Lange v Austraian Broadcasting Corporation

The High Court of Australia heard an appeal from the Full Court of the Federal Court of Australia in a defamation proceeding brought by Mr. Lange, the former Prime Minister of Australia, against the Australian Broadcasting Corporation (ABC). Mr. Lange alleged that he had been defamed by a broadcast by the ABC concerning his past association with a former member of the Communist Party. The ABC sought to rely on the defence of qualified privilege.

The central legal issue before the High Court was whether the defence of qualified privilege was available to the ABC in circumstances where the broadcast concerned matters of political or governmental interest, and whether the common law defence of qualified privilege was compatible with the implied freedom of political communication guaranteed by the Australian Constitution. The Court also considered the extent to which a recipient of information must have a legal, social, or moral duty to receive it for qualified privilege to apply.

The High Court, in a joint judgment, held that the common law defence of qualified privilege, as it stood, was not broad enough to protect political communication of the kind engaged in by the ABC. Their Honours reasoned that the implied freedom of political communication requires a defence that is more extensive than the traditional common law qualified privilege. They determined that a defence of qualified privilege should be available where the recipient of the information has an interest in receiving it, and the publisher has a duty or interest in publishing it, provided the publication is on a subject of public interest and is reasonably appropriate to the discharge of that duty or the protection of that interest. The Court found that the common law defence, as applied by the lower courts, had been too narrowly construed and that the implied freedom of political communication necessitated a broader understanding of the defence.

The High Court allowed the appeal, set aside the judgment of the Full Court of the Federal Court, and remitted the matter to the Federal Court for determination according to law.