‘The Stuff of Which Political Debate is Made’: Roberts V Bass1
| Author | Helen Chisholm |
| DOI | 10.22145/flr.31.1.7 |
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
CASE NOTE
'THE STUFF OF WHICH POLITICAL DEBATE IS MADE':
ROBERTS V BASS1
Helen Chisholm*
In Lange v Australian Broadcasting Corporation2 the High Court, in a single unanimous
judgment, clarified the nature of the implied freedom of political communication and
reformulated its effect on the law of defamation. Five years on, the Court has given a
judgment displaying considerable uncertainty as to the impact of the Lange decision on
the common law defence of qualified privilege.
In Roberts v Bass,3 the High Court by majority allowed an appeal brought by two
political campaigners who had published defamatory material in the lead-up to a
South Australian election. The majority judgments of the Court mark an important
clarification of what is required to establish malice, particularly in t he electoral context.
There was disagreement among the members of the Court as to the extent to which
their conclusions were affected by the implied constitutional freedom of political
communication. More fundamentally, there were different views as to the state of the
common law of qualified privilege after its development in Lange, and ongoing
uncertainties were revealed as to the nature of common law development of the kind
that occurred in Lange.
IBACKGROUND: POLITICAL COMMUNICATION AND THE
DEFENCE OF QUALIFIED PRIVILEGE
The common law of defamation recognises various categories of privilege that protect
publishers of publications, which would otherwise be defamatory. The defence of
_____________________________________________________________________________________
1Roberts v Bass (2003) 194 ALR 161, 164-5, [11] (Gleeson CJ).
*Lawyer, Australian Government Solicitor. The views expressed in the article are those of
the author, and do not necessarily represent the views of the Commonwealth. Thanks are
due to Graeme Hill and Jenny Burnett for their comments on earlier drafts of this article.
2(1997) 189 CLR 520 ('Lange').
3(2003) 194 ALR 161.
226 Federal Law ReviewVolume 31
____________________________________________________________________________________
qualified privilege, unlike absolute privilege, is defeated if the plaintiff can prove that
the publication was actuated by malice. A publication will only be an occasion of
qualified privilege if it was made in the performance of a legal, social or moral duty or
to protect the publisher's interest, and if the material was published to recipients who
had a corresponding duty or interest to receive it—that is, if there was 'reciprocity'.4
Generally, publications to the world at large do not fulfil the 'reciprocity' requirement,
and so traditionally it has been difficult for the mass media to rely on the qualified
privilege defence in respect of publications made to a wide audience. This traditional
position was changed significantly by the High Court's decisions in Theophanousv
Herald & Weekly Times Ltd,5 its companion case Stephens v West Australian Newspapers
Ltd,6 and Lange.
In Theophanous and Stephens, a High Court majority of four recognised a defence to
defamation actions arising from an implied constitutional freedom of discussion about
government and political matters, members of Parliament and the suitability of
candidates for Parliament. Justice Deane differed from the other majority Justices as to
the scope of this 'constitutional freedom'. In his view, statements falling within the
implied freedom were protected by an absolute privilege.7 However, Mason CJ,
Toohey and Gaudron JJ held that the defence would only succeed if the defendant
established that it was unaware of the falsity of the statement and was not reckless as
to its truth or falsity, and that the publication was reasonable in the circumstances.8
Two members of the minority in Stephens, Brennan and McHugh JJ, held that the
common law defence of qualified privilege extended or should be extended to
communications about political and government matters where those communications
would otherwise fail the 'reciprocity' requirement.9
In Lange, the High Court reconsidered Theophanous and Stephens and reformulated
the defence available to a defamation action in respect of communications about
government or political matters. The Court did not follow the view of the majority in
Theophanous and Stephens that the implied constitutional freedom supported a
'constitutional defence' available to members of Parliament and other public figures. It
held that the sections of the Constitution that gave rise to the implied freedom
precluded curtailment of the freedom by legislative or executive action, but were not a
source of personal rights.10 The Court held that the common law must conform to the
Constitution and because the existing law of qualified privilege did not so conform, it
must be reformulated.11
In reformulating the common law of qualified privilege, the Court in Lange held
that each member of the Australian community had an interest in receiving
information, opinions and arguments about government and political matters that
affected Australia, and that on the basis of this interest, the making of such
_____________________________________________________________________________________
4Toogood v Spyring (1834) 1 CM & R 181; Adam v Ward [1917] AC 309.
5(1994) 182 CLR 104 ('Theophanous').
6(1994) 182 CLR 211 ('Stephens').
7Theophanous (1994) 182 CLR 104, 185–6 (Deane J); Stephens (1994) 182 CLR 211, 257 (Deane
J).
8Theophanous (1994) 182 CLR 104, 137–41 (Mason CJ, Toohey and Gaudron JJ);Stephens
(1994) 182 CLR 211, 234 (Mason CJ, Toohey and Gaudron JJ).
9Stephens (1994) 182 CLR 211, 255–6 (Brennan J), 261–7 (McHugh J).
10Lange (1997) 189 CLR 520, 560.
11 Ibid 566–75.
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