Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297 (12 October 1994)

ORDER

(a) discussing government and political matters;

(b) of and concerning members of the Parliament of the Commonwealth

of Australia which relates to the performance by such members

of their duties as members of the Parliament or parliamentary

committees;

(c) in relation to the suitability of persons for office as members

of the Parliament?

publish material:

(a) discussing government and political matters;

(b) of and concerning members of the Parliament of the Commonwealth

of Australia which relates to the performance by such members of

their duties as members of the Parliament or parliamentary

committees;

(c) in relation to the suitability of persons for office as members

of the Parliament.

2. If yes to any part or parts of question 1, is any such freedom subject to a condition that the publication will not be actionable under the law relating to defamation if:

(a) the publication be without malice;

(b) the publication be reasonable in the circumstances;

(c) the publication not be made without any honest belief in

the truth of the material published or made with reckless

disregard for the truth or untruth of the material

published; or

(d) the publication be made at a time when it was publicly

anticipated that a federal election was about to be

called?

Constitution, the publication will not be actionable

under the law relating to defamation if the defendant

establishes that:

(a) it was unaware of the falsity of the material published;

(b) it did not publish the material recklessly, that is, not

caring whether the material was true or false; and

(c) the publication was reasonable in the circumstances.

3. If yes to any part or parts of question 1, is any such publication a publication on an occasion of qualified privilege:

(a) if published at a time when it was publicly anticipated that a

federal election was about to be called;

(b) if published at a time when it was not publicly anticipated that

a federal election was a bout to be called?

Commonwealth ?Constitution can also be described as a

publication on an occasion of qualified privilege. Whether a

federal election is about to be called is not a relevant

consideration.

4. Are the defences pleaded in paragraphs 11 and 12 of (the first defendant's) Further Further Amended Defence bad in law?

Answer: No.

DECISION

2. The second defendant, Mr Bruce Ruxton, is and was on 8 November 1992 the President of the Victorian branch of the Returned and Services League. On 8 November 1992, the first defendant, The Herald and Weekly Times Limited, published in its newspaper The Sunday Herald Sun a letter to the editor written by Ruxton entitled "Give Theophanous the shove". The letter was as follows:

"IF REPORTS coming out of Canberra are true about the

alleged behaviour of Dr Andrew Theophanous, then it is high

time he was thrown off Parliament's immigration committee.

I have read reports that he stands for most things

Australians are against.

He appears to want a bias shown towards Greeks as

migrants.

Let me say at the outset that the Greeks who have come

to this country have been a splendid example to everyone.

They are hard working, honest, delightful people, and they

would agree with me, I'm sure, that right now too many

immigrants are being allowed in.

There are just no jobs for newcomers - or those who

already live here.

It has been reported that Dr Theophanous wants the

British base of Australian society diluted so that English

would cease to be the major language.

What is this man on about? And what language would he

suggest we use to replace English?

I'm grateful there's an election in the wind. I hope

the people of Calwell give Dr Theophanous the heave.

Poor old Arthur Calwell must be spinning in his grave

at the idiotic antics of the man in the seat named after

him.

Calwell was a great Australian and the architect of

this country's post-war immigration policy."

The plaintiff's action for defamation and the proceedings

3. On 11 February 1993 the plaintiff commenced defamation proceedings in the County Court of Victoria against the two defendants. Certain imputations pleaded in the plaintiff's statement of claim were struck out. The imputations remaining are:

"(a) the Plaintiff showed a bias towards Greeks as migrants;

(b) the Plaintiff stood for things that most Australians

were against;

(c) the Plaintiff was an idiot and his actions were the

antics of an idiotic man."

"11. In further answer to the whole of the Statement of

Claim:

(a) the words were published pursuant to a freedom

guaranteed by the Commonwealth Constitution to

publish material:

(i) in the course of discussion of government

and political matters;

(ii) of and concerning members of the Parliament

of the Commonwealth of Australia which

relates to the performance by such members

of their duties as members of the

Parliament or parliamentary committees;

(iii) in relation to the suitability of persons

for office as members of the Parliament.

(b) The publication of the words was:

(i) in the course of discussion of government

and political matters;

(ii) of and concerning the plaintiff as a member

of the House of Representatives and as

Chairperson of the Joint Parliamentary

Standing Committee on Migration Regulation

and the Australian Labor Party's Federal

Caucus Immigration Committee;

(iii) in respect of the plaintiff's performance

of his duties as a member and as

Chairperson as aforesaid;

(iv) in relation to the plaintiff's suitability

for office as a member of Parliament;

(v) without malice;

(vi) reasonable in the circumstances;

(vii) not made without an honest belief in the

truth of the words or made with reckless

disregard for the truth or untruth of the

words;

(viii) made at a time when it was publicly

anticipated that a federal election was

about to be called.

(c) By reason of each of the matters aforesaid the

said publication is not actionable.

12. Further and alternatively, by reason of the freedom

guaranteed by the Commonwealth Constitution as

aforesaid, the words were published on an occasion of

qualified privilege."

4. Pursuant to s.40(1) of the Judiciary Act, this Court ordered that the whole of the cause pending in the County Court be removed upon the filing in the County Court of a summons to strike out pars 11 and 12 of the first defendant's further amended defence, subject to the first defendant paying the plaintiff's costs of the proceedings in this Court. Subsequently, the plaintiff filed a summons in the County Court and in this Court to strike out pars 11 and 12 of the first defendant's further amended defence.

The questions reserved

5. The questions reserved by the amended case stated for the consideration of the Full Court are:

"1. Is there a freedom guaranteed by the Commonwealth

Constitution to publish material:

(a) discussing government and political matters;

(b) of and concerning members of the Parliament of the

Commonwealth of Australia which relates to the

performance by such members of their duties as

members of the Parliament or parliamentary

committees;

(c) in relation to the suitability of persons for

office as members of the Parliament?

2. If yes to any part or parts of question 1, is any such

freedom subject to a condition that the publication

will not be actionable under the law relating to

defamation if:

(a) the publication be without malice;

(b) the publication be reasonable in the

circumstances;

(c) the publication not be made without any honest

belief in the truth of the material published or

made with reckless disregard for the truth or

untruth of the material published; or

(d) the publication be made at a time when it was

publicly anticipated that a federal election was

about to be called?

3. If yes to any part or parts of question 1, is any such

publication a publication on an occasion of qualified

privilege:

(a) if published at a time when it was publicly

anticipated that a federal election was about to

be called;

(b) if published at a time when it was not publicly

anticipated that a federal election was about to

be called?

4. Are the defences pleaded in paragraphs 11 and 12 of

(the first defendant's) Further Further Amended Defence

bad in law?"

The implied freedom of communication

6. The defences pleaded in pars 11 and 12 are based on the implication of freedom of communication in the Commonwealth Constitution recognized in the judgments of this Court in Nationwide News Pty. Ltd. v. Wills ((1) [1992] HCA 46; (1992) 177 CLR 1.) and Australian Capital Television Pty. Ltd. v. The Commonwealth ((2) [1992] HCA 45; (1992) 177 CLR 106.). In those cases, a majority of the Court distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication. That implication does not extend to freedom of expression generally ((3) cf. the First Amendment to the Constitution of the United States which reads: "Congress shall make no law ... abridging the freedom of speech, or of the press".). The limited scope of the freedom was expressed in various ways by the members of the Court. It was described as "freedom of communication, at least in relation to public affairs and political discussion" ((4) Australian Capital Television (1992) 177 CLR at 138, 142 per Mason CJ), "freedom ... to discuss governments and political matters" ((5) Nationwide News (1992) 177 CLR at 50 per Brennan J), "freedom of communication about the government of the Commonwealth" which "extends to all political matters", including "matters relating to other levels of government" ((6) Australian Capital Television (1992) 177 CLR at 169 per Deane and Toohey JJ), "freedom of political discourse" ((7) ibid. at 214 per Gaudron J) and "freedom of participation, association and communication in relation to federal elections" ((8) ibid. at 227 per McHugh J).

7. Of these statements, the last-mentioned is the narrowest in that it limits the freedom in federal elections, a limitation which reflected the view of McHugh J that the basis of the implication is to be found in the provisions of ss.7 and 24 of the Constitution. But this limitation was not accepted by other members of the Court, as appears from the statements quoted in the preceding paragraph. Although there is some variation in the language in which the subject of the implied freedom was expressed in those statements, we do not detect any substantial difference between "political discussion" and "political discourse" on the one hand and discussion of "political matters" on the other hand. It is clear enough that the expressions "political discussion" and "political discourse" are apt to embrace discussion of "government matters", so that the scope of the freedom as expressed by Mason CJ and Gaudron J is no less extensive than that expressed by Brennan, Deane and Toohey JJ.

8. It follows therefore that the defendant's contention in par.11(a)(i) of its further further amended defence that there is an implied freedom of communication with respect to "discussion of government and political matters" is supported by the reasons given by five of the justices who constituted the majority in Nationwide News and Australian Capital Television.

The scope of the implied freedom

9. Whether that freedom extends to the publication of matter concerning members of Parliament relating to the performance by such members of their parliamentary duties and their suitability for parliamentary office is the next question. The implied freedom of communication is not limited to communication between the electors and the elected. Because the system of representative government depends for its efficacy on the free flow of information and ideas and of debate, the freedom extends to all those who participate in political discussion. By protecting the free flow of information, ideas and debate, the Constitution better equips the elected to make decisions and the electors to make choices and thereby enhances the efficacy of representative government. It was accepted by a majority of justices in Australian Capital Television that the implied freedom extends to members of society generally ((9) (1992) 177 CLR at 139 per Mason CJ, 174 per Deane and Toohey JJ, 212 per Gaudron J).

Is the freedom confined to discussion of matters relating to the Parliament and government of the Commonwealth and Commonwealth public affairs?

10. The concept of "political discussion" is not limited to matters relating to the government of the Commonwealth, using that expression in its broadest sense so as to include the public affairs of the Commonwealth. In Australian Capital Television, Mason CJ, Deane and Toohey JJ and Gaudron J rejected that limitation ((10) ibid. at 142, 168-169, 215-217.). The interrelationship of Commonwealth and State powers and the interaction between the various tiers of government in Australia, the constant flow of political information, ideas and debate across the tiers of government and the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament and to its workings make unrealistic any attempt to confine the freedom to matters relating to the Commonwealth government ((11) ibid). That said, the question is of little importance in the present case. The publication complained of relates to the views, performance and capacity of the plaintiff as a member of the Commonwealth Parliament, in particular as chairperson of a Parliamentary Committee on Migration Regulations and as chairperson of the Australian Labor Party's Federal Caucus Immigration Committee. The publication questions his fitness to hold office as a member of Parliament. What is more, the comments made about the plaintiff all relate to views which he is alleged to hold on migration matters, matters which fall within the responsibilities allocated to the Commonwealth under the division of powers allocated by the Constitution ((12) s.51(xix) and (xxvii).).

11. As such, the publication clearly falls within the concept of "political discussion". Indeed, criticism of the views, performance and capacity of a member of Parliament and of the member's fitness for public office, particularly when an election is in the offing, is at the very centre of the freedom of political discussion ((13) See Nationwide News (1992) 177 CLR at 72 per Deane and Toohey JJ). For the purposes of the present case, that is all that needs to be said on that topic.

12. But it is desirable to consider the question: what is the content of the expression "political discussion", bearing in mind that the underlying purpose of the freedom is to ensure the efficacious working of representative democracy. In approaching that question, the fact that it is not possible to fix a limit to the range of matters that may be relevant to debate in the Commonwealth Parliament is again a relevant consideration. That consideration prompted Mason CJ to remark in Australian Capital Television that the questions "(w)hether freedom of communication in relation to public affairs and political discussion is substantially different from an unlimited freedom of communication and, if so, what is the extent of the difference" did not call for decision in that case ((14) (1992) 177 CLR at 141.). Notwithstanding that consideration and the difficulty of drawing a satisfactory and workable distinction between political discussion and other forms of expression, it should be possible to develop, by means of decisions in particular cases, an acceptable limit to the type of discussion which falls within the constitutional protection.

13. To take an example. There is a difference between entertainment and politics, though there may be occasions when one may merge into the other. Hence, comment by a television entertainer would not ordinarily attract the constitutional protection because the comment would not, in the ordinary course, constitute political speech. But, if the television personality were engaging in comment on the legislative, executive or judicial process and the defamatory publication related to that comment, then the defamatory publication might well, depending upon the particular circumstances, amount to political discussion. And, if an actor were seeking election, or even appointment, to a public office, discussion not only of his or her policies but also of his or her conduct, though not of his or her acting ability, would constitute political discussion if that conduct were relevant to fitness for public office.

14. For present purposes, it is sufficient to say that "political discussion" includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that ((15) Freedom of Speech, (1985) at 152.):

"'political speech' refers to all speech relevant to the

development of public opinion on the whole range of issues

which an intelligent citizen should think about".

15. A similar view has been advocated by Alexander Meiklejohn. He says freedom of speech ((17) Political Freedom, (1960) at 42.):

"is assured only to speech which bears, directly or

indirectly, upon issues with which voters have to deal -

only, therefore, to the consideration of matters of public

interest. Private speech, or private interest in speech, on

the other hand, has no claim whatsoever to the protection of

the First Amendment".

16. It is necessary to treat with some caution Canadian and United States judicial decisions dealing with general guarantees of freedom of speech. Their constitutional provisions are not the same as ours. In our case, not all speech can claim the protection of the constitutional implication of freedom we have identified in order to ensure the efficacious working of representative democracy and government. The foregoing examination of the freedom implied by the Australian Constitution indicates that there is a significant difference between that freedom and an unlimited freedom of expression and that the difference, though it does not lend itself to precise definition, is capable of being ascertained when the occasion to do so arises. In this respect, it is instructive to contrast the limited concept of freedom of expression as implied earlier by the Supreme Court of Canada from the British North America Act 1867 (Imp.) ((20) See, for example, Re Alberta Legislation (1938) 2 DLR 81; Switzman v. Elbling (1957) 7 DLR (2d) 337.) with the expanded concept of freedom of expression resulting from that Court's more recent interpretation of the Canadian Charter of Rights and Freedoms ((21) See, for example, Retail, etc., Union v. Dolphin Delivery Ltd. (1986) 33 DLR (4th) 174; Ford v. Quebec (Attorney- General).). The difference between the two reflects the difference between protection of freedom of expression generally as a fundamental human right and the protection of freedom of communication in matters of political discussion as an indispensable element in ensuring the efficacious working of representative democracy and government.

Is the implied freedom a source of positive rights, an immunity or a restriction on legislative and executive power?

The relationship between the implied freedom and the common law of defamation

17. The decisions in Nationwide News and Australian Capital Television establish that the implied freedom is a restriction on legislative and executive power. Whether the implied freedom could also conceivably constitute a source of positive rights was not a question which arose for decision in those cases and it is unnecessary to decide it in this case. For that reason we shall refer to the freedom of communication as an implication rather than as a guarantee of freedom, notwithstanding the use of the latter expression in some judgments in the two cases.

18. It is also clear that the implied freedom is one that shapes and controls the common law. At the very least, development in the common law must accord with its content. And, though it may not have been apparent in 1901 or, indeed, at any time prior to the decisions in Nationwide News and Australian Capital Television, if the content of the freedom so required, the common law must be taken to have adapted to it in 1901.

19. The question in this case is whether the nature of the implied freedom is such that that freedom impinges on the existing laws of defamation. The plaintiff argued that the limit of Australian defamation law is a matter for the proper extent of the common law only, and that it does not raise any constitutional issue. It was also argued, relying on an extra-judicial statement of Sir Owen Dixon ((22) "The Common Law as an Ultimate Constitutional Foundation", (1957) 31 Australian Law Journal 240.), that as the Constitution was introduced into a pre-existing system of common law jurisprudence then this system forms the underlying basis for the Constitution such that the Constitution recognizes the common law and the common law remains in force until changed. By this argument constitutional freedoms are not absolute and therefore must be read subject to the balancing restraints imposed by the common law.

20. However, Sir Owen Dixon was not suggesting that the common law is superior or inferior to the Constitution. He was, we think, doing no more than setting the scene in which the Constitution operates. If the Constitution, expressly or by implication, is at variance with a doctrine of the common law, the latter must yield to the former. It will not always be easy to determine whether and to what extent there is a variance, but it is clear that the Constitution must prevail.

21. It is of course true, as the plaintiff argued, that constitutional freedoms are not absolute. Likewise, it is true that the common law is an antecedent system of jurisprudence to the Constitution. But the limits to constitutional freedoms are to be determined by evaluating what is necessary for the working of the Constitution and its principles. The antecedent common law can at most be a guide in this analysis. This, surely, is what Sir Owen Dixon intended when he concluded that ((23) ibid. at 245.):

"constitutional questions should be considered and resolved

in the context of the whole law, of which the common law,

including in that expression the doctrines of equity, forms

not the least essential part".

22. The plaintiff's strongest argument is that the framers of the Constitution believed that the citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy. Although the existence of that belief was not an adequate reason for refusing to imply in the Constitution a freedom of communication ((24) Australian Capital Television (1992) 177 CLR at 136 per Mason CJ), it could nevertheless be a reason for holding that the freedom is subject to the operation of the criminal law and the common law of defamation or is no more than a restriction on legislative and executive power. In Nationwide News and Australian Capital Television, Brennan J accepted that the freedom is subject to both criminal codes and the common law, and to federal statute law so long as the statute is proportionate to the attainment of a legitimate object sought to be achieved within the limits of legislative power ((25) Nationwide News (1992) 177 CLR at 50, 52; Australian Capital Television (1992) 177 CLR at 150.). However, a majority of the Court did not accept that view.

23. Nonetheless, it is said that the existence of traditional criminal laws and defamation laws has always been an important element in our system of representative democracy and government. And it has not been thought that the operation of those laws trenched upon freedom of communication in such a way as to impair that system of representative democracy and government. The argument, for obvious reasons, takes the common law as its principal foundation, one reason being that, at the end of the nineteenth century, criminal law and defamation law were very largely based on the common law. At that time the common law recognized the importance of debate on matters of public interest but, notwithstanding that recognition, rejected the view that bona fide belief in truth without more afforded a good defence in the absence of privilege ((26) Campbell v. Spottiswoode (1863) 3 B and S 769 [1863] EngR 405; (122 ER 288); Anderson v. Fairfax (1883) 4 NSWLR 183 at 208, 216-218 per Martin CJ). The statutory codifications of the law of defamation and the criminal law, introduced in Queensland in 1889 ((27) Defamation Law of Queensland.) and 1899 ((28) Criminal Code Act.) respectively, prepared by Sir Samuel Griffith, and later adopted by other States, were based largely on the common law to the extent to which it related to freedom of expression.

24. The point is then made that the framers of the Constitution did not think that the common law of defamation was inimical to the then existing system of democratic representative government. So much may be acknowledged. The framers of the Constitution, influenced by the writings of Professor Dicey on Parliament and sovereignty, no doubt considered that the ultimate protection of freedom of expression, along with other important rights, might be found in the common law and in the exercise by the legislatures of the powers which they possessed. But what the framers of the Constitution thought, but did not provide in the Constitution, 100 years ago, is hardly a sure guide in the very different circumstances which prevail today. If the purpose of the implied freedom were merely to safeguard the interests of individuals, there might be something to commend this approach. But, when the purpose of the implication is to protect the efficacious working of the system of representative government mandated by the Constitution, the freedom which is implied should be understood as being capable of extending to freedom from restraints imposed by law, whether statute law or common law. The beliefs of the founders at the end of the last century as to the sufficiency of protections conferred by statute and common law cannot limit the content of an implication to be drawn from the Constitution, particularly if it transpires that the effect of the common law and statute law as it now stands is to interfere unduly with the relevant freedom of communication, an issue to which we shall turn shortly.

25. Furthermore, the differences that now exist between the laws of the States and Territories in relation to defences applicable in actions of defamation suggest that neither the courts nor the legislatures have achieved a balance that is universally acceptable. Indeed, it would be curious if the same defamatory publication could constitute an infringement of the freedom in one or more States and Territories but not in others. Yet such are the differences that this is possible. In Victoria, Western Australia, South Australia and the Northern Territory, truth is a complete defence; in New South Wales, the defendant is required to establish substantial truth and that the imputation relates to a matter of public interest or is published under qualified privilege ((29) Defamation Act 1974, s.15(2).); in Queensland, Tasmania and the Australian Capital Territory, the defendant must establish truth and public benefit ((30) Criminal Code (Q.), s.376; Defamation Act 1957 (Tas.), s.15; Defamation Act 1901 (N.S.W.), s.6.).

26. It is, of course, beyond question that, but for the implied freedom of communication, legislatures could severely restrict or inhibit freedom of communication. The fact that legislatures can restrict or inhibit freedom of communication shows that there is no sound basis for a conclusion that statutory enactments governing defamation and criminal law cannot amount to an infringement of the implied freedom of communication. Indeed, the decisions in Nationwide News and Australian Capital Television demonstrate that such a proposition cannot be supported.

Do the existing laws of defamation inhibit freedom of communication?

27. The contention that the existing laws of defamation do not constitute an infringement of the implied freedom is said to draw some support from two considerations. The first is that, in both England and Canada, it has been decided by courts of the highest authority that defamation laws rejecting the sufficiency of the honest belief defence in defamation are consistent with a guarantee of freedom of expression. In Derbyshire C.C. v. Times Newspapers Lord Keith of Kinkel (with whom the other Law Lords agreed) referred ((31) [1992] UKHL 6[1992] UKHL 6; ; (1993) AC 534 at 551.) with approval to the comment of Lord Goff of Chieveley in Attorney-General v. Guardian Newspapers Ltd. (No.2) ((32) [1988] UKHL 6; (1990) 1 AC 109 at 283-284.) that, in the field of freedom of speech, there was no difference in principle between English law on the subject and Art.10 of the European Convention on Human Rights. However, whatever significance that statement might have otherwise had for the present case disappears when attention is given to the actual decision in Derbyshire. The House of Lords unanimously upheld a unanimous decision of the Court of Appeal. In so doing, their Lordships held that, since it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for defamation ((33) (1993) AC at 547, 549, 550.).

28. The second consideration is that, in Canada, it has been decided that the freedom of expression guaranteed by s.32 of the Charter of Rights and Freedoms does not confer upon a person any right or immunity beyond that accorded by the relevant laws of defamation ((34) Retail, etc., Union v. Dolphin Delivery Ltd.; Coates v. The Citizen (1988) 85 NSR (2d) 146; Derrickson v. Tomat (1992) 88 DLR (4th) 401 at 408; Pindling v. National Broadcasting Corp. (1984) 14 DLR (4th) 391 at 399.). The basis of the Canadian approach seems to be that the freedom is a protection truly against government conduct and government conduct does not include the judicial enforcement of private common law rights. However, that is not the approach which was taken by the Supreme Court of the United States in the celebrated case of New York Times Co. v. Sullivan ((35) [1964] USSC 40; (1964) 376 US 254.). In that case, the Supreme Court held that the guarantee of free speech contained in the First Amendment protected even false defamatory speech unless the plaintiff could prove actual malice or reckless disregard for truth or falsity on the part of the defendant. This approach does not limit the protection to protection against government conduct. The European Court of Human Rights has also taken a broad approach to Art.10 of the European Convention on Human Rights ((36) Lingens v. Austria [1986] ECHR 7; (1986) 8 EHRR 407; Case of Oberschlick v. Austria Series A, No. 204, 23 May 1991.). Article 10 and the First Amendment are general guarantees of freedom of expression and are not confined to ensuring the efficacy of democratic government. But that circumstance is not a reason for concluding that the United States and European approaches are irrelevant or inappropriate to our situation.

29. To our minds, it is incontrovertible that an implication of freedom of communication, the purpose of which is to ensure the efficacy of representative democracy, must extend to protect political discussion from exposure to onerous criminal and civil liability if the implication is to be effective in achieving its purpose. The correctness of that proposition has repeatedly been affirmed. In the United States, in City of Chicago v. Tribune Co. Thompson CJ said ((37) (1923) 139 NE 86 at 90.):

"While in the early history of the struggle for freedom

of speech the restrictions were enforced by criminal

prosecutions, it is clear that a civil action is as great,

if not a greater, restriction than a criminal prosecution.

If the right to criticize the government is a privilege

which ... cannot be restricted, then all civil as well as

criminal actions are forbidden. A despotic or corrupt

government can more easily stifle opposition by a series of

civil actions than by criminal prosecutions".

30. Subsequently, in Derbyshire C.C. v. Times Newspapers, Lord Keith cited ((38) (1993) AC at 547-548.) those statements and the endorsement of them in Sullivan and went on to say ((39) ibid. at 548.):

"While these decisions were related most directly to the

provisions of the American Constitution concerned with

securing freedom of speech, the public interest

considerations which underlaid them are no less valid in

this country. What has been described as 'the chilling

effect' induced by the threat of civil actions for libel is

very important. Quite often the facts which would justify a

defamatory publication are known to be true, but admissible

evidence capable of proving those facts is not available."

"The threat of a civil action for defamation must inevitably

have an inhibiting effect on freedom of speech."

31. The statements quoted above, as well as the decision in Sullivan, speak eloquently of the tendency of the law of defamation to inhibit the exercise of the freedom of communication - "the chilling effect" - in the United States and the United Kingdom. In Australia also the existence of that tendency has been noted ((41) New South Wales Law Reform Commission, Discussion Paper No.32, Defamation, August 1993.). Nonetheless, there is an argument that, despite that tendency of the law of defamation, it does not amount to an infringement of the freedom because the common law of defamation has endeavoured to achieve an acceptable balance between the public interest in giving effect to freedom of speech and the competing public interest in protecting the reputation of individuals who are defamed. The defences of truth, privilege and fair comment have been developed with a view to resolving the tension which exists between recognition of freedom of speech and the necessity of protecting the individual from injury to reputation. Thus, it may be said that, because the common law of defamation has been moulded by the judges with that end in view, the law has arrived at an appropriate balance of the competing interests so that freedom of communication is not infringed. The answer to this argument, so it seems to us, is that, in reaching that balance, the courts have not taken account of the fact that there is an implied freedom of communication. The decisions which establish the common law principles have not been concerned to assess the inhibiting impact of the law of defamation and threats of action for defamation on the exercise of that freedom. It follows, in our view, that the Court is not justified in concluding that the balance achieved by the common law in protecting the reputation of the individual defamed and the publication of political discussion necessarily means that there is no inconsistency between common law principles and the freedom.

32. Furthermore, the acknowledged tendency of the existing law of defamation to inhibit the exercise of the freedom tells strongly against the absence of such inconsistency. In Sullivan, Brennan J, who delivered the opinion of the Court, pointed out ((42) (1963) 376 US at 279.) that a rule compelling the critic of official conduct to prove truth as a defence to actions in which punitive damages may be awarded does not deter false speech only. It is often difficult to prove the truth of the alleged libel in all its particulars. And the necessity of proving truth as a defence may well deter a critic from voicing criticism, even if it be true, because of doubt whether it can be proved or fear of the expense of having to do so. In Australia, the view expressed by Brennan J loses a little of its force now that a majority of this Court has expressed the view, as it did recently in Carson v. John Fairfax and Sons Ltd. ((43) [1993] HCA 31; (1993) 178 CLR 44 at 57-60; but cf. Coyne v. Citizen Finance Ltd. [1991] HCA 10; (1991) 172 CLR 211 at 234-235 per Toohey J (with whom Dawson and McHugh JJ agreed).), that an appellate court hearing appeals in both defamation and personal injury cases needs to ensure that there is an appropriate or rational relationship between the scale of awards in the two classes of case. That relationship stands on the foundation represented by the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, may transcend injury to reputation ((44) (1993) 178 CLR at 58-59 per Mason CJ, Deane, Dawson and Gaudron JJ). However, notwithstanding that development in Australia, the need to prove truth, when it arises, clearly inhibits freedom to publish critical matter for the other reasons given by Brennan J.

33. The common law defences of fair comment and qualified privilege are not always available. Fair comment is available only for the expression of opinion and, then, only if the comment is based on facts which are notorious or truly stated. Qualified privilege depends on the absence of malice and on the person who makes the communication having an interest or duty in its making and on the recipient having a corresponding interest or duty in receiving it. The requirement for reciprocity of interest has the effect that common law qualified privilege is usually not available where the information has been disseminated to the public generally ((45) See Adam v. Ward (1917) AC 309; Smith's Newspapers Ltd. v. Becker [1932] HCA 39; (1932) 47 CLR 279; Telegraph Newspaper Co. Ltd. v. Bedford [1934] HCA 15; (1934) 50 CLR 632; Lang v. Willis [1934] HCA 51; (1934) 52 CLR 637; Andreyevich v. Kosovich (1947) 47 SR(NSW) 357; (1947) 73 CLR 665; Antonovich v. West Australian Newspapers Ltd. (1960) WAR 176. For more recent applications, see ABC v. Comalco (1986) 68 ALR 259; Nationwide News Pty. Ltd. v. Wiese (1990) 4 WAR 263.). Thus, the need to prove truth can often arise in practice.

34. In these circumstances, the common law defences which protect the reputation of persons who are the subject of defamatory publications do so at the price of significantly inhibiting free communication. To that extent, the balance is tilted too far against free communication and the need to protect the efficacious working of representative democracy and government in favour of the protection of individual reputation. In the case of a statutory regime, the outcome will depend on identification of the criteria which determine whether publication of political matter is non-actionable.

The criteria to determine whether publication of political matter is non-actionable

35. What then are the criteria to be applied in determining whether a publication which discusses political matters and is defamatory of the plaintiff is nonetheless not actionable? In Sullivan Black J considered that nothing short of absolute freedom of the press "to criticize officials and discuss public affairs with impunity" was consistent with the First Amendment ((46) (1963) 376 US at 296.). And the statements already quoted from City of Chicago v. Tribune Co. ((47) (1923) 139 NE at 90.) and Derbyshire C.C. v. Times Newspapers ((48) (1993) AC at 547-548.) tend to support that view. But it was rejected by the Court in Sullivan. And, as the freedom under the Australian Constitution is not absolute, an absolute immunity from action cannot easily be supported. It does not seem to us that the efficacious working of representative democracy and government demands or needs protection in the form of an absolute immunity. There is nothing in that concept which requires that a person who publishes a statement be protected from the consequences of making a defamatory statement which is knowingly false. Nor does that concept require protection of a publication made with reckless disregard for the truth or untruth of the material published. The public interest to be served does not warrant protecting statements made irresponsibly.

36. The case for adopting the Sullivan test - that the publication is not actionable unless it is made with knowledge of falsity or with reckless disregard for the truth or falsity - or some version of it, is that it offers some protection to the reputation of the individual who is defamed and at the same time offers a large measure of protection to the publisher. The publisher is at risk only if the publisher has knowledge of falsity or acts recklessly. Although the so-called "chilling effect" of a threatened action for defamation may not entirely be dispelled, it would be substantially eliminated by the application of such a test. The principal criticism of such a test is that it sets too little store by the reputation of the person defamed. Further, the Sullivan test imposes an additional obstacle by requiring a plaintiff to make out a case with "convincing clarity".

37. The Sullivan test has been criticized on two further grounds. The first is that decisions following Sullivan have expanded the content of the privilege by extending it to candidates for public office ((49) Monitor Patriot Co. v. Roy [1971] USSC 32; (1971) 401 US 265.) and government employees "who are in a position significantly to influence the resolution of (public) issues" ((50) Rosenblatt v. Baer [1966] USSC 25; (1966) 383 US 75 at 85.). The privilege was also extended to cover "public figures" who do not hold official or government positions ((51) Curtis Publishing Co. v. Butts [1967] USSC 200; (1967) 388 US 130.). The "public figure" test has been severely criticized both in the United States and Australia ((52) See the discussion in Discussion Paper No.32, op.cit. at pars 10.28 et seq.). None of these extensions of the Sullivan test has any application to the present case. Although there is no occasion now to consider their possible application 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.

38. The second criticism of the Sullivan test is that it tilts the balance unduly in favour of free speech against protection of individual reputation. And it has been suggested that that balance would be tilted even further away from protection of individual reputation if the test were to be applied here ((53) ibid. at par.10.36.). That is because there is a difference between our costs rules and procedures and those which prevail in the United States ((54) ibid).

39. The New South Wales Law Reform Commission points also to a number of problems experienced by defendants with the "public figure" test. The problems identified by the Commission are that the defendant would suffer intrusive discovery procedures as the plaintiff attempts to prove malice; protection of sources would be undermined; damages and costs are likely to be inflated and litigation protracted. Further, the Commission suggests that appeals would increase ((55) ibid. at par.10.38.). In the result, the Commission expressed a preliminary view that "a formal public figure test, requiring a focus on the defendant's mental state, is undesirable. The major problem with defamation litigation is the emphasis on damages, and the length and cost of proceedings. The public figure test appears only to exacerbate these problems" ((56) ibid. at par.10.61.). The Commission acknowledged that, to some extent, these problems affect all civil litigation and went on to say that a preferable way of promoting free speech is to remove the chilling effect of large awards and to provide remedies ensuring that reputation is sufficiently protected ((57) ibid. at pars 10.61-10.62.).

40. In Sullivan, Brennan J justified the test which the Court adopted by quoting ((58) (1964) 376 US at 281.) remarks by Burch J in Coleman v. MacLennan ((59) (1908) 78 Kan 711 at 724; 98 Pac 281 at 286.):

"It is of the utmost consequence that the people should

discuss the character and qualifications of candidates for

their suffrages. The importance to the state and to society

of such discussions is so vast and the advantages derived

are so great that they more than counterbalance the

inconvenience of private persons whose conduct may be

involved, and occasional injury to the reputations of

individuals must yield to the public welfare, although at

times such injury may be great. The public benefit from

publicity is so great and the chance of injury to private

character so small that such discussion must be privileged."

41. Even assuming that, in conformity with Sullivan, the test is confined to plaintiffs who are public officials, in our view it gives inadequate protection to reputation. That is because the public official cannot recover damages for an erroneous and damaging statement unless the public official can prove with convincing clarity that it was made with actual malice. It has been pointed out that actual malice, that is, actual knowledge that the defamatory statement was false or reckless disregard for whether it was true or false, is a narrower concept than that of common law malice which will defeat a claim to qualified privilege ((60) Discussion Paper No.32, op.cit. at par.10.2.). In the United States, it has been held that to satisfy the concept of "reckless disregard" it must be shown that the defendant consciously held doubts about the truth of the defamatory statement; indifference to truth or falsity is not enough ((61) St. Amant v. Thompson [1968] USSC 79; (1968) 390 US 727.). On the other hand, common law malice covers ill-will, spite and improper motive ((62) Horrocks v. Lowe (1975) AC 135.). The term "malice" is imprecise. It has in law a number of meanings ((63) See Luetich v. Walton (1960) WAR 109 at 112.), not all of which are easily reconcilable.

42. The consequence is that not only is it not enough for the public official to prove falsity, it is necessary to prove with convincing clarity the elements of actual malice. It has been pointed out that to establish actual malice, the plaintiff must show falsity; actual malice cannot exist if the defamatory statement is true ((64) Philadelphia Newspapers, Inc. v. Hepps [1986] USSC 73; (1986) 475 US 767.). So the public official ends up shouldering a heavy onus of proof on the issue of falsity, an issue in respect of which at common law the onus rests on the defendant. The practical consequence of all this is that the plaintiff who is a public official faces greater obstacles than our existing law of defamation places in the path of a plaintiff.

43. However, once it is acknowledged, as it must be, that the existing law seriously inhibits freedom of communication on political matters, especially in relation to the views, conduct and suitability for office of an elected representative of the people in the Australian Parliament, then, as it seems to us, that law is inconsistent with the requirements of the implied freedom of free communication. The law of defamation, whether common law or statute law, must conform to the implication of freedom, even if conformity means that plaintiffs experience greater difficulty in protecting their reputations. The interests of the individual must give way to the requirements of the Constitution. At the same time, the protection of free communication does not necessitate such a subordination of the protection of individual reputation as appears to have occurred in the United States.

44. For that reason the defendant should be required to 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 or steps which were adequate. To require more of those wishing to participate in political discussion would impose impractical and, sometimes, severe restraint on commentators and others who participate in discussion of public affairs. Such a restraint would severely cramp that freedom of political discussion which is so essential to the effective and open working of modern government. At the same time, it cannot be said to be in the public interest or conducive to the working of democratic government if anyone were at liberty to publish false and damaging defamatory matter free from any responsibility at all in relation to the accuracy of what is published.

45. In other words, if a defendant publishes false and defamatory matter about a plaintiff, the defendant should be liable in damages unless it can establish that it was unaware of the falsity, that it did not publish recklessly (i.e., not caring whether the matter was true or false), and that the publication was reasonable in the sense described. These requirements will redress the balance and give the publisher protection, consistently with the implied freedom, whether or not the material is accurate.

46. In one other respect the Sullivan concept of actual malice calls for some justification. As already noted, the common law connotation of malice embraces ill-will, spite and improper motive. There is an argument for saying that "actual malice" should likewise extend to such motivating factors. However, it seems to us that, once it is accepted that it is necessary to show that the publication was reasonable in the sense to which we have referred, there is no occasion to include malice according to its common law understanding as an element in the test to be applied.

47. It will be noted from the preceding paragraphs that we do not consider that the plaintiff should bear the onus of proving that the publication is not protected. In our view, it is for the defendant to establish that the publication falls within the constitutional protection. That approach accords with the approach that the courts have taken in the past to proof of matters of justification and excuse and we are not persuaded that the constitutional character of the justification should make any difference to the onus of proof. Whether the defendant has acted reasonably will involve consideration of any inquiry made by the defendant before publishing; that is a matter peculiarly within the knowledge of the defendant.

48. It may be objected that, despite the departures from Sullivan, what we have just stated protects inadequately injured reputation and yet, at the same time, imposes an unjustifiable fetter on free communication. The formula we favour redresses the balance to some extent in favour of the plaintiff; as much, in our view, as can legitimately be achieved without significantly interfering with free communication. The requirement that a publisher publish honestly, not recklessly, and reasonably is to require no more than is reasonably necessary to protect the individual's reputation from damaging defamatory publications. True it is that the test so formulated does not call for a determination of the truth or untruth of the defamatory imputation, that being the gravamen of the plaintiff's complaint in most cases. And the test, as we have formulated it, deprives a plaintiff of a trial on the issue of truth or falsity. A trial on that issue, if the outcome were favourable to the plaintiff, would result in his or her vindication. However, the formulation of a test which focuses on the truth or falsity of the defamatory imputation rather than the defendant's belief in truth or falsity, would, in our view, run counter to the freedom of communication implied by the Constitution and the purpose it seeks to serve. Whether a publisher has acted reasonably must be a question of fact in every case. It will depend upon the standards and expectations of the community as to whether the allegations needed to be investigated. Reasonableness is a concept with which the law is familiar ((65) cf. the consideration of reasonableness in relation to s.22 of the Defamation Act 1974 (N.S.W.) in Wright v. Australian Broadcasting Commission (1977) 1 NSWLR 697 at 705, 711-712; Morosi v. Mirror Newspapers Ltd. (1977) 2 NSWLR 749 at 796, 797- 798; Austin v. Mirror Newspapers Ltd. (1985) 3 NSWLR 354 at 360.).

49. The defence based on the implied freedom has some similarity to the statutory defence of lawful excuse for which s.377(1)(h) of the Criminal Code 1899 (Q.) provides. The same defence was available in New South Wales under s.17(h) of the Defamation Act 1958 (N.S.W.). Section 377(1)(h) provides that it is a lawful excuse for the publication of defamatory matter:

"(i)f the publication is made 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, and if, so far as the defamatory matter

consists of comment, the comment is fair."

"a publication is said to be made in good faith if the

matter published is relevant to the matters the existence of

which may excuse the publication in good faith of defamatory

matter; if the manner and extent of the publication does not

exceed what is reasonably sufficient for the occasion; and

if the person by whom it is made is not actuated by ill-will

to the person defamed, or by any other improper motive, and

does not believe the defamatory matter to be untrue".

50. In Pervan v. North Queensland Newspaper Co. Ltd. ((66) [1993] HCA 64; (1993) 178 CLR 309.), this Court held that a defendant, in order to establish that defence, did not need to prove that the facts on which a defamatory comment was based were true, though such facts should be stated or sufficiently indicated or notorious so that the persons to whom the publication is directed may judge for themselves how far the opinion expressed in the comment is well founded ((67) ibid. at 326-328.). The Court also held that the predecessor to s.377(1)(h) provided protection if the facts on which the comment is and can be seen to be based are not believed to be untrue, subject to the requirement of "good faith" and the other conditions specified by the section ((68) ibid. at 327.). The majority judgment in Pervan, after referring to the suggestion made by Dixon J in Bailey v. Truth and Sportsman Ltd. ((69) [1938] HCA 50; (1938) 60 CLR 700.) that, as a matter of policy, the protection given by the sub-section may not sufficiently safeguard the interests of an individual who is incidentally disparaged in the course of public discussion of a matter of public interest, noted that its interpretation was strongly supported by legislative history and authority ((70) (1993) 178 CLR at 328.). The Court went on to point out that, when "the paramount policy interest manifest on the face of (s.377(1)(h)) is the encouragement and protection of freedom of discussion on a matter of public interest for the benefit of the public, it would be inappropriate to construe that sub-section as requiring that a person wishing to participate in the discussion ... should first satisfy himself or herself of the truth of those facts before commenting upon them" ((71) ibid).

The constitutional implication of freedom and qualified privilege

51. The defence pleaded in the further further amended defence is not bad in law. Because it derives from the Constitution, the defence is available in all Australian jurisdictions, whether the law to be applied is the common law or statute law. Its availability will 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.

52. Common law qualified privilege must now be viewed in the light of the implied constitutional freedom. That does not necessitate a review of its essential feature, namely, publication on an occasion of qualified privilege, or of the common law requirement that publication be without malice. It does, however, require some consideration of the notion of reciprocal interest and duty. The public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law, in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters. It is an interest which exists at all times; it is not confined to situations where it is publicly anticipated that a federal election will be called. It follows that the discussion of political matters is an occasion of qualified privilege. Even understood in this light, the common law defence does not conform to the constitutional freedom. As already explained, the freedom requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained.

Conclusion

53. As we have reached the conclusion that the defence pleaded in the further further amended defence is not bad in law, we therefore answer the questions asked as follows.

(1) There is implied in the Commonwealth Constitution a freedom to publish material:

(a) discussing government and political matters;

(b) of and concerning members of the Parliament of the

Commonwealth of Australia which relates to the performance

by such members of their duties as members of the Parliament

or parliamentary committees;

(c) in relation to the suitability of persons for office as

members of the Parliament.

Constitution, the publication will not be actionable under the law

relating to defamation if the defendant establishes that:

(a) it was unaware of the falsity of the material published;

(b) it did not publish the material recklessly, that is, not

caring whether the material was true or false; and

(c) the publication was reasonable in the circumstances. (3) A publication

Commonwealth Constitution can also be described as a publication

on an occasion of qualified privilege. Whether a federal election

is about to be called is not a relevant consideration.

BRENNAN J Questions have been reserved for the opinion of this Court in a case stated by the Chief Justice. They arise in an action for defamation commenced in the County Court of Victoria and removed into this Court pursuant to s.40(1) of the Judiciary Act 1903 (Cth). They are questions of constitutional law, not of the common law. The distinction is important.

2. The nation of Australia, its integrated system of law, this Court and its jurisdiction owe their existence ultimately to the Constitution. It is the chief of the organic laws of the Commonwealth. Read together with the Commonwealth of Australia Constitution Act, the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1986 (Cth), the text of the Constitution prevails over all other laws ((72) Baxter v. Commissioners of Taxation (N.S.W.) [1907] HCA 76; (1907) 4 CLR 1087 at 1125; and see Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 353.). All laws of the Commonwealth and of Commonwealth Territories depend on the Constitution and all State laws are subjected to the Constitution by Covering clause 5 which gives to the Constitution an operation "binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State" ((73) See Brown v. The Queen [1986] HCA 11; (1986) 160 CLR 171 at 197.). The Constitution and the common law are bound in a symbiotic relationship: though the Constitution itself and laws enacted under the powers it confers may abrogate or alter rules of the common law, the common law is the matrix in which the Constitution came into being ((74) In re Foreman and Sons Pty. Ltd.; Uther v. Federal Commission of Taxation [1947] HCA 45; (1947) 74 CLR 508 at 521.) and which informs its text. "It is well settled", this Court declared in Cheatle v. The Queen ((75) [1993] HCA 44; (1993) 177 CLR 541 at 552.), "that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law's history". Whether the interpretation and operation of the Constitution might be affected by the development of common law doctrines is an interesting though hitherto hypothetical question ((76) Dixon, "The Common Law as an Ultimate Constitutional Foundation", Jesting Pilate, (1965) at 207ff.) which need not detain us in this case.

3. The function of this Court, as the final court of appeal for Australia in applying, or in reviewing the application of, Australian law depends on the law under consideration. The role of judicial policy - a court's opinion as to what the law should be as distinct from what the law is or has hitherto been generally thought to be - in determining the content of the law varies according to the category of law under consideration: common law, statutes or the Constitution. But judicial power alone is conferred on this Court by s.71 of the Constitution and, although this Court must ultimately determine for itself the scope of that power, the legitimate role of judicial policy in the exercise of judicial power is limited both by the Constitution's denial of legislative power to Ch.III courts and by restrictions which are inherent in the judicial method.

4. Common law is amenable to development by judicial decision, subject to the Constitution and to statute. What is permissible development of the common law by the courts and what amounts to impermissible change is an issue on which minds differ most sharply. Respect for precedent and the general structure of law, assessment of the justice and efficiency of existing rules, their conformity with underlying principle, appreciation of contemporary values, the implications of change, the capacity of the legal system and of society to absorb change and, importantly, the just resolution of the instant case, all have a part to play ((77) See Cardozo, "Nature of Judicial Process", Selected Writings of Benjamin Cardozo, (1980) at 153-155.) when a proposition of the common law is reviewed by a court in which (to adopt the words of Barwick CJ) "no authority binds or current of acceptable decision compels" ((78) Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt [1968] HCA 74; (1968) 122 CLR 556 at 563.). Some judges find unanswerable the approach of Judge Learned Hand ((79) "The Contribution of an Independent Judiciary to Civilization", reproduced in Winters (ed.), Handbook for Judges, (1975) at 44.):

" The respect all men feel in some measure for customary

law lies deep in their nature; we accept the verdict of the

past until the need for change cries out loudly enough to

force upon us a choice between the comforts of further

inertia and the irksomeness of action."

Other judges find the call to reform more urgent.

5. Whatever may be the scope of judicial power to reform the common law and whatever view is taken of the need for or urgency of reform, it is clear that judicial development of the common law is a function different from judicial interpretation of statutes and of the Constitution. In the development of the common law, judicial policy has a role to perform, albeit the role is limited; in the interpretation of statutes, judicial policy is alien to the task of exegesis. The policy of the legislature, if it can be discovered, guides the Court in the interpretation of a statute where the text is ambiguous or obscure or its ordinary meaning is absurd or unreasonable. In other respects, the text itself governs the exercise of judicial power. The function of the Court when statutory law is under consideration is to interpret the statute, to determine its validity and to apply its valid provisions, properly construed, without qualification.

6. In the interpretation of the Constitution, judicial policy has no role to play. The Court, owing its existence and its jurisdiction ultimately to the Constitution, can do no more than interpret and apply its text, uncovering implications where they exist. The Court has no jurisdiction to fill in what might be thought to be lacunae left by the Constitution. If there be a lacuna in the text, it can be filled, if at all, only by the common law or by another law which binds the courts and people of the Commonwealth and applies in all parts of Australia. Under the Constitution, this Court does not have nor can it be given nor, a fortiori, can it assume a power to attribute to the Constitution an operation which is not required by its text construed in the light of its history ((80) Cole v. Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 385.), the common law and the circumstances or subject matter to which the text applies. The notion of "developing" the law of the Constitution is inconsistent with the judicial power it confers. Clearly the Court cannot change the Constitution, nor can it convert constitutional silence into a legal rule with constitutional force. I do not mean that, in changing conditions, the Constitution does not have a changing effect ((81) The Commonwealth v. Tasmania (the Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 221.), that the denotation of its terms does not change ((82) R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262; Jones v. The Commonwealth (No.2) [1965] HCA 6; (1965) 112 CLR 206.), that the course of judicial interpretation does not reveal that a past constitutional doctrine is untenable ( (83) Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") [1920] HCA 54; (1920) 28 CLR 129; Cole v. Whitfield) or that new situations do not reveal new doctrines inherent in the constitutional text ((84) Nationwide News Pty. Ltd. v. Wills [1992] HCA 46; (1992) 177 CLR 1.). The Constitution speaks continually to the present and it operates in and upon contemporary conditions ((85) Fishwick v. Cleland [1960] HCA 55; (1960) 106 CLR 186 at 197; Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 at 272.). But, in the interpretation of the Constitution, judicial policy provides no leeway for judgment as it does when the Court is developing the common law. Nor can the Court find implications in the text by referring to extrinsic sources ((86) Queensland Electricity Commission v. The Commonwealth [1985] HCA 56; (1985) 159 CLR 192 at 231; Nationwide News (1992) 177 CLR at 41-45; Australian Capital Television Pty. Ltd. v. The Commonwealth ("ACTV") [1992] HCA 45; (1992) 177 CLR 106 at 181-182.). The difference in curial function in declaring the common law and in interpreting the Constitution is important in the present case where the questions reserved for the opinion of this Court are questions of constitutional interpretation, not questions as to the state of the common law. The answers to these questions in no way depend on what the Court perceives to be desirable policy. The task is to expound the text of the Constitution: to ascertain what is implied in the text and to declare whether and in what manner the implication operates on the law of defamation.

The questions

7. The plaintiff's statement of claim seeking damages for defamation alleges inter alia -

(i) that the plaintiff is a member of the Parliament

and the chairperson of both a Parliamentary

Committee on Migration Regulations and a Labor

Party Caucus Immigration Committee;

(ii) that the first defendant published in its

newspaper a letter written by the second defendant

critical of the plaintiff's views on immigration

and of his official conduct.

8. The first of the questions reserved by the stated case for the opinion of the Full Court reads as follows:

Is there a freedom guaranteed by the Commonwealth

Constitution to publish material:

(a) in the course of discussion of government and

political matters;

(b) of and concerning members of the Parliament of the

Commonwealth of Australia which relates to the

performance by such members of their duties as

members of the Parliament or parliamentary

committees;

(c) in relation to the suitability of persons for office

as members of the Parliament?

9. The first question owes its form to the judgments of the members of this Court in Nationwide News Pty. Ltd. v. Wills ((87) [1992] HCA 46; (1992) 177 CLR 1.) and Australian Capital Television v. The Commonwealth ((88) [1992] HCA 45; (1992) 177 CLR 106.). In those cases, a freedom of discussion about Commonwealth political issues was found by the majorities to be implied in the Constitution. Although the freedom was described in different ways in the judgments, the first question was intended to do no more than to encapsulate what has already been decided in those two cases. Counsel disclaimed any attempt "to elevate it (the freedom) to any height greater than that which it was elevated to in the two decisions".

10. With that disclaimer, it might be thought appropriate to answer the first question affirmatively, for no party sought to reopen Nationwide News or ACTV. But the language in which the first question is framed ("freedom ... to publish material"), taken in conjunction with Questions 2 and 3, reveals that the "freedom" to which the questions are directed is a personal right or privilege - perhaps qualified in one or more of the ways referred to in Questions 2 and 3 - to publish defamatory material without incurring the liability that would otherwise be attached to the publication by the law of defamation. That is not a freedom of the kind which, in Nationwide News, I held to be implied in the Constitution.

11. "Freedom" can be used in several senses and there is a danger in attempting to define a constitutional principle by use of an abstract noun of imprecise meaning, especially when the history of s.92 reveals that the corresponding adjective is extremely troublesome. At the outset, it is necessary to distinguish between an absolute freedom and a freedom which is protected or guaranteed by law. In law, there is no absolute freedom to do anything that might affect another. Laws necessarily restrict absolute freedoms in order that all may live in a society of freedom under the law, by which we mean a society in which absolute freedoms are restricted by law to the extent that is thought appropriate to our history and culture. To the Australian constitutional lawyer, the question is not whether a law restricts an absolute freedom, but whether the law imposing the restriction is within the constitutional powers of the lawmaker limited, as they may be, by a provision which protects or guarantees a constitutional freedom or immunity. There are thus two distinct senses in which the term "freedom" may be used. One is a freedom to do anything - an absolute freedom; the other is a freedom or immunity from legal regulation created, expressly or impliedly, by the Constitution - a constitutional freedom. The Court is concerned only with the nature and scope of constitutional freedoms. In Nationwide News ((89) (1992) 177 CLR at 51.), I held that a "freedom to discuss governments and governmental institutions and political matters" is implied in the Constitution. To consider the questions reserved, it is necessary to state with more particularity the nature of that freedom to which I shall hereafter refer as a freedom to discuss government. As that freedom is implied in the Constitution, we must turn to its text and there ascertain the nature and scope of the relevant implication.

The constitutional implication

12. Section 24 of the Constitution provides for the election of the members of the House of Representatives by the direct choice of "the people of the Commonwealth". Section 7 provides for the election of the Senators for each State by the direct choice of "the people of the State". Although the Constitution does not define the scope of the electoral franchise, ss.10, 30 and 31 ensure that the federal adult franchise is not confined more narrowly than the franchise for electing the more numerous House of the Parliament of the State in which an election is taking place. The Constitution thus prescribes, albeit not in express terms, a system of federal government in which legislative power is reposed in a Parliament ((90) See s.1 of the Constitution.) the members of which (the Queen apart) are representatives of the people of the Commonwealth, the representatives being elected democratically in the sense that "each elector shall vote only once": ss.8 and 30. The Constitution permits, though it does not require, that the adult franchise be universal. The Constitution further provides for the Federal Executive Council to be drawn from the Parliament: s.64. Construing Ch.II of the Constitution in the light of history and the common law, the Constitution prescribes a system of responsible as well as representative government, the Parliament being elected democratically in the sense stated. For the reasons which I gave in Nationwide News ((91) (1992) 177 CLR at 46-53.), that system of government implies a limitation on powers conferred by the Constitution. No law of the Commonwealth may infringe "the freedom to discuss governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which substantially impairs the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions" ((92) ibid. at 51.).

13. Although the scope of the implication was stated in Nationwide News in terms of its effect on an absolute freedom, its nature was defined as a limitation on power. And so it was that, in ACTV, where a law of the Commonwealth was impugned on the ground that it infringed the freedom to discuss government implied by the Constitution, I said ((93) (1992) 177 CLR at 150.):

" It is convenient in the context of Pt IIID (of the

Broadcasting Act 1942) to speak of the implied limitation

as a freedom of communication, for the terms are

reciprocal: the extent of any relevant limitation of

legislative power is the scope of the relevant freedom.

But, unlike freedoms conferred by a Bill of Rights in the

American model, the freedom cannot be understood as a

personal right the scope of which must be ascertained in

order to discover what is left for legislative regulation;

rather, it is a freedom of the kind for which s.92 of the

Constitution provides: an immunity consequent on a

limitation of legislative power."

14. It is one thing to be entitled, in common with others, to act freely in an area to which a law cannot or does not apply; it is another to possess a personal right or a personal immunity from the application of a general law ((94) The distinction was made in judgments on s.92 of the Constitution prior to Cole v. Whitfield: see, for example, James v. Cowan [1930] HCA 48; (1930) 43 CLR 386 at 418 and cf. Clark King and Co. Pty. Ltd. v. Australian Wheat Board [1978] HCA 34; (1978) 140 CLR 120 at 188; see generally the cases referred to in Miller v. TCN Channel Nine Pty. Ltd. [1986] HCA 60; (1986) 161 CLR 556 at 570; Nationwide News (1992) 177 CLR at 59; Australian Coarse Grains Pool Pty. Ltd. v. Barley Marketing Board [1985] HCA 38; (1985) 157 CLR 605.). In either case, the individual is free to act without legal control, but the scope of a postulated freedom is differently ascertained according to its nature. If the freedom implied in the Constitution were a personal right or immunity, it would extend to what is needed to facilitate or permit its full enjoyment, subject to any qualification expressed or implied in the Constitution. The existence of such a personal right or immunity would not affect the validity of any law: the law would simply be ineffective to the extent to which it infringed the freedom. But when the freedom is the consequence of the limits on a power, the scope of the freedom is a function of the invalidity of any law which exceeds the power. A law which exceeds the power is invalid, unless it be saved from invalidity by reading it down. If the freedom to discuss government were understood to be a personal freedom, it would be open to the Court to define it in qualified or limited terms - for example, in some such terms as appear in Questions 2 and 3. But if the freedom to discuss government be the consequence of a limitation on power, the issue in this case is whether the laws of defamation, in their application to the facts pleaded in the statement of claim, are valid. The issue is not the scope of the freedom but the validity of the law.

15. When governmental powers are conferred by the Constitution, their scope is impliedly limited to the extent necessary to maintain the structure of government prescribed by the Constitution. The limitation creates a freedom. But if a personal freedom were conferred by the Constitution, an unexpressed restriction on its scope would probably have to be implied in order to accommodate some exercise of governmental powers. The difference is significant, since the effective scope of the freedom on the one hand and the effective scope of the governmental powers which might be exercised to restrict the freedom on the other would be ascertained first by attributing a full range of operation to what is primarily conferred - the freedom or the powers - and then diminishing that range by what is necessary to give effect to any implied restriction or limitation. If the Constitution conferred a personal freedom, its scope would be likely to be far broader than the scope of a freedom consequent on an implied limitation on power.

16. The freedom which flows from the implied limitation on power considered in Nationwide News and ACTV is not a personal freedom. It is not a sanctuary with defined borders from which the operation of the general law is excluded. Like s.92, the implication limits legislative and executive power. In Nationwide News and ACTV, the question in each case was whether the legislative power which prima facie supported the impugned law was limited by an implication that left the law without support ((95) Nationwide News (1992) 177 CLR at 39-40, 50, 68-69, 79-80, 94-95.). Did the law which restricted the freedom to discuss government, governmental institutions or political matters thereby lose the constitutional support that would have been otherwise available? ((96) ACTV (1992) 177 CLR at 133, 158, 170, 218, 225-226.)

17. The constitutional implication with which we are here concerned is derived from the system of government prescribed by the Constitution which I shall call "representative government", though the term is inadequate to describe all the features of the system. The system implies that the "people of the Commonwealth" - a term which can be treated as inclusive of "the people of (a) State" - should be able to form and to exercise the political judgments required for the performance of their constitutional functions. The implication is derived from the structure of representative government prescribed by the Constitution rather than inhering in a particular word or phrase of its text. Mason CJ drew a distinction between the two kinds of implication in ACTV ((97) ibid. at 135.):

" It may not be right to say that no implication will

be made unless it is necessary. In cases where the

implication is sought to be derived from the actual terms

of the Constitution it may be sufficient that the relevant

intention is manifested according to the accepted

principles of interpretation. However, where the

implication is structural rather than textual it is no

doubt correct to say that the term sought to be implied

must be logically or practically necessary for the

preservation of the integrity of that structure."

18. Of course, the antinomy between absolute freedom and legal regulation is never easy to resolve. An abiding problem in the application of s.92 has been the ascertainment of the area of "freedom governed by law" ((99) James v. Commonwealth of Australia (1936) AC 578 at 627.). That was the problem in Castlemaine Tooheys Ltd. v. South Australia ((100) [1990] HCA 1; (1990) 169 CLR 436 esp at 471-474.) where the validity of South Australia's anti-litter and energy conservation law was successfully challenged as an infringement of the freedom guaranteed by s.92. In that case the majority said((101) ibid. at 473-474.):

" If we accept, as we must, that the legislature had

rational and legitimate grounds for apprehending that

the sale of beer in non-refillable bottles generates or

contributes to the litter problem and decreases the State's

finite energy resources, legislative measures which are

appropriate and adapted to the resolution of those problems

would be consistent with s.92 so long as any burden imposed

on interstate trade was incidental and not disproportionate

to their achievement. Accordingly, the validity of the

1986 legislation rests on the proposition that the

legislative regime is appropriate and adapted to the

protection of the environment in South Australia from the

litter problem and to the conservation of the State's

finite energy resources and that its impact on interstate

trade is incidental and not disproportionate to the

achievement of those objects." (Emphasis added.)

19. The problem of ascertaining the limitation placed on legislative power by the implication drawn from the system of representative government is analogous to the problem of ascertaining the scope of the freedom guaranteed by s.92. Therefore the approach adopted in Castlemaine Tooheys Ltd. v. South Australia can assist in determining the validity of a law that is impugned as being inconsistent with the implication. If this approach be adopted, there are two criteria which will be satisfied by a valid law: first, the law (which includes, of course, the provision restricting an absolute freedom of discussion) will be appropriate and adapted to achieving a purpose within legislative power and, second, the law will impose the restriction merely as an incident to the achieving of that purpose. If the law satisfies this test then, although it imposes some restriction on an absolute freedom to discuss government, governmental institutions or political matters, it does not infringe the constitutional freedom((102) ACTV (1992) 177 CLR at 157-158.). That is because the implication does not deny the power of the representative government to govern. But if a restriction on the absolute freedom is imposed not as an incident of a law to achieve another purpose within power or if the law including the restriction exceeds what is appropriate and adapted to the achievement of such a purpose, the restriction cannot be supported. Of course, there is room for disagreement as to whether a law which contains a restriction is appropriate and adapted to achieving a postulated legitimate purpose.

20. In ACTV((103) ibid. at 150-151.), I attempted a resolution of the problem in these terms:

"The freedom begins at a boundary varying with the subject

matter of each law. In an extreme case - for example, a

law imposing wartime censorship - the freedom to discuss

matters of defence may be virtually eliminated. The

variable boundary of the freedom follows from the

consideration that, in order that a law may validly

restrict a freedom of communication about political or

economic matters, the restriction must serve some other

legitimate interest and it must be proportionate to the

interest to be served. Thus, a law which (being otherwise

within power) forbids the publication of fraudulent or

obscene material, or of seditious utterances or of

defamatory matter without justification or excuse, or of

advertisements for dangerous or prohibited drugs, is a law

which trespasses upon absolute freedom to communicate, but

it is a valid law provided the restrictions imposed by the

law are proportionate to the interest which the law is

calculated to serve. The proportionality of the

restriction to the interest served is incapable of a priori

definition: in the case of each law, it is necessary to

ascertain the extent of the restriction, the nature of the

interest served and the proportionality of the restriction

to the interest served."

21. The present case does not concern the laws of the Commonwealth; no limitation of the powers conferred on the Parliament by s.51 is in issue. In the present case, the freedom claimed by the defendants is a freedom from a civil liability for the publication of allegedly defamatory matter. The relevant law is either the common law or, where the common law has been modified by statute or where statute has been substituted for the common law, the statutes of the several States and Territories relating to defamation((104) The common law governs the defences to an action in defamation in Victoria and South Australia. In Queensland and Tasmania the available defences have been totally codified by legislation (The Criminal Code (Q.) ss.371-378); Defamation Act 1957 (Tas.) ss.10-16). In the other States and Territories a mixture of common law and statutory defences are provided (Defamation Act 1974 (N.S.W.), ss.15, 16, 17, 17A-17O, 18-22, 24, 25, 27, 28, 30, 31, 32, 33, 34; The Criminal Code (W.A.) ss.351-358, 362; Defamation Act 1938 (N.T.) ss.5, 6, 6A; Defamation Act 1901 (N.S.W.) and Defamation (Amendment) Act 1909 (N.S.W.) apply in the Australian Capital Territory). The first defendant's defence contains separate pleas in respect of the publications in the respective States and Territories.).

The common law

22. Although the Constitution prevails over the common law where there is inconsistency, there is no express inconsistency between the Constitution and those rules of the common law which govern the rights and liabilities of individuals inter se. That is because the Constitution deals not with the rights and liabilities of individuals inter se but with the structure and powers of organs of government, including powers to make laws which deal with those rights and liabilities. In considering whether the constitutionally implied freedom to discuss government has any effect on the common law, no question as to the limitation of legislative power arises, for the common law does not depend on legislative power to sustain it. The Constitution altered the common law by its provisions creating the structures and powers of the organs of government but it does not purport to affect the common law rights and liabilities of individuals inter se. That area of the common law and the area covered by the Constitution do not overlap. Theoretically, it may be possible to postulate a constitutional imperative which limits or qualifies a common law rule affecting the rights and liabilities of individuals inter se, although the notion conjures up intriguing problems: is the common law cause of action abolished or is it restricted in some way? how is the common law rule to be "read down"? does the Constitution work an acquisition of property without compensation?((105) Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.) The notion that an implication drawn from a constitutionally prescribed structure of government is inconsistent with the common law rights and liabilities of individuals inter se is, in my opinion, erroneous.

23. However, as the Constitution, being the chief organic law of the Commonwealth, prevails over other laws, it is theoretically possible that the Constitution could abrogate a rule of the common law regulating the rights and liabilities of individuals inter se. But it does not purport to do so. No implication from the text or structure of the Constitution is inconsistent with the availability of a cause of action in defamation to members of Parliament, candidates for election or public figures generally. Their common law right to recover damages for the publication of defamatory matter concerning them where the publication is not justified or excused by law is unaffected. Nor is there any text of the Constitution in which it is possible to find some implied limitation on or qualification of the common law cause of action for defamation of public figures. If public figure plaintiffs (either generally or in a particular category) were to have no remedy when they are defamed by matter published unlawfully in the eye of the common law, the loss of remedy would have to be attributable to an inconsistency between the common law of defamation and the Constitution. In that event, the common law would be abrogated, at least to the extent of the inconsistency. Although I perceive no basis for that hypothesis, the possibility of inconsistency can be tested by applying (mutatis mutandis) to the common law the test applicable to determine the validity of a Commonwealth law: does the common law of libel and slander impose such a restriction on the absolute freedom to discuss government, governmental institutions and political matters as to go beyond what is appropriate and adapted to the achievement of the purpose? The answer which the common law gives to the question is, axiomatically, no.

24. The common law was developed to provide a balance between freedom of speech and the protection of personal reputation, including the reputation of members of Parliament and of the Executive Government. It was developed both in England and in this country under a representative system of government, albeit universal adult suffrage arrived late in the history of the development of defamation law. The defences available to the publisher of defamatory matter that are presently significant (truth, fair comment and qualified privilege) determine the extent of the freedom to speak and to publish which the courts of common law have held to be appropriate. In broad terms, these defences leave the publisher free to publish defamatory matter which is true((106) Australian Consolidated Press Ltd. v. Uren [1966] HCA 37; (1966) 117 CLR 185 at 204.), a fair comment on facts truly stated((107) Bailey v. Truth and Sportman Ltd. [1938] HCA 50; (1938) 60 CLR 700 at 710, 717, 723; and see the discussion in Pervan v. North Queensland Newspaper Co. Ltd. [1993] HCA 64; (1993) 178 CLR 309 at 320-324.) and allegations of fact which are untrue on occasions which are ascertained by reference to "the common convenience and welfare of society"((108) per Lord Macnaghten in Macintosh v. Dun (1908) AC 390 at 399. The test was adopted by Dixon J in Loveday v. Sun Newspapers Ltd. [1938] HCA 28; (1938) 59 CLR 503.) provided the publisher has an honest belief in the truth of what is published and has no improper motive in making the publication((109) Horrocks v. Lowe (1975) AC 135 at 150.). Thus damages are recoverable for a publication of defamatory matter which is not fair comment on facts truly stated or which alleges facts untruly and is published on an occasion that is not privileged or is published without an honest belief in their truth or for an improper motive. The manifest purpose of the common law of defamation is the protection of personal reputation. It is impossible for this Court, in applying the Constitution, to hold that a tort which gives relief in damages in those instances could be said to go beyond what is appropriate and adapted to the purpose of protecting personal reputations and to trespass upon a constitutional freedom to discuss government, governmental institutions and political matters. To give effect to such an opinion would involve, in my respectful opinion, the introduction of judicial policy into constitutional interpretation.

25. The first defendant submits that the constitutional freedom to discuss government is infringed by the requirement that a defendant who has published defamatory matter about a member of Parliament or a candidate for election to Parliament should establish truth or one of the other recognized defences under threat of a substantial award of damages. The defamation law, it is said, has a "chilling effect" on the freedom to discuss government, governmental institutions and political matters which is inconsistent with the freedom. The submission does not illuminate the answer to the relevant question. It simply translates into tendentious language the legal truism that the tort of defamation achieves its purpose of providing protection for personal reputations by providing the remedy of damages against the tortfeasor. If the publication of defamatory matter were not chilled by the remedy, there would be no sanction for publications that are neither justified nor excused. The question is not whether the absolute freedom to discuss government, governmental institutions and political matters is chilled by the law of defamation but whether the law of defamation, by chilling the publication of certain defamatory matter, is inconsistent with a constitutional implication. Whether one approaches that question by characterizing the implication as a limitation on power or by perceiving that the restrictions imposed by the defamation laws achieve the legitimate purpose of protecting reputations, the answer is the same: the common law of defamation is not inconsistent with any implication drawn from the text or structure of the Constitution.

The statutes of the States and Territories

26. The mechanism by which the constitutional implication operates on State enactments is the same as the mechanism by which it operates on enactments of the Commonwealth Parliament, namely, by limiting the power to enact laws that infringe the Constitution. Similarly, in the case of the enactments of a territorial legislature, except that a restriction on territorial powers may be imposed indirectly, by way of restriction upon Parliament's power to confer on a Territory legislative power that could be exercised inconsistently with the Constitution: see Capital Duplicators Pty. Ltd. v. Australian Capital Territory (No.1)((110) [1992] HCA 51; (1992) 177 CLR 248.). The same test of validity can be applied to the statutes of a State as that applied to the laws of the Commonwealth, for the constitutional prohibition against unnecessary restriction on the freedom of discussion that is conducive to the formation and exercise of political judgments limits the powers of the Parliament of a State (s.107) in conformity with the State's Constitution (s.106) to make such laws as it deems to be for the peace, order and good government of the State. The powers of territorial legislatures are similarly limited.

27. In some parts of the Commonwealth, the defence of truth is qualified by a statutory requirement of public interest or public benefit((111) The Criminal Code (Q.), s.376; Defamation Act 1957 (Tas.), s.15; Defamation Act 1974 (N.S.W.), s.15(2); (for the Australian Capital Territory) Defamation Act 1901 (N.S.W.), s.6.). If the publication of defamatory matter that is true would enable the people of the Commonwealth to form or to exercise the political judgments required for the performance of their constitutional functions, the requirement of public interest or public benefit would necessarily be satisfied((112) Mackay v. Bacon [1910] HCA 71; (1910) 11 CLR 530 at 536; Howden v. "Truth" and "Sportsman" Ltd. [1937] HCA 74; (1937) 58 CLR 416 at 427.). There can be no inconsistency between that requirement and the freedom to discuss government implied in the Constitution. As to the several statutes which affect the defence of qualified privilege, none has been shown to confine the freedom to speak or to publish more narrowly than the common law((113) See, for example, Telegraph Newspaper Co. Ltd. v. Bedford [1934] HCA 15; (1934) 50 CLR 632; Pervan v. North Queensland Newspaper Co. Ltd.). In any event, the respective legislatures have determined that the qualifications imposed by their respective enactments on the lawfulness of the publication of defamatory matter are the desirable qualifications for the proper preservation of personal reputations. In determining whether the means adopted by a legislature are appropriate and adapted to a legitimate purpose, this Court is bound to acknowledge that the legislature has a "margin of appreciation" in choosing what is appropriate((114) ACTV (1992) 177 CLR at 159.). In making that choice, a legislature is entitled to take into account the view that a less demanding law of defamation would have a "chilling effect" on the willingness of those who place some store by their personal reputations to seek election to, and to serve in, public office. It cannot be said that the present laws have precluded the people of the Commonwealth from forming or exercising the political judgments required for their participation in the system of representative government.

28. The real arguments against the practical effect of the defamation laws seem to me, with respect, to have little to do with any implication drawn from the Constitution. For example, it might be said that, although defamatory matter could lawfully be published, it is not published because of the fear of litigation or of the costs involved or the onus of proving truth is too troublesome or the disclosure of sources is unacceptable or the risk of damages is too high. The response is simply that the Constitution can offer no protection against civil liabilities merely because a party decides, for its own reasons, not to incur the risk in lawfully publishing defamatory matter. Perhaps the real inhibition against the publication of defamatory matter that could and should lawfully be published for the information of the public is a distrust of juries or a concern about the cost of litigation. If these factors call for the protection of publishers, a mantle of immunity must be found elsewhere than in the Constitution.

Overseas authorities

29. The first defendant's submission that a freedom to publish founded on the Constitution is available is supported by reference to decisions of the Supreme Court of the United States (notably the opinion of Brennan J in New York Times Co. v. Sullivan((115) [1964] USSC 40; (1963) 376 US 254.)), the Supreme Court of Canada and the European Court of Human Rights. But, in truth, the assistance which cases decided under other Constitutions or Conventions can give in determining the scope of the freedom is extremely limited. That is because the scope of the freedom to discuss government under our Constitution must be ascertained from the text and structure of the Constitution construed in accordance with rules which we have held to be applicable, distinguishing cases in other jurisdictions based on instruments containing provisions different from our own. By contrast, the Constitutions of the United States and Canada and the European Convention on Human Rights each expressly creates, or has been construed as expressly creating, a freedom of speech or communication((116) The United States: The Supreme Court so interprets the First Amendment which reads:

"Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and

to petition the Government for a redress of

grievances."

Canada: Section 2 of the Canadian Charter of Rights and Freedoms

"Everyone has the following fundamental freedoms:

(a) ...

(b) freedom of thought, belief, opinion and

expression, including freedom of the press and

other media of communication;

(c) ...

(d) ..."

European Convention: Article 10 cl.1 of the Convention reads:

"Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to

receive and impart information and ideas without

interference by public authority and regardless of

frontiers. This Article shall not prevent States from

requiring the licensing of broadcasting, television or

cinema enterprises.") and each contains provisions

30. It appears that, at one time, the prevention of libellous speech was not thought to raise any constitutional problem under the First and Fourteenth Amendments of the United States Constitution((118) Chaplinsky v. New Hampshire [1942] USSC 50; (1942) 315 US 568 at 571-572.) but, in New York Times Co. v. Sullivan, the Supreme Court reversed that view. Brennan J who delivered the Opinion of the Court declared((119) (1963) 376 US at 279-280.):

" The constitutional guarantees require ... a federal rule

that prohibits a public official from recovering damages

for a defamatory falsehood relating to his official conduct

unless he proves that the statement was made with 'actual

malice' - that is, with knowledge that it was false or with

reckless disregard of whether it was false or not."

31. At base, the doctrine of New York Times Co. v. Sullivan rests on the Supreme Court's estimate of the trust placed by the American people in the outcome of unfettered expressions of view on public issues((127) ibid. at 270.). Going beyond the textual limitation on power ("Congress shall make no law") the Supreme Court elevated the First Amendment to the level of a constitutional right or privilege to be claimed by the mass media and, perhaps, by non-media defendants((128) Christie, "The Public Figure Plaintiff v. The Nonmedia Defendant in Defamation Law: Balancing the Respective Interests" (1983) 68 Iowa Law Review 517.) who publish defamatory matter of public officials or public figures((129) Curtis Publishing Co. v. Butts [1967] USSC 200; (1967) 388 US 130 at 163-165.) but not, it seems, of private persons((130) Gertz v. Robert Welch, Inc. [1974] USSC 144; (1974) 418 US 323.). In Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc.((131) [1985] USSC 173; (1985) 472 US 749 at 776.) Brennan J, dissenting, said:

" In New York Times Co. v. Sullivan the Court held that

the First Amendment shields all who speak in good faith

from the threat of unrestrained libel judgments for

unintentionally false criticism of a public official."

32. The text of the United States Constitution finds no resonance in our own Constitution((132) See per Dawson J in ACTV (1992) 177 CLR at 182.). The history which has so affected the interpretation of the First and Fourteenth Amendments is different from ours((133) See Attorney-General (Vict.); Ex Rel. Black v. The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 at 603.). We have no First Amendment, no Bill of Rights. Indeed, our Founding Fathers were not attracted to a Bill of Rights though the American model was before them. As Mason CJ pointed out in ACTV((134) (1992) 177 CLR at 136. See La Nauze, The Making of the Australian Constitution, (1972) at 227-232. The proposal to introduce into our Constitution a provision similar to s.1 of the Fourteenth Amendment was rejected by the Melbourne Convention in 1898: Debates, vol.4 at 690.):

"it is difficult, if not impossible, to establish a

foundation for the implication of general guarantees

of fundamental rights and freedoms. To make such an

implication would run counter to the prevailing sentiment

of the framers that there was no need to incorporate a

comprehensive Bill of Rights in order to protect the rights

and freedoms of citizens. That sentiment was one of the

unexpressed assumptions on which the Constitution was

drafted."

33. The onus which New York Times Co. v. Sullivan places on a public official plaintiff to prove with convincing clarity that the defendant's publication of the matter which defamed the plaintiff was made "with knowledge that it was false or with reckless disregard of whether it was false or not" demonstrates a radical difference in the legal culture of our two countries. There, the constitutional privilege to defame a public figure without penalty is lost only by clear proof of a deliberate abuse of the privilege; here, the defamation of a person must be justified or excused by the defamer. There, the purpose of the law established by New York Times Co. v. Sullivan is to define the conditions in which the constitutional privilege is forfeited; here, the purpose is to protect personal reputation to an extent appropriate in a society which also values free speech. Our tradition accords with the view stated by Wood JA in the Canadian case of Derrickson v. Tomat((135) (1992) 88 DLR (4th) 401 at 408.):

" The rule in the New York Times case leaves vulnerable

the reputation of all who are or would be in public life,

by depriving such people of any legal recourse from

defamatory falsehoods directed against them, except in

those rare cases where 'actual malice' can be established.

Such a rule would be likely to discourage honest and decent

people from standing for public office. Thus, the rule

destroys, rather than preserves, the delicate balance

between freedom of expression and protection of reputation

which, as I have already noted, is vital to the survival of

our democratic process of government."

34. It would be as presumptuous as it is irrelevant to comment on the uniquely American historical background to the ruling in New York Times Co. v. Sullivan or on the appropriateness of its doctrine for the people of the United States. What is material is that there is no basis on which to attribute to New York Times Co. v. Sullivan any persuasive influence on the interpretation of the Australian Constitution.

35. In Canada, although the Charter freedom restricts action by government - including executive action taken under the common law prerogative - by reason of s.32 of the Charter((136) "This Charter applies (a) to the Parliament and government of Canada ... (b) to the legislature and government of each province ..."), it has not been treated as affecting private litigation((137) Retail, Wholesale and Department Store Union v. Dolphin Delivery Ltd. (1986) 33 DLR (4th) 174 at 194-198.). Departing from the approach taken in the United States, Court judgments in Canada are not treated as "governmental action"((138) ibid. at 196.). The freedom of expression guaranteed by s.2 of the Charter has not been understood as the equivalent of a constitutional privilege to defame public figures. Section 2 is at least an express guarantee of a freedom similar in content to the freedom of speech conferred by the First Amendment of the United States Constitution, yet the reasoning in New York Times Co. v. Sullivan does not appear to have been followed in the Canadian construction of s.2((139) Brown, The Law of Defamation in Canada, (1987), vol.2 at 1096.). In Coates v. The Citizen((140) (1988) 85 NSR (2d) 146 at 162.), Richard J cited with approval Brown's observation:

"Unlike their American colleagues, therefore, our judges

have weighed more heavily the value of personal reputation

over those of free speech and free press. Thus there

occurs in many of their decisions a careful reminder that

these freedoms are ones 'governed by law' and that there is

no 'freedom to make untrue defamatory statements'."

36. In the European Convention, cl.2 of Art.10((142) Clause 2 reads in part as follows:

"The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as

are prescribed by law and are necessary in a

democratic society, ... for the protection of the

reputation or rights of others, for preventing the

disclosure of information received in confidence, or

for maintaining the authority and impartiality of the

judiciary.") subjects the

37. In short, there is no parallel in our Constitution with any of the provisions of the United States Bill of Rights, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights. The law of defamation, whether common law or statutory, is not an unnecessary restriction on the absolute freedom to discuss government, governmental institutions and political matters. The relevant implication in our Constitution does not limit the operation of the law of defamation in protecting the personal reputations of public officials including members of the Parliament and candidates for election to Parliament. Accordingly, the Constitution creates no area of immunity from the operation of the law of defamation within which defamatory matter may be published without civil liability. It follows that the freedom implied in the structure of the Constitution is not "a freedom to publish material" and the answer to Question 1 must be "no". It is unnecessary to answer Questions 2 and 3. The pleas contained in pars 11 and 12 of the first defendant's amended defence are bad in law, and therefore Question 4 should be answered "yes".

DEANE J Nationwide News Pty. Ltd. v. Wills((147) [1992] HCA 46; (1992) 177 CLR 1.) and Australian Capital Television Pty. Ltd. v. The Commonwealth((148) [1992] HCA 45; (1992) 177 CLR 106.) establish that there is to be drawn from the doctrine of representative government which forms part of the fabric of the Constitution a fundamental implication of freedom of political communication and discussion. So much was common ground between all parties and interveners in the argument of this case. In issue are the applicability of that constitutional implication to the laws of a State, whether statutory or inherited, imposing or defining civil liability for defamation and, if it be applicable to them, the effect of the implication upon the defamation laws of Victoria. Is the implication applicable to State legislative powers and laws?

2. In Nationwide News Pty. Ltd., Toohey J and I concluded that, for the reasons which we gave and which it is unnecessary to repeat, the Constitution's implication of freedom of political communication and discussion "extends to all political matters, including matters relating to other levels of government within the national system (of government) which exists under the Constitution"((149) (1992) 177 CLR at 75.). I adhere to those reasons and that conclusion which bear upon, but do not of themselves provide an answer to, the question whether the Constitution's implication applies to confine the legislative powers and laws of a State. In this section of my judgment, I explain why I would give an affirmative answer to that question.

3. The primary or most obvious application of the constitutional implication is that which was involved in Nationwide News Pty. Ltd. and Australian Capital Television Pty. Ltd., namely, to confine the content of the grants of legislative power which are contained in the various paragraphs of s.51 of the Constitution and which the introductory words of that section expressly make "subject to" the Constitution as a whole. One effect of its application to those grants of power is that the constitutional implication also controls the content of the legislative, executive or judicial power which may validly be conferred by legislation enacted pursuant to them. Arguably, the implication also applies to confine the content of other legislative, executive or judicial powers which are directly conferred by provisions of the Constitution which do not in terms make their conferral "subject to" the Constitution as a whole((150) See, e.g., Chs II and III and ss.111 and 122.). It is unnecessary to pursue that question for the purposes of the present case since, as will be seen, State legislative powers are not conferred and State laws are not supported by such provisions. I would, however, indicate a tentative view that the implication does at least apply to confine the Parliament's legislative powers with respect to internal Territories and accordingly restricts the powers which may be conferred upon the organs of government of those Territories.

4. Upon Federation, the federating Colonies were transformed into States which thenceforth derived existence and authority from the Constitution itself. Both State constitutions and State laws were continued by the Constitution. That continuation was, however, subject to the provisions of the Constitution as a whole, including the Constitution's implication of freedom of political communication and discussion. Thus, covering cl.5 provided that the Commonwealth of Australia Constitution Act 1900 (Imp.), which incorporated the Constitution in s.9 of its text, "shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State". More important for present purposes, s.106 and s.108 of the Constitution expressly provided that the continuation of State constitutions and State laws was "subject to this Constitution". Those two sections, and s.107 which falls between them, read as follows:

"106. The Constitution of each State of the

Commonwealth shall, subject to this Constitution, continue

as at the establishment of the Commonwealth, or as at the

admission or establishment of the State, as the case may be,

until altered in accordance with the Constitution of the

State.

107. Every power of the Parliament of a Colony which

has become or becomes a State, shall, unless it is by this

Constitution exclusively vested in the Parliament of the

Commonwealth or withdrawn from the Parliament of the State,

continue as at the establishment of the Commonwealth, or as

at the admission or establishment of the State, as the case

may be.

108. Every law in force in a Colony which has become

or becomes a State, and relating to any matter within the

powers of the Parliament of the Commonwealth, shall, subject

to this Constitution, continue in force in the State; and,

until provision is made in that behalf by the Parliament of

the Commonwealth, the Parliament of the State shall have

such powers of alteration and of repeal in respect of any

such law as the Parliament of the Colony had until the

Colony became a State."

5. The conclusion that the constitutional implication of freedom of political communication and discussion confines the content of State laws and legislative powers under the Constitution does not rest merely on the textual considerations mentioned above. It is also supported by common sense and persuasive authority. Common sense, in that it would border on the absurd if State laws continued, or enacted pursuant to legislative powers continued, by the Constitution could restrict political communication and discussion to an extent or in a way which undermined the freedom of political communication which was implicit in the doctrine of representative government which was embodied in the Constitution as a whole. Persuasive authority, in that both Griffith CJ and Barton J affirmed in R v. Smithers; Ex parte Benson((151) [1912] HCA 92; (1912) 16 CLR 99 at 108-109 per Griffith CJ and 109-110 per Barton J; and see, also, Pioneer Express Pty. Ltd. v. Hotchkiss [1958] HCA 45; (1958) 101 CLR 536 at 550 per Dixon CJ and, generally, Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR at 73-74.) that the closely related constitutional implication of freedom of access by the represented to the organs and instrumentalities of their representative government which had been recognized by the United States Supreme Court in Crandall v. State of Nevada((152) [1867] USSC 15; (1867) 73 US 35 at 44-45.) as limiting the legislative powers of the US States similarly applied under our Constitution to confine the laws and legislative powers of the Australian States.

6. It follows that the Constitution's implication of freedom of political communication and discussion is applicable to confine both the content of State legislative powers and the content of State laws whether statutory or inherited.

7. Before leaving this aspect of the case, it would seem desirable to make specific reference to an argument which has been increasingly advanced in recent times and which invokes what is said to have been the intention of the framers of the Constitution. In summary, that argument is to the effect that the failure of those framers to follow the United States example of including an express catalogue or "bill" of "rights" demonstrates that it was their intention that such constitutional "rights" should not be implied from the terms or doctrines of the Constitution but should be left to be determined by the common law as developed or altered by the various legislatures in the exercise of the legislative powers which the Constitution either created or preserved. That argument, or some variation of it, would seem to constitute the true basis of the contention that the Constitution's implication of freedom of political communication and discussion should be confined so that it only applies to limit the content of Commonwealth legislative powers and does not extend to confer complete or partial immunity from the operation of otherwise valid State laws. With due respect to those who see the matter differently, the argument seems to me to be flawed at every step it takes beyond the obvious facts that our Constitution does not incorporate a "Bill of Rights" of the type contained in the United States model and that the framers of our Constitution had confidence in the common law. For one thing, the argument reverses ordinary principles of construction. For another, it imputes to the framers of our Constitution an intention which it would seem they did not have. Most important, the argument seems to me to adopt a theory of construction of the Constitution which unjustifiably devitalizes its provisions by effectively treating its long dead framers rather than the living people as the source of its legitimacy. I turn to explain those comments.

(i) Ordinary principles of construction

8. There are circumstances in which an express conferral of rights by an instrument will, by reason of the rule of expressio unius, preclude the implication of other rights((153) See, for an example of the application of the rule to the Australian Constitution, Roughley v. New South Wales; Ex parte Beavis (1928) 42 CLR 162 at 198 per Higgins J But cf. Leeth v. The Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 484-485 per Deane and Toohey JJ). Indeed, it would be at least arguable that, if our Constitution had included an express detailed "Bill of Rights" such as that contained in Amendments to the United States Constitution, the implication of other "rights" either from other express provisions or from the doctrines which the Constitution incorporates would be precluded or impeded. No doubt, it is for that reason that the United States Bill of Rights includes an express provision((154) The Ninth Amendment.) that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". Be that as it may, it is to stand ordinary principles of construction on their head to maintain that a failure to include such an express bill of constitutional "rights" is a consideration precluding or militating against, rather than a consideration facilitating, the implication of such "rights" from the fundamental doctrines or express provisions of the Constitution.

9. Moreover, while it is true that our Constitution does not include a "Bill of Rights" corresponding with that incorporated in the United States model, the contrast between the two instruments in that regard cannot be pushed too far. I have, in the two preceding paragraphs, placed quotation marks around the word "rights" and the phrase "Bill of Rights" for the reason that, in a constitutional context, the word "rights" is commonly used as referring not only to rights in the sense of expressly conferred free standing rights enforceable against either the world or particular persons who are under a corresponding duty but also to privileges and immunities which are inherent in, or flow from, constitutional restrictions upon legislative, executive or judicial power. It is in that broad sense that the word is used when the phrase "Bill of Rights" is applied to the first ten or fourteen Amendments of the United States Constitution since some of the most important provisions contained in those Amendments are framed merely in terms of restriction of legislative and executive((155) See, e.g., the First Amendment, the Fifth Amendment and s.1 of the Fourteenth Amendment.) (and even judicial((156) See the Eighth Amendment.)) powers. In so far as those clauses of the United States Constitution are concerned, there is no true contrast at all with the Australian Constitution which contains a very large number of provisions confining the legislative and executive powers of the Commonwealth and/or the States whose obvious effect is to confer privileges and immunities upon the citizen((157) Some obvious examples are ss.41, 80, 92, 116 and 117.). Essentially, the freedom of political communication and discussion which is an implication of the Constitution's incorporation of the doctrine of representative government constitutes a limitation or confinement of Commonwealth and State laws and powers. Of itself, such a limitation or confinement of laws and powers gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a "right" in the strict sense.

(ii) The intention of the framers

10. To the extent that the views of the framers of the Constitution can be gleaned from the largely ex tempore and sometimes ill-informed speeches and comments of participants in the Convention debates, they lend no real support for the proposition that the absence of an express bill of constitutional rights was intended by the framers to preclude the implication of such rights. Certainly, as R. v. Smithers; Ex parte Benson clearly demonstrates, two of the principal framers did not subscribe to that proposition.

11. In Smithers, Griffith CJ found it unnecessary to rely on the express provisions of either s.92 or s.117 to explain the limitation under the Constitution of the former powers of the Australian colonies to exclude persons thought to be undesirable. His Honour commented that the continuance of such a power to its full extent after Federation was "inconsistent with the elementary notion of a Commonwealth" and quoted and adopted((158) (1912) 16 CLR at 108-109.) the following passage from the judgment of the United States Supreme Court (delivered by Miller J) in Crandall v. State of Nevada((159) (1867) 73 US at 44.):

"But if the government has these rights on her own

account, the citizen also has correlative rights. He has

the right to come to the seat of government to assert any

claim he may have upon that government, or to transact any

business he may have with it. To seek its protection, to

share its offices, to engage in administering its functions.

He has a right to free access to its sea-ports, through

which all the operations of foreign trade and commerce are

conducted, to the sub-treasuries, the land offices, the

revenue offices, and the courts of justice in the several

States, and this right is in its nature independent of the

will of any State over whose soil he must pass in the

exercise of it."

12. That assertion by two of the leading framers of our Constitution of the implication of "rights" of the citizen from the institutions of national government which the Constitution established was not surprising. Some eleven years earlier, in the very year in which the Constitution commenced its operation, two other great lawyers of Federation, Quick and Garran, had recognized((162) The Annotated Constitution of the Australian Commonwealth, (1901) at 958.), as implicit in the Constitution, an immunity of the citizen from State laws which corresponded with the Bill of Rights's express conferral, in the Fourteenth Amendment, of immunity from State laws abridging "the privileges or immunities of citizens of the United States". Quick and Garran went on to list some of the rights, privileges and immunities which they considered could be "gathered from the express provisions or necessary implications" of our Constitution notwithstanding the absence of any express affirmation of them and which "cannot be impaired or abridged by State legislation". They wrote((163) ibid):

"Although there is no special section affirming the

existence of Federal privileges and immunities, such

privileges and immunities may be gathered from the express

provisions or necessary implications of the Constitution.

Among the most prominent Federal privileges may be mentioned

those relating to the suffrage - the right to vote at

elections for both houses of the Federal Parliament

(sec.41); the right to participate, on terms of equality,

in trade and commerce between the States and with other

countries (secs.51-i. and 99); the right to have the

benefit of the postal, telegraphic, and telephonic services

(sec.51-v.); the right to share the protection of the naval

and military forces of the Commonwealth (sec.51-vi.); the

right to use the navigable waters of the Commonwealth for

the purposes of trade and commerce (sec.98); the right to

pass from one State into another and to hold intercourse

with foreign countries (secs.51-i. and 92). To be allowed

to visit the seat of Government, to gain access to Federal

territories, to petition the Federal authorities, to examine

the public records of the Federal courts and institutions,

are rights which, if not expressly granted, may be inferred

from the Constitution, and which could not be taken away or

abridged by the States any more than those directly and

clearly conveyed."

(iii) The Constitution: "a living force"

13. The present legitimacy of the Constitution as the compact and highest law of our nation lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people. While they remain unaltered, it is the duty of the courts to observe and apply those provisions, including the implications which are legitimately to be drawn from their express terms or from the fundamental doctrines which they incorporate and implement. There is absolutely nothing in the provisions of the Constitution which suggests an intention on the part of the people either that the ordinary rules of construction should be ignored or that the failure to include a detailed list of their constitutional "rights" should be treated as somehow precluding or impeding the implication of rights, privileges and immunities from either the Constitution's express terms or the fundamental doctrines upon which it was structured and which it incorporated as part of its very fabric. That being so, even if it could be established that it was the unexpressed intention of the framers of the Constitution that the failure to follow the United States model should preclude or impede the implication of constitutional rights, their intention in that regard would be simply irrelevant to the construction of provisions whose legitimacy lay in their acceptance by the people. Moreover, to construe the Constitution on the basis that the dead hands of those who framed it reached from their graves to negate or constrict the natural implications of its express provisions or fundamental doctrines would deprive what was intended to be a living instrument of its vitality and its adaptability to serve succeeding generations. Indeed, those errors of such a dead hands theory of construction were made plain by Inglis Clark in explaining why the Constitution was "to be construed as having reference to varying circumstances and events"((164) Studies in Australian Constitutional Law, (1901), at 20, sidenote.). Though the passage is a lengthy one, it is of such importance and contemporary relevance that it is appropriate to incorporate it in this judgment((165) ibid. at 21-22.):

"the Constitution was not made to serve a temporary and

restricted purpose, but was framed and adopted as a

permanent and comprehensive code of law, by which the

exercise of the governmental powers conferred by it should

be regulated as long as the institutions which it created to

exercise the powers should exist. But the social conditions

and the political exigencies of the succeeding generations

of every civilized and progressive community will inevitably

produce new governmental problems to which the language of

the Constitution must be applied, and hence it must be read

and construed, not as containing a declaration of the will

and intentions of men long since dead, and who cannot have

anticipated the problems that would arise for solution by

future generations, but as declaring the will and intentions

of the present inheritors and possessors of sovereign power,

who maintain the Constitution and have the power to alter

it, and who are in the immediate presence of the problems to

be solved. It is they who enforce the provisions of the

Constitution and make a living force of that which would

otherwise be a silent and lifeless document. Every

community of men is governed by present possessors of

sovereignty and not by the commands of men who have ceased

to exist. But so long as the present possessors of

sovereignty convey their commands in the language of their

predecessors, that language must be interpreted by the

judiciary consistently with a proper use of it as an

intelligible vehicle of the conceptions and intentions of

the human mind, and consistently with the historical

associations from which particular words and phrases derive

the whole of their meaning in juxtaposition with their

context. If the present possessors of sovereignty discover

that the result so produced is contrary in particular cases

to their will in regard to future cases of a like character,

they will amend the language which they previously retained

as the expression of their will. If they do not amend it

they must be presumed to accept the interpretation put upon

it by the judiciary as the correct announcement of their

present commands."

14. In the context of that principle of constitutional construction, the fact that both the framers of the Constitution and succeeding generations intended or accepted that political communication and discussion in this country would be or were subject to all the restraints and liabilities of ordinary defamation laws cannot justify the approach that, regardless of changes in social conditions and political exigencies and perceptions, the courts must hold that that must always be so. All that that fact establishes is that the implications to be drawn from the Constitution's doctrine of representative government were not seen, in all the circumstances of times that are gone, as precluding the application of the ordinary laws of defamation to political communication and discussion. Thus, one can but speculate about whether that view would have prevailed even in those past times if, to take an extreme example, the defamation laws of some State or States had been amended to exclude all defences of truth, fair comment and qualified privilege with the result that those entrusted by the people with the exercise of powers of government were effectively immunized throughout that State or those States from any injurious criticism, however true and fair, by those on whose behalf they exercised those powers. For my part, I do not doubt that both the framers of the Constitution and those succeeding generations would have insisted that the application of such defamation laws to preclude all real criticism by the represented of their representatives was quite inconsistent with the Constitution's system of representative government and was invalid.

15. Since 1901, a variety of important developments have combined to transform the nature and extent of political communication and discussion in this country and to do much to translate the Constitution's theoretical doctrine of representative government with its thesis of popular sovereignty into practical reality. The more important of those developments include: the introduction of both universal adult franchise((168) In 1901, South Australia and Western Australia alone had enfranchised women. Aborigines and other racial minorities were specifically disenfranchised in Western Australia and Queensland. Persons in receipt of particular kinds of charitable or government aid or relief could not vote in New South Wales, Victoria, Queensland and Western Australia while Tasmania imposed a property or income qualification. Multiple voting, based on ownership of property in different electorates, was permitted in Queensland, Tasmania and Western Australia.) and compulsory voting((169) In 1901, voting was not compulsory in any State.); the extraordinary development and increased utilization of the means of mass communication; advances in general education; and, the increasing appreciation and assertion of the intrinsic equality of all human beings. These developments have greatly enhanced the need to ensure that there be unrestricted public access to political information and to all political points of view. Yet, in the same period, the use of defamation proceedings in relation to political communication and discussion has expanded to the stage where there is a widespread public perception that such proceedings represent a valued source of tax-free profit for the holder of high public office who is defamed and an effective way to "stop" political criticism, particularly at election times((170) Indeed, the phrase "stop writ" has entered the language.). That widespread perception may well be exaggerated or unjustified. Its effect is, however, to intensify the chilling effect of a threat or perceived risk of defamation proceedings. In the context of those dramatic changes since 1901, there is manifest wisdom in Inglis Clark's instruction that, in its application to contemporary conditions and exigencies, the Constitution must be treated as "a living force" and not as "a declaration of the will and intentions of men long since dead". In following that instruction in the present case, the Court must take full account of contemporary social and political circumstances and perceptions in determining whether an unqualified application of State defamation laws to political communication and discussion is consistent with the constitutional implication of freedom.

State defamation laws

16. The law of defamation in most Australian jurisdictions((171) i.e. the "non-code" jurisdictions of New South Wales, Victoria, South Australia, Western Australia, the Northern Territory and the Australian Capital Territory.) is "a mosaic of statute and common law"((172) Fleming, The Law of Torts, 8th ed. (1992) at 524.). The variations between the six different States are considerable. Subject to one presently unimportant qualification((173) Namely, the continuation of both the common law distinction between libel and slander and the need to prove material injury in an action for slander in some jurisdictions.), the broad central proposition of the defamation law is, however, the same in all jurisdictions. It is that a person who publishes an assertion of fact or a comment which injures (or is "likely" to injure) the reputation of another person is guilty of a tort and liable in damages unless he or she can positively justify or excuse the publication in the particular circumstances of the case. In proceedings for damages for the publication of a defamatory statement((174) The word "statement" is hereinafter used to refer to statements of fact or comment and the words "publication" and "publish" are used to refer to any of the methods by which an imputation of fact or a comment can be communicated.), a plaintiff may succeed notwithstanding that he or she calls no evidence to establish either that the defamatory statement was false or that the defendant was motivated by malice or was guilty of negligence or some other fault. Proof of the mere publication of the defamatory statement discharges the plaintiff's onus and casts upon the defendant the burden of positively establishing some defence.

17. The available defences in defamation proceedings vary from State to State. Four main general categories of defence can, however, be identified as being available in the various jurisdictions, namely, "truth" (or the combination of "truth" and either "public benefit" or "public interest"), "fair comment", "absolute privilege" and "qualified privilege". A defendant will fail in a defence based on truth unless he or she is able to establish by admissible evidence that each defamatory component of the particular statement is substantially true. A defence of "fair comment" will fail unless the comment be on a matter of "public interest" and unless, regardless of absence of malice, the comment be within the limits of what is fair. The defence of absolute privilege applies, when available, to all (or in some cases all relevant) statements made on the occasion of absolute privilege regardless of their truth or falsity or the motive which inspired the making of them. However, putting to one side special and exceptional circumstances such as statements made in judicial or certain quasi-judicial proceedings or between spouses, the defence of absolute privilege is unavailable to the ordinary citizen who makes a defamatory statement in the course of ordinary political communication or discussion. The defence of qualified privilege is more likely to be available. It is, however, an unreliable shield. Even in a case where the allegedly defamatory statement was made about a subject of public interest, such as the performance a parliamentarian or holder of high office of his or her functions, the defence will fail if it be found that the defamatory statement was made not in good faith but maliciously. Even when the defamatory statement was made in good faith about a subject of public interest, there are circumstances, particularly in States such as Victoria where the common law applies, in which a defence of qualified privilege will be unavailable((175) See, e.g., Chapman v. Ellesmere (Lord) (1932) 2 KB 431; Morosi v. Mirror Newspapers Ltd. (1977) 2 NSWLR 749; Australian Broadcasting Corporation v. Comalco (1986) 68 ALR 259; Radio 2UE Sydney Pty. Ltd. v. Parker (1992) 29 NSWLR 448 at 459.). Where defamatory comment is involved, the defence of qualified privilege will ordinarily be unavailable if the comment was unfair.

18. The effect of the foregoing can be summarized by the following generalizations which are sufficiently accurate to be accepted for present purposes. The law of all Australian jurisdictions renders prima facie wrongful the publication of a defamatory statement and renders the publisher of such a statement liable in damages in legal proceedings unless he or she can persuade the court by admissible evidence either that each defamatory element of the statement is substantially true (or, if comment, fair) or that the circumstances were such as to found a defence of absolute or qualified privilege. The informed citizen will be aware that, in a context where a plaintiff in defamation proceedings bears no onus of establishing either the falsity of the defamatory statement or the existence of malice, negligence or other fault on the part of the defendant, there will inevitably be cases where problems of proof by admissible evidence result in a defendant being held liable in damages for publishing a statement which was in fact true. To that disincentive of the publication of even well founded damaging statements must be added the disincentive of the legal costs which a successful defendant will commonly((176) Even when party and party costs are awarded and recovered, there will commonly be an irrecoverable excess of solicitor and own client costs.) and an unsuccessful defendant will almost inevitably be required to bear. Quite apart from liability in damages, the direct and indirect costs involved in defending defamation proceedings in a superior court are likely to represent a crushing burden for the citizen who is unable to obtain legal aid from some government source. The result is that the informed citizen who is not foolish or impecunious will inevitably be deterred from making, repeating, or maintaining a statement which causes injury to the reputation of another if there be a perceived risk or actual threat that the publication or further publication of the statement or a refusal to retract it will give rise to defamation proceedings. And that will be so even if the defamatory statement is known or believed to be true. As the United States Supreme Court observed in New York Times Co. v. Sullivan((177) [1964] USSC 40; (1964) 376 US 254 at 279.):

"Allowance of the defense of truth, with the burden of

proving it on the defendant, does not mean that only false

speech will be deterred. Even courts accepting this defense

as an adequate safeguard have recognized the difficulties of

adducing legal proofs that the alleged libel was true in all

its factual particulars. ... Under such a rule, would-be

critics of official conduct may be deterred from voicing

their criticism, even though it is believed to be true and

even though it is in fact true, because of doubt whether it

can be proved in court or fear of the expense of having to

do so."

19. It can, of course, be argued that the defamation laws of the States do not curtail freedom of political communication or discussion in that, subject to limited exceptions, they do not forbid publication under criminal sanction but merely impose civil liability in respect of what is published. A partial answer to that argument is that a publication which attracts civil but not criminal liability is nonetheless unlawful and can, in an appropriate case, be restrained. The full answer to it is, however, that it is now well settled that, in the application of constitutional guarantees or immunities, one must look to substance rather than form. When that is done, it is apparent that potential civil liability in damages and costs is likely to represent a much more effective curtailment of the freedom of political communication and discussion than the possibility of conviction of most of the many criminal offences which are punishable by a pecuniary penalty((179) See, e.g., City of Chicago v. Tribune Co. (1923) 139 NE 86.).

The relationship between the Constitutional implication and State defamation laws

20. To a significant extent, the law of defamation in our various State jurisdictions represents the adjustment, by the State Parliament or by the common law, of the competing demands of freedom of speech on the one hand and protection of individual reputation on the other. That adjustment cannot, however, override the operation or effect of the Constitution's implication of freedom of political communication and discussion to which, as has been seen, State laws and legislative powers are subjected. Nor can the approach be adopted by this Court that the common law's or a State Parliament's adjustment of the competing claims of free speech and private reputation should be simply accepted as dispensing with a full and proper consideration of the question whether the curtailment of political communication and discussion effected by a State's defamation laws is consistent with the constitutional implication. For one thing, that approach would represent an abnegation of the Court's constitutional function and duty. For another, the common law's or a State Parliament's adjustment of the competing claims of general free speech on the one hand and the need to protect reputation on the other will inevitably have been made without regard to the Constitution's specific implication of the freedom of one particular category of communication and speech.

21. In a democracy such as Australia, ordinary political communications and discussions commonly involve the making of statements which injure or are likely to injure the reputation of others. State defamation laws which provide that the making of such statements to another person is wrongful and which render the maker liable in damages unless one of the available defences can be established by admissible evidence to the satisfaction of a court seriously and directly curtail a particular class or type of communication or discussion which is a necessary ingredient of effective political communication and discussion. Such a curtailment of the freedom of political communication and discussion is consistent with the implication only to the extent to which it can, according to the standards of our society, be justified in the public interest either for the reason that it is conducive to the overall availability of the effective means of political communication and discussion in a democratic society((180) See, e.g., Miller v. TCN Channel Nine Pty. Ltd. [1986] HCA 60; (1986) 161 CLR 556 at 567, 591, 597-598, 629-630; Red Lion Broadcasting Co. v. F.C.C. [1969] USSC 141; (1969) 395 US 367 at 375-377.) or it does not go beyond what is necessary either for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society((181) See Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR at 76-77.). In my judgment in Cunliffe v. The Commonwealth((182) Unreported, 12 October 1994, at 51.), I pointed out that the word "necessary" in that formulation was used in the sense explained by Lord Goff of Chieveley in Attorney-General v. Guardian Newspapers (No.2)((183) [1988] UKHL 6; (1990) 1 AC 109 at 283-284. See also Lingens v. Austria [1986] ECHR 7; (1986) 8 EHRR 407 at 418.):

"'necessary' in this context implies the existence of a

pressing social need, and that interference with freedom of

expression should be no more than is proportionate to the

legitimate aim pursued".

22. Whether a particular curtailment of freedom of political communication or discussion can be justified as being in the public interest in that limited sense will depend not only on the nature, extent and claimed justification of the curtailment. It may also depend, to a significant extent, on the nature or category of political communication or discussion which is involved in the particular case. Considerations which may suffice to justify an abridgment of the freedom of some categories of political communication or discussion may be clearly inadequate to justify other categories. Thus, 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 publication, in the course of political communication or discussion, of statements about the character or competence of some junior government employee but unjustifiable in its application to the publication of statements made about parliamentarians, judges or other holders of high office in relation to the performance of their official functions. The relevant category in the present case consists of statements about the conduct or consequent suitability for office of a member of the Commonwealth Parliament((184) I use the phrase "consequent suitability for office" (or, more concisely, "suitability") in this judgment, in association with the phrase "official conduct", to refer to suitability for office as disclosed by conduct in the course of, or in the course of seeking election or appointment to, either the particular public office or some earlier public office or public employment which the person concerned has held or sought.). I confine the relevant category to statements about official conduct or consequent suitability for office for the reason that, in my view, statements about the private conduct or affairs of a member of the Parliament fall into a different category, except to the extent that they bear upon the propriety, appropriateness or significance of official conduct.

Curtailment of criticism of members of the Parliament

23. As has been said, the basis of the constitutional implication of freedom of political communication and discussion is the doctrine of representative government which forms part of the fabric of the Constitution. That doctrine reflects both the central thesis and the theoretical foundation of our Constitution and the nation which it established, namely, that all powers of government ultimately belong to, and are derived from, the governed or in Madison's words, that "(t)he people, not the government, possess the absolute sovereignty"((185) Madison "Report on the Virginia Resolutions" Elliot's Debates on the Federal Constitution vol.4, 2nd ed. (1836), at 569.). As the above-quoted comments of Inglis Clark demonstrate, the perception that that is so is not a new one. Similarly, Quick and Garran described((186) The Annotated Constitution of the Australian Commonwealth, (1901), at 928.) the Federal Government and the State Governments as "merely different grantees and trustees of power, acting for and on behalf of the people of the Commonwealth". It is true that, in the context in which it was written, that description was necessarily accompanied by statements acknowledging that, before full national independence, Australia was but "a quasi-national State"((187) ibid. at 929.) and "the united and indivisible people of the Commonwealth" were but "quasi-sovereign"((188) ibid. at 928-929.). Obviously, any need for or justification of such qualifications evaporated with the emergence of a completely independent nation.

24. The freedom of the citizens of the Commonwealth to examine, discuss and criticise the official conduct and consequent suitability for office of persons entrusted with those powers of government, such as parliamentarians, judges and leading members of the Executive, is critical to the working of a democratic system of representative government of the type which the Constitution incorporates. As regards the official conduct or suitability of persons elected to serve as members of the Parliament, that freedom of examination, discussion and criticism is also essential to the proper working of the electoral processes upon which that system of representative government is based. As Duff CJ and Davis J commented in Re Alberta Legislation ((189) (1938) SCR 100 at 133; (1938) 2 DLR 81 at 107.):

"The statute contemplates a Parliament working under the

influence of public opinion and public discussion. There

can be no controversy that such institutions derive their

efficacy from the free public discussion of affairs, from

criticism and answer and counter-criticism, from attack upon

policy and administration and defence and counter-attack;

from the freest and fullest analysis and examination from

every point of view of political proposals. This is

signally true in respect of the discharge by Ministers of

the Crown of their responsibility to Parliament, by members

of Parliament of their duty to the electors, and by the

electors themselves of their responsibilities in the

election of their representatives."

25. To the like effect were the comments of the Judicial Committee of the Privy Council in Hector v. Attorney-General of Antigua((190) (1990) 2 AC 312 at 318 per Lord Bridge of Harwich.) which were recently quoted with approval by Lord Keith of Kinkel in his leading judgment in Derbyshire County Council v. Times Newspapers Ltd.((191) [1992] UKHL 6; (1993) AC 534 at 548.):

"In a free democratic society it is almost too obvious to

need stating that those who hold office in government and

who are responsible for public administration must always

be open to criticism. Any attempt to stifle or fetter such

criticism amounts to political censorship of the most

insidious and objectionable kind. At the same time it is no

less obvious that the very purpose of criticism levelled at

those who have the conduct of public affairs by their

political opponents is to undermine public confidence in

their stewardship and to persuade the electorate that the

opponents would make a better job of it than those presently

holding office."

26. There are, of course, weighty reasons which support the common law's protection of personal reputation by the imposition of liability to pay damages for defamation. Strong though they remain, however, those reasons are less powerful in the case of those who undertake the exercise of the powers of government in high public office in that the holders of such office, particularly parliamentarians entitled to be heard in the public and privileged forum of parliamentary proceedings, are likely to have greater access, by reason of their office, to the means of communication to refute or answer an untrue or unfair statement of fact or comment.

27. Conversely, the reasons weighing against the imposition of liability to pay monetary compensation for injury to reputation caused by statements made in the course of political communication or discussion are at their most powerful in a case where the statement in question is about the official conduct or suitability of the holders of high government office. In all jurisdictions in this country, parliamentarians, judges and other holders of high office are protected by absolute privilege in respect of defamatory words published by them in the course of parliamentary or court proceedings or in certain official communications. The justification of that immunity from liability even for unjustifiable and inexcusable defamatory statements is to encourage the fearless, vigorous and effective exercise of public power for the general good. As Learned Hand J explained in Gregoire v. Biddle((193) (1949) 177 F 2d 579 at 581.) :

"to submit all officials, the innocent as well as the

guilty, to the burden of a trial and to the inevitable

danger of its outcome, would dampen the ardor of all but the

most resolute, or the most irresponsible, in the unflinching

discharge of their duties".

"If the government official should be immune from

libel actions so that his ardor to serve the public will

not be dampened and 'fearless, vigorous, and effective

administration of policies of government'((195) Barr v. Matteo

(1959) 360 US 564 at 571.) not be

inhibited, ... then the citizen and the press should

likewise be immune from libel actions for their criticism of

official conduct. Their ardor as citizens will thus not be

dampened and they will be free 'to applaud or to criticize

the way public employees do their jobs, from the least to

the most important.'((196) ibid. at 577.

(197) See, e.g., the powerful dissenting judgment of Mahoney JA in

Council of the Shire of Ballina v. Ringland, unreported, New South

Wales Court of Appeal, 25 May 1994.) If liability can attach to

political criticism because it damages the reputation of

a public official as a public official, then no critical

citizen can safely utter anything but faint praise about the

government or its officials. The vigorous criticism by

press and citizen of the conduct of the government of the

day by the officials of the day will soon yield to silence

if officials in control of government agencies, instead of

answering criticisms, can resort to friendly juries to

forestall criticism of their official conduct."

28. That is not to suggest that the parliamentarian or other holder of high office who is entrusted with the exercise of government power is immune from the possibly devastating hurt, distress and even physical illness which are common consequences of serious injury to reputation. It is simply to recognize the seriousness of the curtailment of the freedom of political communication and discussion involved in an unqualified application of State defamation laws to preclude or inhibit the open and vigorous examination, debate and criticism of the official conduct and suitability of those who, as holders of high public office, undertake the exercise of government power. I turn to consider the critical question in the present case, namely, the extent to which that serious curtailment of the freedom of political discussion and communication can be relevantly justified.

29. There are three main lines of argument which can be advanced to support the contention that the serious curtailment of freedom of political communication and discussion involved in an unqualified application of State defamation laws is justified in the public interest in the limited sense explained above. The first is that to which reference has already been made, namely, the legitimate claim of the individual to protection from injury to reputation. I have already indicated why I consider that, weighty though they remain, the reasons supporting that protection are less powerful in the case of those who enjoy the advantages of high government office, such as a member of the Parliament. More important, there are legitimate reasons why the claims of the holders of high office in a representative government must be subordinated to the need for open and effective scrutiny and discussion of their official conduct and suitability. As has been said, all powers of government ultimately belong to, and are derived from, the people. It is not unreasonable that those who undertake the exercise of those powers, ordinarily for remuneration from the public purse, should be required to bear the burden of whatever is necessary to ensure full accountability to, and open scrutiny by, those whom they represent and whose powers they exercise. It is true that this argument can be pushed too far. Its essential validity seems to me, however, to be manifest.

30. The second line of justification is to the effect that the main impact of defamation laws upon political discourse is to penalize the making of either untrue defamatory statements or unfair defamatory comments and that falsification of fact and unfairness of comment can never properly be seen as being in the interests of informed and useful political communication and discussion. In so far as it goes, there is force in that argument. The answer to it is that it misses the real point. That point is that which was made above, namely, that the effect of the applicability of State defamation laws is to deter the ordinary citizen from publishing even true defamatory statements or fair defamatory criticism if there be a perceived risk or actual threat of defamation proceedings.

31. Finally, there is the argument that there would be a real risk that, if parliamentarians or other holders of high public office were deprived of the full protection of ordinary defamation laws, some outstanding people would be deterred from entering public life. Again, there is obviously some force in that argument. However, in the context of the confrontationalist and basically "two party" nature of our parliamentary proceedings and of the absolute privilege which applies to what is said in the course of them, one cannot but be somewhat sceptical about the extent of any additional risk. Indeed, this argument would have more substance if directed towards supporting the extreme (and, in my view, unjustifiable) approach that all defences of absolute and qualified privilege should be abolished in respect of statements about public officials with the result that liability in defamation would attach to every injurious statement which could not be proved to be true or fair. Be that as it may, the answer to this third line of argument seems to me to be that a risk that some may be deterred from seeking public office is a comparatively small price to pay for the freedom of the citizen to engage fully in the political communications and discussions which are an incident of representative government without fear of crushing financial consequences.

Conclusion

32. At the end of the day, it appears to me to be plain that the serious curtailment of the freedom of political communication and discussion which is involved in an unqualified application of State defamation laws to render the citizen liable in damages for the making of statements about the official conduct or suitability of a member of the Parliament or other holder of high public office in the service of the Commonwealth (such as a member of this Court) cannot be justified in the public interest in the narrow sense explained above. It follows that the unqualified application of those laws to impose such liability is inconsistent with the implication and precluded by the Constitution. The question arises whether this Court should follow the path taken by the United States Supreme Court in New York Times Co. v. Sullivan and conclude that the application of State defamation laws to impose liability in damages for making such a statement is justifiable provided that it be accompanied by some qualification such as that liability cannot attach unless it be established that the particular statement was maliciously made and demonstrably false or unfair. In my view, we should not. It is true that such a confinement of the applicability of State defamation laws would mitigate the violation of the constitutional implication. It would not, however, eliminate it.

33. The effective reversal of the onus of proof by requiring proof of falsity and the introduction of additional preconditions of liability in damages, such as malice or unreasonableness, would go some way towards reducing the likelihood that the citizen might be unjustly penalized for honest and well founded criticism. Obviously, however, technicalities of proof and the inherent uncertainty of all litigation would ensure that the possibility of such an outcome remained. In that regard, it is relevant to note that the investigation of subjective motivation is one of the areas in which our legal procedures are most likely to be found wanting and that the involvement of the courts in what are likely to be partisan political disputes is liable to be damaging to the appearance of curial impartiality. More important for present purposes, the introduction of such additional preconditions of liability would do little to abate the chilling effect of a perceived risk or actual threat of defamation proceedings since it is likely that the decreased likelihood that such proceedings would be commenced or would ultimately succeed would, to a significant extent, be counter balanced by the increased cost and strain which would be involved in the probing of records and mental processes directed to proof of malice or unreasonableness. In that context, a "freedom" of political criticism in circumstances where the exercise can give rise to financial ruin unless the critic can succeed before a court on either the issue of truth (or fairness) or an issue of malice or reasonableness seems to me to be no real freedom at all.

34. In the result, I would hold that the effect of the constitutional implication is to preclude completely the application of State defamation laws to impose liability in damages upon the citizen for the publication of statements about the official conduct or suitability of a member of the Parliament or other holder of high Commonwealth office. I would also hold that the constitutional implication's protection of the freedom of the citizen to be informed by, and to participate in, public and vigorous discussion and criticism of the official conduct of those entrusted with the exercise of the powers of government also precludes completely the application of such laws to impose liability in respect of such statements or comments upon those responsible for the conduct of the press and other media outlets through which such public discussion and criticism must, in our society, largely take place. It is true that the proprietors of media outlets are commonly large and powerful corporations and that there are some special arguments which can be advanced to support the full application of the ordinary laws of defamation to the political communications and discussions which they publish for profit to themselves(197). Ultimately, however, the authors of such communications and discussions published through the mass media are individuals and publication of them is the means of communication of the political statements or views of an individual, namely, the immediate author or the individual who directs or influences what the immediate author writes or says. More important, and notwithstanding the potential for abuse, the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media.

35. The alleged defamatory material in the present case consisted exclusively of statements about the official conduct and suitability of the plaintiff as a member of the Parliament. Accordingly, I would hold that the defamation laws of the State of Victoria were inapplicable to impose liability on the first defendant in respect of the publication of that material and give the following single answer to the four questions reserved by the stated case:

"The matters alleged in clauses (i), (ii), (iii) and (iv) of

paragraph 11(b) of the first defendant's Further Amended

Defence constitute a complete answer to the plaintiff's

claim."

36. There are three further matters which should be mentioned. The first is that I have used the phrase "holder of high public office" to refer to persons who "have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs"((198) Rosenblatt v. Baer [1966] USSC 25; (1966) 383 US 75 at 85.). The second matter is that in what I have written above, I have confined consideration of the operation of the implication with respect to defamation laws to statements about the official conduct or consequent suitability for office of parliamentarians and other holders of high public office, or candidates for such positions. As I indicated, such statements lie at the heart of the political communication and discussion which is an essential incident of responsible government. It is unnecessary to consider whether the implication precludes or qualifies the application of ordinary defamation laws to impose liability for injurious statements made in the course of political discussion or communication either about the private conduct of such persons or about other persons, such as those who "have thrust themselves to the forefront" of political contests or controversies in order to influence the outcome thereof((199) cf. Gertz v. Robert Welch, Inc. [1974] USSC 144; (1974) 418 US 323 at 345.). The third matter is that I would make clear that nothing in this judgment should be understood as suggesting that the traditional powers of the Parliament and superior courts to entertain proceedings for contempt are not justifiable in the public interest. In that regard, it is important to remember that, while the distinction is not always as clear as it should be((200) See, e.g., Reg. v. Richards; Ex parte Browne and Fitzpatrick [1955] HCA 36; (1955) 92 CLR 157.), the justification of proceedings for contempt of court or parliament lies not in the protection of the reputation of the individual judge or parliamentarian but in the need to ensure that parliaments and courts are able effectively to discharge the functions, duties and powers entrusted to them by the people((201) See, e.g., R. v. Nicholls [1911] HCA 22; (1911) 12 CLR 280 at 285-286.). Nor should anything in this judgment be understood as precluding the establishment of alternative procedures (not involving the imposition of liability to pay damages or costs) to which a parliamentarian or other holder of high office might resort for the purpose of vindicating his or her reputation when subjected to unjustified attack.

Addendum

37. The overall effect of the various judgments in this case is that four Justices, Mason CJ, Toohey J, Gaudron J and I, have reached the conclusion that an unqualified application of the defamation laws of Victoria to impose liability in damages in respect of political communications and discussion is precluded by the constitutional implication of political communication and discussion. There is, however, disagreement within that bare majority of the Court about what flows from that conclusion for the purposes of the present case. Mason CJ, Toohey and Gaudron JJ would hold that the implication precludes the application of State defamation laws to impose liability in damages for the publication of a statement about the official conduct or suitability of a member of the Parliament only if the defendant establishes that "it was unaware of the falsity of the material published", 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". For the reasons which I have given, I am quite unable to accept that the freedom which the constitutional implication protects is, at least in relation to statements about the official conduct or consequent suitability for office of holders of high government office, conditioned upon the ability of the citizen or other publisher to satisfy a court of matters such as absence of recklessness or reasonableness. Nonetheless, I necessarily agree with their Honours that the constitutional implication precludes the imposition of liability in damages under State defamation laws to the extent which they would exclude it in a case such as the present. That means that majority support for the operation of the implication in a case such as the present exists for, but is limited to, that attributed to it by Mason CJ, Toohey and Gaudron JJ. In these circumstances, 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 stated case.

DAWSON J The first defendant would have the Court accept that the Constitution, when it came into effect on 1 January 1901, radically altered the law of defamation in this country. The Constitution, it is said, changed the law so that in some circumstances defamatory falsehood might be published with impunity about members of Parliament, or at least members of the Commonwealth Parliament. It is submitted that this may occur where the words are published in the course of discussion of governmental and political matters and concern the suitability of persons to be or to continue as members of Parliament. Such words, so the submission continues, are only actionable if published with malice, in the sense of being published with no honest belief in their truth or with reckless disregard for their truth. Alternatively, it is said, the words are only actionable if their publication was not reasonable in all the circumstances.

2. This change, which has entirely escaped attention during the ninety-three years since federation, is said to have occurred by the operation of the Constitution upon the law of defamation, whether common law or statutory, which previously applied in the Colonies and became the law of the newly-formed States. It is accepted that the form of the change suggested has its origins in the judgment of the Supreme Court of the United States in New York Times Co. v. Sullivan((202) [1964] USSC 40; (1964) 376 US 254.), decided in 1964, more than sixty years after federation in this country. The decision in New York Times Co. v. Sullivan rejected what had previously been regarded as settled law in the United States and held that the First Amendment of the United States Constitution "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not"((203) ibid. at 279-280 per Brennan J). The First Amendment has no counterpart in the Australian Constitution.

3. The first defendant's submission is startling, not so much because of the change which it seeks to establish in the law of defamation, though the desirability of that is at the very least debatable, but because of the means by which it says that the change has been made.

4. The first defendant's argument is based upon the concept of representative government which is to be found in the Constitution((204) I have in previous judgments used the terms "representative democracy" or "parliamentary democracy" as interchangeable with "representative government". But, as McHugh J demonstrates in his judgment in this case, "representative government" is the more precise and accurate term, because democracy, like beauty, tends to be in the eye of the beholder.). But the requirements of representative government which the Constitution lays down are minimal. They are to be found in ss.7 and 24, which must be read with associated provisions((205) See ss.1, 30, 41.). Section 1 having provided for a Commonwealth Parliament comprising the Crown, the Senate and the House of Representatives, s.7 provides that the Senate shall be composed of senators for each State, directly chosen by the people of the State, and s.24 provides that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth.

5. Although neither s.7 nor s.24 refers to elections, other sections((206) See ss.8, 9, 30, 31.) make it clear that senators and members of the House of Representatives shall be chosen by election. Sections 7 and 24 require that any election be by the people directly and not by an electoral college. An election necessarily means the making of a choice by the casting of a vote. As I pointed out in Australian Capital Television Pty. Ltd. v. The Commonwealth((207) [1992] HCA 45[1992] HCA 45; ; (1992) 177 CLR 106 at 187.), the choice involved must obviously be a genuine, or informed, choice, which requires access to the available alternatives. Just what opportunity must be afforded to a voter for him or her to be sufficiently informed to cast a genuine vote may be a matter giving rise to differences of opinion. Indeed, in Australian Capital Television Pty. Ltd. v. The Commonwealth members of the Court expressed differing views about the extent to which there must be free communication to satisfy the requirements of representative government((208) ibid. at 141 per Mason CJ; 149 per Brennan J; 212 per Gaudron J; 233 per McHugh J. See also Nationwide News Pty. Ltd. v. Wills [1992] HCA 46; (1992) 177 CLR 1 at 73 per Deane and Toohey JJ).

6. The extent of the differences is of little relevance to the present submission because, despite references in the judgments to "freedom of communication" or "a guarantee of freedom of communication", it is plain beyond argument that the Constitution does not erect any free-standing right or guarantee of freedom of communication, save for the requirement in s.92 that intercourse among the States be absolutely free((209) As to the effect of s.92 in this regard, see Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR at 53-60; Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR at 191-195.). Sections 7 and 24, and the other provisions of the Constitution, do not guarantee free speech but provide for representative government. The only necessary or obvious implication, if indeed it be a matter of implication at all, is that there must be freedom of communication to the extent that it is a requirement of representative government. The legislative powers of the Commonwealth under s.51 of the Constitution are subject to the Constitution and hence subject to ss.7 and 24. No doubt ss.7 and 24 not only inhibit Commonwealth legislative power but also prevail over any inconsistent State law. If a State legislature were to enact legislation which interfered with the requirements of s.7 or s.24, the legislation would be invalid either for simple inconsistency with the Constitution, or as an interference with Commonwealth governmental authority((210) See Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 81.) or as beyond the power of the State legislature to legislate for the peace, order and good government of the State - perhaps for all three reasons. It is unnecessary to pursue that aspect of the matter further.

7. How then does the first defendant seek to argue that the Australian Constitution modified the defamation laws existing at the time of federation along the lines of the change effected by New York Times Co. v. Sullivan, restricted in our case to members of Parliament or persons seeking to be members of Parliament?

8. The first step is to say that the Constitution contains a guarantee of freedom of communication which is the equivalent of the First Amendment guarantee of freedom of speech. It is not, of course, express like the First Amendment guarantee, but is said to be implied by the requirement of representative government which is contained in the Australian Constitution. The next step is to say that the guarantee, like the guarantee afforded by the First Amendment, cannot be absolute. There are other interests in any ordered society (or system of representative government) which must be balanced against freedom of communication. Since the balancing process is required by the Constitution in the interpretation of a guarantee for which it implicitly provides, it is said to be a matter for the Court, rather than the Parliament. And, since the exercise can only be carried out by balancing against freedom of communication those interests which it is desirable to protect notwithstanding their tendency to interfere with freedom of communication, it is said that it is the function of the Court to make the value judgment involved. Thus, the argument concludes, the Court should fashion the law of defamation in the manner for which the first-named defendant contends because that represents the desirable balance.

9. That argument must founder on its first premise. The Constitution does not contain any guarantee of freedom of speech or freedom of communication, save for s.92. There is no call for the Court to identify those exceptions which in the interests of an ordered society (or representative government) must be made to any such guarantee; it does not exist. And so no balancing process is confided to the Court. True it is that the Court may be called upon to decide whether a law impedes freedom of communication in a way which conflicts with the minimal requirements of the Constitution regarding representative government. But that is a very different exercise. If a law interferes with the essential elements of representative government, it is beyond power, regardless of any justification. No balancing process occurs.

10. The desirability of one form of defamation law or another in the interests of representative government is something upon which opinions will vary. Even the doctrine of New York Times Co. v. Sullivan has been the subject of considerable criticism by those who regard it as failing in its object of encouraging debate upon matters of public interest((211) See, Strossen, "A Defence of the Aspirations - but not the Achievements - of the U.S. Rules Limiting Defamation Actions by Public Officials or Public Figures", [1986] MelbULawRw 1; (1986) 15 Melbourne University Law Review 419 and Powe, The Fourth Estate and the Constitution: Freedom of the Press in America, (1991) at 120-128.). But to conclude that a particular form of defamation law is desirable in the interests of representative government is a very different thing from concluding that a particular form of defamation law denies the constitutional requirement of representative government. There are many circumstances which may fairly be thought to be necessary for the most efficacious working of a system of representative government. A healthy and well-educated voter is likely to exercise his or her vote more effectively, as is a perfectly informed voter. But it would be nonsense to say that this gives rise to constitutional implications conferring or restricting legislative power with respect to health or education.

11. In this country, both before and after federation, laws in the Colonies or States, whether at common law or in statutory form, have afforded protection against defamation. It has not until now been questioned that we have enjoyed the advantages of representative government, despite the fact that those laws have never been thought hitherto to be qualified as the first defendant contends they are. Indeed, if those who drafted the Constitution had believed that the existing defamation laws impaired the representative government for which they sought to provide, it is inconceivable that they would not have sought to correct the situation explicitly.

12. It is hardly surprising that representative government has been thought to co-exist with defamation laws for over ninety years, even though those laws curtail freedom of speech. Indeed, the protection of reputations, even the reputations of politicians or would-be politicians, may be thought to be in the interests of representative government, because the number and quality of candidates for membership of Parliament is likely to be appreciably diminished in the absence of such protection((212) See Derrickson v. Tomat (1992) 88 DLR (4th) 401 at 408 per Wood JA).

13. The circumstances in which representative government must operate are not left to the Court as a matter of constitutional interpretation. They are confided to the common law upon which the Constitution is founded and to the Parliament of the Commonwealth and the legislatures of the States in accordance with the division of legislative power which the Constitution effects. And those circumstances include such curtailment of freedom of communication as is considered necessary or desirable, provided, of course, it does not represent a denial of representative government. The defamation laws of the States are an example as are the provisions of the Commonwealth Electoral Act((213) Commonwealth Electoral Act 1918 (Cth), ss.329, 383.) which prohibit the publication of misleading or deceptive material during an election period. I do not regard it as tenable to suggest that the existence of those laws, without the modification suggested by the first defendant, represents a denial of representative government in this country, either now or during the last ninety-three years. To be fair to the first defendant, it does not put its argument that way but rather in the way which I have endeavoured to explain. That argument, however, finds no support in the Constitution.

14. Whilst it may disappoint some to find that the Australian Constitution provides no guarantee, express or implied, of freedom of speech, that is because those who framed the Constitution considered it to be one of the virtues of representative government that no such guarantee was needed. I have elsewhere dealt with the manner in which the founding fathers placed their faith in the democratic process rather than constitutional guarantees to secure those freedoms regarded as fundamental in any democratic society((214) See Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR at 186; and see also at 133-134 per Mason CJ). They took the view that constitutional guarantees operate as a fetter upon the democratic process and did not consider it necessary to restrict the power of Parliament to regulate those liberties which the common law recognizes and nurtures.

15. If a constitutional guarantee of freedom of speech or of communication is to be implied, the implication must be drawn from outside the Constitution by reference to some such concept as "the nature of our society"((215) See, e.g., McGraw-Hinds (Aust.) Pty. Ltd. v. Smith [1979] HCA 19; (1979) 144 CLR 633 at 670 per Murphy J). That is not an implication which can be drawn consistently with established principles of interpretation.

16. The Engineers' Case((216) Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") [1920] HCA 54; (1920) 28 CLR 129.) may have given rise to the misconception that no implications may be drawn from the Constitution and to have led to some imbalance in the interpretation of the federal division of powers((217) See, e.g., Craven, "The Crisis of Constitutional Literalism in Australia" in Lee and Winterton (eds), Australian Constitutional Perspectives, (1992) 1 at 4-9.). But it is now clear that implications can and must be drawn in the interpretation of the Constitution to give effect to its intention((218) See West v. Commissioner of Taxation (N.S.W.) [1937] HCA 26; (1937) 56 CLR 657 at 681-682.). However, it has never been thought that the implications which might properly be drawn are other than those which are necessary or obvious having regard to the express provisions of the Constitution itself. To draw an implication from extrinsic sources, which the first defendant's argument necessarily entails, would be to take a gigantic leap away from the Engineers' Case, guided only by personal preconceptions of what the Constitution should, rather than does, contain. It would be wrong to make that leap.

17. I would answer the first question in the case stated, no, and the fourth question, yes. It is unnecessary to answer questions 2 and 3.

McHUGH J This case stated by the Chief Justice arises out of a defamation action pending in the County Court of Victoria. The action has been removed into this Court pursuant to the provisions of s.40 of the Judiciary Act 1903 (Cth). The principal question in the case is whether the Constitution impliedly guarantees a freedom to publish material discussing government and political matters, the performance by members of the federal Parliament of their duties as members of Parliament or parliamentary committees and the suitability of persons for office as members of the Parliament. If that question is answered in the affirmative, a second question arises. It is whether the publication of such material is actionable if it was published without malice or was reasonable in the circumstances of the case or was made at a time when it was anticipated that a federal election was about to be called.

2. The plaintiff in the action is the member for Calwell in the House of Representatives. On 8 November 1992, the first defendant published in the Herald Sun a letter written by the second defendant. The letter alleged that the plaintiff had a "bias towards Greeks as migrants" and "stands for most things Australians are against". The letter expressed the hope that the electors of Calwell would give the plaintiff "the heave" at the next election. At the time, the plaintiff was the Chairperson of the Joint Parliamentary Standing Committee on Migration Regulations. He also chaired the Labor Party's Federal Caucus Immigration Committee. In answer to the plaintiff's action, the defendants have pleaded that the publication was not actionable because the defamatory words were published pursuant to a freedom of expression guaranteed by the Constitution.

3. In my opinion, the Constitution contains no general guarantee, express or implied, that the publisher of a defamatory imputation is not liable if the publication discusses government or political matters, the performance by members of the federal Parliament of their duties, or the suitability of persons for office as members of the Parliament. If a publication concerning any of those subjects is made, the liability of the publisher depends upon the general law and not upon any constitutional guarantee. With great respect to those who hold the contrary view, nothing in the text, structure or history of the Constitution supports the proposition that the Constitution confers a general private right to defame public or political figures.

4. The defendants contend that in Australian Capital Television Pty. Ltd. v. The Commonwealth((219) [1992] HCA 45; (1992) 177 CLR 106.) a majority of this Court held that the doctrine of representative government is inherent in the Constitution and that that doctrine implies a freedom to discuss public affairs and political matters in relation to all levels of government in Australia. The defendants then contend that to require media entities and ordinary citizens to establish the truth of defamatory statements is to inhibit the free flow of ideas and information contemplated by the freedom. Citing the judgment of Black J in New York Times Co. v. Sullivan((220) [1964] USSC 40; (1964) 376 US 254 at 297.), the defendants argue that "(t)o punish the exercise of this right to discuss public affairs or to penalise it through libel judgments is to abridge or shut off discussion of the very kind most needed."

5. The defendants are correct in contending that in Australian Capital Television a majority of this Court held that the institution of representative government is an inherent part of the Constitution, that freedom to discuss the government of the Commonwealth is an indispensable condition of representative government and that the freedom of discussion extends to all levels of government in Australia. But, with great respect to those who have so decided, the proposition that the institution of representative government is a part of the Constitution, independently of its text and structure, giving citizens certain immunities from laws enacted by the Commonwealth, the States and the Territories and the common law, is incorrect. At best the proposition "confuses the unexpressed assumptions upon which the framers of the instrument supposedly proceeded"((221) Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81.) with the meaning to be derived from the text and structure of the Constitution itself.

6. By vesting legislative power in a Parliament and giving the people of the Commonwealth, through ss.7, 24, 30 and 41 of the Constitution, control over the composition of the Parliament, the Constitution gives effect to a key element in a system of representative government. But that does not mean that the institution of representative government itself is part of the Constitution unless "(w)e mean by a Representative Government one in which the body of the people ... elect their deputies to a chamber of their own."((222) Brougham, The British Constitution, (1861) at 89.) The majority judgments in Australian Capital Television give the concept a much wider meaning. In my opinion, the institution of representative government is part of the Constitution only to the extent that the text and the implications to be drawn from the text and structure of the Constitution make it so. In the Constitution, representative government is reflected in the terms of ss.1, 7, 24, 30 and 41. But there is nothing in the text or the structure of the Constitution which makes it necessary to imply that representative government is part of the Constitution independently of the content of those sections.

7. In determining the meaning of provisions of the Constitution such as ss.7 and 24, it is legitimate to use the concept of representative government to explain their meaning. This is because one of the purposes of the Constitution was "the advancement of representative government, and (the Constitution) contains no word to alter the fundamental features of that institution"((223) Federal Commissioner of Taxation v. Munro [1926] HCA 58; (1926) 38 CLR 153 at 178 and see Australian Capital Television (1992) 177 CLR at 210; 228-229.). To construe the words of a legal instrument to give effect to its purpose is to give it the meaning that objectively it was intended to have.

8. In the practical business of interpreting legal instruments the courts must necessarily also take into account any fact or circumstance that was likely to have been present to the mind of its authors. The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture. This is especially true of a Constitution, the provisions of which are frequently no more than an outline for government that is intended to endure for centuries. In interpreting the Commonwealth Constitution, for example, the rule of law may legitimately be taken into account((224) Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 193.) although the Constitution does not mention it. Similarly, in Australian Capital Television, I thought that the common understanding of what is involved((225) See Crisp, Australian National Government (1965) at 109.) in an election in a system of representative government could be taken into account in interpreting ss.7 and 24 of the Constitution((226) (1992) 177 CLR at 230-232.).

9. To take into account the background circumstances that were present to the mind of the makers of the Constitution is not to assert that the actual intentions of the makers control the meaning of the Constitution. As Deane J pointed out in New South Wales v. The Commonwealth((227) [1990] HCA 2; (1990) 169 CLR 482 at 511.) ("the Incorporation Case"):

"it is not permissible to constrict the effect of the words

which were adopted by the people as the compact of a nation

by reference to the intentions or understanding of those who

participated in or observed the Convention Debates".

10. If this Court is to retain the confidence of the nation as the final arbiter of what the Constitution means, no interpretation of the Constitution by the Court can depart from the text of the Constitution and what is implied by the text and the structure of the Constitution. To determine what are the implied meanings of a legal instrument is seldom an easy task. But it must be done. The search for implications in the language of a legal text is a necessary part of the task of legal interpretation whether the text be a contract or a Constitution. As Windeyer J pointed out in Victoria v. The Commonwealth((229) (1971) 122 CLR at 402.) in interpreting the Constitution "our avowed task is simply the revealing or uncovering of implications that are already there". But in addition to those implications that are embedded in the language of a legal instrument, an implication may sometimes have to be made in respect of a legal instrument so that it can achieve its apparent purpose or be given a meaning that avoids absurdity or irrationality((230) See Kingston v. Keprose Pty. Ltd. (1987) 11 NSWLR 404 at 421-424.). Sections 92 and 117 of the Constitution are examples. Similarly, a necessary implication may arise from the need to protect the rights or even the existence of a party named in a legal instrument. Thus in Melbourne Corporation v. The Commonwealth((231) [1947] HCA 26; (1947) 74 CLR 31 at 83.) Dixon J said that the need to protect the States "as separate governments in the system exercising independent functions" gave rise to the necessary implication that "unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority".

11. Since the decision in the Engineers' Case((232) Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129.), however, this Court has consistently held that it is not legitimate to construe the Constitution by reference to political principles or theories that find no support in the text of the Constitution. The theory of constitutional interpretation that has prevailed since the Engineers' Case is that one starts with the text and not with some theory of federalism, politics or political economy. The Engineers' Case made it plain that the Constitution is not to be interpreted by using such theories to control, modify or organise the meaning of the Constitution unless those theories can be deduced from the terms or structure of the Constitution itself. It is the text and the implications to be drawn from the text and structure that contain the meaning of the Constitution. As Dawson J pointed out in Australian Capital Television((233) (1992) 177 CLR at 181.): "If implications are to be drawn, they must appear from the terms of the instrument itself and not from extrinsic circumstances."

12. A constitutional doctrine is unacceptable, therefore, unless it is based on some premise or premises that is or are contained in the Constitution itself. That is not to deny that theories of federalism, politics and economics or the principles of the common law may be used to interpret particular provisions of the Constitution. But it is legitimate to use them only when there are grounds for concluding that the meaning of the constitutional provision was intended to be understood by reference to such a theory or principle. Those grounds may arise from the very terms of particular constitutional provisions. They may arise from what was said and done at the Conventions leading up to the enactment of the Constitution, as was accepted in Cole v. Whitfield((234) (1988) 165 CLR 360.)and the Incorporation Case((235) [1990] HCA 2; (1990) 169 CLR 482 (the Incorporation Case).). They may arise from the history of the nation and its institutions. The Commonwealth of Australia was not born into a vacuum, as Latham CJ once pointed out((236) In re Foreman and Sons Pty. Ltd; Uther v. Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508 at 521.). It was created against the background of a system of constitutional conventions and common law rules and principles that governed the relationship between the Crown and the citizen. Those common law rules and principles are "the source of the legal conceptions that govern us in determining (the Constitution's) effect"((237) Sir Owen Dixon "The Common Law as an Ultimate Constitutional Foundation" (1957) 31 Australian Law Journal 240 at 241, reprinted in Jesting Pilate (1965) at 205.).

13. An examination of the Constitution shows that the terms "representative government" and "representative democracy" are not mentioned. That, of course, is not decisive: one or other of those concepts or some part of them may be implied by some term or terms in the Constitution or may be regarded as part of the express meaning of one of those terms. But with great respect to those who have reached the opposite conclusion, I can find no support in the Constitution for an implication that the institution of representative government or representative democracy is part of the Constitution independently of the terms of ss.1, 7, 24, 30 and 41 of the Constitution. I think that all that can fairly be said is that those sections of the Constitution give effect to the political institution of representative government. But neither logic nor the efficacy of those sections or the federal system itself implies that independently of those sections the institution of representative government or representative democracy is itself part of the Constitution.

14. It follows in my respectful view that the Constitution does not adopt or guarantee the maintenance of the institution of representative government or representative democracy except to the extent that certain sections of the Constitution embody it.

15. Although some of the judgments in Australian Capital Television and the majority judgments in the present case tend to equate representative government with the concept of representative democracy, I do not think that the concepts are interchangeable. Representative democracy is the wider concept of the two, certainly in modern times. It is commonly used to describe a society which provides for equality of rights and privileges. In his Introduction to Democratic Theory((238) (1960) at 60-69.), H.B. Mayo thought that the four essential principles of a democracy were: (1) popular control of policy makers through elections held at regular intervals; (2) political equality; (3) political freedoms; and (4) when the representatives are divided, the decision of the majority prevails. Even wider definitions can be found, particularly in socialist societies where it is defined to include the economic and social spheres as well as the political sphere((239) See Scruton, A Dictionary of Political Thought, (1982) at 115-117.). Although informed persons in Australia probably agree on the central tenets of representative democracy, the term is nevertheless descriptive of a wide spectrum of political institutions and processes. Moreover, the conceptions of representative democracy have been evolving for a very long period of time. The course of that evolution does not seem to be spent. The essence of representative government, on the other hand, is a political system where the people in free elections elect their representatives to the political chamber which occupies the most powerful position in the political system((240) Birch, Representative and Responsible Government, (1964) at 17.). As Birch says((241) ibid) "it is the manner of choice of members of the legislative assembly, rather than their characteristics or their behaviour, which is generally taken to be the criterion of a representative form of government". Representative government is a narrower concept than representative democracy.

16. It is not surprising that the makers of our Constitution failed to make representative democracy a constitutional rule enforceable by the courts. It is likely that the participants in the Conventions had varying ideas as to what representative democracy required, as did their contemporaries. Evidence of this fact can be seen in the differences in the qualifications of electors, which varied from State to State((242) At the time of federation, only South Australia had universal suffrage: Electoral Code 1896. Of the remaining States, only Western Australia had given women the vote. Tasmania had qualifications based on property or income. Plural votes for property ownership existed in Queensland, Western Australia and Tasmania: New South Wales, Parliamentary Electorates and Elections Act 1893; Victoria, Constitution Act Amendment Act 1890; Queensland, Elections Act 1885, Elections Act 1897; Western Australia, Constitution Acts Amendment Act 1899; Tasmania, Constitution Act Amendment Act (No. 2) 1896. See Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 469-470; Hughes and Graham, A Handbook of Australian Politics (1890-1964), (1968) at 423-610. An attempt during the Adelaide Convention to provide for female suffrage in the Constitution was defeated, as it was feared that the Constitution would be rejected if it included such a principle, one which the majority of States did not support: Convention Debates, (1897) vol. 3 at 715-725. In the 1890s only Queensland and Western Australia dealt with the position of indigenous Australians, restricting their right to vote by imposing freehold qualifications: Queensland, Election Act 1885; Western Australia, Constitution Acts Amendment Act 1892. At the time of Federation indigenous Australians were represented on the electoral rolls in Victoria and South Australia: Report from the Select Committee on Voting Rights of Aborigines, (1961) Pt 1 at 3.). Even if representative democracy is given the narrow meaning that it had in Athenian times of "government by the people", it is still wider than the concept of representative government which the makers of the Constitution probably had in mind when ss.1, 7, 24, 30 and 41 were enacted. It is likely that the makers of the Constitution saw representative government as encompassing no more than a system under which the people were governed by representatives elected in free elections by those eligible to vote. The terms of ss.7 and 24 give effect to this view. The absence of a Bill of Rights or any guarantee of universal suffrage or political equality in the Constitution is also consistent with the view that the makers of the Constitution did not intend, and the Constitution does not give effect, to any general doctrine of representative democracy. No doubt, as Gibbs J said in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth((243) [1975] HCA 53; (1975) 135 CLR 1 at 46.) the makers of the Constitution trusted the Parliament to protect representative democracy "remembering that in England, from which our system of representative government is derived, democracy did not need the support of a written constitution".

17. Moreover, the Constitution has nothing whatever to say about the form of government in the States and Territories of Australia. Even if the terms of ss.1, 7, 24, 30 and 41 implied that the institution of representative government as understood in the majority judgments in Australian Capital Television was part of the Constitution in relation to the Commonwealth, those sections have nothing to say about the form of government for the States and Territories. If a State wishes to have a system of one party government, to abolish one or both of its legislative chambers or to deny significant sections of its population the right to vote, nothing in the Constitution implies that it cannot do it. There is not a word in the Constitution that remotely suggests that a State must have a representative or democratic form of government or that any part of the population of a State has the right to vote in State elections. The Constitution contains no guarantee of a right to vote in State elections. Nor, despite references in the Constitution to the Houses of Parliament of the States, does the Constitution guarantee the continued existence of the State Houses of Parliament. In Clayton v. Heffron((244) [1960] HCA 92; (1960) 105 CLR 214.) this Court rejected the argument that s.15 of the Constitution - which referred to the "Houses of Parliament of the State" - prevented a State from abolishing its Upper House. Dixon CJ, McTiernan, Taylor and Windeyer JJ said((245) ibid. at 248-249.):

"It is obvious that the provision supposes that there will

be two Houses of Parliament in every State: it is argued

that it necessarily implies that there shall continue to be

two Houses of Parliament accordingly. The contention means

that the Federal Constitution deprives the State legislature

of the power to abolish one house. This argument seems

clearly enough to be ill founded. The supposition that

there will be two Houses implies no intention legislatively

to provide that the constitutional power of the State to

change to a unicameral system, if the power existed, should

cease. One can understand the section being relied upon as

evidence that it was not supposed that the power to make the

change existed. But that is all. Even that is not a very

cogent argument."

18. Accordingly, even if the institution of representative government as understood by the majority is part of the Constitution, independently of ss.1, 7, 24, 30 and 41, the Constitution does not make it part of the system of government of the States or Territories. There is no ground therefore for concluding that the rights asserted by the defendant in this case invalidate the law of defamation in the States.

19. With great respect, it seems to me that those judgments in Australian Capital Television and Nationwide News Pty. Ltd. v. Wills((246) [1992] HCA 46; (1992) 177 CLR 1.) that hold that the institution of representative government is part of the Constitution independently of the terms of certain sections of the Constitution unintentionally depart from the method of constitutional interpretation that has existed in this country since the time of the Engineers' Case. Those judgments hold that, because the makers of the Constitution intended that the Commonwealth should have a representative government and that certain sections of the Constitution give effect to that intention, the institution itself is part of the Constitution. From that premise the conclusion is reached that the rights of the people inherent in that institution are constitutionally entrenched and extend to all tiers of government in Australia. The majority judgments seek to imply a general concept of representative government with a wide meaning from the terms of the Constitution - ss.7 and 24 in particular. But those sections do not support that implication. Even if the concept of representative government has a wide meaning akin to that of representative democracy, ss.7 and 24 simply give effect to one aspect of the institution of representative government. Section 7 requires that the Senate "shall be composed of senators for each State, directly chosen by the people of the State"; section 24 requires that the House of Representatives "shall be composed of members directly chosen by the people of the Commonwealth". Those sections deal with elections not general political rights. To give them the efficacy that their purpose requires, it is legitimate to imply other freedoms during the course of elections, as I sought to show in Australian Capital Television((247) (1992) 177 CLR at 231-232.). But with great respect, I do not see how there can be implied into the Constitution from the terms of those sections - whether by necessity or otherwise - the whole apparatus of representative government in the sense used in the majority judgments, with consequential restraints on the powers of the Commonwealth, State and Territory governments and the common law, when no federal election is pending. It does not follow either logically or as a matter of necessary implication that, because some provisions of the Constitution give effect to an aspect of a particular institution, that institution itself is part of the Constitution.

20. I do not think that the approach of the majority judgments in Australian Capital Television or those in Nationwide can be compared, for example, with the cases that hold that the doctrine of the separation of powers is part of the Constitution, with the universal assumption that the Constitution contains a doctrine of judicial review, or with the decision in Melbourne Corporation. The doctrine of separation of powers is a legitimate inference to draw from the terms of ss.1, 61 and 71 of the Constitution. In Attorney-General for Australia v. The Queen((248) (1957) AC 288 at 314.) , Viscount Simonds said of that doctrine that their Lordships doubted "whether, had Locke and Montesquieu never lived nor the Constitution of the United States ever been framed, a different interpretation of the Constitution of the Commonwealth could validly have been reached". Having regard to the experience of judicial review in relation to the Colonial Laws Validity Act 1865 (U.K.), the exercise of the power of judicial review under the grant of judicial power in the United States Constitution, the common law doctrine of ultra vires, and the acceptance in the Conventions of the need for judicial review, judicial review is implied by the grant of judicial power conferred by Chapter III of the Constitution. The Melbourne Corporation holding is the product of the conclusion that the very frame of the Constitution necessarily implied that the Commonwealth could not enact laws "aimed at the restriction or control of a State in the exercise of its executives authority"((249) (1947) 74 CLR at 83.). In those three examples, the implications are implied by the text (judicial review), drawn from other provisions of the Constitution (separation of powers), or required by the federal structure for the protection of the States (Melbourne Corporation).

21. Having read and re-read on many occasions those judgments in Australian Capital Television and Nationwide that hold that the institution of representative government is a part of the Constitution, I have concluded that the reasoning that has led to that holding should not be followed. In Australian Capital Television and Nationwide, I agreed that the relevant legislation was invalid. But I did not do so on the ground that representative government was itself part of the Constitution independently of ss.7 and 24. In Australian Capital Television, I accepted that the Constitution gave effect to the institutions of representative government and responsible government. However, I used those concepts not as enactments of the Constitution but as tools for interpreting the full meaning of ss.7 and 24 of the Constitution. Adopting that approach, I said((250) (1992) 177 CLR at 231-232.):

"The words 'directly chosen by the people' in ss.7 and 24,

interpreted against the background of the institutions of

representative government and responsible government, are to

be read, therefore, as referring to a process - the process

which commences when an election is called and ends with the

declaration of the poll. The process includes all those

steps which are directed to the people electing their

representatives - nominating, campaigning, advertising,

debating, criticising and voting. In respect of such steps,

the people possess the right to participate, the right to

associate and the right to communicate."

22. However, as I recently pointed out in Re Tyler; Ex parte Foley((252) [1994] HCA 25; (1994) 68 ALJR 499 at 507; [1994] HCA 25; 121 ALR 153 at 166.), a Justice of this Court is not entitled to refuse to follow a decision of the Court or its reasoning merely because that Justice is convinced that the decision or its reasoning is erroneous. In Queensland v. The Commonwealth((253) [1977] HCA 60; (1977) 139 CLR 585 at 599.), Gibbs J pointed out that no Justice of this Court:

"is entitled to ignore the decisions and reasoning of his

predecessors, and to arrive at his own judgment as though

the pages of the law reports were blank, or as though the

authority of a decision did not survive beyond the rising

of the Court. A Justice, unlike a legislator, cannot

introduce a programme of reform which sets at nought

decisions formerly made and principles formerly established.

It is only after the most careful and respectful

consideration of the earlier decision, and after giving due

weight to all the circumstances, that a Justice may give

effect to his own opinions in preference to an earlier

decision of the Court."

23. In the present case, however, more is involved than a conclusion that the reasoning in some judgments in Australian Capital Television and Nationwide is erroneous. That reasoning propounds a principle which, if accepted, has far reaching ramifications for the federal system, as the issues in this case attest. It has the potential not only to strike down federal legislation but also State legislation and even common law principles and doctrines. But I can find nothing - in the text of the Constitution, in the Convention Debates or in principles of constitutional interpretation hitherto accepted - that suggests that State legislation or common law principles are liable to be overturned by a principle of representative government or representative democracy that is implied in the Constitution. If the argument for the defendants in this case is correct, the law of defamation has been constitutionally invalid since federation in so far as it has purported to confer the same rights on political figures as it does on other persons.

24. Accordingly, in my opinion, the defendants have no right of freedom of expression arising from a constitutional principle of representative government or representative democracy other than the limited freedom implied by ss.7 and 24 of the Constitution. To the extent that their defences to the plaintiff's action are based upon a general right of freedom of expression, they must fail. Furthermore, because the publication in question was made before the election process contemplated by ss.7 and 24 had commenced, nothing in my judgment in Australian Capital Television or in s.7 or s.24 of the Constitution assists the defendants.

25. In Australian Capital Television((254) (1992) 177 CLR at 232.), I left open the question whether the Constitution contained "a general right of freedom of communication in respect of the business of government of the Commonwealth". But having considered the matter again, I am unable to see any proper basis for inferring a general right of freedom of communication in the Constitution any more than I can see a proper basis for inferring a principle of representative government or representative democracy. No doubt some rights of freedom of communication are necessarily implied in the Constitution. Thus, as Quick and Garran pointed out in The Annotated Constitution of the Australian Commonwealth((255) (1901) at 958.):

"To be allowed to visit the seat of Government, to gain

access to Federal territories, to petition the Federal

authorities, to examine the public records of the Federal

courts and institutions, are rights which, if not expressly

granted, may be inferred from the Constitution, and which

could not be taken away or abridged by the States any more

than those directly and clearly conveyed."

26. However, I can see nothing in the Constitution that indicates that by necessary implication the people of the Commonwealth have a private constitutional right to communicate at all times with each other in relation to the performance by members of the federal Parliament of their duties or in relation to the suitability of persons for office as members of the Parliament. In Australian Capital Television((257) (1992) 177 CLR at 232.), I held that, by implication, those sections of the Constitution dealing with elections gave the people of the Commonwealth "a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives." But it does not appear to me possible to infer from those sections a general constitutional right of freedom of expression that overrides the common law and federal and State statutory law. No other section of the Constitution gives any arguable support for such a right.

Qualified privilege

27. The second question in the case stated raises issues of qualified privilege in respect of the publication of material concerning government and political matters, the performance by members of parliament of their duties and the suitability of persons for office as members of Parliament. But that question only arises if there is an affirmative answer to the first question. Because I am of opinion that the Constitution does not guarantee a freedom to publish material concerning these subject matters it follows that the second question does not arise for decision. However, in Stephens v. West Australian Newspapers Ltd.((258) Unreported, 12 October 1994.), in which judgment is also given today, I have held that there is a defence of qualified privilege in respect of the publication of material by persons with special knowledge concerning the exercise of or failure to exercise powers and functions invested in public officials and representatives. That defence extends to publications by such persons concerning the performance of the duties of officials and representatives invested with those powers and functions. In many respects, that defence of qualified privilege goes beyond the constitutional guarantee of freedom of expression for which the defendants contend. However, it does not cover the publication involved in this case which concerns comments of the second defendant on the conduct of the plaintiff. On the facts in the case stated, the defendants seem to have a strong defence of fair comment on a subject of public interest. Indeed, unless at the trial there was evidence that the second defendant did not hold the opinions contained in the comment, it may well be a case where the trial judge would be bound to enter a verdict for the defendants((259) cf. Gardiner v. John Fairfax and Sons Pty. Ltd. (1942) 42 SR (NSW) 171.). But, whether or not that provisional view is correct, the defence of qualified privilege, as I have formulated it, does not protect the comments in question.

28. In my opinion, the questions in the case stated should be answered:

1. No.

2. Does not arise.

3. Does not arise.

4. Yes.