Lange v Australian Broadcasting Corporation

The High Court of Australia considered a defamation action brought by Mr. Lange against the Australian Broadcasting Corporation (ABC). The dispute concerned the publication of a television program that Mr. Lange alleged defamed him. The ABC sought to rely on defences of qualified privilege, both at common law and under statute, and the case was removed to the High Court by way of a case stated to determine significant constitutional questions.

The central legal issues before the High Court were whether the Australian Constitution, by establishing a system of representative and responsible government, impliedly protects freedom of communication on government and political matters, and if so, what test should be applied to determine whether a law infringes this implied freedom. Additionally, the Court considered the relationship between the constitutional implication and the common law defence of qualified privilege, and whether the common law and statutory defences were reasonably adapted to protect reputation while accommodating this implied freedom.

The Court reasoned that the system of representative and responsible government established by the Constitution necessitates a freedom of communication on political and governmental matters. This freedom is not absolute but is limited by the need to protect individual reputations. The Court held that a law infringes the implied freedom if it is reasonably appropriate and adapted to serve a legitimate purpose, and its effect on the implied freedom is no more than is necessary to achieve that purpose. In applying this to the defence of qualified privilege, the Court found that the common law defence, as pleaded in paragraph 10 of the ABC's amended defence, was not sufficiently adapted to protect reputation in light of the implied freedom, rendering it bad in law. However, the defence as pleaded in paragraph 6, concerning publications in New South Wales, was not inherently bad, though the particulars provided did not bring the publication within its scope.

The High Court answered the questions in the case stated, finding the defence in paragraph 10 bad in law and the defence in paragraph 6 not bad in law but lacking sufficient particulars for the publication in New South Wales. The matter was remitted to the Supreme Court of New South Wales for further proceedings, and directions were given regarding the costs of the High Court proceedings, including those of interveners.