freedom ofpolitical communication,the constitution...

FREEDOM OF POLITICAL COMMUNICATION, THECONSTITUTION AND THE COMMON LAW

Adrienne Stone*

INTRODUCTION

Perhaps the most remarkable feature of Australian constitutional development in thepast decade has been the advent of the constitutional protection of politicalcommunication.1 One important effect of this development has been to focusAustralian constitutional debate on the long-standing and rich tradition ofconstitutional protection of speech in the United States. Reference to Americanconstitutional law is not unprecedented. The United States Constitution has long beena source for Australian constitutional lawyers. It was extensively referred to by theframers of the Australian Constitution2 and, over the century since the framing, it hasbeen a constant point of reference for the High Court of Australia.3 However, the

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BA (UNSW), LLB (UNSW), LLM (Columbia), Faculty of Law, Australian NationalUniversity. This article forms part of the author's JSD dissertation at Columbia UniversitySchool of Law. The author wishes to thank Adelle Blackett, Vincent Blasi, Michael Dorf,Kent Greenawalt, Christine Haight Farley, Peter Lindseth, William Ryan, Peter Strauss andGeorge Williams for their comments on earlier drafts and other contributions to thedevelopment of this article. Theo Varvaressos provided excellent editorial assistance.The High Court first recognised a constitutional freedom of political communication inAustralian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and NationwideNews Pty Ltd v Wills (1992) 177 CLR 1 in which the High Court held that the system ofrepresentative and responsible government established by the Australian Constitutionimpliedly prohibits legislative action that interferes with the political expression necessaryfor the proper operation of this system of government. Therefore, legislation prohibitingsome forms of political advertising (in Australian Capital Television) and legislation creatingan offence for speech bringing a particular administrative tribunal into disrepute (inNationwide News), were declared invalid.J A La Nauze, The Making of the Australian Constitution (1972); A I Clark, Studies inAustralian Constitutional Law (1901) at 358. Consequently, the constitutions of the twocountries share many basic features, namely, a popularly elected House of Representatives,an upper house which represents (at least in theory) the interests of the states, division ofpowers between the arms of government, the enumeration of federal powers and similarprovisions relating to the judiciary and the exercise of judicial power. See Sir AnthonyMason, "The Role of a Constitutional Court in a Federation: a Comparison of theAustralian and United States Experience" (1986) 16 F L Rev 1.It has assisted in justifying judicial review (Australian Communist Party v Commonwealth(Communist Party Case) (1951) 83 CLR 1 at 262, citing Marbury v Madison 5 US (1 Cranch)

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influence of the First Amendment is particularly significant since the Bill of Rights andthe other rights provisions of the United States Constitution have traditionally beenthought of as a part of the American constitutional tradition which Australia does notshare.4

The influence of American constitutional jurisprudence, and specifically FirstAmendment law, in the High Court of Australia has never been more significant thanin the most adventurous of its decisions on the freedom of political communication:TheOfhanous v Herald and Weekly Times Ltds and Stephens v West Australian NewspapersLtd. Here, the High Court significantly expanded the protection of politicalcommunication by adopting a rule similar to the New York Times v Sullivan doctrine.7

That is, the Court limited the capacity of political figures to bring actions fordefamation. However, most unusually for recent decisions of the High Court, thesecases were reconsidered and considerably reformulated by the Court only three yearsafter they were first announced, in Lange v Australian Broadcasting Corporation.8

The short life of the principles enunciated in these cases appears to lend fuel tothose who argue against the use of American precedent, and specifically FirstAmendment law, in interpreting the Australian Constitution.9 In this article, I will jointhose who have expressed such concerns. My focus, however, is somewhat differentfrom previous analyses. I will consider a difference between the two systems that hasbeen overlooked: the different jurisdictions of the highest appellate courts. The HighCourt, unlike the Supreme Court of the United States, has jurisdiction to hear appealsfrom all courts, State and Federal. In hearing these appeals, it has jurisdiction overmatters of common law as well as federal law and the Constitution. The significance ofthe High Court's role as the interpreter of the common law was highlighted byTheophanous and Stephens. In those cases, argument was addressed to the High Courton both the protection of freedom of speech by the Constitution and by the commonlaw of defamation. Had it been so inclined, the Court could have avoided theconstitutional issue entirely through a decision on the common law. However, the

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137 (1803»; influenced approaches to interpretation (D'Emden v Pedder (1904) 1 CLR 91 at111; 0' Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 597; Fairfax v Federal Commissionerof Taxation (1965) 114 CLR 1 at 7 citing McCulloch v Maryland 17 US (4 Wheat) 316 (1819»;and influenced the development of relationships between the Federal government and theStates. (Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 61, 81 and 83; citingNew York v United States 326 US 572 (1946». See generally, JA Thomson, "American andAustralian Constitutions: Continuing Adventures in Comparative Constitutional Law"(1997) 30 JMarshall L Rev 627.It is well documented that the framers chose not to include a US style Bill of Rights becauseof their confidence that the common law and the democratic process would be sufficient.Official Record of the Debates of the Australasian Federal Convention (Melbourne, 8 February1898) at 688-90. See also Amalgamated Society of Engineers v Adelaide Steamship Co Ltd(Engineers Case) (1920) 28 CLR 129 at 151-152.(1994) 182 CLR 104.Ibid at 211.376 US 254 (1964). See below n 28 and accompanying text.(1997) 189 CLR 520.E Barendt, "Free Speech in Australia: a Comparative Perspective" (1995) 16 Syd L Rev 149 at165; G Rosenberg and JM Williams, "Do not Go Gently into that Good Right: The FirstAmendment in the High Court of Australia" (1997) Sup Ct Rev 439.

1998 Freedom ofPolitical Communication, the Constitution and the Common Law 221

principal basis of the decision of the majority was the Constitution.10 In my view, theCourt's failure to appreciate the significance of its common law jurisdiction helpsexplain where the High Court went wrong in Theophanous and Stephens, and how itmight have avoided facing so serious a challenge to recent cases as it did in Lange.

Before proceeding to make this point, however, I devote Part I of this article toexplaining the nature and origins of the High Court's jurisdiction on matters ofcommon law and compare it to the jurisdiction of the United States Supreme Court. InPart II, I outline Theophanous and Stephens and compare the constitutional approach ofthe majority to the common law approach of two of the dissenting judges. Part IIIcontains the heart of my argument. I consider how the High Court ought to proceedwhen a case before it can be decided either by the common law or by interpretation ofthe Constitution. I argue that the common law brings with it significant advantages sothat in many cases where the two overlap, the High Court ought to prefer the commonlaw and I use Theophanous and Stephens to illustrate my point. In Part IV, I identifymore precisely the kinds of cases in which the benefits of a common law solutionshould lead the High Court to prefer it and defend my argument against some of themost obvious objections to it. Finally, in Part V, I consider the reformulation of theTheophanous doctrine in Lange and the extent to which that decision is responsive to thecritique I have launched.

I THE POWER TO DECIDE THE COMMON LAW - THE HIGH COURTOF AUSTRALIA AND THE SUPREME COURT OF THE UNITED STATES

The High Court has a general power to decide matters of common law as a result ofs 73 of the Australian Constitution, which provides that the High Court shall havejurisdiction to hear appeals from "all judgments, decrees, orders and sentences of any ...federal court, or court exercising federal jurisdiction, or of the Supreme Court of anyState".ll This provision gives the High Court control over all of the law of Australia,including the common law as developed by State and Territory courts.

By contrast, federal courts in the United States principally exercise power overfederal law, relying on a grant in Article III of power over "All Cases, in Law andEquity, arising under this Constitution, the Laws of the United States and Treatiesmade ... under their Authority". Under other clauses, such as the grant of jurisdictionover cases "between Citizens of different States", federal courts have jurisdiction overcases in which state law provides the rule of decision. This may require federal courtsto decide matters of common law, but in these cases federal power over state law islimited. The well-known case Erie RR v Tompkins ensured this by limiting the power offederal courts in relation to matters of state law.12 The Supreme Court held that

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See below n 28 and accompanying text. The common law alternative is illustrated in theminority judgments among the three dissenters who found no constitutional rule akin toNew York Times v Sullivan, two judges addressed the protection of freedom of speechthrough the development of the common law. See below n 37.The provision also allows for review by the High Court of the decision of "any other courtof any State from which at the establishment of the Commonwealth an appeal lies to theQueen in Council".As is well known to American lawyers, in Erie RR v Tompkins 304 US 64 (1938) theSupreme Court reversed Swift v Tyson 41 US (16 Peters) 1 (1842) which for almost a


because there is no constitutional authority for Congress to act in some areas in whichthe federal courts had been deciding common law cases, and because the Constitutiondid not itself bestow such a power on the federal courts, the assumption by the federalcourts of power to decide the common law was unconstitutional.13 Since Erie, thefederal courts have had no general power to develop the common law. Where state lawgoverns the case, they must follow or predict14 the common law of the relevant state.IS

The High Court's power to exercise its own judgment as to the nature of the commonlaw, and overrule the decisions of the highest State courts, thus sets it apart from itsUnited States counterpart.

The consequence is that the Australian High Court's jurisdiction does not reflect thefederal division of powers which governs other constitutional arrangements. As SirKenneth Wheare explained:

If the federal principle were to be strictly applied one would expect a dual system to beestablished in a federation, one set of courts to apply and interpret the law of the generalgovernment, and another to apply and interpret the law of each state.16

The historical record reveals two explanations for the distinctive structure of theAustralian federal courts. Perhaps the dominant influence on the framers in this regardwas the model of the Privy Council which, prior to the federation of the Australiancolonies, supervised the development of the common law by colonial courts. Under theAustralian Constitution, it was proposed from the start that the High Court would hearappeals from all decisions of State courts.17 Consequently the High Court would sit atthe apex of the court system as the Privy Council had over colonial courts.18 Although

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hundred years had allowed the development of a "general common law" by the federalcourts.304 US 64, 78 (1938) "Congress has no power to declare substantive rules of common lawapplicable in a state whether they be local in their nature or 'general' be they commerciallaw or a part of the law of torts. And no clause in the Constitution purports to confer sucha power upon the federal courts."M C Dorf, "Prediction and the Rule of Law" (1995) 42 UCLA L Rev 651 at 695.There is, however, some federal common law based on grants of jurisdiction contained inArticle III §2 or in statutes. For example, the grant of jurisdiction in Article III § 2 over cases"to which the United States shall be a party" has provided the basis for the development offederal law concerning some obligations of the United States. For a detailed discussion, seeHenry JFriendly, "In Praise of Erie - And of the New Federal Common Law" (1964) 39NYU L Rev 383 at 405-22.K C Wheare, Federal Government (3rd ed 1953) at 68-69. He goes on to note that "the UnitedStates alone of the four federations we are discussing [Australia, Canada, Switzerland andthe United States] comes near to applying this principle".Official Record of the Debates of the Australasian Federal Convention (Sydney, 4 March 1891) at23.Andrew Inglis Clark explicitly noted that to confer a general appellate jurisdiction on theHigh Court would impose aspects of the British court structure on a federal system. Hesaid of the proposal to give the High Court a general appellate jurisdiction, "I hope that inaddition to a separate federal system of courts we shall have a court of appeal as theresolution contemplates. That will be an innovation ... upon the American system. TheAmerican Supreme Court cannot hear appeals from the supreme courts of the variousstates except in matters of federal law." Official Record of the Debates of the AustralasianFederal Convention (Sydney, 11 March 1891) at 253.


it was initially proposed that the High Court would replace the Privy Council,19 a rolefor the Privy Council was ultimately preserved.2o The result was that the common lawremained a unitary system synthesised in Australia by the High Court and throughoutthe British Commonwealth by the Privy Council.

In addition to consistency with the model of the Privy Council, the conferral ofgeneral appellate jurisdiction on the High Court made uniformity of the common law,which had eluded the American federal courts, possible in the Australian system.21Further, any misgivings about the effect of this arrangement on the federal balancewere apparently allayed by confidence in the judiciary.22 Quick and Garran, in theirinfluential commentary, summarised the basis of s 73:

[I]n Australia, as in Canada, the appellate jurisdiction is not one of those jealouslyguarded State rights which make anything more intimate than a federal unionimpossible. We are accustomed to a common court of appeal in the shape of the PrivyCouncil: we are so assured of the independence and integrity of the Bench that theadvantages of havin~ one uniform Australian tribunal of final resort outweigh allfeelings of localism ...

The jurisdiction of the High Court can therefore be explained by the framers' desire toachieve uniformity of the laws, consistency with the model of the Privy Council andtheir confidence that the federal judiciary would use its power responsibly. What hasbeen less explored, is how the High Court ought to proceed in cases in which thesebodies of law overlap. To this I direct the remainder of this article.

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Ibid.For an account of the controversy surrounding the preservation of the Privy Council's role,see JGoldring, The Privy Council and the Australian Constitution (1996) at 19-33 and 44-48.JQuick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901) at725 § 288. In Erie, the Supreme Court recognised that such uniformity would not beachieved under Swift because of the persistence of State courts in adhering to their ownopinions on questions of common law: 304 US 64, 74 (1938). The power of the High Courtto review the decision of all State courts avoids the proliferation of various interpretationsof the common law.Ibid. See also Official Record of the Debates of the Australasian Federal Convention (Melbourne,28 January 1898) at 273, 283.J Quick and R Garran, above n 21. Quick and Garran advanced the same rationale insupport of s 77 of the Australian Constitution, which allows the Parliament to make lawsinvesting any State court with federal jurisdiction. However, this was primarily motivatedby a wish to avoid the "unduly cumbersome judicial machinery in the early years of theCommonwealth", and to "develop and extend the national judicial system to meet thegradually increasing requirements of the people": ibid at 803-804, § 337. Quick and Garrannoted that it is consistent with the "more national and less distinctively federal" characterof the Australian judiciary. They reiterated the rationale they advanced for the HighCourt's jurisdiction: "[c]onfidence in the integrity and impartiality of the Bench preventsany jealously or distrust of this wide federal jurisdiction; and the same confidence makes itpossible to contemplate without misgiving the exercise of federal jurisdiction by Statecourts": ibid.

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II DECISION-MAKING IN THE HIGH COURT

Theophanous and Stephens

The decision of the majority in Theophanous and StephensTheophanous v Herald and Weekly Times Ltd24 and its companion case Stephens v WestAustralian Newspapers Ltd25 marked a dramatic turn in Australian constitutional law. Inthese cases the High Court addressed a question similar to that which faced the UnitedStates Supreme Court in New York Times v Sullivan.26 In Australian terms the issue waswhether the constitutional freedom of political communication allowed political figuresto maintain an action for defamation. In Theophanous, which contains most of thereasoning concerning the freedom of political communication,27 the High Court heldthat the implied freedom of political communication had a similar effect to the NewYork Times v Sullivan rule. That is, it held that the constitutional implication protectingfreedom of political communication placed limits on the capacity of political figures tobring actions for defamation.28

The overlap of the common law and the ConstitutionOne of the most significant features of these decisions was the High Court's attention tothe relationship between the common law and Australian constitutional law. Becauseof the nature of the Australian Constitution, these bodies of doctrine had previouslyoperated within largely different realms. The Australian Constitution is primarilydevoted to delineating the extent of federal power, providing the basic structure of thefederal government, the relationship between the Federal government and the States,and the relationship between the States. The few provisions which protect individualrights29 have, at least until very recently, been narrowly construed.3D Consequently

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(1994) 182 CLR 104.Ibid at 211.376 US 254 (1964).In Stephens, the High Court addressed the additional questions of how the freedom ofpolitical communication affected discussion of the political matters of a State, and whethera similar implication could be found in the Constitution of the State of Western Australia:(1994) 182 CLR 211 at 232-34 per Mason CJ, Toohey and Gaudron JJ, at 257 per Deane J.The rule in New York Times v Sullivan "prohibits a public official from recovering damagesfor a defamatory falsehood relating to his official conduct unless he proves that thestatement was made with 'actual malice' ... or with reckless disregard of whether it wasfalse or not.": 376 US 254, 279-80 (1964). The Australian rule was formulated slightlydifferently. First, Theophanous provided that an action could not be brought for publicationof false material if (i) the defendant was unaware of the falsity and not reckless withregard to its truth; and (ii) the publication was reasonable in all the circumstances:(1994)182 CLR 104 at 140-141. Second, the onus of proof is reversed: the defendant mustestablish "that it was unaware of the falSity, that it did not publish recklessly (ie not caringwhether the matter was true or false), and that the publication was reasonable": ibid at 137.Further the rule only applies to public officials and candidates for public office.Such as s 41 (a person who acquires the right to vote in a State shall have the right to votein the Commonwealth); s 80 (a trial on indictment shall be by jury); s 116 (Commonwealthshall not make any law "for establishing any religion, or for imposing any religiousobservance, or for prohibiting the free exercise of any religion ..."); s 117 (States not to


constitutional law has not often dealt with the regulation of the relationship betweenthe individual and the state or between individuals, the latter having generallyremained the province of the common law. But, once the High Court ventured into theprotection of communication on political matters, the possibility of overlap arose,notably with the common law of defamation.

In Theophanous and Stephens each of the majority judges held that the Constitutionaffected the common law, finding that the common law of defamation was affected bythe constitutional requirement of freedom of political communication.31 This decisionaligned the High Court, at least temporarily,32 with the United States Supreme Courtrather than its Canadian counterpart. The Canadian Supreme Court has held that theCanadian Charter of Rights and Freedoms applies only to legislative, executive andadministrative branches of government and generally not to the operation orapplication of the common law.33 By contrast, in the United States, the common law issubject to the First Amendment and most other guarantees of the Bill of Rights.34

The common law alternativeFollowing the decisions in Theophanous and Stephens, then, the reach of the freedom ofpolitical communication principle under the Australian Constitution appeared to becloser to that of rights guarantees in the United States Constitution than to the

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discriminate against the residents of any other states); s 51(xxxi) (acquisition of property tobe on just terms).See generally, T Blackshield and G Williams, Australian Constitutional Law and Theory (2nded 1998) at 987-1054. To give an example of this restrictive reading, the High Court hasinterpreted the guarantee that a trial on indictment shall be by jury so as to allowParliament total freedom in determining whether the trial shall be by indictment and thusincur the jury requirement: R v Bernascone (1915) 19 CLR 629; R v Archdall & Roskruge; Exparte Carrigan & Brown (1928) 41 CLR 128.(1994) 182 CLR 104 at 126 per Mason CJ, Toohey and Gaudron JJ, at 164-165 per Deane J.The High Court's analysis changed in Lange v The Australian Broadcasting Corporation (1997)189 CLR 520. See below nn 171-204 and accompanying text.Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174;McKinney v University of Guelph (1990) 76 DLR (4th) 545 at 635 per La Forest J. SeeK Swinton, "Applications of the Canadian Charter of Rights and Freedoms" inW S Tarnopolsky and G A Beaudoin, The Canadian Charter of Rights and Freedoms Commentary (1982) at 42. A similar position was taken by Brennan J, a dissentient inTheophanous, with regard to the implied freedom of political communication: (1994) 182CLR 104 at 153.Although in the United States the common law is considered, for the most part, to be Statelaw, State laws are subject to the provision of the Bill of Rights through the interpretationof the Fourteenth Amendment: Palko v Connecticut 302 US 319, 325 (1937). Secondly,although most constitutional provisions apply to government not private action, judicialenforcement of the common law constitutes State action: New York Times v Sullivan 376 US254, 265 (1964). Although, the High Court has reached the same result as the United StatesSupreme Court, the precise explanation that has emerged is different. It was most clearlyexpressed in Lange v Australian Broadcasting Corporation where the Court held that "[t]heConstitution, the federal, State and territorial laws, and the common law in Australiatogether constitute the law of this country and form 'one system of jurisprudence' ... Withinthat single system of jurisprudence, the basic law of the Constitution provides theauthority for the enactment of valid statute law and may have effect on the content of thecommon law.": (1997) 189 CLR 520 at 564.

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Canadian Charter of Rights and Freedoms. However, Theophanous and Stephensdemonstrated an important remaining difference between the United States andAustralian positions. Because of the High Court's common law jurisdiction, argumentwas also addressed to the Court on the operation of the common law defence ofqualified privilege.35 The High Court, then, had a choice as to how to proceed.

For the majority, the answer to the constitutional question dictated their approachto the common law: it followed from their opinion that the Constitution limited actionsfor defamation by political figures, that the common law must give way to theconstitutional requirement of freedom of political communication.36 For thedissentients,37 however, the common law question survived. Having declined toextend the constitutional protection of communication, the question remained: did thecommon law defence of qualified privilege protect speech relating to public or politicalmatters? In Theophanous, the dissentients found the question strictly unnecessary todecide.38 In Stephens, however, two of the judges dealt with the matter in some detail.In its traditional form, the defence of qualified privilege has excluded publications,such as those in newspapers or broadcasts, which are made to the world at large.39 Itwas considered that the interest of the general public in information was notestablished merely by the fact that it concerned a matter in which the public wasinterested.40 A newspaper publication was therefore generally not privileged, becauseit would usually carry a communication beyond those who have a legitimate interest in

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Theophanous (1994) 182 CLR 104 at 111, 116; Stephens (1994) 182 CLR 211 at 214, 217.(1994) 182 CLR 104 at 140 per Mason CJ, Toohey and Gaudron JJ, at 187-88 per Deane J.There were three dissentients. Brennan J dissented on the basis that the implied freedomoperated only to limit the legislative powers of the Parliament: (1994) 182 CLR 104 at 149.Dawson J dissented, taking the view he first expressed in Australian Capital Television andNationwide News, that there is no constitutional freedom of political discussion flowingfrom the establishment of representative government: ibid at 191. McHugh 1's dissent alsofollowed from his decision in Australian Capital Television and Nationwide Ne-ws. Althoughhe had joined the majority in striking down the legislation in those cases, the basis of hisdecision was considerably narrower. He recognised that a freedom of politicalcommunication only existed to protect a narrow concept of representative government,namely, the direct election of the Federal parliament by the people. Consequently, theimplied freedom had no effect on defamation laws: ibid at 203-205.These cases came to the High Court as cases stated under s 40 of the Judiciary Act 1903(Cth) which allows for a case raising a constitutional question pending in a lower court tobe removed into the High Court by its own order. Section 18 then provides for a case to bestated for the Court's consideration. In Theophanous and Stephens the cases were removed tothe High Court under s 40 before their respective trials: Theophanous (1994) 182 CLR 104 at119; Stephens (1994) 182 CLR 211 at 235 and 258. The Chief Justice stated a case for the HighCourt to consider. In Theophanous, the case consisted of four questions: the first twoquestions addressed the constitutional issue. The third question was as follows: "If yes toany part or parts of question I, is any such publication a publication on an occasion ofqualified privilege ... ?": (1994) 182 CLR 104 at 120. Strictly, therefore, the question onlyarose upon a finding that the Constitutional protection extended to the publication ofmaterial described in question 1. As they had dissented on this question, Brennan, Dawsonand McHugh JJ took the view that the common law question did not arise: ibid at 163, 194and 207.The classic statement of the defence of qualified privilege is that of Parke B in Toogood vSpyring (1834) 1 CM & R 181 at 193: 149 ER 1044 at 1049-1050.Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 513.

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it.41 Of the dissentients, Brennan and McHugh JJ proposed extensions of the traditionalrule of qualified privile~e to cover some publications to the world at large. Thoughthey differed in detail,4 as I will later show, each judge's response allowed greaterprotection of political communication.43

III THE COMMON LAW AS AN ALTERNATIVE TO CONSTITUTIONALCHANGE

My central point is that the common law analysis advanced by Brennan andMcHugh JJ is preferable to the majority's constitutional analysis. However, I make theargument for different reasons from those advanced by their Honours. Unlike Brennanand McHugh JJ, I do not argue that the majority's constitutional analysis was flawed.Rather, my point is that, regardless of the correct constitutional analysis, the commonlaw is a preferable basis for decision because it reduces the risk involved in decisionmaking. Before I make this argument, however, I will make three preliminary points.

Preliminary mattersFirst, it should be stressed that my criticism is addressed to the High Court's decisionsin Theophanous and Stephens rather than the United States Supreme Court's decision inNew York Times. I stress this because, particularly in the light of its history, it is easy tohave sympathy with the decision in New York Times. In that case, the New York Timeswas sued by an Alabama official for carrying an advertisement critical of the actions ofAlabama authorities during the American civil rights movement. As Anthony Lewisrelates, the trial occurred amidst enormous hostility to the New York Times, whichstemmed from Southern determination to resist the civil rights movement.44 Thehostility was such that the New York Times had difficulty finding an Alabama lawyer torepresent it; the jury was subjected to this hostile feeling by the publication of theirnames and faces on the front page of the Alabama Journal and there is even asuggestion that the trial judge he%ed plan the plaintiff's action.45 Finally, despite theweakness of the plaintiff's case, 6 the jury awarded, and the Supreme Court ofAlabama upheld, a judgment of $500,000 against the New York Times. This was thelargest libel judgment in Alabama history and extraordinary by national standards.47

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Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.Brennan and McHugh JJ both extended the traditional category of "public interest" toinclude matters relating to government and the conduct of public affairs: (1994) 182 CLR211 at 251 per Brennan J, at 265 per McHugh J. Further, both judges placed emphasis onthe status of the maker of the communication. For Brennan J the privilege will only beavailable where the maker of the communication has "particular knowledge" of the subjectmatter, though it will be sufficient if the publisher had a reasonable belief that that personhad such knowledge: ibid at 252. For McHugh J the maker of the communication musthave "special knowledge": ibid at 265. The principal differences are that McHugh Jdid notextend the privilege to bare defamatory comment whereas Brennan J required thestatement to be "fair and accurate" and that the person the subject of the communicationhave a reasonable opportunity for response: ibid at 252 and 267.See below nn 109-18 and accompanying text.A Lewis, Make No Law (1991) at 21-22.Ibid at 24-27.Ibid at 28-31.Ibid at 35.


The impropriety of the proceedings in Alabama and the racist motivations of manyof those involved seem clear. The case for Supreme Court intervention was, therefore,particularly compelling and, moreover, because of its jurisdictional limitations, theUnited States Supreme Court did not have the common law available to it. My criticismthen, is less of the use of constitutional means to protect speech in this judgment, thanits adoption by the High Court of Australia where a common law alternative wasavailable.

Secondly, I should acknowledge at the outset that the High Court's failure toconsider the common law as an alternative to constitutional law in Theophanous andStephens may have resulted simply from the nature of Australian constitutional lawand from the procedural context of these cases. For the reasons I have explained, thecommon law and Australian constitutional law have not often overlapped, if at all.Consequently, the idea of such a choice was quite new and the High Court's failure toconsider it quite understandable. Further, these cases came before the High Court ascases stated,48 according to which the issue of common law qualified privilege onlyarose after the Court decided whether the Constitution protected discussion ofgovernment or political matters from defamation action.49 Consequently, theconsideration of the constitutional issue naturally came before the consideration of thecommon law issue.

However, this point has little significance for my argument. Although it explainswhy the High Court failed to consider the common law as an alternative toconstitutional decision-making, it does not undermine the point that the common lawwas a more appropriate basis for decision. My concern is not to prove the High Court'slack of foresight but to show how use of the common law would have improved itsdecision-making.

Finally, I should acknowledge that the idea that constitutional decision-makingshould be avoided, where another ground of decision is available, is familiar. In theUnited States and Australia there have long been rules that encourage avoidance ofconstitutional decision-making through preference for a non-constitutional ground ofdecision.50 An example is the rule that a court should, where fairly possible, prefer aconstruction of a statute that is consistent with the Constitution, rather than the reviewof the statute against the Constitution.51

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See above n 38.See the questions stated in Theophanous above n 38. As the questions reserved inTheophanous dealt with the possible constitutional and common law bases for protection ofthe speech in question, the questions in Stephens simply asked whether the two defencespleaded, a defence relying on the implied freedom of communication and one relying onqualified privilege, were bad in law: Stephens (1994) 182 CLR 211 at 231. No doubt alsoinfluenced by the form of the case stated, counsel appear to have put argument to the HighCourt on the basis that the common law of qualified privilege was a secondary defence,which was to be considered after the constitutional question had been decided:Theophanous (1994) 182 CLR 104 at 111, Stephens (1994) 182 CLR 211 at 214.Many of these rules are set out by Justice Brandeis in his famous concurring opinion inAshwander v TVA 297 US 288, 345-49 (1936) (Brandeis J with whom Stone, Roberts andCardozo JJ agreed). See generally, LA Kloppenberg, "Avoiding Constitutional Questions"(1994) 35 Be L Rev 1003 at 1018-1027.Ashwander v TVA 297 US 288, 348 (1936). For instances of the Australian doctrine of"reading down" statutes and the related technique of "severance", whereby the Court may


The approach I am proposing could be seen as a common law version of thisstatutory rule. Perhaps it could roughly be expressed as follows: a court should, wherefairly possible, prefer a construction of the common law that is consistent with theConstitution, rather than the enunciation of a constitutional standard to replace anunconstitutional common law standard.

Given its relationship to arguments for constitutional avoidance in other contexts,the rule of common law preference may find justification in some argumentstraditionally made in favour of constitutional avoidance. The most prominent of theserelies on the "counter-majoritarian" nature of judicial review.52 The argument is that,because judicial review thwarts the power of elected branches and is not easilyreviewable by democratic means,53 it should be used sparingly. In addition, concernsover the ~oliticalvulnerability of courts,54 their limited capacity to fashion and enforcesolutions,55 and the desire to show proper respect to other branches of the Federalgovernment56 and to the States,57 have inspired further arguments for judicial restraintin respect of constitutional decision-making.

Although these arguments might seem to support my thesis, I do not seek to rely onthem here. First, there is a question as to the extent that these concerns are relevantwhen the High Court is considering the constitutionality of the common law. After all,the common law is not so obviously the result of a majoritarian process. Moreover, ifthe High Court decides upon the constitutionality of some common law doctrine, it isnot interfering with the decisions of other branches of the State or Federal governmentsbut with judge-made doctrine. At most, a decision on the constitutional issue hascounter-majoritarian implications through its power to restrain the future legislativeand executive action.58 More fundamentally, however, I do not rely on such argumentsbecause I am interested in another reason for constitutional avoidance that appliesparticularly when the alternative basis of the decision-making is the common law. As Ihave stated, my argument is that the common law reduces the risks of decision-makingand is more likely, therefore, to produce a good substantive result.

The risk posed by Theophanous and StephensTheophanous and Stephens are important decisions on matters of high publicimportance. In advancing a vision of constitutionally protected communication and arule according to which such communication is protected from defamation, the High

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declare parts of a statute as invalid but allow the rest to stand, see D' Emden v Pedder (1904)1 CLR 91 and R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co(Bootmaker's Case No 2) (1910) 11 CLR 1.A Bickel, The Least Dangerous Branch (2nd ed 1986).The Australian Constitution, for example, can only be amended according to thereferendum procedure prescribed by s 128.The concern over vulnerability of the United States Supreme Court to political attack wasacute in the aftermath of the Court's ultimately futile resistance to the New Deal. SeeA Bickel, above n 52 at 45-47, 240. See generally, L A Kloppenberg, above n 50 at 10421043.L A Kloppenberg, above n 50 at 1042. On the limited institutional capacity of courts, seegenerally, G N Rosenberg, The HolloUJ Hope (1991).L A Kloppenberg, above n 50 at 1047.Ibid at 1055.Ibid at 1040.


Court has made some important commitments. As I will now show, in taking such animportant stand, the High Court made commitments that could later have beenregretted.59

The philosophical basis offreedom ofpolitical communicationOne of the most important aspects of these decisions is the development of aphilosophy to explain freedom of political communication. One important influence onthe High Court has been the United States Supreme Court's interpretation of the FirstAmendment. This entailed a high degree of protection for speech because, as is wellknown, First Amendment jurisprudence is characterised by scepticism of governmentregulation of speech. Among the strongest manifestations of this scepticism are thesubjection of much regulation of speech to an exacting standard of review known as"strict scrutiny II60 and a distrust of any role government might have in improving thequality of public discourse.61

This hostility to government intervention is evident in the early High Court cases onthe freedom of political communication, Nationwide News and Australian CapitalTelevision. On the issue of the standard of review, a majority of the High Court initiallyadopted an approach that closely resembled American free speech law. In AustralianCapital Television, Mason CJ and McHugh J drew a distinction between "restrictions oncommunication which target ideas or information and those which restrict an activityor mode of communication by which ideas or information are transmitted."62 In thefirst category - content-based regulation - both judges used language reminiscent ofthe "compelling interest" requirement of the American strict scrutiny standard.63 Asimilar standard has been articulated by Deane and Toohey JJ.64

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This argument has something in common with, and has been influenced by, CassSunstein's recent argument for a strategy of judicial "minimalism". That is, a strategy ofleaving as much as possible undecided in cases in which the Court is dealing with "anissue of high complexity about which many people feel deeply and on which the nation isin flux (moral or otherwise)." C R Sunstein, "Foreword: Leaving Things Undecided" (1996)110 Haro L Rev 4 at 8. Part of his argument for minimalism is that it reduces "error costs",the costs of a wrong decision.Under this standard, regulation directed to the content of speech will generally only bepermissible if the government can show that "its regulation is necessary to serve acompelling state interest and that it is narrowly drawn to achieve that end.": Widmar vVincent 454 US 263, 270 (1981). There are some categories of speech, including obscenityand face to face insults (often referred to as "fighting words") and, subject to New YorkTimes v Sullivan and related rules, libel which have traditionally been regarded as subjectto a lower standard of review. However, recently the Supreme Court has found evenregulation of previously "unprotected categories" of speech will be subject to strict scrutinyunless it can be shown to be "content neutral": RA V v City of St Paul 505 us 377 (1992).Buckley v Valeo 424 US 1, 48-49 (1976) "[T]he concept that government may restrict thespeech of some elements of our society in order to enhance the relative voice of others iswholly foreign to the First Amendment, which was designed to secure the widest possibledissemination of information from diverse arid antagonistic sources, and to assureunfettered interchange of ideas." (citations omitted).(1992) 177 CLR 106 at 143 per Mason CJ. See also at 234-235 per McHugh J.Ibid at 143 per Mason CJ, a~ 234-235 per McHugh J. In the case of regulation directed onlyat the activity of communication, however, a less restrictive proportionality requirementwas imposed. That is, the test of constitutionality depends on whether "the burden on free


The protectiveness of this approach can be contrasted with that of Brennan J, whowas far more sympathetic to regulation. He articulated a single proportionalityrequirement which is applicable to all regulation of speech. The validity of legislation isdetermined by the "proportionality between the restriction which a law imposes on thefreedom of communication and the legitimate interest which the law is intended toserve."65 Moreover, he stressed the "supervisory" role of the Court66 and concludedthat it should allow the Parliament a "margin of appreciation"67 in assessing the needfor regulation.

Further influence of the American model of free speech can be seen in the HighCourt's position on regulation designed to im~rove the quality of political discourse. Incontrast to the United States Supreme Court, 8 in Australian Capital Television,69 MasonCJ and Deane and Toohey JJ indicated that the High Court may entertain the argument

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communication ... is disproportionate to the attainment of the competing public interest":ibid at 143 per Mason CJ. See also ibid at 235 per McHugh J.Like Mason CJ and McHugh J, they set a standard of review which varies with the natureof the regulation. A law which aims to control communication will be more difficult tojustify than a law "with respect to some other subject and whose effect on suchcommunications is unrelated to their nature as communications". Such laws can only bejustified if either they "do not go beyond what is reasonably necessary for the preservationof an ordered society or for the protection or vindication of the legitimate claims ofindividuals to live peacefully and with dignity"; or "are conducive to the overallavailability of the effective means of such communication in a democratic society":Nationwide News (1992) 177 CLR 1 at 76-77. See also Australian Capital Television (1992) 177CLR 106 at 174. Although this standard of review might appear less stringent than the"compelling justification" test advanced by Mason CJ and McHugh J, as elaborated byDeane J in Cunliffe v Commonwealth (1994) 182 CLR 272, the standard is closer to a strictscrutiny requirement. The requirement that a law must "not go beyond what is necessary"means that it must be viewed by a "pressing social need": (1994) 182 CLR 272 at 339-340(quoting Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd [No.2] [1990]1 AC 109 at 283-284).Australian Capital Television (1992) 177 CLR 106 at 157-158. The remaining judge whorecognised the freedom of political communication, Gaudron J, took an approach like thatof Brennan J. Regulation of speech is permissible only if it is directed to the achievement ofa legitimate end and "is reasonably and appropriately adapted to that end": NationuJideNews (1992) 177 CLR 1 at 95. See also Australian Capital Television (1992) 177 CLR 106 at 218.However, she was also troubled by the provisions allocating free use of electronic media tosome political actors, finding that the restrictions placed on political discourse "cannot beviewed as reasonable and appropriate regulation in a context where candidates andpolitical parties are allocated free time for their political advertisements": ibid at 221. Theseventh member of the Court, Dawson J, dissented on the basis that the Constitutionincluded no limitation on legislative power to protect freedom of political discourse: ibid at184.Nationwide News (1992) 177 CLR 1 at 52Australian Capital Television (1992) 177 CLR 106 at 159 citing The Observer and the Guardian vThe United Kingdom (1991) 14 EHRR 153 at 178.Buckley v Valeo 424 US 1,48-49 (1976); see above n 61.The legislation restricting political advertising challenged in Australian Capital Televisionwas designed to improve the political process by reducing the possibility of corruption andequalising access to the use of electronic media for political purposes: (1991) 177 CLR 106at 130.


that such regulation of communication is justified.70 However, the Chief Justiceexpressed a level of scepticism which might be familiar to a student of the FirstAmendment:

[T]he Court should scrutinize very carefully any claim that the freedom ofcommunication must be restricted in order to protect the integrity of the political process... All too often attempts to restrict the freedom in the name of some imagined necessityhave tended to stifle public discussion and criticism of government. The Court should beastute not to accept at face value claims ... that freedom of communication will, unlesscurtailed, bring about corruption and distortion of the political process.71

In the end, moreover, each of these judges found the legislation in Australian CapitalTelevision· wanting.72 Only Brennan J, whose approach was particularly deferential tothe legislature, upheld the legislation on the basis that it improved the quality ofpolitical discourse.73 Theophanous and Stephens, then, represent an extension of thisinfluence of the First Amendment in Australia. The High Court was explicitlyinfluenced by New York Times v Sullivan, adopting its analysis of the chilling effect oflibel action on speech.74

This attention to First Amendment jurisprudence is perhaps explained by anunderlying philosophical affinity. One of the most influential ideas underlying the FirstAmendment is a belief that free speech supports democracy.75 Free speech is valuedbecause it allows citizens to get information about their government, to hold theirgovernments accountable to them and to exercise choice as to who governs them.Moreover, it assists citizens in communicatin~ their wishes to their government,enabling governments to be more responsive. 6 New York Times v Sullivan clearly

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Ibid at 145 per Mason CJ, at 169 per Deane and Toohey JJ.Ibid.They were particularly troubled by the provisions for the allocation of free time whichserved to mitigate the effect of the regime in relation to established political parties, but notin relation to other participants in the political process: Australian Capital Television(1992)177 CLR 106 at 146, 175 and 237.Brennan J recognised that s 95B (restricting advertising by means of the electronic mediaduring election periods) was directed at minimising corruption and reducing the politicaladvantage which wealth could bring: ibid at 154-156. He then held that "[t]he restrictionsimposed by s 95B are comfortably proportionate to the important objects which it seeks toobtain. The obtaining of those objects would go far to ensuring an open and equaldemocracy. The openness of political discussion and the equality of the participants in thedemocratic process makes governments responsive to the popular will. The restrictions onadvertising do little to inhibit the democratic process.": ibid at 161.Theophanous (1994) 182 CLR 104 at 131 per Mason CJ, Toohey and Gaudron JJ, at 182-183per Deane J.Alexander Meiklejohn was perhaps the principal exponent of this theory of free speech:A Meiklejohn, Free Speech and its Relation to Self Government (1948). See also Mills v Alabama384 US 214, 218 (1966): "there is practically universal agreement that a major purpose of[the First Amendment] was to protect the free discussion of governmental affairs." See alsoBuckley v Valeo 424 US 1, 14 (1976) (discussion on public issues and debate on thequalifications of candidates is "an area of the most fundamental First Amendment activities... integral to the operation of the system of government established by our Constitution.").See generally, F Schauer, Free Speech: A Philosophical Enquiry (1981) at 35-46; K Greenawalt,"Free Speech Justifications" (1989) 89 Colum LRev 119 at 145-46.Stromberg v California 283 US 359, 369 (1931) "The maintenance of the opportunity for freepolitical discussion to the end that government may be responsive to the will of the people


reflects the link between freedom of speech and democratic values. Freedom ofexpression on public issues is secured because "the First Amendment 'was fashioned toassure unfettered interchange of ideas for the bringing about of political and socialchanges desired by the people."'77 As the Australian freedom of politicalcommunication principle is derived from the notion of representative democracy,78 itappears to have a similar philosophical foundation and the adoption of New YorkTimes, or rather a form of that rule, may be explained on that basis.

However, a commitment to the protection of democracy need not have led the HighCourt to adopt New York Times and the strong stand against regulation embodied inthat case. That attitude to regulation of speech is attributable to other aspects of FirstAmendment theory which the principle of freedom of political communication may notshare. A central feature of New York Times is the Supreme Court's decision to protecteven false defamatory information. The Court held that a defence where truth is proveddoes not satis~ the First Amendment.79 The Court acknowledged that false statementswill be made8 and reputations will be damaged by them.81 However, it held that theinjury to reputation does not justify regulation of speech by the law of libel. The Courtquoted the Supreme Court of Kansas:

It is of the utmost consequence that the people should discuss the character andqualifications of candidates for their suffrages. The importance to the state and to societyof such discussions is so vast and the advantages derived are so great, that they morethan counterbalance the inconvenience of private persons whose conduct may beinvolved, and occasional injury to the reputations of individuals must yield to the publicwelfare, although at times such injury may be great.82

It may be that freedom of political communication must protect communication in theface of some harms which, in other circumstances, would justify regulation. ProfessorBlasi has argued that the protection of speech, even though it causes harm, is anessential part of the notion that freedom of speech serves democracy.83 However, theparticular decision made by the Supreme Court in New York Times - that the harmcaused by false speech does not outweigh the interest in free speech - need not beaccepted by the High Court. As Professor Blasi explains, "exponents of the self-

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and that changes may be obtained by lawful means, an opportunity essential to thesecurity of the Republic, is a fundamental principle of our constitutional system." See alsoRoth v United States 354 US 476, 484 (1957); Archibald Cox, The Court and the Constitution(1987) at 212 "Only by uninhibited publication can the flow of information be secured andthe people informed concerning men, measures, and the conduct of government ... Only byfreedom of speech, of the press, and of association can people build and assert politicalpower, including the power to change the men who govern them."376 US 254, 269 (1964) citing Roth v United States 354 US 476, 484 (1957).The High Court uses the term "representative democracy" as well as "representativegovernment": Theophanous (1994) 182 CLR 104 at 130, 163. Although some distinction hasbeen drawn between these concepts, ibid at 199, I use them interchangeably.376 US 254, 279 (1964).Ibid at 271-272.Ibid at 272-273.Coleman v MacLennan 78 Kan 711 at 724; 98 P 281 at 286 (1908).V Blasi, "Learned Hand and the Self Government Theory of the First Amendment" (1990)61 U Colo L Rev 1.


government theory [of the First Amendment] may reach rather different conclusionsregarding what harms can serve as a justification for limiting freedom of speech. ,,84

The Supreme Court's conclusion in New York Times is strongly influenced by thenotion of "the market place of ideas" which draws on Justice Holmes' famous argumentthat "the best test of truth is the power of the thought to get itself accepted in thecompetition of the market".85 In its strongest form, the belief is that only the truth willsurvive competition between ideas.86 Another version, most famously articulated byJohn Stuart Mill, points to the fallibility of human knowledge and the consequent valuein subjecting our beliefs to contradiction.87 Professor Schauer has suggested a third andmore limited version of the argument. He argues that speech should be unregulatedbecause there is reason to be especially sceptical about the motives and abilities ofgovernment in determining which information should circulate and which should besuppressed.88 According to this analysis, the case for free speech reflects, not a faiththat the market place of ideas will produce the truth, but a belief that it is "the mostviable alternative to authoritative decree."89 This argument suggests that theimportance of free speech lies in its power to prevent authoritarianism.

The high value the Supreme Court places on freedom of speech in New York Timesreflects the influence of these various arguments for a free market place of ideas. Thebelief that debate must be "uninhibited, robust and wide-open", that it requires "vigor"and "variety"90 appears to value the competition and contradiction of the "market placeof ideas". Indeed, Schauer's form of the argument - the notion that a "free market" inideas is the only reliable alternative to authoritarian control of speech - is evident inthe Supreme Court's citation of Learned Hand's statement, that the First Amendment"presupposes that right conclusions are more likely to be gathered out of a multitude oftongues, than through any kind of authoritative selection."91

It is this part of the American free speech tradition that the High Court could haverejected consistently with its commitment to representative democracy. Americanscholars have shown that the relationship between democracy and freedom of speechcan be seen differently. Some American commentators, who value freedom of speechfor its capacity to promote public deliberation, have argued that the current Americanapproach is not consistent with that ideal. In particular, it neglects the distorting effectof existing inequalities in access to information and the capacity to communicate.92

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Ibid at 15. Professor Blasi excepts "any increased likelihood that incumbents will berejected at the polls." Under a self-government theory, this cannot be counted as a harmagainst which freedom of speech is weighed since it is exactly this, the choice of whogoverns, that free speech is designed to foster.Abrams v United States 250 US 616, 630 (1919) (Holmes J dissenting). See generally,K Greenawalt, above n 75 at 130-41; F Schauer, above n 75 at 15-34.For criticisms of this notion see K Greenawalt, above n 75 at 131-141; F Schauer above n 75at 28-33.JS Mill, On Liberty (E Rapaport ed 1978) (1st ed 1859) at 15-52.See F Schauer, above n 75 at 33-34.V Blasi, "Reading Abrams through the Lens of Schauer" (1997) 72 Notre Dame L Rev 1343 at1349.376 US 254, 270, 279 (1964).376 US 254, 270 (1964).See 0 Fiss, "Free Speech and Social Structure" (1986) 71 Iowa L Rev 1405 at 1410. Fiss attacksthe traditional protection of free speech in the United States, pointing to the capacity of


Consequently, protecting speech from regulation may hinder rather than advancepublic debate by excluding the voices of some and emphasising the voices of others. Atruly full and fair discussion of public affairs may actually require governmentintervention.

If the High Court had been convinced by these arguments, it may have placed lessemphasis on the "vigor" and "variety" of debate and been more concerned about, say,the accuracy and fairness of the debate. It may then have come to a differentassessment of the magnitude of danger posed by regulation of communication inTheophanous. The Court could perhaps have taken the view that the evils of falseinformation were not outweighed by the need for free speech. Reflecting the view ofthose who have argued for the use of regulation to enhance political debate, the Courtcould have concluded that the existing law of defamation actually benefited publicdebate by encouraging accurate reporting in the first place.93 So, even though freedomof political communication is designed to promote democracy, the High Court couldhave adopted a vision of how that goal is to be achieved which is different from theSupreme Court's approach.

In summary then, the High Court rather quickly allied itself with a philosophicaltradition based on suspicion of government, a choice which does not necessarily followfrom its identification of the freedom of political communication with representativegovernment. My point here is not to argue that the High Court was actually wrong.The tradition which influenced it may well be worthy of emulation. My point is muchmore modest. There are serious competing visions of freedom of speech and to make achoice between them at this point is a relatively risky enterprise which should beavoided where possible.

This last point explains why my argument is addressed to Theophanous and Stephensrather than earlier decisions on the freedom of political communication. Although theadoption of the free speech philosophy I have criticised began in Australian CapitalTelevision and Nationwide News, the extension in Theophanous and Stephens isparticularly problematic given that it could have been avoided by turning to thecommon law. Before explaining how the common law avoids the problems posed bythe adoption of a philosophical perspective on freedom of political communication, Iwant to explore other aspects of the Theophanous decision which give cause for concern.

93

major broadcasters (like the American CBS network) to determine the content of publicdebate: "The Tradition assumes that by leaving individuals alone, free from the menacingarm of the policeman, a full and fair consideration of all the issues will emerge. Thepremise is that autonomy will lead to rich public debate ... when our perspective shifts, as Iinsist it must, from the street corner to, say, CBS, this assumption becomes highlyproblematic ... autonomy ... might even become destructive of that goal." He concludes thatregulation can correct this distortion that flows from social structure. "[I]n the modernworld the state can enrich as much as it constricts public debate": ibid at 1415. See alsoC R Sunstein, The Partial Constitution (1993) at 203-213.One criticism of the New York Times rule is that "it encourages sloppy journalism becausethe lower the standard of care that is seen as 'normal' for journalists, the harder it will befor public figure plaintiffs to prove the greater dereliction of 'recklessness' required underthe Sullivan rule.": M Chesterman, "The Money or the Truth" (1995) 18 UNSWLJ 300 at 307308.


The Theophanous rule: the lessons o/New York Times v SullivanEven if one accepts the underlying philosophy of the freedom of political discussion,the practical effect and subsequent development of these cases might give rise toconcern.

The history of New York Times v Sullivan suggests how the future development ofthe Theophanous rule might encounter difficulties. The New York Times rule has beenwidely recognised as seriously problematic even by those sympathetic to the Su~reme

Court's desire to protect public discourse from the "chilling effect" of libel action. 4 Partof the criticism is that the Court has extended the doctrine too far beyond the politicalcontext.95 But, even in its original formulation, the rule contains some serious flaws.Litigation under the rule has proved complex and expensive. The focus the New YorkTimes test places on the motives of journalists has placed reporters and editors underintense scrutiny. They are frequently subject to intrusive discovery proceedings andpressure to reveal their sources, in order to establish that they did not act with "actualmalice".96 Further, the focus on the defendants' motives has been blamed for highawards of damages against media defendants.97 Critics have claimed that the prospectof such intrusion and a high damages award creates just the kind of chilling effect thatNew York Times was designed to prevent.98

As New York Times shows, then, judicially formulated rules may have unexpectedconsequences. There is first, the possibility that the deciding court may not foresee thepractical effects of the rules it formulates and second, the unpredictability that followsthe subsequent interpretation of rules. So, in the case of New York Times v Sullivan, wesee both the over-extension of the rule in subsequent decisions and unexpectedconsequences of the rule even in its original formulation.

In Theophanous, the High Court was more able than the Supreme Court in New YorkTimes to assess the practical result of the rule precisely because it had the benefit of theNew York Times experience. The High Court rejected the American decisions extending

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A Lewis, "New York Times v Sullivan Reconsidered: Time to Return to 'The Central Meaningof the First Amendment'" (1983) 83 Colum L Rev 603; N Strossen, "A Defence of theAspirations - But not the Achievements - of the US Rules Limiting Defamation ActionsBy Public Officials or Public Figures" (1986) 15 Melb U L Rev 419.Although the Supreme Court has limited the category of public figures to those who have"thrust" themselves into controversy or voluntarily attracted fame (see Gertz v Robert WelchInc 418 US 323, 352 (1974); Time Inc v Firestone 424 US 448 (1976); Hutchinson v Proxmire 443US 111 (1979); Wolston v Reader's Digest Assn Inc 443 US 157 (1979», the category ofdefendants to whom it applies extends beyond public officials and those involved in publicaffairs to figures who have no relation to the political affairs, criticism of whom bears littlerelation to the speech about public affairs which New York Times was aiIned to protect. SeeA Lewis, above n 94 at 622-24 who argues that individuals should only come within theNew York Times philosophy "when they meet two tests: prominence in the community andrelevance to public affairs". See also 0 A Anderson, "Is Libel Law Worth Reforming?" inJSoloski and R P Bezanson (eds), Reforming Libel Law (1992) at 8; G Gunther, ConstitutionalLau] (12th ed 1991) at 1094.A Lewis, above n 94 at 609-11. For "actual malice" see above n 28. In Herbert v Lando 441 US153 (1979) the Supreme Court rejected a claim for a First Amendment privilege in relationto pre-trial discovery proceedings. See D A Anderson, above n 95 at 18-21.D A Anderson, above n 95 at 18.A Lewis, above n 94 at 61~.


the notion of "a public figure" beyond public officials and candidates for public office99

and, concerned that New York Times' "actual malice" standard, combined with therequirement that the plaintiff make out a case with "convincing clarity", affordedinsufficient protection for reputation,lOO the High Court reversed the onus of proof andsubstituted the "reasonableness" test for the "actual malice" standard.10l

However, this reformulation of the New York Times v Sullivan rule opens the way forthe second kind of problem, namely, that which results from subsequent judicialinterpretation. A striking feature of the test is that it employs the open standards of"recklessness" and "reasonableness". To recall, the protection depends on the defendantestablishing that the material was not published "recklessly" and that it was"reasonable in the circumstances".102

The broadly formulated terms of the new rule left much discretion in the hands ofthe courts who were to apply and develop it. Although not unheard of, the standardembodied in the recklessness and reasonableness requirements would have to bedefined in the context of freedom of political communication by the courts. The notionof a "reasonable" publication was particularly unclear. One important outstandingissue was whether this required that the defendant establish an honest belief in thetruth of the matter published.103 The little clarification given by the Court raisedfurther questions. Although the Court indicated that "[t]he publisher should berequired to show that, in the circumstances which prevailed, it acted reasonably, eitherby taking some steps to check the accuracy of the impugned material or bI establishingthat it was otherwise justified in publishing without taking such steps",lO it was not atall clear what kinds of steps are necessary or when a publisher is justified indisregarding them. These kinds of judgments were for later development, principallyby the lower courts.

The test's novelty also leaves other important issues undecided. Even during theshort time in which Theophanous stood unaltered, lower courts had to decide mattersnot clearly addressed by the High Court but which nevertheless may have a profoundeffect on the ultimate operation of the rule, namely its aPfclication to defamatorycomment105 and whether the test was for the judge or the jury. 06

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Theophanous (1994) 182 CLR 104 at 134 "[W]e should indicate our preliminary view thatthese extensions, other than the extension to cover candidates for public office, should notform part of our law."Ibid at 135.Under the Australian rule, the defendant must establish "that it was unaware of the falsity,that it did not publish recklessly (ie not caring whether the matter was true or false) andthat the publication was reasonable": ibid at 137. Cf discussion of "actual malice" aboven28.Ibid at 140-41. See also above n 28 and accompanying text.This is a requirement under the Defamation Act 1974 (NSW), s 22. See Morgan v JohnFairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374; New South Wales Law ReformCommission, Defamation (Report No 75, 1995) at 32.(1994) 182 CLR 104 at 137.Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152. -See below nn 141-44 andaccompanying text.Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 at 129 where Allen Jheld that it is forthe judge to determine whether the constitutional defence arises on the evidence but thatthe "reasonableness" requirement is one for the jury.


Of course, there is too little evidence to conclude that the Theophanous rule failed.The rule might ultimately have succeeded in striking an appropriate balance betweenthe protection of reputation and freedom of communication. My point again is modest.The New York Times experience shows that there is a substantial risk of the rule notachieving its aims and that risk, as I shall now explain, can be minimised by adoptingthe common law alternative.

Risk and the common lawMy suggestion that a common law solution in Theophanous and Stephens might haveallowed the High Court to avoid these risks, is obviously based on a greater confidencein common law reasoning. There are two bases for this confidence.

The stakes of a decision: top down and bottom up reasoningOne feature of the freedom of speech cases, including Theophanous and Stephens, whichI have suggested is particularly troubling is that they committed the Court to aparticular understanding of freedom of speech. In doing so, the Hi§h Court hasengaged in what Judge Posner has described as "top down" reasoning.l 7 That is, theHigh Court has adopted a theory, in this case a theory about how the AustralianConstitution limits the power of laws to interfere with representative government, andit then has approached individual cases by reference to this idea.10B

The problem with "top down" reasoning is that it involves an ambitious statementabout an underlying principle. The stakes of a single decision are therefore high. This isexemplified by the High Court's vision of freedom of political communication inTheophanous and Stephens. By contrast, common law reasoning can be unambitious inthe level of justification it advances for a particular decision. A hallmark of commonlaw reasoning is that law is made through the adjudication of individual disputes. Theproposition for which a case is taken to stand is determined by a later court which thenapplies, distinguishes, develops or (if the later court is a superior court) overrules it. Incounter-point to top down reasoning, development of a rule by determination ofindividual disputes is reasoning from the bottom up.

Bottom up reasoning in StephensThe "bottom up" nature of common law reasoning can be seen in the discussion of thecommon law of qualified privilege by Brennan and McHugh JJ in Stephens.

As I have said, both these judges developed that doctrine to provide greaterprotection to political communication. In doing so, they relied principally on extensionsof decided cases. Although Brennan Jupheld the traditional rule denying protection topublications to the world at large, as it related to the publication by a newspaper of itsown defamatory allegation/109 he held that where a newspaper publishes a report

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R A Posner, "Legal Reasoning From the Top Down and From the Bottom Up" (1992) 59 UChic L Rev 433.Posner notes, ibid at 434, that JH Ely advanced a similar "top down" theory aboutconstitutional law in general in Democracy and Distrust: A Theory ofJudicial Revieu, (1980).Brennan Japproved the High Court's statement in Loveday v Sun Newspapers Ltd (1938) 59CLR 503 that "[t]here is ... no principle of law which entitles a newspaper to publish adefamatory statement of fact about an individual merely because the statement is made inthe course of dealing with a matter of public interest": (1994) 182 CLR 211 at 244. He


containing a statement by a third party, different standards apply. Relying on casesextending qualified privilege to reports of the proceedings of Parliament, the COllrtsand some other public bodies,110 he concluded that "[i]n principle, an occasion ofqualified privilege may arise where there is a need to inform the public in order toallow the public to perform its own proper functions as perceived in the 'varyingconditions of society."'lll This required the defence of qualified privilege to respond tothe recognition in earlier freedom of political communication cases that the publicinterest includes "the discussion and formulation ofJudgments relating to government,government institutions and political matters."ll Subject to some limitations,l13therefore, he held that an occasion of qualified privilege may arise in relation to thediscussion of such matters even where they are published to the world at large.

In extending the common law of qualified privilege,ll4 McHugh J also relied oncases in which the privilege had already been extended to publications to the world atlarge. He relied on the extension of the privilege to publications in newspapers made inreply to attacks on the plaintiff or some other personl15 and even to publications not inreply to such an attack.116 It was, McHugh J concluded, a narrow reading of theoccasions on which a person has an interest or duty to publish material to the generalpublic which had so far denied the protection of qualified privilege to mostpublications in newspapers.117 Like Brennan J, he concluded that the privilege wasavailable in principle if the requisite public interest could be identified. He thenextended the notion of public interest. Having noted the importance of open debateabout public officials, he concluded:

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considered that departure from this position "would be a charter for scandal mongering":ibid at 245.(1994) 182 CLR 211 at 247-249.Ibid at 251.Ibid.Brennan] placed four limits on the operation of the privilege: the subject matter of thedefamatory statement must be a matter of relevant public interest; the report must be fairand accurate; the maker of the statement must have, or be reasonably believed by thepublisher to have, "particular knowledge of the defamatory matter contained in thestatement" and "[t]he party defamed must have an opportunity to make a reasonableresponse to the defamatory matter": ibid at 251-253.The principal basis of McHugh ]'S decision was that, on the facts of the case, theappropriate defence was fair comment, not qualified privilege: ibid at 260. Nevertheless, hewent on to consider, and extend, the common law of qualified privilege.Adam v Ward [1917] AC 309 in which a claim of qualified privilege was upheld in respect ofa letter published widely by an Army Council in defence of an officer who had been thesubject of false defamatory comment in the House of Commons; Loveday v Sun NewspapersLtd (1938) 59 CLR 503 in which the High Court upheld a claim of qualified privilege inrespect of a newspaper article containing a reply to an attack on a municipal council madein the same article. These cases were discussed by McHugh] (1994) 182 CLR 211 at 262.In Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 a claimof qualified privilege was upheld by the English Court of Appeal in relation to a report tothe public removing the name of a medical practitioner from the register of practitioners.In Dunford Publicity Studios Ltd v Nelos Media Ownership Ltd [1971] NZLR 961 a defence ofqualified privilege was upheld in respect of defamatory comments made by a minister ofthe Crown who discovered that he had been misled into commending a road safetycampaign. These are discussed by McHugh J(1994) 182 CLR 211 at 263.(1994) 182 CLR 211 at 263-264.


[I]t is now appropriate for the common law to declare that it is for the "commonconvenience and welfare" of Australian society that the existing categories of qualifiedprivilege be extended to protect communications made to the general public by personswith special knowledge concerning the exercise of public functions or powers or theperformance of their duties by public representatives or officials invested with thosefunctions and powers.118

Conceptual ascent?Not all scholars agree, however, that "bottom-up" decision-making avoids theenunciation of overarching principle which I have identified as a troubling feature ofthe majority approach in Theophanous and Stephens. It has been argued that "bottom up"reasoning is ultimately theory laden. Judge Posner advances this argument:

[T]here isn't much to bottom-up reasoning. We don't ever really "start" from a mass ofcases or from a statute or from a clause of the Constitution. To read a case, to read astatute, a rule, or a constitutional clause presupposes a vast linguistic, cultural, andconceptual apparatus ... And if, as is so common, the case or statute or other enactment isunclear, and maybe even when it seems quite clear, the reader, to extract or moreprecisely to impute its meani~, must interpret it; and interpretation, we now know, is asmuch creation as discovery.ll

It is certainly true that one method of legal reasoning is the discernment of principleunderlying a series of individual decisions,120 and that future cases may then bedetermined by reference to such an underlying principle.121 Indeed, it has been arguedthat the very process of drawing an analogy, a classic "bottom up" style of legalreasoning, requires some kind of theory to determine whether one case is relevantly"like" another.122

To some extent, these cases show how common law reasoning might beunderscored by a more general idea. After all, Brennan and McHugh JJ did not justassert that the discussion of political matters was "like" other occasions of qualifiedprivilege. They identified that each case concerned a matter of "public interest" andthen extended the notion of public interest to political discussion.

However, distinctive features of "bottom up" reasoning remain and are illustratedby the judgments of Brennan and McHugh JJ. Although the common law of qualifiedprivilege is clearly founded on the notion of "public interest", that notion is undefined.There is perceived to be a "public interest that persons should be allowed to speakfreely on occasions when it is their duty to speak ... in the protection of some commoninterest."123 The general emphasis is on the public rather than the individual good,124

118119

120121

122123

Ibid at 265.R A Posner, above n 107 at 435. See also L Alexander, "Bad Beginnings" (1996) 145 U Pa LRev 57; F Schauer, Playing by the Rules (1991) at 183-87.M A Eisenberg, The Nature of the Common Law (1988) at 76-83.Ibid at 77. See R Dworkin, Law's Empire (1986) at 312 arguing that common law judgesought to decide hard cases by determining the basic principle underlying decided casesand determining the principled extension of that those cases.M A Eisenberg, above n 120 at 83-87.Gerhold v Baker [1918] WN (UK) 368 at 369. See also Toogood v Spyring (1834) 1 eM & R 181at 193; 149 ER 1044 at 1050 (qualified privilege protects "the common convenience andwelfare of society"); Huntley v Ward (1859) 6 CB (NS) 514 at 517; 141 ER 557 at 559 ("[T]helaw declares [a publication] privileged because the amount of public inconvenience fromthe restriction of freedom of speech or writing would far out-balance that arising from the


but the parameters of this concept are set not by some overriding theory of the purposeit is to serve, but through incremental extension of individual cases. Indeed, the casesreiterate that the decision will be made on the facts of a particular case.125

The vagueness of the overriding principle and the comparative specificity withwhich applicable factual circumstances are identified is seen in both judgments.Brennan J stressed that the broad and flexible nature of the principle under~ing

qualified privilege required close attention to the facts of individual cases.12 Hequoted Dixon J:

Whatever advantages may be found in "broad" or "flexible" categories or tests ofresponsibility or immunity, they are not felt by a judge who wants to be guided in hisdecision. But the very width of the principles governing qualified privilege fordefamation makes it more necessary, in deciding how they apply, to make a closescrutiny of the circumstances of the case, of the situation of the parties, of the relations ofall concerned and of the events leading up to and surrounding the publication.127

Brennan J did just this, reviewing decided cases to determine the kinds ofcircumstances in which the privilege has been extended.128

Although McHugh Jsimilarly relied on the importance of open discussion of publicaffairs,129 he also continued to express the underlying concern of the common law invery general terms. It is a concern for "the quality of life and the freedom of theordinary individual" which he identified as "highly dependent on the exercise offunctions and powers vested in public representatives and officials"130 which justifiesthe extent of the privilege. Again, the focus of his decision was to identify the factualcircumstances in which the public interest arises rather than its philosophicalexplanation.

124

125

126127128

129130

infliction of a private injury."). See generally, P Lewis, Gatley on Libel and Slander (1981) at186.Henwood v Harrison (1872) LR 7 CP 606 at 622. "The principle on which these cases arefounded is a universal one, that the public convenience is to be preferred to privateinterests, and that communications which the interests of society require to be unfetteredmay freely be made by persons acting honestly without actual malice notwithstanding thatthey involve relevant comments condemnatory of individuals." See also Justin v AssociatedNewspapers Ltd [1967] 1 NSWLR 63 at 75. See generally, Gatley On Libel and Slander, ibid at187-188.Baird v Wallace-James (1916) 85 LJPC 193 at 198 cited with approval by Dixon J in Guise vKouvelis (1947) 74 CLR 102 at 117. See also Gatley on Libel and Slander, above n 123 at 192"Whether there is a duty to communicate which the law will recognise as creating aprivileged occasion depends on all the circumstances and no previous decisions can beconclusive."Stephens (1994) 182 CLR 211 at 240.Guise v Kouvelis (1947) 74 CLR 102 at 116.(1994) 182 CLR 211 at 249. After reviewing the cases Brennan J concluded: "[t]heavailability of privilege depends on the evaluation of factors that fall roughly, but notexclusively, into two groups: those affecting the public interest in the function of the body(its status, constitution and functions and the circumstances in which the defamatorystatement was made) and those affecting the public interest in the subject matter of thereport (the source of the defamatory statement, the opportunity for response and anymaking of a finding after an inquiry)." See also Brennan J, above n 109.(1994) 182 CLR 211 at 264-265.Ibid.


These judgments form what Professor Sunstein has called an "incompletelytheorized agreement",131 that is, an agreemen,,' which does not contain a completeaccount of the theory or principle which justifie~~ it. Brennan and McHugh JJ couldidentify a particular outcome (that qualified privil,'ge ought to attach to newspaperreports of matters concerning public or government affairs) and although they stated ageneral principle that justified it (that the discussior~ of these matters is within thepublic interest), they did not provide a fully articulated theory of the public interest.The result is that these judges are not required to explain, and have not committed theCourt to, a particular understanding of the value of freedom of expression. Although atheory, or theories may emerge over time, this decision forms only a step toward theformation of that theory. This, I suggest, avoids the risk that attends an ambitiousdecision which formulates a theory of freedom of political communication.

Development of the ruleThe common law also helps to avoid the second kind of problem which attends theNew York Times v Sullivan rule, namely, that which arises with the practical applicationand subsequent extension of the rule.

The practical effects of the common law are kllownFirst, by building on an established system of law, the Court is less likely to be takenunawares by the results of its decisions. After Theophanous, a judge who adopted theposition of McHugh J or Brennan J would approach a false and allegedly libellousstatement concerning a public figure with the established standard for qualifiedprivilege: that there exists between the speaker and listener the requisite duty tocommunicate, and interest in the communication.132 Brennan and McHugh JJ havemade only an incremental extension of that test. Under the approach of McHugh J, forexample, a lower court judge now knows that "communications made to the generalpublic by persons with special knowledge concerning the exercise of public functionsor powers or the performance of their duties by public representatives or officialsinvested with those functions and powers"133 satisfy the reciprocity of duty andinterest test. In other respects, the rule remains intact and its elements are defined bythe case law.

Given its long history, the practical operation of the common law is easier to assess.The High Court can avail itself of critical analysis and respond accordingly. Of course,the critical analysis of the common law may be inadequate or the Court may not fullyavail itself of it. The common law, moreover, may also not produce a perfect result.Nevertheless, an unexpected, self-defeating result - the failure of a rule to achieve itsown aims - that followed New York Times is less likely if the Court builds on anexisting body of common law instead of formulating a constitutional standard.

Interpretive resources of the common lawA second feature of the common law is that the body of decided cases provides aninterpretive basis for the development of the law. These interpretive resources makethe second kind of problem seen with the New York Times rule - over-extension by

131 C R Sunstein, Legal Reasoning and Political Conflict (1996) at 35-38.132 See generally, Gatley on Libel and Slander, above n 123 at 186.133 (1994) 182 CLR 211 at 265.


lower courts -less likely. The underlying case law assists both in formulating a moreprecise rule and in the application of that rule. This is important because the terms inwhich the common law is framed might otherwise not seem to have much morecontent than the constitutional rule. The common law concepts of "special interest","exercise of a public function" and "public interest" which appear in McHugh 1'sformulation of the rule,134 for example, might seem equally as malleable as therecklessness and reasonableness requirements of the majority's constitutionalapproach.

An illustration of the importance of underlying case law is found in theconsideration by McHugh Jof the protection of comment. He was able to determine theapplication of the extended form of qualified privilege (that which applies topublication to the world at large) with some precision but declined to extend thedefence to the protection of "bare defamatory comment", that is, comment publishedwithout the facts on which it is based. In drawing this limit, he noted that the defenceof fair comment already protected comment, including bare defamatory comment, onmatters of public interest so long as the factual basis could be proved.135 The onlyquestion, then, was whether the extended form of the privilege should protect baredefamatory comment based on false assertions of fact. The protection of comment basedon false factual information could be justified where those facts were published withthe comment since "experience has shown that, in the absence of malice, the factualcontent of such publication is generally true" and consequently "[s]ociety benefits eventhough some statements made on those occasions are ill fact untrue".136 However,because his Honour was not convinced of any additional benefit in protecting baredefamatory comment based on false information, it remained unprotected.137

Of course, McHugh 1's determination that the new defence of qualified privilege didnot extend to bare defamatory comment was based on his own assessment of the valueof false information.138 However, the existing law's emphasis on the truth of the factsunderlying comment guided his inquiry. He accepted the existing law and sought areason to extend the privilege to comment based on false factual information. Thatreason could be found with respect to comment generally, but not with respect to baredefamatory comment. So, I do not mean to deny an element of choice in theinterpretation of the common law.139 I rely on the relatively modest point that thecommon law guides, but of course does not determine, the development of the rule.The result, nonetheless, is that the ultimate direction of the rule is likely to be moreeasily apparent at the time of its formulation and its development by lower courts lesslikely to take it in unexpected and unfortunate directions.

134135136137138

139

See text accompanying n 118 above.(1994) 182 CLR 211 at 267.Ibid at 267.Ibid.(1994) 182 CLR 211 at 267 "[A]lthough some champions of freedom of expression mightargue otherwise, I am not convinced that society benefits by allowing persons to makedefamatory comments that injure the reputations of others unless that comment is fair andbased on facts that are true or ... attract the defence of qualified privilege. II

For a helpful analysis of various views of common law decision-making, seeM A Eisenberg, above n 120 at 2.


McHugh J's approach to the matter of comment is to be contrasted with theSupreme Court of South Australia's position in Peterson v Advertiser Newspapers Ltd.140

That Court held that the "reasonableness" requirement of the Theophanous rule appliedto comment as well as to statements of fact, rejecting the argument that the"reasonableness" re~uirement was difficult to apply to material that does not includefactual assertions.14 However, the Court had far less authority on which to rely.Although Olsson Jconsidered and distinguished some American case law,142 much ofthe decision was based on the High Court's failure to draw any such distinction and itsapparent inclusion of comment in its observations about the coverage of the rule.143Rather than considering the overall operation of and justification for a well-developedbody of law, as McHugh J did, the Court was reduced to examining a single HighCourt decision for clues. The Supreme Court or South Australia's ultimate decisionmayor may not have been right. The important point is that, in dealing with a newconstitutional standard, courts have little precedential guidance and unguided lowercourts have more scope to overextend a doctrine.

The interpretive resources o.l the common law and constitutional analysisBefore continuing, I want to address one possible objection to the argument that thecommon law affords a judge richer interpretive resources. It might be argued that theresources of the common law are available to the constitutional decision-maker whochooses to incorporate common law standards into constitutional analysis. That is, ifwe consider that the common law is likely to provide us with greater wisdom inrelation to matters with which it has long dealt, then the best solution is to incorporatethe wisdom of the common law into the interpretation of the Constitution. This wouldreduce my argument to a claim that the Court ought to rely on the guidance of thecommon law in formulating constitutional standards.

In reply to this, it must first be said that this argument does not address at all onejustification for common law preference, namely, the desirability of leaving openlegislative and executive action. However, because my argument principally relies onother benefits of common law reasoning, there is some undeniable force to thisobjection. It is true that the common law can inform the constitutional decision-makeras well as the common law judge. Indeed, this is very close to the approach which theSupreme Court of South Australia took in Peterson to the interpretation of the"reasonableness" requirement of the Theophanous rule. In applying the rule, Olsson andMullighan JJ took the view that the High Court intended to adopt the standard ofreasonableness developed under the Defamation Act 1974 (NSW), s 22.144Consequently, they interpreted the requirement by reference to the authorities

140141142143144

(1995) 64 SASR 152.Ibid at 180-181 per Olsson J, at 195-196 per Mullighan J.Ibid at 180.Ibid at 196.Ibid at 187, 198. Section 22(1) provides for a defence of qualified privilege where in respectof a publication:(a) the recipient has an interest or apparent interest in having information on some subject;(b) the matter is published to the recipient in the course of giving to him information on

that subject; and(c) the conduct of the publisher in publishing that matter is reasonable in the

circumstances.


interpreting that section.145 Far from beginning with a clean slate, therefore, they hadthe interpretive resources of those cases. In a similar manner, a court could incorporatea common law standard and avail itself of the greater understanding of the practicaleffect of its ruling and the more certain basis for the elaboration of a rule.

However, there is a limit to what this method can achieve in terms of my argument.Before incorporating a standard developed by the common law, or, as in Peterson,through the interpretation of a statute, a judge would have to decide that the commonlaw standard was an appropriate guide for the development of constitutional doctrine.In cases involving freedom of political communication, where the development ofconstitutional doctrine is governed by an overarching theory, the incorporation of acommon law standard brings with it some elaboration of that theory. If, therefore, theSupreme Court of South Australia was correct, and the High Court intended toincorporate the reasonableness requirement of s 22, then the High Court was makingan important statement about the nature of the freedom of political communication.The cases elaborating the s 22 requirement are generally very protective of reputation.The following passage from Austin v Mirror Newspapers Ltd is indicative of the generalapproach:

A newspaper with a wide circulation that publishes defamatory comments on untruefacts will in the ordinary course of events have no light task to satisfy a judge that it wasreasonable to do so. Those in public life must have broad backs and be prepared toaccept harsh criticism but they are at least entitled to expect that care should be taken tocheck that the facts upon which such criticism is based are true.146

The adoption of this standard into constitutional analysis appears to imply that thisstandard is appropriate for the purposes of representative democracy.

The Supreme Court of South Australia did not make e~licit the implications of itsanalysis for the freedom of political communication.14 However, any sustained

. analysis of this issue would have to provide a theoretical basis for the freedom ofpolitical communication. The question for a court would be how such protection fitsthe notion of re,Eresentative government which underlies the freedom of politicalcommunication.1 8 Consequently, as long as the freedom of political communication isinterpreted by reference to the principle of representative government, then theincorporation of the common law is likely to involve just the kind of decision-makingwhich I have suggested should be avoided.

IV LIMITS AND OBJECTIONS

The limit of this approachAlthough I have argued that Theophanous and St~phens were cases in which thecommon law was an appropriate alternative to constitutional decision-making, I do notwant to suggest that the Court should automatically prefer a common law solution.

145 They relied upon Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354; Morosi v MirrorNewspapers Ltd [1977] 2 NSWLR 749; Wright v Australian Broadcasting Commission [1977] 1NSWLR697.

146 (1985) 3 NSWLR 354 at 360.147 Peterson v Advertiser NeuJspapers Ltd (1995) 64 SASR 152 at 187 and 198.148 (1994) 182 CLR 104 at 122.


The approach I have advocated ought to be seen as an appropriate strategy for theHigh Court in some cases.

Most obviously, common law preference is less likely to be appropriate whenconstitutional reasoning can proceed without the elaboration of an importantoverarching theory, as is the case, for example, where constitutional interpretationrelies primarily on construction of the text149 or the interpretation of precedent. In thelatter case in particular, constitutional decision-making is much like the common law,depending on analogical reasoning from case to case and the gradual construction ofprinciple over time.1 0

Therefore, there may be cases in which constitutional reasoning can proceed in anincremental "bottom up" fashion in much the same way as, and consequently withmany of the advantages of, the common law. These may well be cases in whichcommon law preference brings few of the advantages I have identified. For themoment, however, it is sufficient to say that Theophanous and Stephens were not suchcases. Those cases relied upon a doctrine that went beyond straightforwardinterpretation of the text or extrapolation from decided cases. Instead, the High Courtrelied upon the structure of representative government created by the Constitution anddetermined that a level of political communication is necessary to assure its effectiveoperation.lSl I do not mean to suggest that the arguments are without foundation orare an illegitimate form of constitutional analysis.1 2 However, they require a court tointerpret principle abstracted from the Constitution and consequently will involve theelaboration of the concept involved in that principle. This is the kind of reasoning Ihave suggested that the High Court should avoid where there is a more secure basisfor its decision, in the form of the common law.

Objections to this approach

The need for a clear articulation of the constitutional standardPerhaps the strongest argument against my position is that the High Court's rolerequires it to decide, not avoid, important constitutional matters. Harry Kalven'sfamous analysis of New York Times v Sullivan suggests this point. Kalven powerfullyargued that an important virtue of New York Times v Sullivan is that the Supreme Courtlooked beyond the narrowest possible formulation of the issue and took theopportunity to address the important values underlying the First Amendment.153

Kalven pointed out that the Supreme Court could have decided the case solely on thebasis that there was insufficient evidence to connect the plaintiff to the statementsmade in the advertisements in question.154 Instead, with a "hitherto rarely displayed ...taste for common sense",155 the Court proceeded to address the long unsettled issue ofseditious libel. It declared as the "central meaning of the Amendment" that seditiouslibel cannot be made the subject of government sanction. This was then applied to

149150151152153

154155

R A Posner, above n 107 at 433.D Strauss, "Common Law Constitutional Interpretation" (1996) 63 U Chic L Rev 877.See above nn 1, 28.But see below n 179 ana accompanying text.H Kalven Jr, "The New York Times Case: A Note on 'The Central Meaning of the FirstAmendment'" 1964 Sup Ct Rev 191.Ibid at 204.Ibid.


defamation156 but the importance of the decision lies in "the generous sweep of themajor premise and not the application of it to the point of defamation law involved inthe Times case."157

Kalven's point is that the Supreme Court's role may require it to do more thandecide a case. As the final expositor of the Constitution, it ought to articulate importantstandards.15S Part of the importance of such a role is the guidance that such decisionsgive to lower courts, legislators and litigants.159 A further argument might placeparticular emphasis on the nature of freedom of speech. The argument might be thatwhere very important values like freedom of speech are concerned, there is a need forclear statements of those values. One argument about First Amendment doctrine is thatit ought to be developed so that it will withstand pressure during periods of strongintolerance for unorthodox ideas.160 A doctrine formed by the drawing of analogiesbased on an unarticulated and partly formed theory might lack the intuitive appeal tocommand popular support and give judges, who are themselves susceptible to theintolerance of the times, too much discretion.

There are several responses to these criticisms. First, these arguments do not applywith such great force where the method of constitutional avoidance is common lawdecision-making. The common law is somewhat better equipped to fulfil the need forstatements of important principle than other methods of constitutional avoidance.Kalven pointed out that, if New York Times v Sullivan had been decided on the narrowbasis that there was insufficient evidence connecting the defendants to the publicationin question, it would still have had some value in elucidating free speech principles. Itwould have indicated that "[i]f such connection is too easily made, all criticism ofgovernment policy, however impersonal will carry implicit defamation of whateverofficials were in charge of the policy attacked."161 But as Kalven clearly appreciated,this value is not comparable with the broad and important discussion in New YorkTimes. Like most alternative grounds of decision, it would carry its message byimplication rather than direct enunciation of principle. Consider, by contrast,

156

157158

159

160

161

As Kalven explains, New York Times v Sullivan represents a judgment by the SupremeCourt that the Alabama rule on fair comment "is closely akin to making seditious libel anoffense. The Alabama rule therefore violated the central meaning of the Amendment": ibidat 209.Ibid.In his view, the repudiation of seditious libel is one such standard because "the presence orabsence in the law of the concept of seditious libel defines the society ... [if] it makesseditious libel an offense, it is not a free society no matter what its other characteristics":ibid at 205.Gerald Gunther in "The Case of Justice Powell" (1972) 24 Stan L Rev 1001 at 1026-7 made asimilar argument in a different context. In criticising "case-by-case" or "ad hoc" balancingin First Amendment decision-making, he argued: "A Supreme Court opinion should strivefor more than a "fair balancing" in the individual case before the Court. It should alsoprovide the maximum possible guidance for lower courts and litigants. An excessivelyparticularized opinion lacks that quality. There must at least be an articulation of thecriteria that guide the resolution of the value conflicts in a particular case ... Moreover,especially when sensitive First Amendment values are involved, the risks of case-by-caseadjudication may be too great and broader prophylactic rules may be appropriate."V Blasi, "The Pathological Perspective and the First Amendment" (1985) 85 Colum L Rev449. See also G Gunther above n 159.H Kalven, above n 153 at 209-10.


McHugh 1's decision in Stephens expanding the common law concept of "publicinterest". Although building on the common law of qualified privilege, he was able tomake quite clear the importance of open discussion of public issues:

In the last decade of the twentieth century, the quality of life and the freedom of theordinary individual in Australia are highly dependent on the exercise of functions andpowers vested in public representatives and officials by a vast legal and bureaucraticapparatus funded by public moneys. How, when, why and where those functions andpowers are or are not exercised are matters that are of real and legitimate interest toevery member of the community. Information concerning the exercise of those functionsand powers is of vital concern to the community.162

Of course, I have argued that one of the virtues of this decision is that it is expressedrather vaguely and its limits are determined principally by reference to specific factualcircumstances.163 Nevertheless, it must be seen that this passage is closer to New YorkTimes than a judgment which avoided an issue by reference to a concept such asstanding or by the narrow interpretation of a statute. So, a decision on the common lawis rather more like the kind of enunciation of principle than some other methods ofconstitutional avoidance. At the same time, it leaves some important decision-makinguntil later, a feature which I have argued is desirable.

Second, in so far as the argument against my position is based on the need to createstable constitutional norms about freedom of speech, it is not clear that the argumentwould counsel against an initial period of common law preference. The argument forthe formulation of rules that are resistant to the pressure of intolerant times was madein the context of the comparatively well-developed law of the First Amendment.164 Inthe context of a developing law of freedom of speech, it may be that the need for stableconstitutional rules protecting freedom of speech is best served by a slow evolution ofstandards which then have the capacity to endure. The fate of the Theophanous ruleperhaps supports this view. The adventurousness of Theophanous made it fragile andthe radical reformulation of the doctrine three years later in Lange hardly contributed tostable constitutional norms governing speech protection.

Finally, there is a more general point which applies to each of these arguments. Theavoidance of making a statement of important principle, with its consequent risk, issometimes more important than the enunciation of principle. I think that this isparticularly likely to be the case where, as in Theophanous and Stephens, an importantdoctrine is in its early stages of development. Theophanous and Stephens should becontrasted in this regard with New York Times v Sullivan. At the time of New York Times,the First Amendment had been the subject of far greater development by the courtsthan the freedom of political communication principle has yet received in Australia.What is more, there had been a long-running controversy over the constitutionality ofseditious libel which the Supreme Court put to rest in New York Times. The casetherefore occurred in the context of a relatively mature body of law and in the face ofan enduring controversy. This was far from the position in Australia when Theophanousand Stephens were decided. So, while there might be cases in which even the principleddevelopment of the common law seems insufficient, having regard to the important

162 Stephens (1994) 182 CLR 211 at 264.163 See text accompanying above un 123-131.164 V Blasi, above n 160.


role of the High Court, I venture to suggest that Theophanous and Stephens were notsuch cases.

Failure to avoid the constitutional issue and loss of candour in constitutionaldecision-makingA further argument against my position might be drawn from arguments made againstadvocacy of constitutional avoidance through statutory interpretation. That argumentis that expedient avoidance of constitutional decision-making obscures the real groundof decision.165 This has two results. First, there is a lack of candour in judicial decisionmaking, that is, the court's reason for avoiding a constitutional decision are notexplained. Moreover, it means that constitutional avoidance does not achieve what itclaims: it does not really allow a court to avoid a constitutional decision because,embedded in a decision to prefer a common law solution, is a preliminary judgmentabout the constitutional issue. Professor Schauer made this argument in the course ofhis critique of the rule, enunciated in Ashwander,166 that, where fairly possible, a courtshould interpret a statute to be consistent with the Constitution. As Schauer points out,this rule is only important where a court perceives that the statute could be read asunconstitutional. If there is no potential for conflict, then the court can simply interpretthe statute without the need to calion the Ashwander rule.167 Consequently, resort tostatutory interpretation to avoid constitutional decision-making carries with it themessage that the court has real constitutional doubts.

The same could be said of constitutional avoidance through use of the common law.The argument would be that there will only be a need to resort to the common lawwhen judges conclude that there is a possible constitutional argument, but one whichrequires an ambitious level of justification. If a judge is convinced that no possibleconstitutional argument existed, as were Brennan and McHugh JJ in Theophanous, thenthe common law is not an avoidance technique. So, if the majority in Theophanous hademployed the approach I am suggesting, we would still have some idea about theirconstitutional views. It would be a safe assumption that they disagreed with Brennanand McHugh JJ that the implied freedom of political communication had no operationin relation to defamation actions by public officials. On the contrary, it would appearthat they considered it possible that the freedom of political communication had suchan effect but were not prepared to engage in the kind of decision-making that wouldexplain its basis.

There is some undeniable force to this argument. The prudential use of the commonlaw to avoid constitutional decision-making inevitably involves leaving constitutionalconcerns unarticulated. Indeed, that is part of its virtue. Rather than undermining myargument that constitutional avoidance brings with it some benefits, however, this

165

166167

Gerald Gunther makes this point in his critique of Alexander Bickel (see A Bickel, aboven 52): see G Gunther, "The Subtle Vices of the 'Passive Virtues'" (1964) 64 Colum L Rev 1. Tomake his point, Gunther takes Bickel's suggestion that there exists a discretion to refuse tohear a case for "lack of ripeness", that is, the case is not before the Court in the mostadvantageous posture for decision. Gunther says "the lack of 'ripeness' he mentions doesnot seem to be of constitutional dimensions. He does not have the article III requirement ofconcreteness in mind; this appears to be a use of 'ripeness' as 'merely a conclusionarylabel', as merely a formula to obscure the ground of 'jurisdictional' dismissal": ibid at 15.Ashwander v TVA 297 US 288 (1936) and see above n 50 and accompanying text.F Schauer, "Ashwander Revisited" 1995 Sup Ct Rev 71.


argument merely points to a cost it incurs. The question therefore remains whether thebenefits I have identified outweigh these costs. This point can be answered by

, repeating my argument that the costs of avoidance are worth it. At least in the kinds ofcircumstances I have described, avoidance even with its costs is preferable to theformulation of rules whose ultimate operation is uncertain and potentially selfdefeating.

Corruption of the common lawThe final counter-argument I will address is also drawn from arguments made againstconstitutional avoidance through statutory interpretation. However, it is rather easierto dismiss.

One point made about constitutional avoidance through statutory interpretation isthat principles of statutory interpretation have their own value and hence their use toavoid constitutional decision-making undermines the capacity of those principles toachieve their aims. Gunther makes the point in relation to the avoidance ofconstitutional decision-making through statutory interpretation, arguing that "[a] vitalCourt task, after all, is the interpretation of legislation in contexts free from ulteriorpurposes of avoidance."168 Schauer makes the argument slightly more forcefully. Hispoint is that the avoidance principle tends to lead courts away from an interpretationthey would otherwise prefer. There will rarely, if ever, be a case in which aconstitutional interpretation and a non-constitutional interpretation of a statute will beequally plausible since the process of interpretation is likely to produce a preferredresult. If on its preferred reading the statute would be unconstitutional, then construinga statute to be constitutional in order to avoid constitutional decision-making drawsthe Court away from the more natural reading of the legislation. So, the result is adistortion of statutory interpretation and the loss of the value we place on courts givingtheir preferred interpretation.169

It is tempting to make the same argument about the common law. In the samemanner, it might be said that the principle of constitutional avoidance throughinterpretation of the common law only comes into play when the interpretation whichthe courts might otherwise give the common law raises some constitutional doubt. Theprinciple therefore has the potential to lead courts to develop the common law in aparticular manner precisely to avoid conflict with the Constitution, perhaps leading toa strained reading of the common law.

However, unlike the arguments with which I have just dealt, this point has lessrelevance where constitutional issues are avoided through common law decisionmaking than where statutory interpretation is the alternative basis of decision. Even ifthe technique leads courts to prefer readings of the common law that are consistentwith constitutional principle, it is not clear that this is a bad thing. One argument thatcould be made about the common law is that it ought to respond to developments inconstitutional principle. Indeed, this would be consistent with Ronald Dworkin'srequirement of "integrity in law", a principle which "instructs judges to identify legalrights and duties, so far as possible, on the assumption that they were all created by asingle author - the community personified - expressing a coherent conception of

168 G Gunther, above n 165 at 21.169 F Schauer, above n 167 at 81-86.


justice and fairness."170 If laws are to express a coherent system of values, crossfertilisation between constitutional doctrine and the common law is desirable.

V LANGE VERSUS THE AUSTRALIAN BROADCASTING CORPORATION

The decisions in Theophanous and Stephens were short-lived. Soon afterwards twomembers of the majority retired and some resistance to the decisions was evident in theHigh Court.171 The opportunity to reconsider them arose when David Lange, theformer Prime Minister ·of New Zealand, sued the Australian Broadcasting Corporationin defamation172 and challenged the correctness of Theophanous and Stephens.173 TheHigh Court abandoned both the adoption of United States free speech jurisprudenceand the particular test that I have criticised. However, as I will show, its response isonly partially consistent with the approach I have recommended.

The decisionThe High Court responded to the challenge to Theophanous and Stephens with a rareunanimous decision. It upheld the position that the freedom of political communicationoperated to limit defamation actions brought in relation to political discussion.However, it abandoned the constitutional standard enunciated in Theophanous andreplaced it with an approach which shows greater deference to the common law. Threefeatures of the decision are significant for my argument.

The basis of the freedom ofpolitical communicationFirst, Lange contains an important restatement of the constitutional basis and nature ofthe freedom of political communication principle. Since the High Court first recognisedthe implied freedom of political communication, there had been divisions within theCourt over its nature. In particular, some members of the Court had interpreted theimplication of representative democracy narrowly, stressing that the content of theimplication is to be construed principally by reference to the text. In McGinty v WesternAustralia, Brennan CJ explained this approach:

Although the term "representative democracy" is useful to explain the text on which theimplied freedom depends ... [i]t is logically impermissible to treat "representativedemocracy" as though it were contained in the Constitution, to attribute to the term ameaning or content derived from sources extrinsic to the Constitution and then toinvalidate a law for inconsistency with the meaning or content so attributed. The text ofthe Constitution can be illuminated by reference to representative democracy but theconcept neither alters nor adds to the text.174

170171

172173174

R Dworkin, Law's Empire (1986) at 225.McGinty v Western Australia (1996) 186 CLR 140 at 235-236 per McHugh J "I regard thereasoning in Nationwide News, Australian Capital Television, Theophanous and Stephens in sofar as it invokes an implied principle of representative democracy as fundamentally wrongand as an alteration of the Constitution without the authority of the people under s 128 ofthe Constitution." See also at 291 per Gummow J "[T]he process of constitutionalinterpretation by which this principle was derived ... and the nature of the implication ...departed from previously accepted methods of constitutional interpretation. If it now weresought to apply the principle then the need for further examination of it would arise."(1997) 189 CLR 520 at 550.Ibid at 552.(1996) 186 CLR 140 at 169.


Much of the criticism of Theophanous and Stephens was based on a perceived departurefrom this method of constitutional interpretation.175 McHugh J explained his concernthat the majority had proceeded "just as if the Constitution contained a Ch IX with a s129 which read 'Subject to this Constitution, representative democracy is the law ofAustralia, notwithstanding any law to the contrary"'.176

Whatever the merits of the criticism, the narrower, more textually bas~d approachprevailed in Lange. The Court stated:

Since McGinty it has been clear, if it was not clear before, that the Constitution giveseffect to the institution of "representative government" only to the extent that the text andstructure of the Constitution establish it ... the relevant question is not, "What is requiredby representative and responsible government?" It is, "What do the terms and structureof the Constitution prohibit, authorise or require?,,177 I

The Court therefore began its consideration of the implied freedom of politicalcommunication with the text and structure of the Constitution. At the heart of theCourt's analysis are ss 7 and 24178 which "read in context, require the members of theSenate and the House of Representatives to be directly chosen at~eriodic elections bythe people of the States and the Commonwealth respectively."l Other elements ofrepresentative government are found in the provisions that set out the relationshipbetween the Executive and the Parliament, in J'articular those which provide for asystem of responsible ministerial government18 and also in s 128, the provision foramendment by popular referendum.181

The Court's approach to the freedom of political communication is that it limitsinterference with aspects of representative government that can be identified in thetext. Sections 7 and 24 and related sections give rise to an implication protecting the

175

176177178

179

180

181

This was the basis of McHugh ]'S dissent in Theophanous. He held that there is "no supportin the Constitution for an implication that the institution of representative government orrepresentative democracy is part of the Constitution independently of ss 1, 7, 24, 30 and 41"and consequently that there is "nothing - in the text of the Constitution, in the ConventionDebates or in principles of constitutional interpretation hitherto accepted - that suggeststhat State legislation or common law principles are liable to be overturned by a principle ofrepresentative government or representative democracy that is implied in theConstitution": (1994) 182 CLR 104 at 199, 205. See also McGinty (1996) 186 CLR 140 at 23235 per McHugh J, at 291 per Gummow J.(1996) 186 CLR 140 at 234.(1997) 189 CLR 520 at 566-567.These require that the members of the Senate and the House of Representatives be "directlychosen by the people" of each State and of the COlnmonwealth, respectively.(1997) 189 CLR 520 at 557. According to the High Court, the relevant context is providedby s 1 (vesting the power of the Commonwealth in the Parliament); ss 8 and 30 (electors forthe Senate and the House of Representatives to vote only once); s 25 (persons of any racedisqualified from voting at elections not be counted in determining electorates under s 24);s 13 (six years to be the longest term served by a Senator) and s 28 (the House ofRepresentatives to continue for no longer than three years).Ibid at 558. The High Court relied on s 6 (requiring a session of Parliament at least once ayear); s 83 (requiring that money be appropriated from the treasury by law); s 62 (executivepower of the Queen exercised on the initiative and advice of ministers); s 64 (Ministersrequired to sit in Parliament); s 49 (adopting the "powers privileges and immunities" of theHouse of the Parliament of the United Kingdom).Ibid at 559.


representative nature of the Parliament. Thus communication "which enables thepeople to exercise a free and informed choice as electors" cannot be restricted.182 Thesections which give rise to a system of responsible government "necessarily imply alimitation on legislative and executive power to deny the electors and theirrepresentatives information concerning the conduct of the executive branch ofgovernment throughout the life of a federal Parliament"183 and s 128 requires theprotection of information "that might be relevant to the vote [electors] cast in areferendum to amend the Constitution."184

The common law and the Constitution - the relationship reconsidered

The second significant feature of Lange is that the High Court gave more detailedconsideration to the relationship between the common law and the Constitution. Asshown above, in Theophanous, the majority held that the constitutional requirement offree political communication affected the common law.185 The explanation in theprincipal majority judgment was rather brief. Rejecting the argument that the commonlaw was unchanged by the Constitution because it was a pre-existing system, themajority stated:

It is ... clear that the implied freedom is one that shapes and controls the common law. Atthe very least, development in the common law must accord with its content. Andthough it may not have been apparent ... prior to the decisions in Nationwide News andAustralian Capital Television, if the content of the freedom so required, the common lawmust be taken to have adapted to it.186

Deane Jconsidered the matter in more detail. He argued that State laws were subject tothe Constitution, relying on covering clause V which provides that the Constitution"shall be binding on the courts, judges and people of every State" and on ss 106 and 108which provide for the continuation of State laws "subject to this Constitution".187 Heconcluded that the implication of freedom of political communication applied to Statelaws "statutory or inherited", thus apparently including the common law.

III Lange, however, a different explanation emerged. First, the High Court took theview, as Brennan Jhad in his Theophanous dissent, that the Constitution was primarilyaddressed to legislative and executive action.188 This would appear to preclude a ruleof the kind enunciated in Theophanous which provided a constitutional defence to acommon law claim. But despite this, the common law does not escape constitutionalscrutiny. The High Court held that "the Constitution, the federal, State and territoriallaws, and the common law in Australia together constitute the law of this country and

182183184185186187

188

Ibid at 560.Ibid at 561.Ibid.Above nn 31-34 and accompanying text.(1994) 182 CLR 104 at 126.Ibid at 164-165. He noted also that to exclude the common law from constitutional scrutinywould allow courts to undermine the freedom of political communication throughdevelopment of the common law. For example, it is conceivable that the common lawcould make actionable a statement which relates to the core of the constitutional freedom,such as a comment about the suitability for office of the Prime Minister. See K Greenawalt,Fighting Words (1995) at 15. As Greenawalt notes, however, this problem is mitigated if thecommon law is developed in accordance with constitutional values.(1997) 189 CLR 520 at 560.


form 'one system of jurisprudence'".189 Further, it held that "[w]ithin that single system,the basic law of the Constitution provides the authority for the enactment of validstatute law and may have effect on the content of the common law."190 Thus, despitetheir analysis that the Constitution was addressed to legislative and executive action,the Court held that the common law must conform to the Constitution. Consequently,although they departed from the "constitutional defence" enunciated in Theophanous, aswe shall see, the Court altered the common law to conform to constitutionalrequirements.

The new test in LangeHaving clarified the basis of the freedom of political communication and its operationon the common law, the Court then outlined a new test which determines whetherregulation of political communication is constitutionally permissible. In this respect,the decision marks a dramatic shift. Suddenly, the more deferential approach to reviewexpounded earlier by Brennan J191 appeared to gain general acceptance. Far fromrequiring a "compelling justification" or "pressing social need", at least whereregulation targets the content of communication, the Court set a single standardaccording to which a law that burdens the freedom of communication must be"reasonably appropriate and adapted to serve a legitimate end".192

The High Court then applied this test to the law in question, the defamation law ofNew South Wales. The High Court held that the law of New South Wales did burdenthe freedom of communication but that this was appropriately adapted to a legitimatepurpose and therefore valid. Relevant for my argument is the Court's approach to thecommon law of defamation.193 As a first step, the High Court extended the commonlaw of qualified privilege to conform to the constitutional requirement. In a mannersimilar to that of McHugh J in Stephens, it held that the common law should recognisethat each Australian has an interest in disseminating and receiving information"concerning government and political matters that affect the.Eeople of Australia" andshould recognise a duty to disseminate it as a corollary.1 it The High Court thenrestricted this extension of the privilege by requiring that the defendant must show thatthe publication was reasonable in the circumstances and allowing for defeat of thedefence if the plaintiff could demonstrate that the publication was actuated by maliceor improper motive.195 The High Court held that the common law of qualifiedprivilege, when reformulated in this way, did not unduly burden the freedom ofpolitical communication.

189190191192

193

194195

Ibid at 564.Ibid.See above nn 65-67 and accompanying text.(1997) 189 CLR 520 at 567. However, some members of the High Court appearsubsequently to have departed from this position in Levy v Victoria (1997) 189 CLR 579. SeeA Stone, "Lange, Levy and the Direction of the Freedom of Political Communication Underthe Australian Constitution" (1998) 21 UNSWLJ 117 at 130-33.The High Court also held that, even without the common law extension of qualifiedprivilege, s 22 of the Defamation Act (NSW) "ensures that the New South Wales law ofdefamation does not place an undue burden on communications falling within theprotection of the Constitution. II ibid at 575.Ibid at 570-571.Ibid at 574.


Significance for common law preference

For those who advocate the avoidance of constitutional decision-making in review ofthe common law, Lange is in one respect disappointing. In reassessing Theophanous andStephens, the High Court did not avoid the constitutional issue. It is true that the Courtproceeded by developing the common law, but by indicating that the development ofthe common law was required by the freedom of political communication, the Courtgave a clear indication of its constitutional views. It held:

Because the Constitution'requires "the people" to be able to communicate with each otherwith respect to matters that could affect their choice in federal elections or constitutionalreferenda or that could throw light on the performance of ministers of State and theconduct of the executive branch of government, the common law rules concerningprivileged communications, as understood before the decision in Theophanous ... failed tomeet that requirement.196

Because the constitutional requirement drove the reformulation of the common law,the new common law test reveals something of the content of that requirement.

Nevertheless, other aspects of the decision are generally sympathetic to myarguments. First, the High Court's preference for the formulation of a common lawstandard over the enunciation of a new constitutional standard preserves theunderstanding of the practical effects of the rule and the benefits of greaterinterpretative resources that, I have argued, attend common law reasoning.Consequently, though the Court preserves the "reasonableness" standard that I havesuggested was a troublingly open-ended feature of the constitutional standard, thefuture development of the standard will be guided by existing law. The High Court'sown analysis shows this. The High Court included the reasonableness requirement as aspecial additional requirement of the extended form of the common law privilegebecause the traditional law of qualified privilege "devised for situations where usuallyonly one person receives the publication is unlikely to be appropriate when thepublication is to tens of thousands, or more, of readers, listeners or viewers". Becauseof the greater damage such publication can do to reputation, it held "a requirement ofreasonableness as contained in s 22 of the Defamation Act, which goes beyond merehonesty is properly to be seen as reasonably appropriate and adapted to the protectionof reputation and, thus, not inconsistent with the freedom of communication which theConstitution requires."197 Lower courts therefore know that the requirement exists togive reputation a higher level of protection than is traditionally provided by thecommon law, in response to the special dangers of mass publication. The level ofprotection afforded to reputation by the common law as it stood before Lange willprovide a starting point from which the new test is to be distinguished in accordancewith the High Court's rationale for the extension.

A second feature sympathetic to my argument is that the precise nature of theconstitutional standard is not highly developed by the Court. There is no ambitious orwide-ranging justification of the Court's view that a particular extension of thecommon law is required by the freedom of political communication. The statementsimply is that the privilege must be extended to meet the Constitution's requirementthat 'llthe people I .•• be able to communicate with each other with respect to matters thatcould affect their choice in federal elections or constitutional referenda or that could

196 Ibid at 571.197 Ibid at 572-573.


throw light on the performance of ministers of State and the conduct of the executivebranch of government".198 Thus particular circumstances, rather than underlying oroverarching theory, are the focus. This is to be contrasted with the adoption of theAmerican emphasis on unregulated debate in Theophanous, which, as I have shown,brings with it a particular, and contestable, understanding of freedom ofcommunication.199

A final objectionAlthough broadly sympathetic to my argument, this last feature of Lange raises a finalpossible objection to my argument. It must be admitted that Lange avoids theenunciation of a philosophy of freedom of speech in a different manner from that Ihave suggested. By tying the freedom of political communication closely to specificprovisions of the Constitution, the Justices have rejected the notion that theConstitution can be interpreted according to a general notion of "representativedemocracy". This is what the Court means by its statement "the relevant question isnot, 'What is required by representative and responsible government?' It is, 'What dothe terms and structure of the Constitution prohibit, authorise or require?"'200 Langemight therefore suggest that the appropriate response to the "top-down" nature ofTheophanous and Stephens is not a preference for the common law, but a return to"bottom up" constitutional reasoning. This appears to be the approach advocated byMcHugh J who, in McGinty, specifically rejected the notion of "top-down"constitutional reasoning.201

As I have already explained, constitutional reasoning can proceed in a mannerwhich avoids the statement of important underlying principle and, where the Courtdoes this, the case for common law preference is much weakened. However, I do notaccept that the possibility of textually based constitutional reasoning makes the case forcommon law preference superfluous. Even if the High Court were entirely to abandonargument which takes underlying principle as its starting point, this view would beproblematic. It involves adopting a theory about constitutional interpretation that isitself ambitious.202 There are arguments, some of which I have outlined above,203 thatcounsel the exposition of important underlying principle, in some circumstances.Therefore, for the kinds of reasons that I have advocated caution in adopting aparticular understanding of freedom of speech, I would advocate caution in adopting atheory of constitutional interpretation. The enterprise is ambitious and consequently

198199200201

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Ibid at 571.See also A Stone, "Incomplete Theorizing in the High Court", (1998) 26 F L Rev 117.Ibid at 567.McGinty (1996) 186 CLR 140 at 231-32 per McHugh J. "Underlying or overarching doctrinesmay explain or illuminate the meaning of the text or structure of the Constitution but suchdoctrines are not independent sources of the powers, authorities, immunities andobligations conferred by the Constitution. Top-down reasoning is not a legitimate methodof interpreting the Constitution ... it is not legitimate to construe the Constitution byreference to political principles or theories that are not anchored in the text of theConstitution or necessary implications from its structure." (footnote omitted).McHugh J acknowledged in McGinty (1996) 186 CLR 140 at 230 that "[a]ny theory ofconstitutional interpretation must be a matter of conviction based on some theory externalto the Constitution."See above text accompanying nn 153-160.


risky. So, while the adoption of this more cautious incremental style of constitutionalinterpretation has manifest advantages, the complete preclusion of other styles ofconstitutional interpretation seems premature.

To conclude, the approach I have advocated has one advantage even over the use ofless ambitious styles of constitutional reasoning. It allows for risky, ambitious decisionmaking to be avoided at some points without requiring the Court to determine theimportant question of the place of "top down" argument in constitutional analysis.

CONCLUSION: THE COMMON LAW THE CONSTITUTION AND THEFUTURE

The problem I have considered here will be of continuing significance as the HighCourt moves the Constitution into the traditional domain of the common law. To givejust one illustration, on the horizon may be an overlap between the constitutionalrequirements of fairness of process and traditional common law concepts. The HighCourt's vigorous interpretation of provisions conferring the judicial power of theCommonwealth exclusively on courts designated by Chapter III, has raised the notionof constitutionally required fairness of process.204 Further, some judges have indicatedtheir view that constitutionally required fairness of process includes the concept of afair trial traditionally defined by the common law.205 The consequence may be that theHigh Court is faced with an appeal arguing that an accused was denied both thecommon law right to a fair trial and the requirements of Chapter III. It could thereforeproceed by elaborating the content of a constitutional "fairness of process" requirementor by considering the common law concept. Although I will not here suggest asubstantive solution, the matter should be analysed in the terms I have outlined. A partof the Court's inquiry should be to consider what commitments a decision on theconstitutional notion of fairness of process would require and how a common lawsolution might avoid this.

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G Kennett, "Individual Rights, the High Court and the Constitution" (1994) 19 Melb U L Rev581 at 589-96.Dietrich v The Queen (1992) 177 CLR 292 at 326 per Deane J, at 362 per Gaudron J. This hasbecome all the more significant since the High Court's decision in Kable v DPP (1996) 189CLR 5 which applied Chapter III limitations to State courts. For a discussion of aconstitutional right to a fair trial, prior to Kable, see J Hope, "A Constitutional Right to aFair Trial? Implications for the Reform of the Australian Criminal Justice System" (1996) 24F L Rev 173 at 179-189.

freedom ofpolitical communication,the constitution...

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