ERIN O'DWYER [92] Introduction Striking a balance between ...

(2003) 8 Media & Arts Law Review 91
QUALIFIED PRIVILEGE AND PUBLIC LEADERS IN POLITICAL DEBATE: DIVERGING
ABSTRACT
DEFAMATION LAW AFTER LANGE, REYNOLDS AND ATKINSON
ERIN O’DWYER 1
[91] This paper will consider to what extent common law qualified privilege protects
public leaders embroiled in political debate in Australia, with reference to the scope of
‘government and political matters’ envisaged by Lange v Australian Broadcasting
Corporation. This will be contrasted with the English position in Reynolds v Times
Newspapers and the recent New Zealand decision in Lange v Atkinson. The paper will
chart subsequent judicial interpretation and discuss its impact on the Australian media,
in particular when occasions of privilege may arise. It will also discuss when the
defence may fail, and what the press must do to meet the reasonableness requirements
imposed by the courts. Finally the paper will consider what influence England and New
Zealand may have on the future of political communication in Australia.
[92] Introduction
Striking a balance between freedom of speech and the protection of personal
reputation has been a fundamental feature of recent developments in common law
defamation. 2 In their differing approaches, courts in Australia, New Zealand and
England have set their decisions against the local socio-political environment, and
considered what impact the ‘chilling effect’ of defamation may have on political
debate in the mass media. But rather than allowing unfettered attacks on politicians,
the new occasion of qualified privilege has given more latitude to responsible
journalism with each jurisdiction requiring some form of reasonableness on the part of
the publisher, or limiting occasions on which the privilege will arise.
Despite this, issues of debate remain in Australia. What strength of protection is
offered to media defendants and on which occasions will the privilege arise? Does
Lange v Australian Broadcasting Corporation limit the scope of ‘government and
political matters’ given broad meaning in Theophanous v Herald & Weekly Times
1
BA (UQ); LLB Hons (QUT). The author is a journalist and former staff reporter with The Courier-
Mail in Brisbane. Thanks to Dr Des Butler for constructive comments on earlier drafts and Marett
Leiboff for her professional encouragement.
2
This point was made in Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 (Reynolds); see also
Lange v Atkinson [2000] NZCA 95, [2].

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
Ltd? 3 And what should we make of the diverging opinions in Brown v Members of the
Classification Review Board of the Office of Film and Literature Classification
(Rabelais) 4 and other recent lower court decisions?
In an international context, will the House of Lord’s decision in Reynolds v Times
Newspapers Ltd or the New Zealand Court of Appeal’s 2000 decision Lange v
Atkinson have any effect on the development of defamation law in Australia? 5 More
particularly, to what extent will defamation laws protect public leaders who are not
public officials or elected representatives, yet who become embroiled in controversies
essentially political in nature?
The answers to these questions are important. Public debate in Australia is
increasingly driven by a homogenous press with the power to destroy the reputations
of high-profile people who expect the courts’ protection. 6 Media outlets and their
legal advisors are also entitled to certainty.
This paper considers — five years after Lange — the emerging case law determining
the application of qualified privilege and the apparent failure of the press to meet its
obligations. The writer’s argument is two-fold. First, the concept of political speech
should be given as broad a definition as possible in Australia, in line with that adopted
in Theophanous. 7 Second, the courts should temper this with a willingness to find the
defence defeated not only where journalists have failed to seek comment or verify
accuracy but also where unrelenting attacks on Australia’s tall poppies have been
pursued.
Developments in Defamation
Classic qualified privilege
3
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange v ABC); Theophanous v
Herald & Weekly Times Ltd (1994) 182 CLR 104, 124–5 (Mason CJ, Toohey and Gaudron JJ)
(Theophanous).
4
Brown v Members of the Classification Review Board of the Office of Film and Literature
Classification (1998) 154 ALR 67 (Rabelais).
5
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010; Lange v Atkinson [2000] NZCA 95; the Privy
Council decision and original 1998 Court of Appeal decision will be cited as such.
6
For discussion of Australia’s media climate, see New South Wales Law Reform Commission,
Defamation, Report No 75 (1995).
7
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 124.

(2003) 8 Media & Arts Law Review 91
Traditionally a defence of qualified privilege has been afforded to media defendants
who honestly but mistakenly publish untrue and defamatory matter in exceptional
circumstances only. It requires ‘reciprocity of interest’ between publisher and
receiver, and typically applies to information published to [93] a limited audience
rather than to the world at large. 8 Statements made in the discharge of a public or
private; legal, social or moral duty have been held to be occasions of qualified
privilege, as have statements published in pursuit of a common interest or in selfdefence.
9 Press reports have been protected only when they contained warnings, for
example, regarding terrorist attacks or contaminated food. Newsworthiness was not
enough. 10
But the law allowed for new occasions of privilege to be created and this is what the
Commonwealth courts have done. 11 Following the leading decisions in Lange,
Reynolds and Lange v Atkinson, statements made in the course of political discussion
may now give rise to an occasion of privilege, with every member of society having
an interest in receiving such statements published to the world at large. 12
Australia — Lange v ABC (1997)
It was a series of High Court decisions in the early 1990s that led to the landmark
Lange decision. In 1992 Australian Capital Television Pty Ltd v The Commonwealth
(No 2) and Nationwide News Pty Ltd v Wills were handed down, with the High Court
8 Adam v Ward [1917] AC 309; Toogood v Spyring (1834) 1 CM & R 181. See also employment
references in Spring v Guardian Insurance [1993] 2 ALL ER 273, and a union newsletter in Brown v
Federated Miscellaneous Workers Union of Australia (1981) 9 NTR 33. Not to the public at large —
see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.
9 See F A Trindade, ‘Defamatory statements and political discussion’ (2000) 116 The Law Quarterly
Review 85. See also Adam v Ward [1917] AC 309, 334 (Lord Atkinson): ‘Such a privileged occasion
is...an occasion where the person who makes a communication has an interest or a duty, legal, social, or
moral, to make it to the person to whom it is made, and the person to whom it is so made has a
corresponding interest or duty to receive it’. See also Lange v Atkinson [2000] NZCA 95, [18].
10 Blackshaw v Lord (1984) QB 1; Duncombe v Daniell (1837) 8 C&P 222; Howe v Lees (1910) 11
CLR 361.
11 See Trindade, above n 9; See also Toogood v Spyring, (1834) 1 CM & R 181, 193; Howe v Lees
(1910) 11 CLR 361, 369.
12 For completeness the existence of statutory qualified privilege as it operates in the code states,
Queensland and Tasmania, is noted but will not be considered in this paper. See Defamation Act 1889
(Qld) s 16(1)(h) and s 16(2) ; Defamation Act 1957 (Tas) s 16 (1)(h) and s 16 (2); See also Bellino v
Australian Broadcasting Corporation (1996) 185 CLR 183; Cf s 22 Defamation Act 1974 (NSW).
Chesterman notes statutory qualified privilege may be broader than common law privilege under Lange
— see Michael Chesterman, ‘Privileges and Freedoms for Defamatory Political Speech’ (1997) 19
Adelaide Law Review 155, 207; See also Des Butler ‘Lange v Australian Broadcasting Commission: Its
effect in defamation code states’ (1998) 6 National Law Review 1, [10].

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
recognising for the first time an implied freedom of political speech in the Australian
Constitution. 13 In Nationwide News, the Court found that the system of representative
government enshrined in the Constitution implied the law recognised a freedom of
communication regarding the election of the Parliament and its exercise of power. 14 In
1994 Theophanous and Stephens v West Australian Newspapers Ltd held common
law defamation infringed this freedom, with the majority developing an extended
qualified privilege which protected defamatory publications of ‘political matter’. 15
In their joint judgment in Theophanous Mason CJ, Toohey and Gaudron JJ, to whom
Deane J in a separate judgment lent his support, held that the public at large had an
interest in the discussion of ‘political matters’, and each member of the public had an
interest in communicating and receiving information on political matters. 16 The
majority defined ‘political matters’ broadly. They included discussion of the conduct,
policies or fitness for office of government, political parties, public bodies, public
officers and those seeking public office. It could also include discussion of the
political views and [94] conduct of persons who were engaged in activities which
were the subject of political debate, such as trade union leaders, Aboriginal political
leaders, and political and economic commentators. Importantly, they held the freedom
was not limited to political publications or election speeches and quoted Eric
Barendt’s 1985 definition of political speech — ‘all speech relevant to the
development of public opinion on the whole range of issues which an intelligent
citizen should think about’. 17
In 1997 the High Court handed down its unanimous decision in Lange, a case that
involved criticism of former New Zealand Prime Minster David Lange’s leadership
ability. The Court reformulated qualified privilege, ‘collapsing’ the Constitutional
defence and establishing an extended category of privilege for communications
concerning ‘government and political matters’, which did not infringe the implied
13
Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106; Nationwide
News Pty Ltd v Wills (1992) 177 CLR 1.
14
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 72–3.
15
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.
16
Ibid 140; 188 (Deane J).
17
Ibid 123–4; Eric Barendt, Freedom of Speech (1985) 52.

(2003) 8 Media & Arts Law Review 91
freedom of communication. 18 It said Theophanous and Stephens had not expressly
determined whether Australia’s defamation laws were ‘reasonably appropriate and
adapted to achieving a legitimate end’ compatible with the constitutional system of
government. It held:
Accordingly, this Court should now declare that each member of the Australian
community has an interest in disseminating and receiving information, opinions and
arguments concerning government and political matters that affect the people of
Australia. The duty to disseminate such information is simply the correlative of the
interest in receiving it. The common convenience and welfare of Australian society are
advanced by discussion — the giving and receiving of information — about
government and political matters. The interest that each member of the Australian
community has in such a discussion extends the categories of qualified privilege.
Consequently those categories now must be recognised as protecting a communication
made to the public on a government or political matter. 19
The Court pointed out that government and political matters were broader than just
those issues that would inform people voting at a federal election or to amend the
Constitution. It referred to the ‘increasing integration of social, economic and political
matters in Australia’ in holding the privilege would extend to state, territory and local
government matters as well as issues concerning the United Nations or other
countries. 20
But as a general rule a media defendant would only be protected by the privilege
where it could establish its conduct in publishing was reasonable depending on ‘all
the circumstances of the case’. 21 The conduct would not be reasonable unless the
defendant had reasonable grounds for believing the imputation was true, took proper
steps to check its accuracy and did not believe the imputation to be untrue.
18
See Sally Walker, ‘Lange v ABC: the High Court rethinks the constitutionalisation of defamation
law’ (1998) 6 Torts Law Journal 9, 16; Lange (1997) 189 CLR 520, 570–1.
19
Lange (1997) 189 CLR 520, 570–1.
20
Ibid; The Court declined to express an opinion on whether this included the former New Zealand
Prime Minister.
21
Ibid 574.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
It would be unreasonable unless the defendant sought a response from the person
defamed and published it, except in cases where it was not practicable to seek or
publish a response or where it was not necessary to give the person a chance to
respond. 22 The defence could also be defeated by where the publication was
motivated or actuated by malice, that is, published for an improper purpose. 23
England — Reynolds v Times Newspapers (1999)
The House of Lords decision followed Lange closely in time and substance although
the outcome was somewhat different. The case involved an English Sunday Times
article which accused former Irish [95] Taoiseach Albert Reynolds of dishonesty. The
Court would not adopt a generic qualified privilege for political information but
considered the traditional duty-interest test could apply to media publications. 24 Lord
Nicholls said a generic privilege which operated except where malice was proved, did
not provide adequate protection for reputation. 25 Instead he argued the ‘elasticity of
the common law principle’ would enable courts to balance reputation with freedom of
speech, having regard to the circumstances of the case. Matters to be taken in to
account included the seriousness of the allegation, the nature, source and status of the
information, steps taken to verify the information, urgency of publication, whether
comment was sought, the article’s tone and circumstances of publication. 26 Malice
would also defeat the privilege. Lord Nicholls held occasions of privilege could be
found on all matters of public concern, not just political information:
[I]t would be unsound in principle to distinguish political discussion from discussion of
other matters of serious public concern. The elasticity of the common law principle
enables interference with freedom of speech to be confined to what is necessary in the
circumstances of the case. This elasticity enables the court to give appropriate weight,
in today’s conditions, to the importance of freedom of expression by the media on all
matters of public concern. 27
22
Ibid. The court cited Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, 252–3.
23
Ibid.
24
A generic qualified privilege was argued by counsel for the defence on the basis of the 1998 New
Zealand decision in Lange v Atkinson [1998] 3 NZLR 424.
25
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010, 1027.
26 Ibid.
27 Ibid.

(2003) 8 Media & Arts Law Review 91
He also emphasised freedom of expression, noting the European Convention for the
Protection of Human Rights and Fundamental Freedoms and the subsequent Human
Rights Act 1998 (UK), and warned courts should be slow to conclude the public had
no right to know: ‘[a]ny lingering doubts should be resolved in favour of
publication.’ 28
On the facts, the defence failed because the article did not include Mr Reynold’s
explanation to the Irish Dail. The Court did not comment specifically on Lange, but
Lord Cooke expressed concern that the Australian reasonableness requirement did not
adequately protect politicians because the defendant bore the onus. Lord Cooke was
also critical of the High Court’s constitutional focus but concluded Reynolds brought
‘English law into a position probably not very different from that produced by the
Australian reasonableness test, but perhaps rather more consonant with common law
tradition’. 29
New Zealand — Lange v Atkinson (2000)
On the same day Reynolds was decided, the same Law Lords, sitting as the Privy
Council, handed down Lange v Atkinson — an appeal from the New Zealand Court of
Appeal. 30 The New Zealand Court applied a generic qualified privilege for political
communications which could be defeated only by malice. There was no requirement
that the publication be reasonable. Communications were limited to elected politicians
or those seeking election. The Court applied common law considerations and the New
Zealand Bill of Rights, based on the International Covenant of Civil and Political
Rights. The House of Lords had expressly rejected a generic qualified privilege, but
instead of overruling the decision, the Privy Council remitted it:
[96] [O]ne feature of all the judgments, New Zealand, Australian and English, stands
out with conspicuous clarity: the recognition that striking a balance between freedom of
expression and protection of reputation calls for a value judgment which depends upon
28 Ibid. Lord Nicholls noted freedom of the press was a fundamental concern because the press had an
important function to play both as a ‘watchdog’ and a ‘bloodhound’.
29 Ibid 1047. Lord Cooke observed the onus was only relevant in determining the circumstances of
publication, and it was circumstances that were all-important. For discussion of the nature of the UK
press see s 4.1below.
30 Lange v Atkinson (New Zealand) [1999] UKPC 46.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
local political and social conditions. These conditions include matters such as the
responsibility and vulnerability of the press. 31
The Law Lords, and subsequently the NZ Court of Appeal, made particular reference
to the differing nature of the press in each country and the natural impact that had on
the media law landscape. Lord Nicholls bemoaned the lack of professional and ethical
standards displayed by the UK mass media, while the NZ Court of Appeal expressed
significant confidence in a more localised press characterized by lower circulations
and independent editorial policies. 32
In reviewing their decision the Court of Appeal reaffirmed the generic privilege,
holding ‘the wider public may have a proper interest, supporting the defence, in
respect of generally published statements which directly concern the functioning of
representative and responsible government’. 33 The Court did not discuss the
apparently broader ‘all matters of public concern’ and would not endorse Lord
Nicholls’ non-exhaustive list of factors to be considered. But it clarified its earlier
decision by saying not all occasions would be privileged and it was ‘still necessary to
take into account the circumstances of publication’. Those circumstances would
include the identity of the publisher, the context of the publication, the likely
audience, and actual content. 34 Malice would again defeat the privilege: ‘there is no
public interest in allowing defamatory statements to be made irresponsibly —
recklessly — under the banner of freedom of expression.’ 35
The American influence — New York Times v Sullivan (1964)
While each jurisdiction has been influenced by the United States public figure test, all
have rejected its wide ambit. The public figure test was first expounded in New York
Times v Sullivan, where the US Supreme Court found the first amendment guarantee
of freedom of speech required a federal rule prohibiting a public official from
31
Ibid [16].
32
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010, 1024; Lange v Atkinson [2000] NZCA 95,
[35]. See further discussion at 4.1 below.
33
Lange v Atkinson [2000] NZCA 95, [12].
34 Ibid [13].
35 Ibid [48].

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claiming damages for defamation regarding his official conduct. 36 The rule applied
unless the plaintiff could prove actual malice. 37
In Curtis Publishing v Butts the test was extended to public figures — in that case a
football coach accused of match fixing. 38 Finally in 1974 Gertz v Robert Welch ruled
individuals in the public spotlight could also be caught. The Court said governmental
officers or ‘those who by reason of their achievements or the vigor and success with
which they seek the public attention’ 39 could be deemed public figures. It reasoned
that public figures had better access to channels of communication and were better
able to defend themselves. 40
In Theophanous, the High Court referred extensively to Sullivan but preferred a
reasonableness requirement that would tip the balance in favour of personal
reputation. In Lange the Court arguably narrowed the scope of Theophanous and said
it made little sense to adopt the US approach. 41 It held the [97] American
constitutional system required guarantees to be superimposed on to the common law
and statutes of each state, whereas Australia required conformity between the implied
constitutional freedom and the common law. 42 The House of Lords in Reynolds
rejected placing a higher burden on certain plaintiffs, finding that the US public figure
test did not adequately protect reputation because it required that actual malice be
proved before those plaintiffs deemed to be public figures could succeed. The House
of Lords strictly adhered to the common law, and imposed a non-exhaustive list of
considerations in favour of the plaintiff. 43 The New Zealand Court came closest to
adopting the US position in 1998 by refusing to impose an Australian-style
reasonableness requirement. 44 But the Court brought itself back in line with the
common law tradition in 2000 by requiring the circumstances of publication to be
36 The public official in that case was an elected police commissioner — a position without equivalent
in Australia.
37 New York Times v Sullivan (1964) 376 US 254.
38 Curtis Publishing v Butts (1967) 388 US 130.
39 Gertz v Robert Welch (1974) 418 US 323.
40 See Peter Cole-Adams, ‘In defence of the public figure defence’ (1991) 11(1) Communications Law
Bulletin 35.
41 Lange (1997) 189 CLR 520, 563.
42 See Michael Chesterman, ‘Privilege and Freedoms of Defamatory Political Speech’ (1997) 19
Adelaide Law Review 155, 161.
43 See Adrienne Stone and George Williams, ‘Freedom of speech and defamation: developments in the
common law world’ (2000) 26(2) Monash University Law Review 362.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
taken into account. 45 All three jurisdictions have noted the extensive criticism of the
public figure test both in the US and overseas. 46
A Broader International Perspective — India, South Africa and Canada
While the US first attempted to balance freedom of speech and defamation in the
1960s, common law courts around the world have only begun to address the issue in
the last decade. In comparison to the US position — but not original common law
positions — courts in other countries have overwhelmingly tipped the balance
towards the plaintiff. 47 Sullivan was rejected by the Canadian Supreme Court in Hill v
Church of Scientology and by the South African Court of Appeal in National Media v
Bogoshi. 48 In Bogoshi, the Court applied both Lange and Reynolds to find a defence
for defamation in a political context where the publication was reasonable. Only the
Indian Supreme Court in Rajagopal v State of Tamil Nadu has appeared to square
itself with the US, requiring reckless disregard for truth for the defence to fail. 49
Determining occasions of qualified privilege
England — All Matters of Public Concern
The House of Lords’ decision has paved the way for a broad range of discussion in
the English press to be considered free from the threat of defamation:
It is doubtful whether the suggested new defence could sensibly be confined to political
discussion. There are other public figures who exercise great practical power over the
lives of people or great influence in the formation of public opinion or as role models.
Such power or influence may indeed exceed that of most politicians. The rights and
interests of citizens in democracies are not restricted to the casting of votes. 50
44
See Lange v Atkinson [1998] 3 NZLR 424.
45
Lange v Atkinson [2000] NZCA 95, [24]–[25]; Reynolds v Times Newspapers Ltd [1999] 3 WLR
1010, 1027.
46
For discussion see Michael Chesterman, ‘The money or the truth: defamation reform in Australia and
the USA’ (1995) 18(2) University of New South Wales Law Journal 300; See also John Tobin, ‘The
United States public figure test: should it be introduced into Australia’ (1994) 17(2) University of New
South Wales Law Journal 383.
47
See Stone and Williams, above n 43, 372.
48
Hill v Church of Scientology [1995] 2 SCR 1130; National Media v Bogoshi 1999 (1) BCLR 1.
49
Rajagopal v State of Tamil Nadu 1995 AIR (SC) 264; see Stone and Williams, above n 43.
50
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010, 1042 (Lord Cooke).

(2003) 8 Media & Arts Law Review 91
Three recent decisions illustrate the breadth of Reynolds. 51 In GKR Karate (UK) Ltd v
Porch a newspaper [98] article which alleged a local karate school was unregistered,
uninsured and employing unqualified instructors was considered to come within the
scope of the defence. 52 In James Gilbert Ltd v Mirror Group Newspapers Ltd the
privilege extended to a newspaper report about a sporting goods manufacturer
exploiting child labour in India. 53 In Grobbelaar v News Group Newspapers Ltd a
report about a goalkeeper accused of match fixing was protected. 54 It has been argued
that Reynolds will be of more benefit to the English media than Lange in Australia, by
protecting bread-and-butter stories such as consumer affairs and unethical conduct. 55
But there has been strong opposition from English commentator Ian Loveland, who
has called for a reversal of GKR Karate on the ground that consumer affairs stories
are less important than stories about corrupt politicians and thus do not justify the risk
of an untrue publication. 56
New Zealand — Discussion Directly Concerning the Functioning of Responsible
Government
There appears to have been no reported judicial consideration of Lange v Atkinson in
New Zealand to date. However the original decision limited the scope of qualified
privilege to past, present and future politicians, and the Court of Appeal in 2000 made
no move to redefine or extend this in the wake of Reynolds. 57 As New Zealand
academic John Burrows points out, the Court of Appeal had no need to go further and
the boundaries of discussion free from restraint remain uncharted. 58 He suggests
however there is no reason why stories regarding senior public officials and even
private citizens could not be caught by the privilege, but notes it is unlikely the New
Zealand position would extend as far as that of the US:
51
Roy Baker, ‘Extending common law qualified privilege to the media: a comparison of the English
and Australian approaches’ (2002) 7(2) Media & Arts Law Review 87.
52
GKR Karate (UK) Ltd v Porch (Unreported, English High Court, Popplewell J, 17 January 2000).
53
James Gilbert Ltd v Mirror Group Newspapers Ltd [2000] EMLR 680.
54
Grobbelaar v News Group Newspapers Ltd [2001] 2 All ER 437. It should be noted the media
defendant lost the case on appeal, but the end result saw goalkeeper Grobbelaar awarded only a
nominal sum of ₤1, because he had ‘no reputation’ worth the protection of the court. See Grobbelaar v
News Group Newspapers Ltd [2002] UKHL 40 (24 October 2002).
55
Baker, above n 51, 93.
56
Ibid; Ian Loveland, ‘Libel shopping in the wrong mall’ (2000) 150 New Law Journal 759.
57
Trindade, above n 9, 186 .
58
John Burrows, ‘Lange v Atkinson 2000: Analysis’ (2000) 4 New Zealand Law Review 389, 391.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
If what we wish to facilitate is free public discussion of matters of real public concern
there is no sensible reason why members of the private sector should not sometimes be
subject to scrutiny as well. In time attempts to extend the ambit of the new privilege are
almost bound to be successful. 59
Australia — Government and Political Matters
There is diverging opinion as to what amounts to government and political matters in
Australia. On one hand it has been interpreted more widely than perhaps may have
been expected, with some lower courts allowing themselves to be influenced by the
thinking in Theophanous and Stephens. On the other hand some courts have rejected
their application altogether. Scholars too are divided. In a review of pre-Lange cases,
Sally Walker suggests that debate over gun control and accusations of misconduct
against police officers would still be classified as ‘government and political
matters’. 60 Nevertheless she points out the Lange statement of the defence nullifies
the formulation in Theophanous. 61
Baker suggests a strict division of what is political and non-political ignores the
‘participatory vision of democracy’ that can be imputed to the Constitution. That
vision of democracy requires dissemination [99] of a broad range of information to
promote ‘active citizenry’. 62 He argues that knowing the local karate school is
providing a ‘dodgy service’ as in GKR Karate may be more important for a working
class family in Leeds than knowing former Russian President Boris Yeltsin has mafia
connections. 63
Michael Chesterman argues the concept is no longer based on Theophanous and is not
as broad as theories of free speech which require the ‘pursuit of truth through the
competition of viewpoints in a free marketplace of ideas.’ He suggests it would
extend to government ministers, public servants, public utilities and statutory
59 Ibid 392.
60 Walker, above n 18, 18; gun control debate see Sporting Shooters’ Association (Vic) v Gun Control
Australia (1995) A Def R 52, 43; police officers see Lewandowski v Lovell (No 2) (1995) 13 WAR
468, 470.
61 Walker, above n 18, 9.
62 Baker, above n 51, 93. He makes this point with reference to Michael Chesterman, Freedom of
speech in Australian law: a delicate plant (2000) ch 2 and 3.
63 GKR Karate (UK) Ltd v Porch (Unreported, English High Court, Popplewell J, 17 January 2000).

(2003) 8 Media & Arts Law Review 91
authorities as well as state and local government matters. 64 Constitutional lawyer
Adrienne Stone believes the concept will be closely defined by the text of the
Constitution and thus the discussion in question will require some nexus with the
features of representative government. 65
Butler’s list of what the concept will embrace echoes Theophanous, but with
reference to post-1997 cases: the conduct or fitness for office of government matters,
political parties, public bodies, public officers, and those seeking public office;
government conduct, policy or legislation; political views and public conduct of
persons who are engaged in activities that have become the subject of political debate,
including trade union leaders, Aboriginal political leaders and perhaps political and
economic commentators. 66
Political Activism, not Judicial Activism — Rabelais and Hanson
While there is little possibility now that Australia will follow the US position,
Australian authority may be found for a move towards the UK approach. In Cunliffe v
The Commonwealth Toohey J argued that at the lower end of scale, government and
political matters were very limited. 67 At the higher end ‘they recognise a freedom to
communicate in relation to public affairs and political matters generally’. In Kruger v
The Commonwealth, Toohey J noted the majority’s endorsement of Barendt’s
definition of freedom of speech and added: ‘Nothing in Lange diminishes the scope of
the implied freedom as I have identified it’. 68 However some courts appear reluctant
to agree.
64 Michael Chesterman, ‘Privileges and Freedoms for Defamatory Political Speech’ (1997) 19 Adelaide
Law Review 155, 162. See also Michael Chesterman, Freedom of Speech in Australian Law: A Delicate
Plant (2000) for more discussion of the extent of the protection.
65 Stone comes to this conclusion regarding state political matters and with reference to the judgments
of Brennan CJ and McHugh J in Levy v Victoria (1997) 146 ALR 248; see Adrienne Stone, ‘Lange
Levy and the direction of the freedom of political communication’ (1998) 21(1) University of New
South Wales Law Journal 117, 133–4. Her approach has been quoted with approval by High Court
Justice Ian Callinan — see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001)
185 ALR 1.
66 For discussion of these cases see Des Butler, ‘Lange Revisited: exploring the implied freedom of
communication concerning government or political matters’ (2000) 5(3) Media & Arts Law Review
145, 148.
67 Cunliffe v The Commonwealth (1994) 182 CLR 272, 326.
68 Kruger v The Commonwealth (1997) 190 CLR 1, 72.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
The first blow came with the 1998 Federal Court decision in Rabelais. Rabelais was
the student union publication of La Trobe University which in July 1995 published an
article entitled the Art of Shoplifting. The case was argued with regard to classification
laws, under which the article was found to be instructing crime and subsequently
banned. The defendants raised a Lange defence, pointing out that the introductory
words to the article called for the redistribution of wealth and thus could be
characterised as political. A majority of the Federal Court rejected the argument.
Sundburg J held the article was overwhelmingly a manual on how to steal and did not
relate to ‘the exercise by the people of a free and informed choice’. 69 Heerey J held a
publication which advocated breaking the law fell outside [100] the protection of
democracy and the rule of law afforded by the Constitution. 70 French J disagreed:
There is much to be said for the conclusion that ‘The Art of Shoplifting’ falls outside
the scope of political discussion. But, inelegant, awkward and unconvincing as is its
attempt to justify its practical message about shoplifting by reference to the evils of
capitalism, it is arguable that in some aspects it would fall within a broad understanding
of political discussion. 71
Nevertheless the Court rejected the appeal on the grounds that the relevant
classification legislation was enacted for a legitimate purpose — that is, to protect the
community at large from inappropriate publications — and did not in itself infringe
the implied freedom of speech. Disappointingly the High Court refused to grant leave
to appeal. The decision was widely criticized and, it has been argued, effectively
means numerous political and radical publications could be banned. 72
Another disappointing decision was handed down by the Queensland Court of Appeal
in the same year. Indeed Lange was hardly discussed in Australian Broadcasting
Corporation v Hanson, 73 a defamation action by former Federal MP Pauline Hanson
69
Brown v Members of the Classification Review Board of the Office of Film and Literature
Classification (Rabelais) (1998) 154 ALR 67, 98.
70
Ibid 87–8.
71
Ibid 80.
72
See Marcus Clayton, and Tony Borgeest, ‘Free Speech and Censorship after the Rabelais Case’
(1998) 3(4) Media & Arts Law Review 194, 199. In assessing this criticism it should be noted Clayton
was a solicitor for the defence.
73
Australian Broadcasting Corporation v Hanson (Unreported, Queensland Court of Appeal, de Jersey
CJ, McMurdo P, McPherson JA, 28 September 1998).

(2003) 8 Media & Arts Law Review 91
against the ABC for a satirical song that allegedly imputed she was a male
homosexual. In finding for Hanson in an interlocutory proceeding, the Court held the
material was defamatory and a defence based on s 16(1)(h) of the Defamation Act
1889 (Qld) would fail because broadcasting the song did not benefit the public. 74 De
Jersey CJ said the song ‘could not possibly be said to infringe against the need for
“free and general discussion of public matters” fundamental to our democratic
society’ as they were ‘grossly offensive imputations relating to the sexual orientation
and preference of a Member of Parliament’. The decision was again widely criticized
in the popular press, and more recently it has argued the Court failed to appreciate the
nature of political satire and missed an opportunity to consider the limits of the
implied freedom. 75 In stark contrast to the Queensland decision was the South
Australian case Brander v Ryan. There the court found for the media defendant,
holding that the defendant honestly and reasonably believed the imputations to be
true. These two cases show the courts grappling to deal with political satire in the
context of free speech, in situations where the allegedly defamatory imputations were
made tongue-in-cheek. 76
The New Century — Recent Judicial Interpretation
A wave of recent defamation decisions, mostly at State Supreme Court level, has
found the courts more prepared to take an expansive view of what amounts to
‘government and political matters’. In Archer v Channel Seven Perth Pty Ltd the
Western Australia Supreme Court refused to strike out a Lange defence, holding a
story about a bankrupt barrister related to Australia’s income tax laws. 77 Hasluck J
adopted a broad interpretation, saying ‘[t]he High Court made it clear in Lange that a
narrow view should not be [101] taken of matters about which the general public has
an interest in receiving information’. 78 In McMullin v TCN Channel Nine Pty Ltd
Dunford J suggested a wide interpretation, but noted where an article in part related to
government and political matters, the entire article would not automatically be
74 Section 16(1)(h) provides that an occasion of qualified privilege arises when a publication is made in
good faith in the course of discussion of a subject of public interest, where public discussion is for the
public benefit and the comment is fair. See above n 12.
75 Roger Magnusson, ‘Freedom of speech in Australian defamation law: ridicule, satire and other
challenges’ (2001) 9 Torts Law Review 269, 284.
76 Brander v Ryan (2000) SASC 446. See ibid.
77 Archer v Channel Seven Perth Pty Ltd [2002] WASC 160.
78 Ibid [79].

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
privileged. 79 In that case a television documentary about improper teaching practices
would have amounted to an occasion of qualified privilege as it related to the
taxpayer-funded state school system. But as the plaintiff teacher was carrying out his
duties as a government employee properly, the Court held there was no reason for an
occasion of privilege to arise and thus found the defence would fail. In Chapman &
Ors v Conservation Council of South Australia Inc a privileged occasion was also
found to arise. There, articles published by the Conservation Council accused the
Chapmans of ignoring proper planning processes and community consultation. 80 In
Marsden v Amalgamated Television Services Pty Ltd a television current affairs
program was privileged because the attack on barrister John Marsden was first made
in parliament and Marsden’s subsequent press conference was held at Parliament
House. Levine J held Marsden’s position as a Member of the Police Board appointed
by the Premier could be characterised as a ‘public office’, although his role as head of
the Council for Civil Liberties could not. 81
Clearly the courts are not following the breadth of the English decisions but are not
adverse to dissecting the defamatory matter to find a constitutional nexus. Weinberg J
in Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to
Animals (Vic) refused to allow protection for an article critical of electronic dog
collars although it was arguably made in the course of a campaign to reform pet
laws. 82 He said the article contained only one sentence alluding to the campaign, and
Lange did not give a ‘carte blanche to defame another’. 83 In Buddhist Society of
Western Australia Inc v Bristile Ltd material published on a website urging people to
write letters of complaint to the Environment Minister was held to be about
government and political matters but material on the same website urging letters of
complaint be written to the plaintiff trucking company were not. 84 In Nationwide
News Pty Ltd v International Financing & Investment Pty Ltd it was held comments
critical of the conduct of the ACCC chairman Professor Alan Fels, as the head of a
79
McMullin v TCN Channel Nine Pty Ltd [2000] NSWSC 925, [57].
80
Chapman & Ors v Conservation Council of South Australia Inc [2002] SASC 4. But see further
discussion of this case at 4.3 below.
81
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510.
82
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) [2002]
FCA 860, [275].
83
Ibid [276].
84
Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210.

(2003) 8 Media & Arts Law Review 91
governmental agency, would have been privileged, but a commentary regarding the
behaviour of the respondent financial institution was not. 85
The staunchest opposition to Theophanous has come from Owen J, who in
Nationwide News v International Financing argued the description of the defence
should be discarded and new propositions gleaned from Lange:
What is relevant is that there is a threshold question, namely, whether the material
amounts to ‘information, opinions [or] arguments concerning government and political
matters that affect the Australian people’. The Court gave little guidance on that issue
and it remains to be worked out on a case by case basis. 86
However most courts have had considerable regard to Theophanous, and as the cases
show, courts are taking a broad and creative interpretative approach to identifying
government and political matters. Indeed [102] Owen J’s approach was expressly
rejected by Bongiorno J in the recent case of Popovic v Herald & Weekly Times Ltd.
Bongiorno J said although the defence was reformed in Lange, Theophanous had not
been rendered ‘totally irrelevant’. 87 He pointed to Toohey J’s comments in Kruger,
and noted Toohey J believed Lange had strengthened the defence. 88 But Bongiorno J
held an article which contemplated or advocated the removal of a magistrate would be
privileged because the removal was effected by the elected executive. Not because the
magistrate or judge was a public official. He said while the freedom operated for the
common convenience and welfare of society, it was not absolute and should be linked
to representative government:
Thus, the question which must be asked is whether it is necessary for the effective
operation of the system of representative and responsible government that there be
freedom to discuss the sort of matters discussed in the article sued upon even if that
85 Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95.
Indeed the extension of the Lange qualified privilege to the head of a body such as the Australian
Competition and Consumer Commission may well indicate the privilege is broader than the
constitutional protection itself.
86 Ibid [15].
87 Popovic v Herald & Weekly Times Ltd [2002] VSC 174, [24]–[25].
88 Ibid [25]; Kruger v The Commonwealth (1997) 190 CLR 1, 72.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
discussion is otherwise defamatory…Is there a clear nexus between the discussion in
the article and the concepts of representative government? 89
To what extent then does the description of qualified privilege in Lange limit the
majority view in Theophanous? What is to be made of diverging opinion among
courts and commentators? Despite the narrow approach in Rabelais, it is argued that
in defamation law at least courts are moving towards a united, middle ground. Such
an approach appears to limit the scope of government and political matters by
requiring that the implied freedom come within the constitutional system of
representative government. However the courts also seem prepared to take a lateral
approach in considering each case. In acknowledging the High Court’s statement of
what amounts to government and political matters is broader than issues that inform
voters, the courts appear to be taking valid instruction from the reasoning in
Theophanous and turning their minds to their Honours’ discussion of political speech
in determining when an occasion of privilege may arise.
The Newspaper Nexus — Recent Examples of Political Debate
The High Court has discussed the increasing integration of social, economic and
political matters in Australia in recent years. 90 Major news stories have become an
unavoidable fusion of the political and the non-political, rendering the careful
dissection of defamatory matter difficult. A brief skim of Australia’s newspapers
makes this clear — consider the impact a government announcement of a new
housing loan equity scheme has on the stockmarket and the social welfare sector. 91
Thus it may be a useful exercise to examine one major news event and consider
whether any defamatory imputations may be characterised as ‘government and
political matters’.
Case study — Dr Peter Hollingworth
Dr Peter Hollingworth, Governor-General of Australia and former Anglican
Archbishop of Brisbane, became the target of an unrelenting media-driven campaign
in December 2001 after a Supreme Court jury found the church failed in its duty
89 Popovic v Herald & Weekly Times Ltd [2002] VSC 174, [29].
90 Lange v ABC (1997) 189 CLR 520, 571.
91 See ABC Radio, ‘Warnings of danger in shared equity’ PM, 20 September 2002.

(2003) 8 Media & Arts Law Review 91
toward a student sexually abused by a senior boarding master at a Toowoomba
school. 92 Dr Hollingworth was criticised for his handling of the affair — specifically
for failing to acknowledge the abuse, failing to properly deal with claims of abuse,
and covering up direct [103] evidence of abuse within the church. 93 At the same time
his conduct in court was analysed, his responses to the allegations of breach of duty
criticised as evasive, and finally his fitness for high public office questioned.
Children’s trusts and charities reviewed Dr Hollingworth’s patronage, and there were
calls for his resignation or removal from office. 94 Media outlets sought comment from
all quarters, including the legal sector, the Prime Minster’s office and other elected
representatives. 95 Journalists plagued the Governor-General for several months as he
carried out his official duties in Australia and overseas. Indeed, it was his poor
handling of the media frenzy during his term as Governor-General, and a series of ill
received official public statements culminating in his refusal to tender his resignation,
that led to lack of public confidence in Dr Hollingworth.
In April 2003, the story returned to the front page with the completion of an
independent report into the church’s handling of the sex abuse claims. 96 The report
was tabled in Queensland Parliament to avoid possible defamation action, and found
that Dr Hollingworth had acted appropriately with regard to the Toowoomba case.
However the report considered eight other cases of sex abuse within the church, and
concluded that in one case Dr Hollingworth had made ‘a serious error of judgement.’
Dr Hollingworth’s leadership ability was again questioned, and again he ignored calls
from across the community to resign. But just days later a previously suppressed civil
trial into 40 year old rape allegations against Dr Hollingworth was revealed, and on
92
See, eg, Amanda Gearing, ‘Record payout for sex abuse’, The Courier Mail (Brisbane), 8 December
2001, 1; Amanda Gearing, ‘Scandal puts G-G under spotlight’ The Courier Mail (Brisbane), 10
December 2001, 1; Amanda Gearing, Malcolm Cole and Sean Parnell, ‘New heat on Hollingworth’
The Courier Mail (Brisbane), 17 December 2001, 1. Erin O’Dwyer, ‘Church sets up abuse hotline’,
The Courier Mail (Brisbane), 28 December 2001, 5.
93
See, eg, Amanda Gearing, ‘Letter to prelate told of cover-up’ The Courier-Mail (Brisbane), 22
November 2001, 3; Amanda Gearing and Chris Griffith, ‘Say nothing, lawyers told Hollingworth’ The
Courier Mail (Brisbane), 14 December 2001, 1; Amanda Gearing, ‘Child group patron rejected by
Hollingworth’ The Courier-Mail (Brisbane), 18 December 2001, 3.
94
See, eg, Chris Griffith, ‘Besieged Hollingworth responds to accusers’ The Courier Mail (Brisbane),
21 February 2002, 1.
95
See, eg, Deborah Cassrels, ‘The G-G, the PM, his wife and her influence’ The Courier-Mail
(Brisbane), 2 March 2002, 28; Matthew Fynes-Clinton ‘Chief Justice stands by church role’ The
Courier Mail (Brisbane), 22 December 2001, 4.
96
See, eg, Chris Griffith and Amanda Gearing, ‘Critics call for G-G’s resignation’, The Courier Mail
(Brisbane), 3 May 2003, 1.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
11 May he announced his decision to step aside pending the outcome of the case. 97
This was widely interpreted as a pledge to resign, and later that month, following the
withdrawal of the allegations, Dr Hollingworth finally tendered his resignation,
effective from 1 July.
The nice question then for the purposes of this paper is, would any defamatory
imputations published in the course of the debate be regarded as ‘government and
political matters’? Had the story broken when Dr Hollingworth was still Archbishop
of Brisbane even the Theophanous definition would have been unlikely to protect the
publications, as Hollingworth’s conduct was not the subject of ‘political’ debate in the
same way as, say, a union leader or Aboriginal political leader, nor as a church leader
was he an elected representative or a government appointment. 98 The only exception
to this may be stories that directly accused Dr Hollingworth of perverting the course
of justice. 99
However Dr Hollingworth had been sworn in as Governor-General and as such the
story gained national momentum. Here it is useful to quote McHugh J in Stephens v
West Australian Newspapers Ltd:
In the last decade of the twentieth century, the quality to life and the freedom of the
ordinary individual in Australia are highly dependent on the exercise of functions and
powers vested in public representatives and officials by a vast legal and bureaucratic
apparatus funded by public moneys. How, when, why and where those [104] functions
and powers are or are not exercised are matters that are of real and legitimate interest to
every member of the community. 100
Australia’s Governor-General is not strictly a taxpayer-funded public official, given
the post’s vice-regal status. Nor is the Governor-General elected, or appointed in the
sense, say, of ACCC chairman Professor Alan Fels. 101 But in reality the Governor-
97
See, eg, Rosemary Odgers, Chris Griffith and Liam Walsh, ‘Critics say right move for wrong
reason’, The Courier Mail (Brisbane), 12 May 2003; Paul Kelly, ‘In other words … a pledge to resign’,
The Australian, 12 May 2003.
98
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 140; (Deane J) 188.
99
Consider, eg, the police officers in Lewandowski v Lovell (No 2) (1995) 13 WAR 468.
100
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, 570–1. This position was
approved in Lange (1997) 189 CLR 520.
101
Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95.

(2003) 8 Media & Arts Law Review 91
General is funded by the public purse and carries out duties as a representative of the
people, particularly in times of national crisis such as the Port Arthur massacre or the
Swiss canyoning disaster. His or her appointment by the Prime Minister reflects on
the government of the day, and thus has an effect on the people’s vote.
This is borne out by the controversy which surrounded Prime Minister John Howard’s
appointment of a church leader to a state position, or the way in which the outspoken
views of former Governor-General Sir William Deane undermined Howard’s
leadership on the issue of Aboriginal reconciliation. As Head of State, the Governor-
General is clearly part of the system of representative government, and has the
constitutional power to dismiss the Prime Minister and dissolve Parliament. In 1975
the Governor-General’s exercise of this power had a dramatic impact on the
Australian democracy.
During the original debate almost every story published contemplated Dr
Hollingworth’s removal due to his apparent inability to represent the interests of
ordinary people and thus his apparent inability to carry out the duties of Governor-
General. As removal is effected by the Prime Minister, it would follow having regard
to Bongiorno J’s reasoning in Popovic, that the publications could be privileged: ‘It is
(the executive’s) functions and powers that are relevant in the sense meant by
McHugh’. 102
But it is the second wave of debate which makes the argument even more clear cut.
That the report was tabled in Queensland Parliament would be enough for media
reports to be characterised as ‘government and political matters’, as can be seen from
Marsden. 103 But the report and the subsequent rape allegations prompted Prime
Minister John Howard to raise the matter with the Queen during an official overseas
visit, and finally to meet with the Governor-General to discuss his future. It was as a
result of that meeting that Dr Hollingworth stood aside, sparking a unique
constitutional crisis. These events were so closely intertwined, and so fundamentally
102 Popovic v Herald & Weekly Times Ltd [2002] VSC 174, [39]. It should be noted that this decision is
under appeal. It has been criticized by commentators. See especially Roy Baker, ‘Defamatory comment
on the judiciary: Lange qualified privilege in Popovic v Herald & Weekly Times’ (2002) 7(3) Media &
Arts Law Review 213.
103 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, [75]–[86].

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
related to the governing of the Australian people, that media reports published at the
time must clearly concern ‘government and political matters’. Even a court which
chose to closely examine individual stories, such as those specifically concerning the
rape allegations, would find again that each story contemplated Dr Hollingworth’s
removal from office.
Determining when Occasions of Privilege will Fail
Contemporary media climates in Australia, England and New Zealand
The limits placed on defendants by courts in Australia, New Zealand and England
differ only in their attempt to mould their decisions to the local socio-political and
socio-legal climate. In Lange v Atkinson, the Court of Appeal argued New Zealand
had not witnessed the ‘worst excesses’ of the British tabloid press, and quoted former
New Zealand Minister of Justice Sir Douglas Graham as saying compared to Britain
‘media intrusion into our daily lives is rather tame’. 104 The Court distinguished the NZ
press by saying that the size of the country combined with the fact daily newspapers
were not nationals, [105] produced low circulation figures and thus less competition:
Another difference is that some of the British dailies have close associations with
particular political parties; competing political positions are by contrast often
expressed in the opinion pages of individual New Zealand dailies and weeklies. 105
In Reynolds Lord Nicholls stated that without any safeguards other than difficult-toprove
malice, and in situations where a newspaper was reluctant to reveal sources, an
individual could find his or her reputation damaged forever without an opportunity for
vindication. He explained the need to consider the circumstances of the case by
saying:
[E]thics of professional journalism…unfortunately, in the United Kingdom… would
not generally be thought to provide a sufficient safeguard…The sad reality is that the
overall handling of these matters by the national press, with its own commercial
interests to serve, does not always command general confidence. 106
104
Lange v Atkinson [2000] NZCA 95, [34]; The Court quoted from Karl Du Fresne, Free Press Free
Society (1994) 26, 34.
105
Lange v Atkinson, [2000] NZCA 95, [35].
106
Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010, 1024.

(2003) 8 Media & Arts Law Review 91
Nevertheless Lord Nicholls noted journalists’ decisions often occurred in the ‘heat of
the moment’ and weight should be given to freedom of the press. 107
In discussing reasonableness, the High Court in Lange noted that publication to
thousands of people meant damage to reputation was far greater than if publication
had been only to a limited audience. The Court noted reasonableness would only be a
requirement if extended qualified privilege was raised — not the traditional common
law defence — and thus based their formulations in part on s 22 of the Defamation
Act 1974 (NSW) and the codes in Queensland and Tasmania. 108 And while
recognizing that ‘freedom of communication on matters of government and politics is
an indispensable incident of that system of representative government’, the Court did
not pass judgment on the media. It merely found a test of reasonableness was
reasonably appropriate and adapted to the protection of reputation so as not to infringe
the implied freedom:
The protection of the reputations of those who take part in the government and political
life of this country from false and defamatory statements is conducive to the public
good. The constitutionally prescribed system of government does not require — to the
contrary, it would be adversely affected by — an unqualified freedom to publish
defamatory matter damaging the reputations of individuals involved in government or
politics. 109
Michael Gillooly has observed a substantial overlap between ‘the factors relevant to
reasonableness of publication’ in Australia and England. 110 He argues the
‘responsibility or reasonableness’ displayed by the defendant will be critical to
determining whether an occasion arises in Australia and New Zealand and that the
major difference is onus, which in New Zealand is on the plaintiff. 111 The question
107
Ibid 1027.
108
See above n 12. It should be noted that the reasonableness requirements differ slightly under the
codes. For, eg, a publication must be ‘reasonable in the circumstances’ in NSW but ‘made in good
faith’ in Queensland. For more discussion see Des Butler, ‘Lange v Australian Broadcasting
Commission: It’s effect in defamation code states’ (1998) 6 National Law Review 1.
109
Lange (1997) 189 CLR 520, 568.
110
Michael Gillooly, ‘Lange v Atkinson: an Australian perspective’ [2000] New Zealand Law Review
40.
111
Ibid 46.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
remains then if the three jurisdictions are markedly similar, what conduct and/or
publication would fail the test?
[106] The New Zealand Court of Appeal dismissed Mr Lange’s appeal against a
magazine article which was critical of his performance and accused him of having
selective memory. 112 In Lange the High Court did not offer an opinion and remitted
the matter. However in Reynolds the defence failed because the plaintiff’s response to
the allegations, originally given in the Parliament, was not published. As will be seen
below the lower Australian courts have also been critical of the conduct of the media.
Judicial Interpretation in Australia — Reasonableness of Conduct
In all but one of the recent defamation cases, the Lange defence has failed because the
conduct of the publisher was unreasonable. 113 In Popovic, for example, the defendant
journalist did not seek comment from the plaintiff magistrate. In Nationwide News Pty
Ltd v International Financing & Investment Pty Ltd the publication of comments
defaming the plaintiff were unreasonable in an article purportedly criticising the
conduct of a government agency. In that case a newspaper report published calls by a
West Australian bank for ACCC chairman, Professor Alan Fels, to retract comments
that the bank has misled its customers. It was held that criticism of the ACCC
chairman Professor Alan Fels would be privileged, but criticism of the respondent
financial institution was not. 114 Owen J went on to compare to the two aspects of the
appeal, saying the criticism of Professor Fels could not reasonably provide an
occasion for the publication of material against the respondent because statements
about the respondent were not relevant to the occasion of privilege, that is, the
comments about Professor Fels:
It is a question of degree whether the impugned comments are sufficiently related to the
occasion to make it reasonable to proffer them in those circumstances. In my view the
trial Judge was right to conclude that in making the comments about the respondent’s
conduct when the occasion was, purportedly, one of communications concerning the
112 A cartoon which was published alongside the article in North and South showed Mr Lange eating
breakfast from a cereal box labeled ‘Selective Memory Regression for Advanced Practitioners’. Mr
Lange claimed the cartoon was also defamatory. See Lange v Atkinson [1999] UKPC 46.
113 Brander v Ryan (2000) SASC 446.
114 Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95.

(2003) 8 Media & Arts Law Review 91
activities of Professor Fels the appellant went beyond the bounds for which the
privilege exists in a way that could not be argued to have been reasonable. 115
In McMullin v TCN Channel Nine Pty Ltd the Court held the comment sought was
inappropriate because the defendant told the plaintiff the story would be positive
when it was intended to be critical. 116 In Chapman & Ors v Conservation Council of
South Australia Inc, qualified privilege failed because the articles were part of ‘an
orchestrated campaign to target and attack the Chapman’s interests and to influence
public opinion against the government and others’. There, the Court held no attempt
had been made to find the truth, and the coverage went beyond mere participation in
public debate. 117 In both McMullin and Chapman, the defendant’s imputed state of
mind meant the publications were also actuated by malice. In Heytesbury Holdings
Pty Ltd v City of Subiaco avoidable errors cost the defendant its defence, and in
Moriarty and Wortley v Advertiser Newspapers Ltd a journalist was liable because he
did not make sufficient attempts to contact the plaintiffs and did not delay publication
of a ‘timeless story’ until the plaintiffs could be contacted. 118
[107] In the recent case of Reynolds v Nationwide News Pty Ltd & Ors, Hasluck J
suggested for the conduct of the publisher to be reasonable, there must be a
reasonably appropriate form of response to the matter in controversy. 119 In reaching
this conclusion he relied on Nationwide News Pty Ltd v International Financing &
Investment Pty Ltd and Buddhist Society of Western Australia Inc v Bristile Ltd where
material on a website urging readers to take up a letter writing campaign against the
plaintiff was held to be unreasonable conduct. 120 In Marsden, the defence failed
because the defendant television station did not make appropriate independent
inquiries to verify the serious allegations. In the Supreme Court Levine J found that
the defendant was also actuated by malice due to ‘the lack of honest belief evidenced
by the reckless disregard’ for the truth. 121 On appeal, the Court of Appeal restated
115 Ibid [30]–[31].
116 McMullin v TCN Channel Nine Pty Ltd [2000] NSWSC 925, [70].
117 Chapman v Conservation Council of South Australia Inc [2002] SASC 4, [344] and [359].
118 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440; Moriarty and Wortley v
Advertiser Newspapers Ltd [1998] SADC 3843.
119 Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 116, [36].
120 Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95;
Buddhist Society of Western Australia v Bristile Ltd [2000] WASCA 210.
121 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWCA 510.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
malice and held only the defendant’s television program Witness could be found to be
malicious. This was due to reckless indifference to the truth or otherwise of the grave
allegations, and an improper motive to harm the respondent. The Court said express
malice did not constitute ill-will, knowledge of falsity, recklessness, lack of belief in
the defamatory statement, bias, prejudice or any other motive than duty or interest for
making the publication, but if one of those aspects was proved it would usually result
in the inference that the defendant was ‘actuated by an improper motive in making the
publication’. With the exception of willful blindness, absence of an honest belief or
reckless indifference to the truth or falsity would not be sufficient. 122
The only case in which a media defendant has successfully argued a Lange defence
appears to be Brander v Ryan, where a suburban newspaper editor wrote a tongue-incheek
article accusing the chairman of a right wing political party of being an
improbable and unconvincing politician. 123 The Court held the article was defamatory,
but found an occasion of privilege existed because the plaintiff was standing for
council election. The Court also found the publication reasonable because the editor
honestly and reasonably believed the imputations to be true — namely that the
plaintiff did not hold his political beliefs sincerely. But Magnusson has since argued
the case may not be a strong precedent, suggesting it was curious the court so readily
accepted the defendant held the belief honestly when the article was clearly
satirical. 124
Following a review of cases that failed for unreasonableness, Butler concluded the
defence is likely to be unavailable where errors were avoidable, efforts to obtain a
response were ‘sloppy or half-hearted’, where the journalist would have known or
ought to have known the plaintiff would want to respond, where publication without a
response was not urgent, and where irrelevant defamatory matter is included. 125 To
this can now be added: where the plaintiff was misled as to the nature of the
122 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, [75]–[86].
123 Brander v Ryan (2000) SASC 446.
124 See Roger S Magnusson, ‘Freedom of speech in Australian defamation law: ridicule, satire and
other challenges’ (2001) 9 Torts Law Journal 269. It should also be noted that this decision was partly
reversed on appeal, with Wicks J holding the defendant did not believe to be true defamatory
imputations that the plaintiff was effeminate and was motivated by juvenile attention seeking. The
Magistrates’ Court findings that the plaintiff did not hold his political beliefs sincerely were held to
stand. See Brander v Ryan [2000] SASC 2.
125 Butler, above n 66, 151.

(2003) 8 Media & Arts Law Review 91
publication, the nature of the publication was inappropriate and where there was a
concerted campaign against the plaintiff. Express malice will defeat qualified
privilege where the defendant uses the occasion of qualified privilege for an improper
motive or purpose. Proof of ill-will, knowledge of falsity, recklessness, lack of belief
in the defamatory statement, bias, prejudice or any other motive than duty or interest
for making the publication will usually indicate the defendant was ‘actuated by an
improper motive in making the publication’. 126
[108] Political Witch-Hunts and the Press — Recent Examples of
Unreasonableness
A review of the emerging case law reveals a notable lack of critical analysis of the
workings of Australia’s media. 127 However it may only be a matter of time before the
issue of cross-media ownership is raised. Media ownership in Australia is distributed
among a few powerful media companies, and syndication arrangements within those
companies means it is virtually impossible for the subject of a defamatory story to ‘lie
low’ in a different state or even a different country. Currently for example Rupert
Murdoch’s News Ltd owns daily metropolitan newspapers in Brisbane, Sydney,
Melbourne, Hobart, and Adelaide as well as numerous regional and suburban presses
and major overseas interests. In the case of Dr Hollingworth this meant that each day
the Brisbane-based Courier Mail received copy from its counterparts in other states as
the Governor-General moved around the nation. 128 This, combined with bureaus, wire
services and reciprocal arrangements in broadcasting, means blanket coverage is
inevitable. Competition to break and follow stories remains fierce.
The question then is this: will blanket coverage of a controversy in the mainstream
media make the conduct of a publisher unreasonable? In the case of Dr Hollingworth,
a search of The Courier Mail’s News Text database using the search terms
‘hollingworth’ and ‘sex’, revealed 248 stories between 5 December 2001 and 24 June
2002. The completion of the much awaited church report reignited the debate in April
2003, and a further 91 stories were published between 13 April and 13 May. This
126
Roberts v Bass [2002] HCA 57, [75] and [76].
127
Although, note the insightful comments of Callinan J at [258] in Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1.
128
This is evident from the by-lines of interstate News Ltd journalists that appeared in The Courier
Mail during that time.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
period covered the tabling of the report in Parliament, the revelation of the rape
allegations and Dr Hollingworth’s decision to stand aside. By early June, the story
count had risen to almost 200, as the Federal Parliament worked through the
constitutional crisis and Dr Hollingworth’s ultimate fate was decided and analysed.
Put bluntly, Hollingworth suffered death-by-media. There has been no situation quite
like it in the history of the Australian press.
But although a rare case, it is not the only example of blanket press coverage. Two
other major news stories that broke at the same time as the initial Hollinworth story
had similarly high rates coverage. Not less than 59 stories regarding allegations of
personal misconduct made by Liberal Party Senator Bill Heffernan against High
Court Justice Michael Kirby ran in the same paper, almost all in the 10 days between
13 March 2002 and 23 March 2002. News of Melbourne footballer Wayne Carey’s
extramarital affair, which first broke in March 2002, was still the subject of press
interest in August 2002 when he signed with an Adelaide team.
In Chapman the court held the conduct of the publisher was unreasonable because a
massive campaign amounting to more than 30 pamphlets, news sheets and media
releases was designed to undermine support for the developers. 129 The Court held the
defendants did not care whether or not their reports were accurate and were not
interested in verifying accuracy. As yet this is the best authority on point, but it relates
to a community organisation. If a plaintiff could prove a media outlet had an improper
purpose — for example, to bring down a public leader by publishing claims with
reckless regard for the truth and without appropriate investigation — there is reason to
believe such an argument would succeed.
At the height of the original scandal Dr Hollingworth expressed concerns he was the
victim of a political and religious campaign in Brisbane. 130 Similar concerns were
raised by commentators during the Kirby affair. 131 The second wave of the
Hollingworth debate has also been criticised as a witch hunt [109] by civil
129
Chapman v Conservation Council of South Australia Inc [2002] SASC 4.
130
‘Hollingworth fears he’s the victim’ The Courier Mail (Brisbane), 16 February 2002, 7.
131
Kate Hannon and Chris Griffith, ‘Attorney-General blasted for not defending Kirby’ The Courier
Mail (Brisbane) 21 March 2002, 2.

(2003) 8 Media & Arts Law Review 91
libertarians. 132 It is ironic that not only was Dr Hollingworth cleared of the allegations
which sparked the debate, but the rape allegations alone would have been unlikely to
bring the matter to such a head. Not only were they vehemently denied by Dr
Hollingworth, but a previous church investigation found he was unlikely to have been
in the area at the time.
The proviso would seem to be ratio in Lange which indicated malice would not be
made out merely where political damage was intended or because of the vigor of the
attack — something more would be needed. 133 Presumably that something more
would be reckless indifference for the truth of grave allegations or behaviour
calculated to cause harm, as in Marsden. 134 While the scandal involving Justice Kirby
may have involved ulterior motives, the press coverage during the 10 day-long affair
was fair given the serious allegations, and comment was sought. Conversely, the
conduct of the media in original Dr Hollingworth stories could be seen as
unreasonable, given the number of stories, their prominence and the many months of
coverage. Many of the allegations of sexual abuse other than those that were the
subject of the Supreme Court trial could not be collaborated. 135 It could also be argued
that the coverage went beyond what was justifiable debate and amounted to a massive
campaign which had little regard for the truth. The same can be argued for the second
wave of stories, and some media outlets would find it difficult to convince a court that
their stories were not calculated to cause harm to Dr Hollingworth or at least bring
about his removal from office. Finally, the intensity of the press coverage cost a man
his job and his reputation, and did damage to one of the highest offices in the
Australian community. In such a situation any protection afforded by the Lange
privilege must be lost.
Quo Vadis — will approaches in England and New Zealand influence the
development of political communication in Australia?
The Australian courts have thus far refused to be influenced by the House of Lords. In
Vilo v John Fairfax & Sons Ltd Simpson J noted the two jurisdictions were pursuing
132 ABC Online, ‘Democrats plan GG debate despite Senate Restriction’ News Online, 12 May 2003.
Transcript at .
133 Lange (1997) 189 CLR 520, 574.
134 See Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419.

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
very different paths, due in part to the House of Lords’ consideration of human rights
legislation. She said Reynolds did not bind the Australian courts and indeed provided
limited guidance. 136 The Court of Appeal in Marsden said there were no reasons for it
to follow Reynolds. 137 This supported the comments of Levine J in the Supreme Court
jurisdiction. 138 In Marsden, Australia’s ‘biggest’ defamation case, an interesting
amalgamation of the US public figure test and the Lange privilege was argued. The
defendant television station asserted it was entitled to publish defamatory statements
about the plaintiff, Sydney barrister John Marsden, because he was a public figure
who due to his status invited criticism and discussion. The defendant asserted it had a
duty to publish information when ‘the members of the audience all have an interest in
knowing the truth’. The defendant also attempted to argue it had published matters of
‘public concern’ as envisaged by Reynolds. Not surprisingly the defendant’s argument
failed, with Levine J saying the High Court had clearly rejected any application of the
US public figure test in Australia and the House of Lords had also signaled the danger
of moving toward it. 139 He held Reynolds had no part to play in Australian law:
‘Insofar as [110] there is to be an evolution of a defence of qualified privilege that
embraces peculiarly “political speech”, the law therefore will be as pronounced by the
High Court’. 140 Nevertheless he gave Lange v Atkinson some application, considering
the Court of Appeal’s discussion of reasonableness, reckless indifference and
malice. 141
Although other cases are yet to consider this point, it is likely Reynolds will have little
application given its broader scope and differing legal basis. Lange v Atkinson may
have more illustrative value as Gillooly notes: ‘[l]eaving aside questions of onus,
135 Regarding contested claims of sexual abuse see, eg, Chris Griffith, ‘Full inquiry to follow diocese
apology’ The Courier Mail (Brisbane), 20 February 2002, 5.
136 Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937, [30–33].
137 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419.
138 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, [3985].
139 Ibid [3971]. Levine J cites Lord Hope in Reynolds (1056):’a category that went that far was not
asked for in this case, and I would regard it as being unacceptable’.
140 Ibid [3986].
141 Ibid [4013]; Lange v Atkinson [2000] NZCA 95, [46]. The Court of Appeal said: ‘Indifference to
truth is, of course, not the same thing conceptually as failing to take reasonable care with the truth but
in practical terms they tend to shade each other. It is useful, when considering whether an occasion of
qualified privilege has been misused, to ask whether the defendant has exercised the degree of
responsibility which the occasion required’.

(2003) 8 Media & Arts Law Review 91
legal minds on both sides of the Tasman will now be focused on the same substantial
issues’. 142
Conclusion — Why Victorious Plaintiffs may still be Vanquished by the Press
Whether the High Court chooses to reconsider Lange remains to be seen but as
Kirby J has noted, interpretation of the implied freedom will remain a process of
‘development and elucidation’. 143 This process has thus far been the domain of mainly
State Supreme Courts who have, as has been shown, generally taken a broader
approach to what amounts to ‘government and political matters’. They have taken into
account the reasoning in Theophanous and other earlier High Court decisions but
remain true to the express constitutional nexus required by Lange. Although the
courts appear cautious to apply Barendt’s expansive definition of political speech,
they are nonetheless creatively applying its conceptual thread within the constitutional
confines. At the same time they are limiting occasions in which privilege can arise by
strictly applying the High Court’s requirement of reasonableness, and ensuring the
privilege does not become a carte blanche to defame.
Whether the High Court extends the scope of the privilege in light of Reynolds also
remains to be seen. But it is perhaps made more unlikely by the retirement of the last
member of the Theophanous majority, Justice Mary Gaudron. 144
Ironically many public leaders take being a media target in their stride and appreciate
a defamation trial would only increase their time in the spotlight. Unfavourable
publicity as part of an action for defamation will not be considered as part of the
damages, although a defendant who generated negative publicity against an opponent
could of course be penalised in an order for damages. 145 It would be unlikely that Dr
Hollingworth would take on the personal burden of a defamation action. In Marsden
the plaintiff won his case but said the acrimonious trial had left him a damaged
142
Michael Gillooly, ‘Lange v Atkinson: an Australian Perspective’ (2000) 4 New Zealand Law Review
401.
143
See the recent discussion regarding Lange in Australian Broadcasting Corporation v Lenah Game
Meats Pty Ltd (2001) 185 ALR 1, [193] (Kirby J). Kirby J notes criticism by Callinan J concerning the
implied freedom of communication derived from the text of the Constitution, but says that no party to
the appeal including interveners called for a reconsideration of Lange. Kirby J argues debate should not
be reopened as the decision remains a recent, unanimous statement of law.
144
Ibid [339]–[348] (Callinan J).
145 Ibid Appendix 3 [19].

O’Dwyer, ‘Qualified Privilege and Public Leaders in Political Debate’
man, 146 and commentators at the time wondered whether Channel Seven had in fact
succeeded. 147 Presumably Patrick McMullen, the English teacher defamed by Channel
Nine’s Sunday program, would have made [111] the same comments had he been
inclined to speak the press. It is also highly unlikely Dr Hollingworth would ever take
on the personal burden of a defamation action, considering the scandal was almost
singlehandedly driven by the press. And if the mishandling of sex abuse claims was
his original sin, then the mishandling of the media was his undoing. Court action
would do more to stoke the flames than vindicate his reputation or the status of the
office of the Governor-General.
Perhaps the approach of Justice Kirby is to be favoured in dealing with the media. In
response to the allegations leveled against him, Justice Kirby issued one press release,
one day after the story broke. 148 A week later, after Senator Bill Heffernan had been
dismissed as Cabinet Secretary and forced to apologise unreservedly, Justice Kirby
issued a second press release accepting the apology. 149 Today Justice Kirby’s
reputation is intact while Senator Bill Heffernan remains tarnished. One can only
speculate whether court action would have produced the same result.
146 ABC Television, ‘Marsden wins defamation case against Channel 7’ The 7.30 Report, 27 June 2001.
Transcript at (10 October 2002).
147 See Tony Jones interview with barrister Wayne Flynn: ABC Television, ‘Discussion on Marsden
case’, Lateline, 27 June 2001. Transcript at (10 October
2002).
148 Justice Kirby’s first press release read: ‘Senator Heffernan’s homophobic accusations against me in
the Senate are false and absurd. If he has such accusations, he should approach the proper authorities,
not slander a fellow citizen in Parliament. In so far as he attempts to interfere in the performance of my
duties as a judge I reject the attempt utterly.’ See Malcolm Cole and Sean Parnell, ‘Heffernan stands
aside after attack on Kirby’ The Courier Mail (Brisbane) 14 March 2002, 1.
149 Justice Kirby’s second press release read: ‘I have been sustained by my innocence, by the love of
my partner and family, and support and prayers from all sections of the community. I accept Senator
Heffernan’s apology and reach out my hand in a spirit of reconciliation. I hope that my ordeal will
show the wrongs that hate of homosexuals can lead to.’ Malcolm Cole, ‘Heffernan’s grovel’, The
Courier Mail (Brisbane), 20 March 2002, 1.