What Can You Say About an Australian Politician?

Defamation and Discussion of Political Matters

In order for a defamation claim, the elements of defamation must be satisfied. They include defamatory material, the identification of the Plaintiff in the material, the publication of that material to a third party.

However, the national, uniform defamation laws and the common law provide a defence to the publication of defamatory matter called ‘Qualified Privilege’. This is found in Section 30 of the Defamation Act 2005 (the national, uniform defamation laws) For more information on this defence see our other article entitled “Qualified Privilege”.

Communication on matters of politics and government is protected by the defence of Qualified Privilege. With respect to communication on political and governmental matters, it is known in Australia as ‘Lange Qualified Privilege’ following the High Court of Australia case of Lange-v-Australian Broadcasting Corporation¹ which extended the defence of Qualified Privilege by recognising that there is an implied Constitutional right to freedom of speech on political and governmental matters in Australia.

The essential elements of Qualified Privilege of a duty to impart information on the part of the publisher and a reciprocal interest in receiving the information on the part of the recipient are still required when it comes to communication on political and governmental matters. However, those elements are usually fairly easy to establish as it is of inherent interest to the Australian public as to what is occurring in politics and government.

Therefore, the right to communicate freely on political and governmental matters in Australia is protected by:

1. An implied Constitutional right derived from the common law; and
2. Section 30 of the Defamation Act 2005.

Lange Qualified Privilege

The Lange case was decided by the High Court of Australia in 1997 following a series of cases on freedom of speech on political and governmental matters. The Court unanimously held that there is a right to freedom of speech with respect to political and governmental matters implied by the Constitution of Australia. The High Court also held that in order for a Defendant to engage the defence he or she must have:

1. Acted reasonably;
2. Had reasonable grounds for believing that the published material was true;
3. Taken proper steps to verify that the information published was true;
4. Published a response from the Plaintiff, unless publishing a response was impracticable or unnecessary.

In Lange, the High Court, recognised the following as types of matters that could be considered to be matters of politics and government covered by Lange Qualified Privilege²:

1. Democratic government involving members of the House of Representatives and Senate;
2. Functioning of government;
3. Policies surrounding political parties and candidates for election;
4. Voting in a referendum;
5. Conduct of the executive branch of government including ministers and public servants;
6. Obligation to report conduct of statutory authorities and public utilities to the legislature or a minister;
7. Electors’ discussions of political matters;
8. The legal and bureaucratic apparatus functions and powers vested in public representatives and officials, funded by public monies;
9. Public representatives and officials discharging their duties invested in functions and powers concerning the community; and
10. Discussion of politics and government at state, territory, and local government level.

Other matters covered by the Lange Qualified Privilege include³:

1. Conduct and fitness for office of elected members of Parliament or those seeking election to office;
2. Conduct and fitness for office of political parties, public bodies, public officers and those seeking public office;
3. Discussions surrounding political views and public conduct of those engaged in activities that are debated politically.

In the Victorian Supreme Court, it has been held that discussion of the fitness for office and the appointment and removal of members of the judiciary is also political and governmental discussion covered by Lange Qualified Privilege⁴. However, a more recent decision of the New South Wales Court of Appeal held the opposite. That is, that publications concerning members of the judiciary were not covered by Lange Qualified Privilege. In the absence of a High Court decision on the matter, depending on which jurisdiction you are in, the two cases aforementioned are only persuasive and not binding.

Section 30 Defamation Act 2005

Section 30 of the Defamation Act 2005 simply legislates a defence of Qualified Privilege. This section of the legislation will also apply to communication on political and governmental matters. It provides that the publisher must have conducted himself or herself reasonably in the circumstances, as recognised by the High Court in Lange and noted above. It also provides in Section 30(4) that when a publication is actuated by malice, the defence of qualified privilege will be defeated.

Malice

Lange is also authority for the rule that if the publication is actuated by malice then the defence will be defeated and cannot be relied upon by a Defendant. It is also detailed in Section 30(4) in the Defamation Act 2005.

As Justice White in Hockey v Fairfax Media Publications Pty Limited⁵, stated the principles to be applied in relation to malice are well settled. She referred to Roberts v Bass⁶ in which the Court held⁷:

“A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term “express malice” is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (“malice”) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff…

Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication…”

To determine whether malice has been proven by the Plaintiff, there is a requirement that the malice be the primary reason for the publication. In Godfrey v Henderson⁸, the Court held that it is important, where statements are made on occasions of Qualified Privilege, the statements should be analysed for substantial evidence of malice and ensuring that it was, in fact, operative in making the statement.

In Roberts v Bass⁹, the Court stated that express malice is used to describe the motive of the publisher who “uses the occasion for some other reason”, and means malice in the popular sense of a desire to injure the person who is defamed.”

It should be noted that if malice is made out it can be a factor leading to an award of aggravated damages: Greig-v-WIN Television¹⁰.

Case Studies

Obeid v John Fairfax Publications Pty Ltd¹¹

In this case, the Sydney Morning Herald ran a series of articles and the Plaintiff, the New South Wales Minister for Mineral Resources and Fisheries, sued for defamation arising from one article that alleged that he attempted to take a bribe on behalf of the Australian Labor Party in relation to the construction of a development in Sydney known as “the Oasis Project”. Specifically, it was alleged that Obeid stated to the Bulldogs Leagues Club, one of the developers of the project, that approvals for the project would be provided if the club donated $2 million to the Australian Labor Party. The Defendant argued the defence of Qualified Privilege and the Court held that Defendant had not acted reasonably in publishing the article therefore, the defence was not established. The Plaintiff was awarded $150,000 for defamation.

Bailey v WIN Television NSW Pty Ltd¹²

The Plaintiff was the General Manager of Lithgow City Council in New South Wales. The Council voted to terminate his employment. The Defendant ran a news broadcast about the termination of his employment alleging discontent and lack of morale amongst staff at the Council. A news item was also posted to the Defendant’s Facebook page. There were allegations that there had been bullying and intimidation of staff at the Council. The Plaintiff sued for defamation. At first instance in the Supreme Court of New South Wales he lost his case. He appealed to the Court of Appeal and his appeal was dismissed. The Court held that the defence of qualified privilege had been made out and that the journalists responsible for the publication had acted reasonably.

Hockey v Fairfax Media Publications Pty Limited¹³

Former Federal Treasurer and member for the seat of North Sydney, Joy Hockey sued for defamation arising from the publication of articles that appeared in the Sydney Morning Herald, The Age, and The Canberra Times newspapers. The articles all alleged that Mr Hockey was providing privileged access to a select group in return for donations to a secretive fundraising body.

The Sydney Morning Herald published a poster with the headline “Treasurer for Sale”. The Age published on Twitter, the headlines “Treasurer for Sale” and “Treasurer Hockey for Sale”.

The Court held that the Sydney Morning Herald poster and the two headlines published on Twitter by The Age were defamatory of Hockey, but that the articles themselves were not defamatory.

The Respondents argued the defence of qualified privilege, but it failed, and it was held that even if the defence of qualified privilege had succeeded it was defeated by the malice that The Sydney Morning Herald had in making their publications. Hockey was awarded $120,000 for the Sydney Morning Herald poster and $80,000 for the two tweets by The Age.

Regarding the submission that the Respondents were protected by the defence of qualified privilege, Hockey conceded that the defamatory material was published on an occasion of privilege but denied that the publishers had acted reasonably. Justice White also found that the lack of time given to Hockey to respond to the publishers’ articles was unreasonable.

In considering whether malice motivated the publications, the Court referred¹⁴ to the High Court case of Roberts-v-Bass¹⁵ in which the Court described express malice to refer to a person’s motive in injuring the person who is defamed. In his claim, Hockey described the actions of the publishers as “an act of petty spite”. The Court held that the Sydney Morning Herald’s publications had been actuated by malice. It came out in evidence that one of the journalists involved in the publication of the articles had acted with malice because he had to publish an apology to Hockey due to one of his previous articles about him.

Greig v WIN Television NSW Pty Ltd¹⁶

The Plaintiff in this case was the Deputy Mayor of Shellharbour Council in New South Wales. A television news item was broadcast along with an internet news item which imputed that in handling a planned councillor technology upgrade for the Council she acted corruptly in accepting two BlackBerry devices from Telstra. The Defendant pleaded the defence of Justification. As a result of the facts of this case, the Plaintiff was referred to a Code of Conduct Committee to investigate the matter, which absolved her of any allegation of corruption. It was held that the defamatory material carried an imputation that she had acted corruptly and that was defamatory of her. She was awarded $200,000 in damages for defamation.

Australian Broadcasting Corporation (ABC) v Hanson¹⁷

The Appellant broadcast on national radio a song called “Back Door Man” featuring the voice of controversial politician Pauline Hanson. The lyrics of the song imputed that she had the sexual preferences for paedophiles and homosexuals, that she was a supporter of the Klu Klux Klan, and that she worked as a prostitute. The Appellant submitted that the song was merely vulgar abuse and not defamatory. The Respondent, Pauline Hanson, at the time of the case was a Federal Member of the House of Representatives for the seat of Oxley in Queensland. Hanson was successful in obtaining an injunction restraining broadcast of the song by the ABC. The ABC appealed to the Queensland Court of Appeal, but the appeal was dismissed with Chief Justice de Jersey giving the leading judgment. He said that for the injunction to have been granted the material must have been defamatory, an assessment having to be made prior to a trial of the matter.

In Summary

The defence of Lange Qualified Privilege for communication on political and governmental matters is almost the same as the defence of Justification (or truth). Essentially, in acting reasonably, the publisher must have a belief in the truth of the matters published and have taken reasonable measures to ensure that they are accurate and truthful. The additional difference between a justification defence and Lange Qualified Privilege is that the publisher must publish a response from the subject of the published material if it is reasonable to do so. In essence, you cannot defame a politician by publishing material that harms their reputation, unless the material is true.