid because there were otherless drastic means by which the objectives of the law could be achieved. Andthe common law rules,as they have traditionally been understood, must beexamined by reference to the same considerations. If it is necessary, theymustbe developed to ensure that the protection given to personal reputationdoes not unnecessarily or unreasonably impair the freedomof communicationabout government and political matters which theConstitution requires.

The law of defamation

The law of defamation does not contain any rule that prohibits an elector fromcommunicating with other electors concerning governmentor political mattersrelating to the Commonwealth. Nevertheless, in so far as the law of defamationrequires electors and othersto pay damages for the publication ofcommunications concerning those matters or leads to the grant of injunctionsagainst such publications,it effectively burdens the freedom of communicationabout those matters. That being so, the critical question in the present caseis whether the common law of defamation as it has traditionally beenunderstood, and the New South Wales law of defamation in itsstatutory form,are reasonably appropriate and adapted to serving the legitimate end ofprotecting personal reputation without unnecessarilyor unreasonably impairingthe freedom of communication about government and political matters protectedby theConstitution.

The purpose of the law of defamation is to strike a balance between the rightto reputation and freedom of speech[71]. Itis not to be supposed that the protection of reputation is a purpose that isincompatible with the requirement of freedom ofcommunication imposed by theConstitution[72]. The protection of thereputations of those who take part in the government and political life of thiscountry from false and defamatorystatements is conducive to the public good[73]. The constitutionally prescribed system ofgovernment does not require - to the contrary, it would be adversely affectedby - anunqualified freedom to publish defamatory matter damaging thereputations of individuals involved in government or politics[74]. The question then is whether the common law ofdefamation, as it has traditionally been understood, and the statute lawregulatingthe publication of defamatory matter are reasonably appropriate andadapted to the protection of reputation having regard to therequirement offreedom of communication about government and political matters required by theConstitution.

TheophanousandStephensdecided that in particular respects thelaw of defamation throughout Australia was incompatible with the requirement offreedom ofcommunication imposed by theConstitution[75]. However, those cases did so without expresslydetermining whether the law of defamation in its common law and statutoryemanationshas developed to the point that it is reasonably appropriate andadapted to achieving a legitimate end that is compatible with thesystem ofgovernment prescribed by theConstitution. Because that is so, those casesought not to be treated as conclusively determining that question, which shouldbe examined afresh. In the present case, however, it is necessary to examineonly the effect of the defamation law of New South Wales on governmentandpolitical matters. This is because the argument in this Court was conducted onthe footing that the plaintiff's action was tobe determined solely by regardto the defamation law of that State.

In New South Wales, the principal defences to the publication of defamatorymatter concerning government and political matters aretruth in respect of amatter that is related to a matter of public interest or an occasion ofqualified privilege, fair comment ona matter relating to the public interest,fair report of parliamentary and similar proceedings, common law qualifiedprivilege[76] and the statutory defence ofqualified privilege contained ins 22 of theDefamation Act1974 (NSW)("theDefamation Act")[77]. Without thestatutory defence of qualified privilege, it is clear enough that the law ofdefamation, as it has traditionally beenunderstood in New South Wales, wouldimpose an undue burden on the required freedom of communication under theConstitution. This is because, apart from the statutory defence, the law as sounderstood arguably provides no appropriate defence for a personwho mistakenlybut honestly publishes government or political matter to a large audience[78]. InLang v Willis[79], this Court held that election speeches made to largeaudiences of unidentified persons are not necessarily privileged even if thespeeches deal with matters of general interest to the electors. In thatrespect, the common law as hitherto understood in Australiahas simplyreflected the English common law.

The basis of this common law rule is that reciprocity of interest or duty isessential to a claim of qualified privilege at commonlaw[80]. Only in exceptional cases has the common law recognisedan interest or duty to publish defamatory matter to the general public[81]. However, the common law doctrine asexpounded in Australia must now be seen as imposing an unreasonable restrainton that freedomof communication, especially communication concerninggovernment and political matters, which "the common convenience and welfareofsociety"[82] now requires. Equally, thesystem of government prescribed by theConstitution would be impaired if awider freedom for members of the public to give and to receive informationconcerning government and politicalmatters were not recognised. The "varyingconditions of society" of which Cockburn CJ spoke inWason v Walter[83] now evoke a broadening of the common lawrules of qualified privilege. As McHugh J pointed out inStephens[84], that has come about in a number of ways:

"In the last decade of the twentieth century, the quality of life and thefreedom of the ordinary individual in Australia are highlydependent on theexercise of functions and powers vested in public representatives and officialsby a vast legal and bureaucraticapparatus funded by public moneys. How, when,why and where those functions and powers are or are not exercised are mattersthatare of real and legitimate interest to every member of the community.Information concerning the exercise of those functions andpowers is of vitalconcern to the community. So is the performance of the public representativesand officials who are investedwith them. It follows in my opinion that thegeneral public has a legitimate interest in receiving information concerningmattersrelevant to the exercise of public functions and powers vested inpublic representatives and officials. Moreover, a narrow viewshould not betaken of the matters about which the general public has an interest inreceiving information. With the increasingintegration of the social, economicand political life of Australia, it is difficult to contend that the exerciseor failure to exercisepublic functions or powers at any particular level ofgovernment or administration, or in any part of the country, is not of relevantinterest to the public of Australia generally."

Because theConstitution requires "the people" to be able to communicate witheach other with respect to matters that could affect their choice in federalelections or constitutional referenda or that could throw light on theperformance of Ministers of State and the conduct of the executivebranch ofgovernment, the common law rules concerning privileged communications, asunderstood before the decision inTheophanous, had reached the pointwhere they failed to meet that requirement. However, the common law ofdefamation can and ought to be developedto take into account the variedconditions to which McHugh J referred. The common law rules of qualifiedprivilege will then properlyreflect the requirements ofss 7,24,64,128 andrelated sections of theConstitution.

Accordingly, this Court should now declare that each member of the Australiancommunity has an interest in disseminating and receivinginformation, opinionsand arguments concerning government and political matters that affect thepeople of Australia. The duty todisseminate such information is simply thecorrelative of the interest in receiving it. The common convenience andwelfare of Australiansociety are advanced by discussion - the giving andreceiving of information - about government and political matters. Theinterestthat each member of the Australian community has in such a discussionextends the categories of qualified privilege. Consequently,those categoriesnow must be recognised as protecting a communication made to the public on agovernment or political matter. Itmay be that, in some respects, the commonlaw defence as so extended goes beyond what is required for the common law ofdefamationto be compatible with the freedom of communication required by theConstitution. For example, discussion of matters concerning the United Nationsor other countries may be protected by the extended defence ofqualifiedprivilege, even if those discussions cannot illuminate the choice for electorsat federal elections or in amending theConstitution or cannot throw light onthe administration of federal government.

Similarly, discussion of government or politics at State or Territory leveland even at local government level is amenable to protectionby the extendedcategory of qualified privilege, whether or not it bears on matters at thefederal level. Of course, the discussionof matters at State, Territory orlocal level might bear on the choice that the people have to make in federalelections or in votingto amend theConstitution, and on their evaluation ofthe performance of federal Ministers and their departments. The existence ofnational political partiesoperating at federal, State, Territory and localgovernment levels, the financial dependence of State, Territory and localgovernmentson federal funding and policies, and the increasing integration ofsocial, economic and political matters in Australia make thisconclusioninevitable. Thus, the extended category of common law qualified privilegeensures conformity with the requirements oftheConstitution. The realquestion is as to the conditions upon which this extended category of commonlaw qualified privilege should depend.

At common law, once an occasion of qualified privilege is found to exist, theprivilege traditionally protects a communication madeon that occasion unlessthe plaintiff is actuated by malice in making the communication[85]. But, apart from a few exceptional cases[86], the common law categories of qualified privilege protectonly occasions where defamatory matter is published to a limited numberofrecipients. If a publication is made to a large audience, a claim of qualifiedprivilege at common law is rejected unless, exceptionally,the members of theaudience all have an interest in knowing the truth. Publication beyond whatwas reasonably sufficient for theoccasion of qualified privilege isunprotected[87]. Because privileged occasionsare ordinarily occasions of limited publication - more often than not occasionsof publication toa single person - the common law has seen honesty of purposein the publisher as the appropriate protection for individual reputation. Aslong as the publisher honestly and without malice uses the occasion for thepurpose for which it is given, that person escapesliability even though thepublication is false and defamatory. But a test devised for situations whereusually only one person receivesthe publication is unlikely to be appropriatewhen the publication is to tens of thousands, or more, of readers, listeners orviewers.

No doubt it is arguable that, because qualified privilege applies only whenthe communication is for the common convenience andwelfare of society, aperson publishing to tens of thousands should be able to do so under the sameconditions as those that applyto any person publishing on an occasion ofqualified privilege. But the damage that can be done when there are thousandsof recipientsof a communication is obviously so much greater than when thereare only a few recipients. Because the damage from the former classofpublication is likely to be so much greater than from the latter class, arequirement of reasonableness as contained ins 22 oftheDefamation Act, whichgoes beyond mere honesty, is properly to be seen as reasonably appropriate andadapted to the protectionof reputation and,thus, not inconsistent with thefreedom of communication which theConstitution requires.

Reasonableness of conduct is the basic criterion ins 22 of theDefamation Actwhich gives a statutory defence of qualified privilege. It is a conceptinvoked in one of the defences ofqualified protection underthe DefamationCodes of Queensland and Tasmania[88]. And itwas the test of reasonableness that was invoked in the joint judgment inTheophanous[89]. Given theseconsiderations and given, also, that the requirement of honesty of purpose wasdeveloped in relation to more limitedpublications, reasonableness of conductseems the appropriate criterion to apply when the occasion of the publicationof defamatorymatter is said to be an occasion of qualified privilege solely byreason of the relevance of the matter published to the discussionof governmentor political matters. But reasonableness of conduct is imported as an elementonly when the extended category of qualifiedprivilege is invoked to protect apublication that would otherwise be held to have been made to too wide anaudience. For example,reasonableness of conduct is not an element of thatqualified privilege which protects a member of the public who makes a complaintto a Minister concerning the administration of his or her department.Reasonableness of conduct is an element for the judge to consideronly when apublication concerning a government or political matter is made incircumstances that, under the English common law,would have failed to attracta defence of qualified privilege.

InTheophanous[90], the joint judgmentalso required the defendant to prove that it was unaware of the falsity of thematter published and that it didnot publish the matter recklessly. That is arequirement that has little practical significance. The defendant mustestablish thatits conduct in making the publication was reasonable in all thecircumstances of the case. In all but exceptional cases, the proofofreasonableness will fail as a matter of fact unless the publisher establishesthat it was unaware of the falsity of the matterand did not act recklessly inmaking the publication.

It may be that, if a statutory provision were to require the additionalelements of want of knowledge of falsity and absence ofrecklessness, asrequired byTheophanous, it would not, on that account, infringe thefreedom of communication which theConstitution requires. For presentpurposes, it is necessary only to state that their absence froms 22 of theDefamation Act cannot have theconsequence that the provisions of that Actinfringe the constitutional freedom. Moreover,these are not requirementsofthe commonlaw, as it has traditionally been understood, and there is no reasonwhy they should beengrafted on the expanded commonlaw defenceof qualifiedprivilege.

Having regard to the interest that the members of the Australian communityhave in receiving information on government and politicalmatters that affectthem, the reputations of those defamed by widespread publications will beadequately protected by requiring thepublisher to prove reasonableness ofconduct. The protection of those reputations will be further enhanced by therequirement thatthe defence will be defeated if the person defamed proves thatthe publication was actuated by common law malice to the extent thattheelements of malice are not covered under the rubric of reasonableness. In thecontext of the extended defence of qualified privilegein its application tocommunications with respect to political matters, "actuated by malice" is to beunderstood as signifying apublication made not for the purpose ofcommunicating government or political information or ideas, but for someimproper purpose.

InTheophanous[91], the Courtheld that, once the publisher proved it was unaware of the falsity of thematerial, had not acted recklessly, and had actedreasonably, malice could notdefeat the constitutional defence. But once the concept of actuating malice isunderstood in its applicationto government and political communications, inthe sense indicated, we see no reason why a publisher who has used the occasiontogive vent to its ill will or other improper motive should escape liabilityfor the publication of false and defamatory statements. As we have explained,the existence of ill will or other improper motive will not itself defeat theprivilege. The plaintiff mustprove that the publication of the defamatorymatter wasactuatedby that ill will or other improper motive[92]. Furthermore, having regard to the subjectmatter of government and politics, the motive of causing political damage tothe plaintiffor his or her party cannot be regarded as improper. Nor can thevigour of an attack or the pungency of a defamatory statement, withoutmore,discharge the plaintiff's onus of proof of this issue.

Whether the making of a publication was reasonable must depend upon all thecircumstances of the case. But, as a general rule,a defendant's conduct inpublishing material giving rise to a defamatory imputation will not bereasonable unless the defendant hadreasonable grounds for believing that theimputation was true, took proper steps, so far as they were reasonably open, toverifythe accuracy of the material and did not believe the imputation to beuntrue. Furthermore, the defendant's conduct will not be reasonableunless thedefendant has sought a response from the person defamed and published theresponse made (if any) except in cases wherethe seeking or publication of aresponse was not practicable or it was unnecessary to give the plaintiff anopportunity to respond[93].

Once the common law is developed in this manner, the New South Wales law ofdefamation cannot be said to place an undue burden onthose communications thatare necessary to give effect to the choice in federal elections given by ss 7and 24 and the freedom ofcommunication implied by those sections andss 64 and128 of theConstitution. It is true that the law of defamation in that Stateeffectively places a burden on those communications although it does notprohibitthem. Nevertheless, having regard to the necessity to protectreputation, the law of New South Wales goes no further than is reasonablyappropriate and adapted to achieve the protection of reputation once itprovides for the extended application of the law of qualifiedprivilege.Moreover, even without the common law extension,s 22 of theDefamation Actensures that the New South Wales law of defamation does not place an undueburden on communications falling within the protectionof theConstitution.That is becauses 22 protects matter published to any person where therecipient had an interest or apparent interest in having information on asubject,the matter was published in the course of giving information on thatsubject to the recipient, and the conduct of the publisher inpublishing thematter was reasonable in the circumstances.

Other statutory defences

As already indicated, it is common ground that this matter is to be determinedby reference to the law as it applies in New SouthWales. However, the need todevelop the common law to conform with the constitutional implication mayrequire that defamation legislationin other States be re-evaluated. It isunnecessary in this case to consider whether, when so evaluated, thatlegislation is reasonablyappropriate and adapted in the sense indicated and,if not, the extent to which it is invalid.

The pleaded defences

In so far as the Amended Defence in the present case rests on the claim thatthe defamatory matter was published pursuant to a freedomguaranteed by theConstitution of the Commonwealth, the defence fails. For the reasons that wehave given, theConstitution itself confers no private right of defence and theNew South Wales law of defamation action places no undue burden on the freedomof communication required by theConstitution. In so far as the AmendedDefence relies on the common law of qualified privilege to defend thepublication, different considerationsapply. The argument with respect to thatmatter was made in the context of qualified privilege as it has beentraditionally understood,albeit as modified inTheophanous. Theargument was not made by reference to the expanded defence of qualifiedprivilege which must now be recognised. Nor, of course,were particularsprovided in that context. The particulars which have been provided do not, inour view, bring the publication withinthe extended defence.

By reason of matters of geography, history, and constitutional and tradingarrangements, however, the discussion of matters concerningNew Zealand mayoften affect or throw light on government or political matters in Australia.That being so, it may be that furtherand better particulars can be providedwhich bring the publications within the expanded defence. We express no viewas to whetherthe publication can be brought within that defence, but thepossibility should not be regarded as foreclosed by the orders that theCourtnow makes.

Orders

1.The case stated should be answered as follows:

"1.Q.Is the defence pleaded in par 10 of the Defendant's Amended Defence badin law?"

A.Yes.

"2.Q.Is the defence pleaded in par 6 of the Defendant's Amended Defence badin law in respect of the publication complained ofin New South Wales?"

A.No. But the particulars given do not bring the publication within thatdefence.

2.The matter is remitted to the Supreme Court of New South Wales to proceedtherein in accordance with the answers to the questions.

3.The defendant pay the plaintiff's costs of the proceedings in the High Courtincluding the costs of the removal of the matterunders 40 of theJudiciaryAct1903 (Cth).

4.The Commonwealth, New South Wales, Queensland, South Australia and WesternAustralia pay to the plaintiff and to the defendanta proportion of the costsincurred by each of them to be taxed as between party and party in relation tothe proceedings in the HighCourt other than the application to remove thematter unders 40 of theJudiciary Act 1903 (Cth), the proportion to bedetermined by the taxing officer by reference to the time by which the hearingof the matter before theFull Court was extended by submissions made on behalfof those interveners.

5.The corporations described as "the Fairfax interests", Nationwide News PtyLtd, the Herald and Weekly Times Ltd, and the SevenNetwork Ltd pay to theplaintiff and to the defendant a proportion of the costs incurred by each ofthem to be taxed as between partyand party in relation to the proceedings inthe High Court other than the application to remove the matter unders 40 oftheJudiciary Act 1903 (Cth), the proportion to be determined by thetaxing officer by reference to the time by which the hearing of the matterbefore theFull Court was extended by submissions made on behalf of thoseinterveners.

6.Any payment made to the plaintiff pursuant to par 4 or par 5 shall be madein relief of the defendant's obligation under par 3.

[1]Section 5 of theAustralian BroadcastingCorporation Act 1983 (Cth) continues under the name Australian BroadcastingCorporation the body corporate previously in existence under the nameAustralianBroadcasting Commission.

[2][1994] HCA 46; (1994) 182 CLR 104.

[3][1994] HCA 45; (1994) 182 CLR 211.

[4][1994] HCA 46; (1994) 182 CLR 104 at 208.

[5] Mason CJ, Deane, Toohey and Gaudron JJ;Brennan, Dawson and McHugh JJ dissenting.

[6][1994] HCA 46; (1994) 182 CLR 104 at 209.

[7][1994] HCA 46; (1994) 182 CLR 104 at 209.

[8][1994] HCA 46; (1994) 182 CLR 104 at 209.

[9][1994] HCA 46; (1994) 182 CLR 104 at 106.

[10]Baker v Campbell[1983] HCA 39; (1983) 153 CLR 52at 102;Damjanovic & Sons Pty Ltd v The Commonwealth[1968] HCA 42; (1968) 117 CLR390 at 395-396;Queensland v The Commonwealth[1977] HCA 60; (1977) 139 CLR 585 at610.

[11]Hughes and Vale Pty Ltd v State ofNew South Wales[1953] HCA 14; (1953) 87 CLR 49 at 102; Queensland v The Commonwealth[1977] HCA 60; (1977) 139 CLR 585 at 602, 620;Jones v The Commonwealth (1987) 61ALJR 348 at 349; 71 ALR 497 at 498.

[12][1953] HCA 14; (1953) 87 CLR 49 at 102. See alsoHC Sleigh Ltd v South Australia (1977) 136 CLR 475 at 501;TheCommonwealth v Hospital Contribution Fund[1982] HCA 13; (1982) 150 CLR 49 at 56.

[13]Queensland v The Commonwealth[1977] HCA 60; (1977) 139 CLR 585 at 630. See alsoThe Commonwealth v Cigamatic PtyLtd (in liq)[1962] HCA 40; (1962) 108 CLR 372 at 377.

[14]Australian Agricultural Co vFederated Engine-Drivers and Firemen's Association of Australasia[1913] HCA 41; (1913) 17CLR 261 at 278-279;The Tramways Case [No 1][1914] HCA 15; (1914) 18 CLR 54 at 58, 69,83; but cfQueensland v The Commonwealth[1977] HCA 60; (1977) 139 CLR 585 at 621.

[15]Queensland v The Commonwealth[1977] HCA 60; (1977) 139 CLR 585 at 630;Street v Queensland Bar Association[1989] HCA 53; (1989)168 CLR 461 at 588.

[16][1994] HCA 46; (1994) 182 CLR 104 at 137.

[17][1994] HCA 46; (1994) 182 CLR 104 at 188.

[18][1994] HCA 46; (1994) 182 CLR 104 at 188.

[19][1994] HCA 46; (1994) 182 CLR 104 at 187.

[20][1994] HCA 46; (1994) 182 CLR 104 at 188.

[21][1994] HCA 45; (1994) 182 CLR 211 at 257.

[22][1994] HCA 45; (1994) 182 CLR 211 at 257.

[23] The year in which the articles, thesubject of the proceedings inTheophanous andStephens, werepublished.

[24][1996] HCA 48; (1996) 186 CLR 140.

[25][1996] HCA 43; (1996) 186 CLR 302.

[26][1996] HCA 52; (1996) 186 CLR 352.

[27]Nationwide News Pty Ltd v Wills[1992] HCA 46; (1992) 177 CLR 1;Australian Capital Television Pty Ltd v TheCommonwealth("ACTV")[1992] HCA 45; (1992) 177 CLR 106;Theophanous[1994] HCA 46; (1994)182 CLR 104;Stephens[1994] HCA 45; (1994) 182 CLR 211;Cunliffe v The Commonwealth[1994] HCA 44; (1994) 182 CLR 272;McGinty[1996] HCA 48; (1996) 186 CLR 140;Langer[1996] HCA 43; (1996)186 CLR 302;Muldowney[1996] HCA 52; (1996) 186 CLR 352.

[28]Grannall v Marrickville Margarine PtyLtd[1955] HCA 6; (1955) 93 CLR 55 at 77.

[29]Attorney-General (Cth); Ex relMcKinlay v The Commonwealth[1975] HCA 53; (1975) 135 CLR 1 at 56;Nationwide News (1992) 177 CLR 1 at 46-47, 70-72;ACTV (1992) 177 CLR 106 at 137,184-185, 210, 229-230;Theophanous (1994) 182 CLR 104 at 146-147,189-190, 195-197;McGinty (1996) 186 CLR 140 at 201-202.

[30]Official Report of the NationalAustralasian Convention Debates, (Adelaide), (1897) at 17.

[31]Federal Commissioner of Taxation vMunro[1926] HCA 58; (1926) 38 CLR 153 at 178.

[32]Amalgamated Society of Engineers vAdelaide Steamship Co Ltd[1920] HCA 54; (1920) 28 CLR 129 at 147;VictorianStevedoring and General Contracting Co Pty Ltd and Meakes v Dignan[1931] HCA 34; (1931)46 CLR 73 at 114;R v Kirby; Ex parte Boilermakers' Society of Australia[1956] HCA 10; (1956) 94 CLR 254 at 275;New South Wales v The Commonwealth[1975] HCA 58; (1975) 135CLR 337 at 364-365. See alsoFAI Insurances Ltd v Winneke[1982] HCA 26; (1982) 151CLR 342 at 364.

[33]Dignan[1931] HCA 34; (1931) 46 CLR 73 at 114.

[34]Northern Suburbs General CemeteryReserve Trust v The Commonwealth[1993] HCA 12; (1993) 176 CLR 555 at 572-573, 580-581,590-591, 597-598.

[35]Theodore v Duncan [1919] AC 696at 706.

[36] See Campbell, "Parliament and theExecutive", in Zines (ed),Commentaries on the AustralianConstitution,(1977) 88 at 91.

[37] SeeR v Richards; Ex parteFitzpatrick and Browne[1955] HCA 36; (1955) 92 CLR 157.

[38] (1896) at 17.

[39] Reid and Forrest,Australia'sCommonwealth Parliament, (1989) at 319, 337-339.

[40] Birch,Representative and ResponsibleGovernment,(1964) at 17;ACTV (1992) 177 CLR 106 at 230;Theophanous (1994) 182 CLR 104 at 200.

[41]Representative and ResponsibleGovernment, (1964) at 17.

[42]Representative and ResponsibleGovernment, (1964) at 17.

[43]R v Smithers; Ex parte Benson[1912] HCA 92; (1912) 16 CLR 99 at 108, 109-110;Nationwide (1992) 177 CLR 1 at 73;ACTV (1992) 177 CLR 106 at 232.

[44][1992] HCA 45; (1992) 177 CLR 106 at 187.

[45][1994] HCA 46; (1994) 182 CLR 104 at 168. See also146-148.

[46][1994] HCA 44; (1994) 182 CLR 272 at 326.

[47][1994] HCA 44; (1994) 182 CLR 272 at 327.

[48] [1981] AC 1096 at 1168.

[49]Nationwide[1992] HCA 46; (1992) 177 CLR 1 at51, 76-77, 94-95;ACTV (1992) 177 CLR 106 at 142-144, 159, 169, 217-218;Theophanous (1994) 182 CLR 104 at 126;Stephens (1994) 182 CLR211 at 235;Cunliffe (1994) 182 CLR 272 at 336-337, 387;Langer (1996) 186 CLR 302 at 333-334.

[50] "Sources of Legal Authority", reprintedinJesting Pilate, (1965) 198 at 199-200.

[51] cfBlack & White Taxi Co v Brown& Yellow Taxi Co[1928] USSC 59; 276 US 518 at 533-534 (1928);Erie Railroad Co vTompkins[1938] USSC 94; 304 US 64 at 78-79 (1938).

[52]New York Times Co v Sullivan[1964] USSC 40; 376US 254 at 264-265 (1964);Time Inc v Hill[1967] USSC 11; 385 US 374 at 387-388, 409-410(1967);Time Inc v Firestone[1976] USSC 27; 424 US 448 at 452-453 (1976);Dun &Bradstreet Inc v Greenmoss Builders Inc[1985] USSC 173; 472 US 749 at 755, 765-766 (1985);Tribe,American Constitutional Law, 2nd ed (1988) par 18-6.

[53]New York Times Co v Sullivan[1964] USSC 40; 376US 254 at 265 (1964).

[54]Gertz v Robert Welch Inc[1974] USSC 144; 418 US323 at 327, 330, 332, 342-343 (1974).

[55]Bivens v Six Unknown FederalNarcotics Agents[1971] USSC 133; 403 US 388 (1971).

[56]Northern Territory v Mengel(1995) 185 CLR 307 at 350-353, 372-373.

[57] Dixon, "The Common Law as an UltimateConstitutional Foundation", (1957) 31Australian Law Journal 240 at 241.See alsoWestern Australia v The Commonwealth (Native Title ActCase)[1995] HCA 47; (1995) 183 CLR 373 at 487.

[58]R v Kirby; Ex parte Boilermakers'Society of Australia[1956] HCA 10; (1956) 94 CLR 254 at 267-268.

[59]McArthur v Williams (1936) 55 CLR324 at 347; cfThompson v The Queen[1989] HCA 30; (1989) 169 CLR 1 at 34-35.

[60] "Sources of Legal Authority", reprintedinJesting Pilate, (1965) 198 at 199.

[61][1993] HCA 44; (1993) 177 CLR 541 at 552. See alsoTheophanous[1994] HCA 46; (1994) 182 CLR 104 at 141-142.

[62]A-G v Guardian Newspapers (No 2)[1988] UKHL 6;[1990] 1 AC 109 at 283.

[63] cf as to waiver of the right orprivilege with respect to trial by jury, which is conferred bys 80 of theConstitution,Brown v The Queen[1986] HCA 11; (1986) 160 CLR 171 at 180-182, 190-191,195-196, 204-205, 214-215.

[64] Covering cl 3 of theConstitution.

[65]Toogood v Spyring (1834) 1 CM& R 181 at 193[1834] EngR 363; [149 ER 1044 at 1050].

[66]Jumbunna Coal Mine, NL v VictorianCoal Miners' Association (1908) 6 CLR 309 at 367-368;AustralianNational Airways Pty Ltd v The Commonwealth[1945] HCA 41; (1945) 71 CLR 29 at 81.

[67]Theophanous[1994] HCA 46; (1994) 182 CLR 104 at140.

[68]McGinty[1996] HCA 48; (1996) 186 CLR 140 at168, 182-183, 231, 284-285.

[69] cfCunliffe[1994] HCA 44; (1994) 182 CLR 272 at337.

[70]Cunliffe[1994] HCA 44; (1994) 182 CLR 272 at300, 324, 339, 387-388. In this context, there is little difference betweenthe test of "reasonablyappropriateand adapted"and the test ofproportionality: see at 377, 396.

[71]Theophanous[1994] HCA 46; (1994) 182 CLR 104 at131-132, 154-155, 178.

[72]Theophanous[1994] HCA 46; (1994) 182 CLR 104 at153.

[73]Theophanous[1994] HCA 46; (1994) 182 CLR 104 at192.

[74]Theophanous[1994] HCA 46; (1994) 182 CLR 104 at192.

[75]Theophanous[1994] HCA 46; (1994) 182 CLR 104 at136.

[76]Section 11 of theDefamation Act1974 (NSW) states that the provision of a statutory defence "does not of itselfvitiate, diminish or abrogate any defence or exclusionof liability availableapart from this Act". As a result, the common law defence of qualifiedprivilege still applies in New SouthWales.

[77] Section 22 states:

"(1)Where, in respect of matter published to any person:(a)the recipient has an interest or apparent interest in having informationonsome subject;

(b)the matter is published to the recipient in the course of giving to himinformation on that subject; and

(c)the conduct of the publisher in publishing that matter is reasonable in thecircumstances,

there is a defence of qualified privilege for that publication.

(2)For the purposes of subsection (1), a person has an apparent interest inhaving information on some subject if, but only if,at the time of thepublication in question, the publisher believes on reasonable grounds thatthat person has that interest.

(3)Where matter is published for reward in circumstances in which there wouldbe a qualified privilege under subsection (1) forthe publication if it werenot for reward, there is a defence of qualified privilege for that publicationnotwithstanding that itis for reward."

[78] But seeStephens[1994] HCA 45; (1994) 182 CLR 211 at 242-251 per Brennan J.

[79][1934] HCA 51; (1934) 52 CLR 637.

[80]Adam v Ward[1917] AC 309 at334.

[81]Duncombe v Daniell[1837] EngR 84; (1837) 8 Car& P 222 [173 ER 470];Adam v Ward[1917] AC 309;Chapman vEllesmere (Lord)[1932] 2 KB 431;Telegraph Newspaper Co Ltd v Bedford[1934] HCA 15; (1934) 50 CLR 632;Lang v Willis[1934] HCA 51; (1934) 52 CLR 637;Radio 2UESydney Pty Ltd v Parker (1992) 29 NSWLR 448;Stephens[1994] HCA 45; (1994) 182 CLR211 at 261.

[82]Toogood v Spyring (1834) 1 CM& R 181 at 193[1834] EngR 363; [149 ER 1044 at 1050].

[83] (1868) LR 4 QB 73 at 93.

[84][1994] HCA 45; (1994) 182 CLR 211 at 264.

[85]Mowlds v Fergusson(1939) 40 SR(NSW) 311 at 327-329;Horrocks v Lowe [1975] AC 135 at 149.

[86] For example:Adam v Ward [1917]AC 309;Loveday v Sun Newspapers Ltd[1938] HCA 28; (1938) 59 CLR 503.

[87]Telegraph Newspaper Co Ltd vBedford[1934] HCA 15; (1934) 50 CLR 632.

[88]The Criminal Code (Q), s 377;Defamation Act 1957 (Tas), s 16.

[89][1994] HCA 46; (1994) 182 CLR 104 at 136-137.

[90][1994] HCA 46; (1994) 182 CLR 104 at 137.

[91][1994] HCA 46; (1994) 182 CLR 104 at 137.

[92]Mowlds v Fergusson (1939) 40 SR(NSW) 311 at 327-329.

[93]Stephens[1994] HCA 45; (1994) 182 CLR 211 at252-253.