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Lange v ABC: the High Court rethinks the "constitutionalisation" of defamation law

Author: Sally Walker
Professor of Law, University of Melbourne
Issue: Volume 5, Number 1 (March 1998)
Contents

Introduction

The background to Lange: the 1992 free speech cases and the 1994 defamation free speech cases

The impact of Theophanous and Stephens on the "duty-interest" form of qualified privilege Conclusion
Notes
 
Introduction
  1. In Lange v Australian Broadcasting Corporation[1] (Lange) the High Court of Australia reconsidered two cases which it had decided in 1994: Theophanous v Herald & Weekly Times Ltd[2] (Theophanous) and Stephens v West Australian Newspapers Ltd[3] (Stephens). These 1994 cases had "constitutionalised" Australia's defamation laws by establishing a defence, derived from the Constitution, which applied where a defamatory publication was a matter of political discussion. The 1994 cases also expanded the scope of qualified privilege in relation to the discussion of political matters. For defamation lawyers, the most important outcome of Lange is the collapsing of the "Constitutional" defence and the expanded qualified privilege established by the 1994 cases into a new form of qualified privilege. The new form of qualified privilege requires defendants to establish elements similar to those of the now nullified defence. While this article will concentrate on the impact of Lange on defamation law, mention will also be made of some wider ramifications of the decision.

    2.  
  2. To understand the impact of Lange, it is essential to commence by outlining Theophanous and Stephens; it is necessary also to refer briefly to two cases decided by the High Court in 1992: Nationwide News Pty Ltd v Wills[4] and Australian Capital Television Pty Ltd v Commonwealth.[5]

    3.  

    The background to Lange: the 1992 free speech cases and the 1994 defamation free speech cases [6]

    The implied freedom of political communication
     

  3. In Nationwide News Pty Ltd v Wills[7] and Australian Capital Television Pty Ltd v Commonwealth[8] (the 1992 free speech cases), a majority of the High Court distilled from the provisions and structure of the Commonwealth Constitution, particularly from the concept of representative government, an implication of freedom of political communication.[9] In each case, the High Court held that certain federal legislation was invalid; one ground relied upon by some members of the court was that the legislation infringed the implied freedom of political communication.[10]

    4.  
  4. Unlike the 1992 free speech cases, Theophanous and Stephens (the 1994 defamation free speech cases) did not concern federal legislation prohibiting or restricting the publication of information; both cases concerned the laws of the Australian States and Territories imposing civil liability for defamation. In Theophanous, in a joint judgment, Mason CJ, Toohey and Gaudron JJ held that the implied freedom recognised in the 1992 free speech cases was capable of extending to freedom from restraints imposed by statute law and that it shapes and controls the common law.[11] In a separate judgment, Deane J also decided that the implied freedom of political discussion constitutes a limitation on State laws.[12] Brennan, Dawson and McHugh JJ dissented in relation to this development of the free speech cases.[13] Accordingly, by a 4:3 majority, in Theophanous the High Court held that defamation law, whether it is based on legislation or the common law, was subject to, and could be shaped by, the implied constitutional freedom of political communication.

    5. The Theophanous defence
     

  5. In Theophanous, Mason CJ, Toohey and Gaudron JJ concluded that the common law of defamation was balanced too far against freedom of communication.[14] The implied freedom of political communication outlined above did not, however, demand or need protection in the form of an absolute immunity. They held that there was nothing in the concept that required protection in relation to the publication of statements that were knowingly false, or which were published with reckless disregard for the truth or untruth of the material, or for statements made irresponsibly.[15] Deane J would have been prepared to establish what was in some ways an even wider protection for publishers than that set out in the joint judgment,[16] but he lent his support to the joint judgment.[17] Thus, by a 4:3 majority, the High Court established a defence, derived from the Constitution, which was to apply where a defamatory publication was a matter of political discussion. To obtain the protection of this defence, the defendant had to establish: that it was unaware of the falsity of the material; that it did not publish the material recklessly, that is, not caring whether the material was true or false; and that the publication was reasonable in the circumstances.[18] This defence will be referred to as "the Theophanous defence".

    6.  
  6. Whereas the plaintiff in Theophanous was a member of the federal Parliament, in Stephens the plaintiff was a State parliamentarian. In Stephens, Mason CJ, Toohey and Gaudron JJ, again in a joint judgment, held that the freedom of communication implied in the Commonwealth Constitution extended to public discussion of the performance, conduct and fitness for office of members of a State legislature.[19] Deane J held that the constitutional implication extended to political communication and discussion in relation to all levels of government.[20] Accordingly, in Stephens, Mason CJ, Toohey, Gaudron and Deane JJ found that the Theophanous defence could apply in respect of defamation actions arising out of the publication of political material concerning State or Territory matters.[21] Again, this was a 4:3 decision as Brennan, Dawson and McHugh JJ dissented.[22]

    7.  
  7. Thus, Theophanous and Stephens "constitutionalised" Australia's defamation laws by establishing the Theophanous defence, which was derived from the Constitution and which applied where a defamatory publication was a matter of political discussion at least in relation to federal, State or Territory matters.

    8. The expanded "duty-interest" form of qualified privilege established by the 1994 defamation free speech cases
     

  8. In addition to creating the Theophanous defence as outlined above, Theophanous and Stephens had another, important impact on defamation law in that these 1994 defamation free speech cases expanded the availability of the protection accorded to publishers by qualified privilege.

    9. The common law "duty-interest" form of qualified privilege before the 1994 defamation free speech cases
     

  9. It is well recognised that, at common law, a statement made in the performance of a legal, social or moral duty or to protect some interest of the publisher is accorded qualified privilege. This is, however, subject to the proviso that the statement must be made to a person who has a corresponding interest or duty to receive it.[23] Before Theophanous and Stephens were decided, this common law "duty-interest" form of qualified privilege rarely operated to protect publishers such as media organisations. The requirement of reciprocity of duty or interest between the publisher and those to whom the material was published operated so as to limit the availability of this form of qualified privilege to publications made to restricted audiences;[24] the "duty-interest" form of qualified privilege rarely applied where the material was published to the public at large.[25]

    10. The impact of Theophanous and Stephens on the "duty-interest" form of qualified privilege
     

  10. In the joint judgment of Mason CJ, Toohey and Gaudron JJ in Theophanous it was held that the "duty-interest" form of common law qualified privilege was to be viewed in the light of the Constitutional freedom of political communication. The joint judgment held that the public at large had an interest in the discussion of political matters such that each person had an interest, of the kind contemplated by the common law, in communicating her or his views on those matters and each and every person had an interest in receiving information on those matters.[26] In Stephens, Mason CJ, Toohey and Gaudron JJ held that, where the Constitutional implication of freedom of communication applied, in pleading common law qualified privilege, it was unnecessary to allege a duty on the part of the defendant to publish the material to its readers.[27] Deane J concurred with this result.[28] Indeed, in Stephens, only Dawson J took the traditional, narrow view that there was no qualified privilege as there was no information which the defendant had a duty or interest to impart and the recipients had a corresponding duty or interest to receive.[29] The other two dissenting judges, Brennan J and McHugh J, were prepared to widen the scope of the common law "duty-interest" form of qualified privilege, but they concentrated on cases in which a report has been published of a defamatory allegation made by a third party.[30]

    11.  
  11. The 1994 defamation free speech cases significantly widened the scope of the common law "duty-interest" form of qualified privilege where a publisher published defamatory material to the public at large: in accordance with the views of Mason CJ, Toohey, Gaudron and Deane JJ, the discussion of political matters was now an occasion of qualified privilege. It appears that the practical significance of this was unforeseen by the High Court. The joint judgment in Theophanous assumed that the fact that malice can defeat qualified privilege made it a narrow defence.[31] Indeed, Mason CJ, Toohey and Gaudron JJ suggested that the availability of the new Theophanous defence would:

    12.  
      inevitably have the consequence that the common law defence of qualified privilege will have little, if any, practical significance where publication occurs in the course of the discussion of political matters.[32]
     
  12. The High Court failed to recognise that, in many cases, the expanded form of qualified privilege could provide better protection to publishers than that accorded to them by the Theophanous defence. The protection accorded by qualified privilege is lost only if the plaintiff establishes that the publication of the material was actuated by malice. A defendant who sought to rely on the Theophanous defence had to show, not only that the publication was a matter of political communication, but also that the other three elements of the defence outlined above had been satisfied. In contrast, a defendant who relied on the expanded "duty-interest" form of qualified privilege had only to establish that the publication was a matter of political communication. The burden then shifted to the plaintiff to establish, if the plaintiff could, that the publication of the material was actuated by malice.

    13. Challenging the correctness of Theophanous and Stephens
     

  13. It will be apparent from the summary of the 1994 defamation free speech cases above, that the results in Theophanous and Stephens were reached by narrow majorities. When, relatively soon after the 1994 defamation free speech cases were decided, two members of the majority in those cases, Mason CJ and Deane J, retired from the bench, a challenge to the 1994 decisions became almost inevitable.

    14.  
  14. The first case in which leave was sought to reopen Theophanous and Stephens was Levy v State of Victoria[33] (Levy). Levy, which was not a defamation case, was heard concurrently with Lange as the cases raised similar questions concerning the correctness of Theophanous and Stephens. The High Court's decision in Levy was not handed down until after Lange was decided; only brief mention will be made of Levy in this article.

    15. How Lange arose
     

  15. A defamation action was brought in the Supreme Court of New South Wales by Mr David Lange, a former Prime Minister of New Zealand, against the Australian Broadcasting Corporation. The action arose out of the ABC's televising in Australia of a New Zealand program dealing with Mr Lange's time in office. The defendant relied on the Theophanous defence (described above) and on the expanded duty-interest form of qualified privilege (above). The plaintiff moved to strike out the defences alleging that they were bad in law. The matter was removed to the High Court.

    16. The High Court's decision in Lange
     

  16. The High Court's judgment in Lange, which is a joint decision of all the then members of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ), commenced by analysing the outcome of Theophanous and Stephens. It was noted that, as Deane J merely lent his support to the joint judgment in Theophanous (see above) and concurred with the result in Stephens (see above), the reasoning of the majority in those cases had the direct support of only three of the seven judges.[34] Accordingly, Theophanous and Stephens did not have the same authority as they would have had if Deane J had agreed with the reasoning of the joint judgments of Mason CJ, Toohey and Gaudron JJ in those cases.[35] It followed that the High Court could examine the defences pleaded by the defendant in Lange as a matter of principle rather than authority.[36]

    17.  
  17. The outcome of Lange is important for three major reasons. First, the High Court re-affirmed that not only federal legislation, but also State and Territory legislation and the common law must conform to the freedom of political communication which is an "indispensable incident" of the system of government created by the federal Constitution.[37] This was based on an analysis of representative and responsible government as provided for under the federal Constitution. Reference was made to: sections 7 and 24 of the Constitution, which require that members of the Senate and the House of Representatives are to be chosen at elections by the people of the States and of the Commonwealth respectively; section 128, which ensures that the Constitution cannot be altered except by a referendum; and various sections which establish a formal relationship between the executive government and the parliament and provide for a system of responsible ministerial government. The High Court concluded that these sections of the federal Constitution "necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors".[39]

    18. Although it was held that the sections do not confer personal rights on individuals,[39] it was confirmed that they preclude the curtailment of the freedom by legislative or executive power[40] and that the common law must conform with the Constitution.[41] As McHugh J subsequently put it in Levy, the freedom protected by the Constitution:
     
      is not ... a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution.[42]
     
  18. In Lange, the High Court also re-affirmed that laws which give civil rights of action must conform to the freedom of political communication; the requirement is not limited to legislation which prohibits or restricts the publication of information. A right of action, whether it is part of the common law or in a statute, cannot be allowed "if its exercise would infringe upon the freedom to discuss government and political matters which the Constitution impliedly requires".[43] The significance of this lies in the fact that, in Australia, most of the restrictions on the publication of information are to be found in State or Territory legislation[44] or the common law[45] and that it is civil rights of action that often operate so as to restrict freedom of speech.[46] Lange confirms that these laws may be read down or invalidated if they contravene the freedom of political communication. The freedom of communication is, however, not absolute. It was made clear that it is limited to what is necessary for the effective operation of representative and responsible government provided for by the relevant sections of the federal Constitution.[47]

    19.  
  19. The second reason why Lange is important is that the High Court set out the test to be applied to determine whether the implied freedom has been infringed. This involves two questions. First, does the law burden freedom of communication about government or political matters in its terms, operation or effect ? Secondly, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the system of government prescribed by the federal Constitution?[48]

    20. If the answer to the first question is 'yes' and the second question 'no', the law is invalid or, in the case of the common law, may have to be developed to ensure that it does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the federal Constitution requires. This test was subsequently applied by the High Court in Levy.[49]
     
  20. The third reason why Lange is important is that the court considered the impact on defamation law of the freedom of communication required by the Constitution. The High Court held that, in so far as the law of defamation requires electors and others to pay damages for the publication of communications concerning government or political matters, or leads to the grant of injunctions against such publications, it effectively burdens the freedom of communication about those matters.[50]

    21. It was then necessary to determine whether defamation law was appropriate and adapted to serving a legitimate end - in this case, the protecting of personal reputation - without unnecessarily or unreasonably impairing the freedom of communication.[51] This test was directed primarily at the defamation law of New South Wales as the argument in the High Court was conducted on the basis that the plaintiff's action was to be determined solely by regard to the defamation law of that State.[52] Nonetheless, the High Court held that, without the statutory defence of qualified privilege contained in s 22 of the Defamation Act 1974 (NSW), the common law of defamation would impose an undue burden on the required freedom of communication under the Constitution.[53] It was made clear that the common law rules concerning qualified privilege, as understood before Theophanous, failed to meet the Constitutional requirement.[54]
    Accordingly, the High Court declared that the common law of defamation had to recognise that "each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia".[55]
    The effect of this declaration is to make available a new expanded duty-interest form of qualified privilege in defamation law to provide protection to publishers of such information, opinions and arguments.

    The impact of Lange on defamation law: the Lange form of qualified privilege
     

  21. This section will examine the new, expanded duty-interest form of qualified privilege which was established by the High Court in Lange in order to make the common law of defamation conform with the freedom of communication required by the Constitution (see above). The new expanded duty-interest form of qualified privilege, which will be referred to in this article as "the Lange form of qualified privilege", includes elements of both the Theophanous defence of political communication (see above) and the expanded duty-interest form of qualified privilege established by Theophanous and Stephens (see above). It is, however, important to note that the Lange form of qualified privilege supersedes both of these earlier developments.

    22.  
  22. The High Court held that the Theophanous defence pleaded by the defendant in Lange was bad in law.[56] Accordingly, the defence outlined above is no longer available to defendants. It was held that a defence of qualified privilege, which was also relied upon by the defendant, was not bad in law. The particulars given by the defendant were not, however, sufficient to bring the publication within the Lange form of qualified privilege.[57] The reason for this is that the Lange form of qualified privilege is, in one important respect, narrower than the expanded "duty-interest" form of qualified privilege which had been established by Theophanous and Stephens. In order to rely on the Lange form of qualified privilege, the defendant must prove an additional "reasonableness" element which was not part of the expanded "duty-interest" form of qualified privilege established by the 1994 defamation free speech cases. The reasonableness requirement is analysed below. The Lange form of qualified privilege overturns and replaces the expanded "duty-interest" form of qualified privilege established by Theophanous and Stephens; defendants will no longer be able to rely on the expanded "duty-interest" form of qualified privilege described above.

    23. When will the Lange form of qualified privilege apply ?
     

  23. The Lange form of qualified privilege will operate whenever defamatory material is published "concerning government and political matters that affect the people of Australia".[58]

    24. While the precise meaning of "government" and "political" matters "affecting the people of Australia" will have to be worked out in later cases, one thing is clear: it is the nature of the discussion which is important; nothing in the decision suggests that the protection depends on whether the plaintiff is a politician or other type of public figure. The unequivocal nature of the High Court's reasoning in relation to this aspect of the ambit of the protection should ensure that there is no room for commentators to suggest, as some did in relation to the 1994 defamation free speech cases, that the High Court has established a "public figure-style defence" akin to the way the United States Supreme Court "constitutionalised" America's defamation laws in New York Times v Sullivan.[59]
     
  24. There was some discussion in Lange of the circumstances in which the Lange form of qualified privilege will operate. This arose out of the observation by the High Court that the Lange form of qualified privilege may go beyond what is required by the Constitution. An example was given of the discussion of matters concerning the United Nations or other countries. This discussion may fall within the protection of the Lange form of qualified privilege, even though it cannot be traced directly back to the relevant sections of the Constitution referred to above. Thus, the discussion of matters concerning the United Nations or other countries will be protected if it is characterised as material concerning government or political matters that affect the people of Australia, even though it does not "illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government".[60] The court also made it clear that the discussion of government or politics at State or Territory level, and even at local government level, may be protected.[61] It seems that this material will fall within the ambit of the Lange form of qualified privilege if it is characterised as material concerning government or political matters that affect the people of Australia, whether or not it bears on matters at a federal level.

    25.  
  25. Some indication of what is likely to be characterised as "material concerning government or political matters that affect the people of Australia" may be gained from an examination of cases which considered what was encompassed by "political discussion" for the purposes of the Theophanous defence and the expanded duty-interest form of qualified privilege.[62] Not surprisingly, in Peterson v Advertiser Newspapers Ltd the Full Court of the Supreme Court of South Australia found that material concerning the performance by a member of a State legislature of his parliamentary duties was a matter of political discussion.[63] In Sporting Shooters' Association (Vic) v Gun Control Australia Judge Shelton in the County Court of Victoria held that debate about gun control constituted a discussion of political matter in view of campaigns to influence government policy in relation to this matter.[64] In Williams v John Fairfax & Sons Ltd Levine J of the Supreme Court of New South Wales held that it was arguable that the discussion of the performance of a member of the judiciary was a political discussion.[65]

    26. In Lewandowski v Lovell (No 2) Master Adams of the Supreme Court of Western Australia found that an allegation that police officers engaged in a conspiracy to pervert the course of justice such that an accused person did not receive a fair trial was capable of constituting political discussion; he suggested that political discussion "extends to comment on the legislative, executive or judicial processes".[66] Subject to one proviso, it is not unlikely that the material in question in these cases would be characterised as "material concerning government or political matters that affect the people of Australia". The proviso relates to the discussion of judicial processes. The publication of some information or commentary regarding the courts may be characterised as material concerning government or political matters. Obvious examples include material concerning the process by which judges are appointed or the fact that a court has held that legislation, particularly a statute dealing with a controversial matter such as land rights, is invalid. Nonetheless, it is unlikely that a publication regarding any aspect of any litigation would automatically be characterised as "material concerning government or political matters that affect the people of Australia" on the ground only that a dispute has reached the courts. Commercial speech could not be converted into political speech simply because litigation has been commenced regarding the commercial matter. Accordingly, the statement in Stephens v West Australian Newspapers Ltd may be too wide in relation to judicial matters.
     
  26. One approach to the meaning of "political discussion" which should not be followed in relation to the scope of the Lange form of qualified privilege is that of Mildren J of the Northern Territory Supreme Court in Hart v Wrenn.[67] In that case, Mildren J confined the expanded duty-interest form of qualified privilege to material discussing political matters of and concerning serving politicians or political candidates.[68] This aspect of Mildren J's decision is inconsistent with several of the other cases considered in this section and is too narrow to be followed for the purpose of determining whether material can be characterised as "material concerning government or political matters that affect the people of Australia".

    27.  
  27. It is worth noting that, in Hartley v Nationwide News Pty Ltd, Allen J of the Supreme Court of New South Wales rejected an argument that, to be protected, the defamatory publication must be made in the course of an already existing political discussion; he held that "the first cab off the rank" in a matter of political discussion would be protected.[69] Again, it is likely that the same position would apply in relation to the Lange form of qualified privilege.

    28.  
  28. There were, of course, limits to what constituted "political discussion", just as there will be limits drawn in relation to what constitutes "material concerning government or political matters that affect the people of Australia". In Baltinos v Australian Consolidated Press Ltd Sully J of the Supreme Court of New South Wales held that, while the article in question in that case had, in a sense, a "political resonance" in that it dealt with immigration-related issues, the article was a "wide-ranging and sensational personal and professional denigration of the plaintiff" rather than a matter of political discussion.[70]

    29. In this case the plaintiff was not the holder of a public office relating to immigration; if the plaintiff had held such a position, for example, if he had been the minister for immigration, it is possible that the attacks, although personal, would have been found to have related to his capacity to hold public office and, on this ground, would have amounted to political discussion or, for current purposes, would have been characterised as "material concerning government or political matters that affect the people of Australia".
     
  29. Although it appears from the analysis in this section that the Lange form of qualified privilege operates in a wide range of circumstances, in practice, in some cases publishers may choose not to rely on it. In this regard, it should be noted that Lange does not make redundant or obsolete the common law duty-interest form of qualified privilege as it operated before the 1994 defamation free speech cases. If a defendant can establish the requirements of the common law duty-interest form of qualified privilege, that is, that there was reciprocity of duty or interest between the publisher and those to whom the material was published (see above), it would generally be in the interests of the defendant to rely on this form of qualified privilege, rather than on the Lange form of qualified privilege. This is because, under the common law duty-interest form of qualified privilege, the publisher would not have to make out the reasonableness requirement of the Lange form of qualified privilege (see below). As the High Court said, "reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience".[71] The only exception to the general proposition that a defendant who can establish the requirements of the common law duty-interest form of qualified privilege would be advised to rely on this, rather than on the Lange form of qualified privilege, might occur where there is evidence of malice as that concept operates at common law, but not under the concept of malice as it applies to the Lange form of qualified privilege (see below). It must, however, be emphasised that, particularly in relation to media organisations publishing to wide audiences, it is only in rare cases that a defendant can establish that there was reciprocity of duty or interest between the publisher and those to whom the material was published so as to be able to rely on the common law duty-interest form of qualified privilege (see above). The position under the Codes is different.

    30.  
  30. In Queensland and Tasmania, the relevant Codes set out the circumstances in which qualified privilege operates.[72] Examples include publication in good faith "for the protection of the interests of the person making the publication, or of some other person, or for the public good" and publication in good faith "in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit".[73] These Codes do not require reciprocity of duty or interest between the publisher and those to whom the material was published. The fact that there is no reciprocity requirement means that a publisher is quite likely to have a choice of relying on the Code or on the Lange form of qualified privilege. Again, except where there is evidence of lack of "good faith" as that is understood under the Codes, but not of malice as that concept is understood under the Lange form of qualified privilege (see below), in the case of material published in Queensland or Tasmania, a publisher may prefer to rely on the Code as it would not have to make out the reasonableness element of the Lange form of qualified privilege analysed below.

    31.  
  31. In the case of material published in New South Wales, both the common law duty-interest form of qualified privilege and a statutory form of qualified privilege set out in s 22 of the Defamation Act 1974 (NSW) are available. Unlike the common law duty-interest form of qualified privilege (see above), s 22 of the Defamation Act 1974 (NSW) does not require reciprocity of duty or interest between the publisher and those to whom the material was published. Section 22 does, however, require that the conduct of the publisher in publishing the material was reasonable. Most defamation lawyers would agree that s 22 has not lived up to its promise of providing protection for publishers who publish material to the public at large and that it is the way that the courts have interpreted the reasonableness requirement that has presented the greatest problem for defendants. Under s 22, assessing whether the publication of the material was reasonable involves considering "all the circumstances leading up to and surrounding the publication".[74]

    32. In one case, the New South Wales Court of Appeal had regard to: the publisher's belief in the truth of the statement; the manner and extent of publication; the surrounding circumstances; the connection between the subject and the imputation; the reasonableness of the assertion itself; and the care exercised before the material was published. It was considered significant that the defendant did not make adequate inquiries and that the defamatory imputation was arguably based on a flimsy or no foundation.[75] It has been made clear that it would be difficult to establish that it was reasonable to publish a comment based on untrue facts, particularly if no proper inquiry was made to ascertain the true facts.[76]
     
  32. It is the inquiry into whether the publisher had a belief in the truth of what was published that has narrowed the scope of the reasonableness requirement under s 22. In one case, Hunt J suggested that the reasonableness requirement in s 22 had been interpreted "so that the defendant must now establish his belief in the truth of what was published".[77] Subsequently, in another case, he said that, while -

    33.  
      there is no inflexible rule that a defendant must call evidence of his belief in the truth of what he published ... the defendant will generally fail to establish that his conduct was reasonable in the circumstances unless he does give evidence that he believed in the truth of what he published.[78]
     
  33. This approach has been endorsed by the New South Wales Court of Appeal so that "in determining whether the defendant's conduct was reasonable in the circumstances, the defendant must in most cases establish his honest belief in the truth of what he has written".[79]

    34.  
  34. It appears that the inquiry concerning the defendant's belief is assessed in relation to the imputations conveyed[80] although in Morgan v John Fairfax & Sons Ltd [No 2] Hunt A-JA (with whom Samuels JA agreed) suggested that, if the defendant did not intend to convey any particular imputation in fact conveyed, the defendant must establish:

    35.  
      that ... he believed in the truth of each imputation which he did intend to convey; and
      that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.[81]
     
  35. This approach will assist a publisher when an imputation found to have been conveyed is one which the publisher did not intend to convey. It will not, however, always assist a publisher who publishes a report of what has been said by someone unconnected with the publisher. It may be desirable, as a matter of policy, to protect the publisher from liability for defamation in relation to the publication of such a report, despite the fact that the publisher knew that a particular imputation was conveyed and despite the fact that it did not believe in the truth of that imputation. Indeed, it may be desirable to protect the publisher from liability even though the publisher knew that the imputation was false. For example, a media organisation which publishes a report of the conflicting statements of opposing politicians regarding a particular matter could not believe in the truth of all the imputations conveyed by such a report; it is probable that it would have reached a conclusion regarding which version is true and which is false, but, as a matter of policy, it would be undesirable to have it censor the debate so as to present only the side which it believed to be true. Nonetheless, owing to the fact that the courts have interpreted the reasonableness requirement in s 22 so that the publisher must establish that it had a belief in the truth of each imputation, even if this is limited to the imputations it intended to convey, the publisher would not be able to rely on s 22 to protect it from liability for defamation in relation to the material which it did not believe to be true. As this example illustrates, because of the way the reasonableness requirement has been interpreted, there are occasions when s 22 does not protect publishers from liability for defamation even though it would be desirable to encourage freedom of speech by protecting the publisher.

    36.  
  36. One exception to the general rule that, in order to establish reasonableness, it is necessary to show a belief in the truth of what was published was identified in Barbaro v Amalgamated Television Services Pty Ltd[82] (Barbaro). A distinction was drawn between the print and the broadcast media. It was said that a newspaper article makes an assertion, but does not itself establish, although it may refer to, its sources. Accordingly, the defendant will fail to establish reasonableness in relation to the publication of the material in the article without evidence of belief in the truth of what was published. In the case of the broadcast of a film it was, however, said that "the publication is its own source" so that it is not necessary to show a belief in the truth of what was published.[83] Presumably this exception applies only when the film is, as it was in Barbaro, of someone other than a person associated with the media organisation; it would not apply in relation to the broadcast of a statement made by a newsreader. Another possible exception referred to in Collins v Ryan[84] may arise where a person is under a duty to pass on, without endorsement, a defamatory report made by some other person. This is similar to an exception which operates in relation to what constitutes malice for the purposes of defamation law.[85] In Morgan v John Fairfax & Sons Ltd [No 2] Hunt A-JA (with whom Samuels JA agreed) reserved for the future the question whether this exception applies to s 22.[86] Neither of these exceptions is wide enough to always provide protection to a publisher who publishes a report of what has been said by someone unconnected with the publisher, although it is possible that the exception referred to in Collins v Ryan[87] could be developed in a way which would do so.

    37.  
  37. Whether a defendant will rely on s 22 of the Defamation Act 1974 (NSW) or on the Lange form of qualified privilege, when it is available, will depend upon whether there is any difference between the concept of reasonableness under s 22 and the reasonableness requirement under the Lange form of qualified privilege. In the next section it will be argued that the concept of reasonableness under the Lange form of qualified privilege should not be interpreted in the narrow way that it has been interpreted under s 22. If this is correct, a defendant may be able to rely on the Lange form of qualified privilege in circumstances where the s 22 defence would fail.

    38. The "reasonableness" requirement of the Lange form of qualified privilege
     

  38. When a publisher is relying on the Lange form of qualified privilege, the publisher will have to establish that the publication is a matter concerning government or political matters that affect the people of Australia (see above); the publisher will also have to establish that it was "reasonable" to publish the material.[88]

    39. It is the reasonableness requirement that distinguishes the Lange form of qualified privilege from, and makes it narrower than, both the common law form of duty-interest qualified privilege and the "duty-interest" form of qualified privilege established by Theophanous and Stephens (see above). The explanation given by the High Court for the additional requirement was that, as the Lange form of qualified privilege operates when material is published to a wide audience, the damage that can be done by the publication of the material protected by this qualified privilege is significant; it followed that the reasonableness of the conduct should be the appropriate criterion to apply when the defendant relies on the Lange form of qualified privilege.[89]
     
  39. The way that lower courts interpret the reasonableness requirement will be critical to the extent of the protection accorded to publishers by the Lange form of qualified privilege.

    40.  
  40. The High Court elucidated the concept of reasonableness in two places in its judgment. First, referring to the requirement in the Theophanous defence that the defendant prove that it was unaware of the falsity of the material and that it did not publish the matter recklessly, the High Court said:

    41.  
      That is a requirement that has little practical significance. The defendant must establish that its conduct in making the publication was reasonable in all the circumstances of the case. In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.
     
  41. It may be that, if a statutory provision were to require the additional elements of want of knowledge of falsity and absence of recklessness, as required by Theophanous, it would not, on that account, infringe the freedom of communication which the Constitution requires. ... there is no reason why ... [these requirements] should be engrafted on the expanded common law defence of qualified privilege.[90]

    42.  
  42. Later, the High Court said that:

    43.  
      Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.[91]
     
  43. The High Court did not elaborate on the "exceptional" circumstances in which a defendant will be protected even if it was aware of the falsity of the material, but it is suggested that sometimes a publisher may be under a social or moral duty to pass material on to the public even though it knows that the material is false. An example sometimes given is where the police request that false material is published in order to deal with a threat from terrorists or an extortionist.

    44.  
  44. Although the two passages make particular reference to the truth or falsity of the material and the publisher's state of knowledge regarding this, it should not be thought that, because comments are inherently incapable of being proved true or false, the reasonableness requirement does not apply to comments. To take advantage of the Lange form of qualified privilege in relation to a comment, the publisher will have to prove that it was reasonable to publish the comment. In Peterson v Advertiser Newspapers Ltd,[92] a case dealing with the requirements of the Theophanous defence (see above), Olsson J rejected an argument that a bare expression of opinion attracts absolute immunity. He held that "even where a publication involves no express statement or implication of fact, it still rests upon the publisher to demonstrate that the publication was reasonable in the circumstances, so as to require the taking of some adequate steps to establish proper justification for the publication".[93] The same approach is likely to be taken to the Lange form of qualified privilege.

    45. Two important issues which will arise in relation to the reasonableness requirement will now be examined.

    Should "reasonableness" be interpreted in a manner similar to the way that it has been interpreted under s 22 ?
     

  45. It was explained above, that it is the reasonableness element that has limited the protection accorded to publishers by s 22 of the Defamation Act 1974 (NSW). This has occurred because, in most cases, to satisfy the reasonableness requirement, the defendant has been obliged to establish that it has an honest belief in the truth of the defamatory imputation. Although the High Court in Lange held that s 22 ensured that the law of defamation in New South Wales was consistent with the requirements of the Constitution,[94] it did not analyse or refer to the relevant cases which have interpreted the reasonableness requirement in s 22 in the narrow manner outlined above. Accordingly, it cannot be suggested that the High Court was endorsing this particular interpretation; all that it was doing was to approve of a reasonableness requirement in the terms which it described.

    46.  
  46. Lower courts appear to have assumed that the reasonableness requirement of the Theophanous defence (see above) should be interpreted in the same manner as the reasonableness element under s 22.[95] Nonetheless, there are indications that, unlike the way courts have interpreted the reasonableness requirement under s 22, so far as the Lange expanded form of qualified privilege is concerned, the High Court did not intend to require defendants to establish a positive belief in the truth of the imputations conveyed. In the first of the passages set out above, the High Court referred to the need for the defendant to establish that it was "unaware of the falsity of the matter"; in the second passage it refers to the need for the defendant to establish that it "did not believe the imputation to be untrue". Plainly, these are references to a subjective test. The most important point to note is, however, that not knowing that something is false or untrue is quite different from a requirement that the defendant had a positive belief in the truth of the imputation. It is, of course, legitimate to point out that the second passage set out above refers also to the defendant having "reasonable grounds for believing that the imputation was true". This is, however, an objective test; having reasonable grounds for believing that something is true is not the same as believing that it is true.

    47.  
  47. It is suggested that, on a proper reading of the two passages referred to above, it is not necessary for the defendant who is relying on the Lange form of qualified privilege to establish that it had an honest belief in the truth of the imputation. In all but exceptional cases, the defendant must establish that it was unaware of the falsity of the imputation. Where an unintended imputation is conveyed, the fact that the publisher did not foresee the imputation indicates that it was not aware of its falsity.

    48.  
  48. It is suggested that the requirement that the publisher must establish that it had reasonable grounds for believing that the imputation was true should be applied as an objective test. That is, that the defendant must establish that, objectively, a publisher could believe that the imputation was true.

    49. The reasonableness requirement where a publisher publishes a report of a statement made by a third person
     

  49. Above it was explained that the "reasonableness" requirement of s 22 of the Defamation Act 1974 (NSW) has not, as yet, been developed by the courts in such a way as to provide adequate protection to publishers who publish reports of what has been said by someone unconnected with the publisher. This is in marked contrast to Allen J's approach to the Theophanous defence (see above) in Hartley v Nationwide News Pty Ltd.[96] In that case, Allen J held that:

    50.  
      the defence ... requires nothing at all of the publisher as to its belief in whether what has been said by others and reported by it is true. What matters is its belief as to whether what it publishes as having been said by others accurately reports the substance of what was said. ... It is an essential part of the constitutional protection that information as to what has been said by others can be placed in the public domain irrespective of whether the publisher has formed any view as to the truth of what has been said by others and reported by it and irrespective of what opinion it has as to the truth of that, if it has formed one.[97]
     
  50. If Allen J's approach were applied to the reasonableness requirement under the Lange form of qualified privilege, unlike the position under s 22 (see above), the conduct of a publisher who publishes a report of the conflicting statements of opposing politicians regarding a political matter will not automatically be said to be unreasonable simply because the publisher does not believe all of the imputations conveyed. Unlike the position under s 22, media organisations would not be obliged to censor debate so as to publish reports only of statements of others with which they agree.

    51. How can the plaintiff defeat the defence ?

    At common law, the protection accorded by qualified privilege can be defeated if the plaintiff can establish that the publication of the material was actuated by malice. "Malice" means that the publisher either had an "improper motive" for publishing the material or did not have an honest belief in the truth of what was published.[98]
    "Improper motive" means that the dominant motive for publishing the material was some reason other than the reason for which the qualified privilege is given.[99] The protection accorded by the Codes may be lost on similar grounds.[100]
     

  51. In Lange the High Court established a different concept of malice to be applied to the Lange form of qualified privilege: a publisher will lose the protection accorded by the Lange form of qualified privilege only if the plaintiff can establish that the defendant published the material for a purpose other than that of communicating government or political information or ideas.[101] Two points should be noted regarding this concept of malice. First, it differs from, and is narrower than, the common law concept of malice and that under the Codes. For the purpose of the Lange form of qualified privilege, malice cannot be established by showing that the defendant did not have a belief in the truth of what was published. The fact that this is not part of the concept of malice in relation to the Lange form of qualified privilege is consistent with the interpretation of the reasonableness requirement suggested above, that is, that a publisher will be protected even though it did not have a belief in the truth of what was published. Secondly, the High Court said that, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party, could not be regarded as improper.[102]

    52. Thus, so far as improper motive is concerned, the fact that the publisher was motivated by a desire to cause political damage is not enough to establish that the material was published for a purpose other than that of communicating government or political information or ideas. The significance of these points may usefully be illustrated by reference to Peterson v Advertiser Newspapers Ltd,[103] a case which involved the Theophanous defence and the expanded duty-interest form of qualified privilege (see above). A majority of members of the Full Court of the Supreme Court of South Australia held that the expanded duty-interest form of qualified privilege failed in that case because the publisher was actuated by malice. The conclusion that the publication was actuated by malice appears to have been based on two findings. First, that those responsible for the publication could not possibly have had a genuine belief in the truth of what was written[104] and, secondly, that the dominant motive for publishing the material was a desire to attack the plaintiff "because he had frustrated the ... [defendant's] own political agenda, the fall of the Government and an early election".[105]
    Under the Lange form of qualified privilege, neither of these grounds would be sufficient to establish malice. Some of the reasons for the first finding might, however, be relevant to the reasonableness requirement of the Lange form of qualified privilege (see above) and, indeed, one of the reasons why the Theophanous defence failed in this case was that it was found that it was not reasonable to publish the material because of the failure to check and consider relevant facts.[106]

    Conclusion
     

  52. There are several positive features of the High Court's decision in Lange. First, the decision keeps open the possibility that federal, State or Territory legislation or the common law may be read down or invalidated if it is inconsistent with the freedom of political communication. This must be viewed as a positive step for all those who value freedom of speech. Secondly, by collapsing the Theophanous defence of political communication and the expanded duty-interest form of qualified privilege into a new form of qualified privilege, the High Court has been able to retain the positive features of both while overturning the very wide, and unforeseen, application of the expanded duty-interest form of qualified privilege. By adding a reasonableness requirement to the constitutionalised form of qualified privilege and by reformulating the meaning of malice in this context, the High Court has struck an appropriate balance between, on the one hand, the aim of defamation law, that is, the protection of reputation, and, on the other, the protection of freedom of communication, at least in relation to government and political material. At the same time, the reasonableness requirement may be developed by the courts so as to reinforce high standards of journalism. It is hoped that the lower courts will not sacrifice this opportunity by slavishly copying the interpretation of reasonableness adopted in relation to s 22 of the New South Wales legislation.
Notes

*LLB(Hons), LLM; Hearn Professor of Law, The University of Melbourne.

[1]  (1997) 145 ALR 96.

[2]  (1994) 182 CLR 104.

[3]  (1994) 182 CLR 211.

[4]  (1992) 177 CLR 1.

[5]  (1992) 177 CLR 106.

[6]  The material in the first section of this article is based on previously published work of the author: see S Walker, "The impact of the High Court's free speech cases on defamation law" (1995) 17 Sydney Law Rev 43.

[7]  (1992) 177 CLR 1.

[8]  (1992) 177 CLR 106.

[9]  (1992) 177 CLR 1 at 41-53 per Brennan J, 69-77 per Deane and Toohey JJ, 94-5 per Gaudron J; and see (1992) 177 CLR 106 at 133-44 per Mason CJ, 149 per Brennan J, 168-70 per Deane and Toohey JJ, 208-18 per Gaudron J, 227-35 per McHugh J; Dawson J dissented (at 182-4).

[10]  (1992) 177 CLR 1 at 45-53 per Brennan J, 77-80 per Deane and Toohey JJ, 94-5 per Gaudron J; and see (1992) 177 CLR 106 at 142-7 per Mason CJ, 170-7 per Deane and Toohey JJ, 218-21 per Gaudron J, 235-41 per McHugh J.

[11]  (1994) 182 CLR 104 at 130 and 136.

[12]  Ibid, at 164-6.

[13]  Ibid, at 145-57 per Brennan J, 190-2 per Dawson J, 195-207 per McHugh J.

[14]  Ibid, at 129-33 and 136.

[15]  Ibid, at 134.

[16]  Ibid, at 185-6.

[17]  Ibid, at 187-8. In Lange, the High Court opined that, as Deane J did not expressly agree with the reasoning in the joint judgment, the extent to which he concurred with the terms of the answers to the case stated was questionable (see (1997) 145 ALR 96 at 103). So far as it relates to the answers to the case stated, this is a dubious observation in view of the fact that in Theophanous Deane J said "the appropriate course for me to follow is to lend my support for the answers which their Honours give to the questions reserved by the case stated" (see (1994) 182 CLR 104 at 188). While the High Court was right to point out in Lange that Deane J did not agree with the reasoning of the joint judgment in Theophanous (see (1997) 145 ALR 96 at 103), it is worth noting that Deane J's reasoning would have given even greater protection to publishers than the joint judgment in relation to certain political material (see (1994) 182 CLR 104 at 185-6 and 188).

[18]  (1994) 182 CLR 104 at 134.

[19]  (1994) 182 CLR 211 at 232.

[20]  Ibid, at 257.

[21]  Ibid, at 234. Deane J concurred in the answers which Mason CJ, Toohey and Gaudron JJ gave to the questions stated for the court (ibid, at 257).

[22]  Ibid, at 235-6 per Brennan J, 258 per Dawson J, 259 per McHugh J.

[23]  Adam v Ward [1917] AC 309 (see in particular Lord Atkinson at 334); Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 790-2; cf Toyne v Everingham (1993) 91 NTR 1 at 14.

[24]  This proposition is illustrated by the following decisions: Chapman v Ellesmere [1932] 2 KB 431 (qualified privilege was available in respect of the publication of a decision of Jockey Club stewards in the Racing Calendar, but not in respect of the publication of the decision in The Times); Duane v Granrott [1982] VR 767 at 779-82 (letters published in The Teachers' Journal, the organ of the Victorian Teachers' Union, concerning matters of interest to members of the Union were protected by qualified privileged where the circulation of the Journal was essentially limited to members of the Union); Brown v Federated Miscellaneous Workers Union of Australia (1981) 9 NTR 33 at 48 (qualified privilege was available in respect of an article in a union newsletter published to union members).

[25]  See, for example, Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 790-2; Australian Consolidated Press Ltd v Bond (1984) 56 ACTR 14 at 25.

[26]  (1994) 182 CLR 104 at 140.

[27]  (1994) 182 CLR 211 at 234.

[28]  Ibid, at 257.

[29]  Ibid, at 258.

[30]  Ibid, at 237-53 per Brennan J and 260-7 per McHugh J.

[31]  (1994) 182 CLR 104 at 140.

[32]  Ibid.

[33]  (1997) 146 ALR 248.

[34]  (1997) 145 ALR 96 at 103.

[35]  Ibid.

[36]  Ibid.

[37]  Ibid, at 106.

[38]  Ibid, at 106-7.

[39]  Ibid, at 107 and 112.

[40]  Ibid, at 107.

[41]  Ibid, at 111.

[42]  (1997) 146 ALR 248 at 274.

[43]  (1997) 145 ALR 96 at 108.

[44]  In particular, legislation governing the classification of publications, films and computer games such as the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) and similar legislation which operates in various States and Territories.

[45]  In particular, the law of contempt of court.

[46]  Defamation law is the most significant of such restrictions, but other actions such as that for injurious falsehood or breach of confidence may also restrict freedom of speech.

[47]  (1997) 145 ALR 96 at 107-8 and 112.

[48]  Ibid, at 112.

[49]  (1997) 146 ALR 248.

[50]  (1997) 145 ALR 96 at 113.

[51]  Ibid.

[52]  Ibid, at 114.

[53]  Ibid.

[54]  Ibid, at 114-15.

[55]  Ibid, at 115.

[56]  Ibid, at 119.

[57]  Ibid. The matter was remitted to the Supreme Court of New South Wales to allow the defendant to provide further particulars of the defence. It is, however, understood that the action was settled in December 1997.

[58]  Ibid, at 115.

[59]  376 US 254 (1964).

[60]  (1997) 145 ALR 96 at 115-16.

[61]  Ibid, at 116.

[62]  See above. Some of these cases are analysed in A E Cassimatis "Theophanous - a review of recent defamation decisions" (1997) 5 TLJ 102.

[63]  (1995) 64 SASR 152 at 156, 162 per Cox J, 179, 189 per Olsson J, 195 per Mullighan J; (1995) 127 FLR 186 at 188, 194 per Cox J, 211, 221 per Olsson J, 227 per Mullighan J.

[64]  (1995) A Def R 52,030 at 43,449-500.

[65]  (1994) A Def R 52,010 at 43,075-6.

[66]  (1995) 13 WAR 468 at 470.

[67]  (1995) 124 FLR 135.

[68]  Ibid, at 137.

[69]  (1995) 119 FLR 124 at 125.

[70]   NSW SC, Sully J, 21 July 1995, unreported, at 64.

[71]  (1997) 145 ALR 96 at 117.

[72]  Defamation Act 1889 (Qld), s 16; Defamation Act 1957 (Tas), s 16. Section 357 of the Criminal Code (WA) does not apply to civil actions for defamation: West Australian Newspapers Limited v Bridge (1979) 141 CLR 535 at 541 per Barwick CJ, 543-5 per Jacobs J (with whom Stephen J agreed); Gibbs J (at 541-2) and Aickin J (at 550) dissented.

[73]  Defamation Act 1889 (Qld), s 16(1)(c) and (h). The Tasmanian legislation is similar: see Defamation Act 1957 (Tas), s 16(1)(c) and (h).

[74]  Austin v Mirror Newspapers Ltd [1986] 1 AC 299 (PC) at 313.

[75]  Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 712 per Reynolds JA; see also at 700-1 and 705 per Moffitt P (Glass JA agreed with Moffitt P and Reynolds JA). See also Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 390 per Glass JA; Australian Consolidated Press Ltd v Bond (1984) 56 ACTR 14 at 25 (failure to make inquiries whether there was any truth in an allegation is relevant to a finding that conduct was not reasonable) and Smith v John Fairfax & Sons Ltd (1986) 86 FLR 343 at 360-6.

[76]  Austin v Mirror Newspapers Ltd [1986] 1 AC 299 at 313 and 317-18.

[77]  Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 at 298.

[78]  Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 44-5 per Hunt J.

[79]  Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 at 385-6 per Hunt A-JA (with whom Samuels JA agreed). See also Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 at 500 per Samuels J (with whom Hope and Priestley JJA agreed).

[80]  Illawarra Newspapers Pty Ltd v Butler [1981] 2 NSWLR 502 at 508; Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 at 377-8 per Mahoney JA.

[81]  (1991) 23 NSWLR 374 at 387. This is consistent with the Privy Council's decision in Austin v Mirror Newspapers Ltd [1986] 1 AC 299 at 316 and see also Collins v Ryan (1991) 6 BR 229 at 233.

[82]  (1989) 20 NSWLR 493.

[83]  Ibid, at 500-1 per Samuels J (with whom Hope and Priestley JJA agreed).

[84]  (1991) 6 BR 229 at 233-235.

[85]  Blackshaw v Lord [1984] QB 1 at 27 per Stephenson LJ.

[86]  (1991) 23 NSWLR 374 at 385.

[87]  (1991) 6 BR 229.

[88]  (1997) 145 ALR 96 at 116.

[89]  Ibid, at 116-17.

[90]  Ibid, at 117.

[91]  Ibid, at 118.

[92]  (1995) 64 SASR 152; 127 FLR 186.

[93]  Ibid, at (SASR) 180-1; (FLR) 212 per Olsson J; see also at (SASR) 196; (FLR) 228 per Mullighan J.

[94]  (1997) 145 ALR 96 at 118.

[95]  See Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 at 128-9; Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 at 187-9, 191-3 per Olsson J, 198-9 per Mullighan J; 127 FLR 186 at 219-21, 223-5 per Olsson J, 230-1 per Mullighan J.

[96]  (1995) 119 FLR 124.

[97]  Ibid, at 126.

[98]  Webb v Bloch (1928) 41 CLR 331 at 368 per Isaacs J; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-1; Loos v Robbins [1987] 4 WWR 469 at 476-80.

[99]  Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock.

[100]  Defamation Act 1889 (Qld), s 6(2); Defamation Act 1957 (Tas), s 6(2).

[101]  (1997) 145 ALR 96 at 117-18.

[102]  Ibid, at 118.

[103]  (1995) 64 SASR 152; 127 FLR 186.

[104]  Ibid, at (SASR) 190 and 193; (FLR) 222 and 225 per Olsson J, (SASR) 200-1; (FLR) 232-3 per Mullighan J. Cox J dissented (SASR) at 156 and 162; (FLR) at 188 and 194.

[105]  Ibid, at (SASR) 200; (FLR) 232 per Mullighan J.

[106]  Ibid, at (SASR) at 187 and 193; (FLR) 219 and 225 per Olsson J. See also Mullighan J at (SASR) 197-8; (FLR) 229-30. It was unnecessary for Cox J to consider the Theophanous defence.

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