Lange v Australian Broadcasting Corporation

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Lange v Australian Broadcasting Corporation
High Court of Australia
Date decided	8 July 1997
Full case name	David Russell Lange v Australian Broadcasting Corporation
Citations	(1997) 189 CLR 520
Judges sitting	Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
Case history
Prior actions:	none
Subsequent actions:	none
Case opinions
(7:0) The Court decided to reconsider Theophanous and Stephens, and decided that those cases were incorrect. The Constitution does not confer personal rights as to the implied freedom of political communication, and the defendant was found to have defamed the plaintiff (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow & Kirby JJ)

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 is a High Court of Australia case that deals with the implied freedom of political communication in the Australian Constitution.

1 Background
2 Decision
3 See also
4 References
5 External links

[edit] Background

The plaintiff, David Lange, who was a New Zealand Prime Minister, sued the Australian Broadcasting Corporation for common law defamation.

[edit] Decision

[edit] Implied freedom of political communication

It was held that the Constitution provides for the institutions of responsible government; McHugh and Dawson referred to sections 7 and 24 (which establish the Senate and the House of Representatives respectively), while other judges referred to the structure of the Constitution as a while. The Convention Debates were also referred to. For that to occur, there must be communication between electors and candidates about government and political matters. However, it is not a personal, individual right; rather, it simply precludes the curtailment of the freedom by the exercise of legislative or executive power. The protection is not absolute; it is limited to what is necessary for the protection of the system of representative government. Hence, the decisions in Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers are incorrect.

The Court developed a two-part test:

Does the law effectively burden freedom of communication about government or political matters? The scope of political communication was narrowed from Theophanous, to mean matters that could affect their choice at elections, or the affairs of federal ministers and the executive.
If the law does burden that freedom, is the law reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of representative and responsible government? The objectives of the government in making the law are considered; in this case, the Court accepted that protecting the reputation of individuals was appropriate and adapted.

The defendants also claimed qualified privilege under the Defamation Act 1974 (NSW), which the court held to be appropriate and adapted.

[edit] Reconsideration of Theophanous and Stephens

The Court was prepared to reconsider the reasoning of the decisions in Theophanous and Stephens, because neither of the cases contained strong constitutional law principles; Deane J in both cases agreed on the outcome of the cases, along with Mason CJ, Toohey and Gaudron JJ, but he differed in the view of the scope of the freedom.

[edit] Common law and the Constitution

The Court held that the "common law must conform with the Constitution", and the common law cannot run "counter to constitutional imperatives". The common law and constitutional law questions differ: the common law question defines the scope of the right of the defamed, while the constitutional law question specifies the area that cannot be infringed by a Commonwealth or State/Territory law.

[edit] External matters

Although this case does not entirely clarify the issue, discussion of matters at other levels of government (such as at State or Territory level) may impact federal matters, so the fact that Lange was from New Zealand does not preclude the matter.