Privacy Law and Policy Reporter
In both of these cases defamation proceedings were commenced by serving members of Parliament (Federal Parliament in Theophanus' case and WA Parliament in Stephens' case) in relation to statements published in widely circulating newspapers. The newspapers pleaded that the statements were published pursuant to a freedom of discussion guaranteed by the Commonwealth Constitution. (It had been held in Nationwide News Pty Ltd v Wills  HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth  HCA 45; (1992) 177 CLR 106 that a necessary implication from the system of representative democracy embodied in the Constitution was that the legislative power of the Federal Parliament was subject to a freedom of political discussion).
In both cases, by majority, the court held that the newspapers' defences were good in law. Mason CJ, Toohey and Gaudron JJ, in a joint opinion, held that the implied constitutional freedom of political discussion shaped and controlled the common law of defamation such that a defendant could invoke the freedom if it could 'establish that the circumstances were such as to make it reasonable to publish the impugned material without ascertaining whether it was true or false. The publisher should be required to show that in the circumstances which prevailed, it acted reasonably, either by taking some steps to check the accuracy of the impugned material or by establishing that it was otherwise justified in publishing without taking such steps which were adequate'. In Deane J's opinion a publisher need not satisfy the court of the reasonableness of its actions in order to rely on the freedom. However, his Honour lent his support to the answers of Mason CJ, Toohey and Gaudron JJ to the questions considered by the court in order to achieve a majority decision. Brennan, Dawson and McHugh JJ wrote separate dissenting opinions.
From a privacy perspective the issue of most importance arising from the decisions is whether the implied freedom will impact upon defamation proceedings commenced by persons other than serving politicians. In the US the 'public figure' defence extends to defamatory statements about candidates for public office (Monitor Patriot Co v Roy  USSC 32; (1971) 401 US 265), government employees who are in a position significantly to influence the resolution of public issues (Rosenblatt v Baer  USSC 25; (1966) 383 US 75) and 'public figures' who do not hold official or government positions (Curtis Publishing Co v Butts  USSC 200; (1967) 388 US 130), although not to actions commenced by private persons (Gertz v Robert Welch, Inc  USSC 144; (1974) 418 US 323). After setting out this position, Mason CJ, Toohey and Gaudron JJ stated:
Although there is no occasion now to consider [the application of these extensions] in Australia, we should indicate our preliminary view that these extensions, other than the extension to cover candidates for public office, should not form part of our law.
Clearly, their Honours perceived some difficulties in holding that such an extended freedom could be justified as furthering the aims of representative democracy, on which the implication rests.
Deane J stated that:
a general curtailment of freedom of speech by laws designed to protect the privacy or the reputation of individuals may be justifiable in its application to the publicaton, in the course of political communication or discussion, of statements about the character of some junior government employees ...
His Honour reserved his opinion in respect of statements made in the course of political discussion about the private conduct of high public officials or about other persons, such as those who have thrust themselves to the forefront of political contests.
Accordingly, it may be predicted that the implied freedom will allow the publication of the 'private affairs' of a public office holder or candidate for such office provided it can be established that the publication bears upon the person's suitability for office. However, it is unlikely that the media will be entitled to rely upon the freedom in their discussion of the affairs of high profile figures such as entertainers, athletes, leading business executives or 'notorious underworld figures'.