## Facts

- The Australian Broadcasting Corporation (ABC) broadcast a current affairs program on *Four Corners* that re-broadcast (or drew from) a New Zealand program about alleged undue influence of business interests on the New Zealand Labour Government.
- David Lange, a former Prime Minister of New Zealand and serving parliamentarian, alleged the broadcast defamed him by conveying imputations of improper and corrupt conduct in office, including allowing donors or business interests to influence policy and abusing public office.
- Lange commenced defamation proceedings in the Supreme Court of New South Wales.
- The ABC pleaded defences based on the High Court’s earlier implied-freedom defamation cases (*Theophanous* and *Stephens*) and on qualified privilege principles, contending (among other matters) that even if the material were false it was published reasonably and without recklessness.
- Constitutional and common-law questions were raised for determination by the High Court to clarify how the Constitution’s implied freedom of communication on government and political matters affects defamation law.
- The High Court resolved the stated questions and returned the matter to be dealt with in light of its reasoning; it did not decide whether the ABC was liable in defamation on the facts.

## Issues

1. Does the Commonwealth Constitution imply a freedom of communication about government and political matters, and what is its source and scope?
2. Is the implied freedom a personal right that supplies a direct defence to defamation, or does it operate as a limit on legislative and executive power (and thus on the content of common-law rules)?
3. Does the implied freedom apply to State laws and to the common law of defamation applied by State courts?
4. Should the common-law defence of qualified privilege extend to publications to the general public on government or political matters, and if so on what conditions?

## Decision

- The High Court unanimously affirmed an implied freedom of communication on government and political matters derived from the Constitution’s text and structure establishing representative and responsible government and the referendum process.
- The Court held the implied freedom is not a personal right of speech; it is a restriction on legislative and executive power that cannot validly burden required political communication beyond what the constitutional system permits.
- The Court disapproved earlier reasoning in *Theophanous* and *Stephens* to the extent those cases treated the implied freedom as creating a stand-alone “constitutional defence” to defamation.
- The Court stated a two-step test for assessing whether a law (including a common-law rule) impermissibly burdens political communication: (1) whether the law effectively burdens such communication; and (2) if it does, whether the law’s purpose is legitimate and its means are reasonably appropriate and suitable for that purpose, consistently with the constitutional system.
- The Court held that the common law of defamation must be developed consistently with the implied freedom and reformulated qualified privilege to extend to certain communications to the public on government or political matters, conditioned on the publisher acting reasonably in the circumstances.
- The proceeding was remitted for further steps consistent with these conclusions.

## Legal Principles

- The implied freedom of communication on government and political matters arises from the Constitution’s structure and requirements for representative and responsible government and constitutional change by referendum.
- The implied freedom is not an individual right; it is a constraint on governmental power that affects the validity and development of statutes and common-law rules that burden political communication.
- The implied freedom applies to Commonwealth and State action, and it bears on the common law applied by courts when that law burdens communication relevant to the constitutional system.
- A law burdening political communication is valid only if it serves a legitimate end consistent with the constitutional system and uses means that are reasonably appropriate and suitable to that end.
- Common-law qualified privilege extends beyond one-to-one or limited-audience communications and may cover publications to the public at large on government or political matters where recipients have an interest in receiving the information.
- For wide-audience political publications, qualified privilege depends on the publisher’s reasonableness, which may include the seriousness of the allegation, steps taken to verify, whether the subject was given an opportunity to respond (and whether that response was fairly presented), the urgency of publication, and the manner and extent of publication.
- The qualified privilege defence remains defeated by proof of malice.

## Conclusion

In *Lange v. Australian Broadcasting Corporation*, the High Court confirmed the Constitution implies a freedom of political communication as a limit on governmental power, rejected a free-standing constitutional defamation defence, and reshaped qualified privilege so public communications about government and politics can be protected where publication is reasonable, leaving the defamation claim to continue under the clarified framework.


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