Peek v Channel Seven Adelaide Pty Ltd - [2006] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
PEEK v CHANNEL SEVEN ADELAIDE PTY LTD
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
7 March 2006
DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS - OF STATEMENT OF DEFENCE OR PLEA
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST - WHAT CONSTITUTES PRIVILEGED OCCASION, COMMUNICATION OR CONDUCT
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION - RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION - FREEDOM OF POLITICAL COMMUNICATION
Defamation proceedings - appeal from order of single judge refusing to strike out paragraph of defence - defendant pleaded extended defence of qualified privilege on basis that impugned publication fell within implied constitutional freedom of communication on government and political matters - meaning of "government and political matter" - whether implied freedom extends to judiciary - characterisation of publication - held, not reasonably arguable that impugned publication constituted communication on government and political matter - extended defence of qualified privilege struck out - appeal allowed.
Constitution of the Commonwealth of Australia s 7, s 24, s 64, s 128; Evidence Act 1929 s 69A; Supreme Court Act 1935 s 50; Supreme Court Rules r 75.02, referred to.
Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181; Egan v Commonwealth Minister for Transport (1976) 14 SASR 445; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; APLA v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Coleman v Power (2004) 220 CLR 1; John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; John Fairfax Publications Pty Ltd v O'Shane (2005) Aust Torts R 81-789; Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1; Scott v Scott [1913] AC 417; Peterson v Advertiser Newspapers Limited (1995) 64 SASR 152; Sporting Shooters' Association of Australia (Vic) v Gun Control Australia (1995) A Def R 52-030; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440; Baltinos v Australian Consolidated Press Ltd (unreported, Supreme Court of NSW, Sully J, 21 July 1995); Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Morgan v Odhams Press Ltd [1971] 1 WLR 1239; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1; Levy v Victoria (1997) 189 CLR 579; Cornwall v Rowan (2004) 90 SASR 269; Nationwide News Ltd v Wills (1991) 177 CLR 1; Theophanous v Herald & Weekly Times (1993) 182 CLR 104, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"government and political matter", "implied freedom"

PEEK v CHANNEL SEVEN ADELAIDE PTY LTD
[2006] SASC 63
Full Court: Duggan, Debelle and Besanko JJ

DUGGAN J. I agree that the appeal should be allowed for the reasons given by Besanko J and that paragraph 9 of the further amended defence should be struck out.
DEBELLE J. The facts are recited in the reasons of Besanko J, the draft of which I have had the advantage of reading.
I agree that as the defendant did not obtain leave to appeal, its cross‑appeal as to costs is incompetent. I agree that the plaintiff’s appeal should be allowed for the following reasons.
If the plaintiff is to succeed on this appeal, it is necessary that he establish that the defence relied on is devoid of merit: Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 185. The power to strike out must be exercised sparingly and only in clear cases: Egan v Commonwealth Minister for Transport (1976) 14 SASR 445; General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125. The application will be determined on the pleadings alone. That much is common ground.
The Master and, on appeal, a judge of this Court have held that it was reasonably arguable that the words complained of fell within the qualified privilege attaching to a communication on a government and political matter. In the course of the hearing of the appeal before the judge below, the defendant substantially amended its defence. It is, therefore, necessary to refer only to the reasons of the judge below. He held that communication on government and political matters included public debate on the quality of the administration of justice and that it was reasonably arguable that the publication concerned that question. The issues in this appeal, therefore, concern what constitutes a communication on a government and political matter.
Meaning of “government and political” matter
The expression “communication about a government and political matter” has not been defined in any detail. The meaning of the expression is imprecise: APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 at [27] per Gleeson CJ and Heydon J. That is perhaps the only thing that can be said with any certainty about the expression. The content of the expression is to be found in the source of the implied freedom of communication as expressed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567, namely, ss 7, 24, 64 and 128 of the Constitution of the Commonwealth of Australia (“the Constitution”). It is a freedom which arises by necessary implication from the system of responsible and representative government established by the Constitution. It is not a general freedom of communication of the kind protected by the First Amendment to the Constitution of the United States of America: Coleman v Power (2004) 220 CLR 1 at [90]; APLA at [27] and [69].
Although the judiciary is one of the three arms of government, it does not follow that remarks concerning a court, court orders or generally concerning the conduct of courts falls under the rubric of communications concerning government and political matters. That is a consequence of the fact that the implied freedom identified in Lange was grounded on provisions in the Constitution which concerned the legislative and executive arms of government as well as the referendum provisions in s 128 to which I have referred. As McHugh J observed in APLA at [61]:
The freedom of political or governmental communication, identified in Lange, is tied to the specific provisions of the Constitution that deal with the requirement for free and direct elections of the Houses of Parliament, executive responsibility to Parliament and the referendum procedure for amending the Constitution. The freedom is necessary to give effect to the requirements of direct elections for the Senate and the Houses of Representatives in ss 7 and 24 respectively, the involvement of electors in a referendum under s 128, the exercise of executive power by Ministers who are members of the House of Representatives or Senate and thus responsible to the electorate under ss 62 and 64, the control of supply to the Executive by the Parliament in s 83 and the sittings of Parliament protected by parliamentary privilege under ss 6 and 49 of the Constitution.
Expressed another way, the expression “communication on government political matters” must be read in the context of the decision in Lange which leaves no doubt that the term “government” is used to describe communications concerning matters falling within chapters I, II and VIII of the Constitution: APLA per McHugh J at [63], [66] and [68]. Chapter III is conspicuous by its absence from the list. So, the freedom of communication recognised by Lange does not include the exercise of the judicial power of the Commonwealth by courts invested with Federal jurisdiction or the judicial power of the States: APLA per McHugh J at [63] and [64]. It follows that communications concerning the results of cases or the reasoning or the conduct of the judges who decide them are not ordinarily communications concerning the communications about government and political matters of the kind identified in Lange: APLA per McHugh J at [65]. See also John Fairfax Publications Pty Ltd v Attorney‑General (NSW) (2000) 181 ALR 694 per Spigelman CJ at [83] and Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at [15] per Doyle CJ. In John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts R 81‑789, the Court of Appeal in New South Wales held that the implied freedom identified in Lange did not extend to discussion of the conduct of judicial officers. In doing so, it relied on the reasons upon which the implied freedom identified in Lange was grounded.
There are exceptions to the principle that the implied freedom does not extend to the judiciary. Some are identified by McHugh J in APLA at [65]. They include discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts. They are exceptions because communications of that kind also concern the acts or omissions of the legislature or the executive government.
In APLA at [346] and [347], Kirby J disagreed with the decision of McHugh J excluding communications concerning the courts or the exercise of judicial power from the expression “government and political matters”. With respect, I believe that the reasons of Kirby J fail to give due weight to the grounds on which the implied freedom rests. It is for that reason that I prefer the reasoning of McHugh J, which also allows for the fact that there will be certain occasions when communications concerning the courts or judges will fall within the implied freedom of communication. Further, the reasoning of McHugh J is consistent with that of Gleeson CJ, Heydon and Callinan JJ in APLA.
For these reasons, I respectfully believe, that the reasoning of Winneke ACJ in Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1 is to be preferred to that of Bongiorno J (at first instance) and Gillard AJA. Winneke ACJ held that criticism by a newspaper (even strong criticism) of a magistrate’s performance in conducting or handling proceedings in the Magistrates Court – even to the point of inferring that he or she is unfit for office – is not discussion of government or political matters protected by the implied constitutional freedom: at [6] and at [9]. Bongiorno J and Gillard AJA were of a contrary view. Warren AJA also held that government and political matters do not include the exercise of judicial power, although I respectfully suggest Her Honour’s reasons might have been expressed a little too widely. Winneke ACJ at [10] also recognised exceptions might exist, for example, the exercise by the executive government of its power to appoint judicial officers or in exercising or failing to exercise its power to initiate removal of a judicial officer. But, as he pointed out, that discussion is a government and political matter because it directly affects the exercise of its powers by the executive arm of Government.
This Court too has held that communications on government and political matters do not include comments about courts and orders made by courts: Conservation Council of SA Inc v Chapman (supra) per Besanko J at 295 with whom Doyle CJ at [15] agreed. In that case, the fact that the publication in question referred to the Federal Court and orders made by that Court was not, of itself, sufficient to attract the implied freedom of communication.
For these reasons, although there may be certain circumstances in which the conduct of judicial officers might fall within the implied freedom of communication on government and political matters, communications which do no more than comment on the outcome of a particular hearing or comment on an order and the circumstances it was made do not.
The fact that communications concerning the courts and court orders do not fall within the implied freedom of communication on government and political matters does not in any respect mean that the courts are not accountable. The clear and undisputable fact is that courts and judicial officers, be they judges or magistrates, are accountable for what they do. It is well established that courts must conduct their proceedings in public subject to limited exceptions: Scott v Scott [1913] AC 417. Judicial officers publish reasons for their decisions thereby ensuring that the reasons enter the public domain and are available for scrutiny and fair comment. The decision of an individual judicial officer is the more accountable because it is subject to appeal. The reasons of the judicial officer as well as the reasons of any court of appeal may be vigorously scrutinised and be legitimately criticised, even robustly criticised, provided that the critic does not breach the law of contempt or the law of defamation. Such criticism not infrequently is published in the media. However, the entitlement to criticise is not to be confused with the implied constitutional freedom of communication on government and political matters. Suppression orders are made in the interests of justice to prevent prejudice to the proper administration of justice or to prevent undue hardship to a limited group of persons being victims of crime, children, or witnesses in legal proceedings: s 69A of the Evidence Act 1929. If a suppression order is made, that does not limit the accountability of courts and judicial officers. When making a suppression order, the court must give reasons for making that decision and the reasons for the ultimate decision of the court will be published and available for public scrutiny and comment. In short, the business of the courts and of judicial officers is conducted in public so that courts and judicial officers are accountable.
Characterisation
When considering whether the words complained of come within the qualified privilege of a communication on a government and political matter, it is necessary to consider, not only what constitutes such a communication, but also whether the publication complained of should be characterised as a communication on a government and political matter. In order to attract the implied constitutional freedom, the publication must be one “concerning government and political matters that affect the people of the Commonwealth”: Lange at 571. It is, therefore, necessary for the Court to consider the true nature and character of the publication.
There will be instances where it is readily apparent that a publication is a communication on a government and political matter. Examples are Peterson v Advertiser Newspapers Limited (1995) 64 SASR 152, where the publication concerned the performance by a Member of the Parliament of this State of his parliamentary duties was held to be a matter of political discussion, and Sporting Shooters’ Association of Australia (Vic) v Gun Control Australia (1995) A Def R 52-030, where it was held that debate about gun control was discussion of a political matter. These are the kinds of matters which plainly fall under the heading of “information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials” to which McHugh J referred in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264:
In the last decade of the twentieth century, the quality of 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 functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.
That passage was endorsed by the High Court in Lange at 570 - 571. While that passage indicates that a liberal construction is intended for the expression “government and political matters”, it is necessary nevertheless to determine whether the relevant publication concerns government and political matters.
At the outset, it is to be noted that a publication might concern a matter of public interest but fail to qualify as a government and political matter. In addition, the reasoning in Lange did not equate government and political matters with matters of public interest.
When determining the character of the publication, another relevant factor is that it is the nature of the discussion that is important rather than the office or function or the person publishing the words in question (although that office or function might, depending on the circumstances, affect or colour the manner in which the nature of the discussion is categorised): Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 per Steytler J at 458, adopting with approval remarks of Professor Walker in Lange v ABC: High Court Rethinks the Constitutionalism of Defamation Law (1998) 6 Torts LJ 9 at 17.
In addition, the mere fact that a statement is published in the context of discussion about “government and political matters” will not necessarily give it that character. Much might depend upon the circumstances: ibid. The decision of this Court in Conservation Council of SA Inc v Chapman provides an instance. That case concerned eleven publications. For present purposes it is sufficient to note only two where the defendant relied on Lange. Those publications concerned proceedings instituted by a company controlled by a Mr and Mrs Chapman in the Federal Court. The Federal Court ordered interim injunctions. In the publications complained of, the Conservation Council stated that the Chapmans had obtained the orders to silence the Council from engaging in public debate concerning the construction of a bridge to Hindmarsh Island. It was found that the publication was defamatory and that it did not concern a government and political matter notwithstanding that the publications were made in the course of the public debate on that issue. Doyle CJ and Besanko J held that the fact that the publication referred to the Federal Court and to court orders was not of itself sufficient to attract the constitutional protection. Nor was the fact that the publication referred to freedom of speech sufficient to bring the publication within the constitutional protection. Similarly in Baltinos v Australian Consolidated Press Ltd (unreported, Supreme Court of NSW, Sully J, 21 July 1995) a press article which in part dealt with migration issues was characterised, not as a political matter, but instead as “a wide‑ranging and sensational personal and professional denigration of the plaintiff”. In reaching that conclusion Sully J had regard to the article as a whole.

This issue was mentioned by Gleeson CJ and Heydon J in APLA at [28]:
The possibility that an advertisement of the kind prohibited by the regulations might mention some political or governmental issue, or might name some politician, does not mean that the regulations infringe the constitutional requirement. The regulations do not in their terms, prohibit communications about government or political matters. They prohibit communication between lawyers and people who, by hypothesis, are not their clients, aimed at encouraging the recipients of the communications to engage the services of lawyers. Such communications are an essentially commercial activity. The regulations are not aimed at preventing discussion of, say, “tort law reform”, or some other such issue of public policy. They restrict the marketing of professional services. (Citation omitted)
Although that passage concerns the extent to which the implied freedom operates in a legislative context, I think that it applies with equal force to the operation of the qualified privilege applying to communications on government and political matters. The mere fact that the publication might mention some political or government issue or might name some politician does not mean that the publication is necessarily a communication on a government and political matter.
In Chapman Besanko J at [293] referred to the necessity of a “sufficient link” between the defamatory words and the government and political matter. With respect, the force of the observation depends on what is meant by “sufficient”. As Doyle CJ noted in Chapman at [17], it is not sufficient that there be merely a link. There must, I think, be more than a link. It is the true character of the publication which must be identified.
Depending on the nature of the publication, other criteria might have to be employed to determine the character of the publication. Interesting questions exist as to whether it is appropriate, when determining the character of the publication, to employ some of the tests used when determining the natural and ordinary meaning of words of which a plaintiff complains. For example, is it appropriate to have regard to the manner of publication, that is to say, whether it is a radio or television broadcast which is more transient in nature than a printed publication where the ordinary and reasonable listener or viewer does not have the opportunity available to the reader of written material to consider or to re‑read the document at leisure or to check on something which has gone before to see whether his or her recollection is correct and in doing so to change the first impression of the message being conveyed: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt J at 166. Or is it appropriate to have regard to whether the publication is presented in a sensational manner where it is less likely that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1254 and 1269 where the ordinary reasonable reader might be prone to engage in a certain amount of loose thinking: Morgan v Odhams Press Ltd at 1245. In the circumstances of this case it is unnecessary to examine these questions. It is sufficient to rely on the tests noted above.
An examination of the transcript of this television broadcast shows that it concerns the fact that the assets of the convicted magistrate Mr Liddy would not be available to discharge the civil claims of his victims and the manner in which that occurred. There is an emphasis on Mr Liddy’s gun collection and the propriety of valuations of assets of Mr Liddy. The victim Andrew Martin also expresses anger with the judicial system. The whole thrust of the broadcast is to emphasise a dissipation of Mr Liddy’s assets. It is not reasonably arguable, therefore, that it was a communication on a government and political matter. Although the question of the disposition of the assets of Mr Liddy was a legitimate topic of public interest, in no sense could it be characterised as a communication on a government and political matter. To the extent that the article criticises the courts, the court system or the orders made in the District Court, it is not for the reasons already given a communication on a government and political matter.
The defendant’s contention that the article was a communication about the activities of Mr Lewis, the Speaker of the House of Assembly, and his suitability for political office, and as such a communication on a government and political matter, is quite misconceived. It fails to have due regard to the true character of this article. In this respect, I substantially agree with the reasons of Besanko J and add the following. Although there had been reports in the media concerning the alleged involvement of Mr Lewis in the affairs of Mr Liddy, there was nothing in this article which directly or indirectly mentioned Mr Lewis or linked him to the dealings in Mr Liddy’s assets. The thrust or the substance of the article was that there were no assets or no sufficient assets to compensate Mr Liddy’s victims. While media reports concerning the alleged involvement of Mr Lewis in dealing with the assets of Mr Liddy might constitute discussion of his fitness for the political office he held and hence a communication on a government and political matter, an article on the topic of Mr Liddy’s assets which does not mention Mr Lewis, even in an indirect way, does not make it a communication on a government and political matter. The question of the disposition of Mr Liddy’s assets is not a government and political matter although the involvement of Mr Lewis in those dealings might be.
I note in passing that in deciding this question, the judge below referred to a press article published after the Channel Seven broadcast. In my view, articles subsequent to the publication complained of are irrelevant as the content of the articles could not be in the mind of the ordinary and reasonable viewer when he heard the broadcast.
The reasoning of the judge below was founded on the conclusion that it was reasonably arguable that discussion of court orders and the conduct of judicial officers in making orders was a government and political matter. For the above reasons, I believe the judge erred in that conclusion. I would, therefore, allow the appeal.
BESANKO J. This is an appeal by leave from an order made by a single judge of this Court. The judge made an order dismissing an appeal from a master who had refused to strike out an amended defence filed by the defendant. The plaintiff is the appellant and he submits that an order striking out the amended defence should have been made. In these reasons I will refer to the parties by reference to their status in the action.
The defendant purported to file a cross-appeal against the order the judge made as to the costs of the appeal. It did so without the leave of the judge and, in those circumstances, the cross-appeal is incompetent: Supreme Court Act 1935, s 50(1a)(b)(ii).
The plaintiff is a legal practitioner and one of Her Majesty’s counsel. The defendant is the proprietor of a commercial television station which broadcasts a programme called “Today Tonight”. On 10 June 2002 the defendant broadcast a story in the course of the Today Tonight programme. The plaintiff claims that he was defamed in the course of the story. On 12 August 2002 he instituted an action in this Court against the defendant in which he claimed damages, including aggravated and exemplary damages, for defamation. The defendant filed an amended defence pleading various defences, including what was referred to by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (“Lange”) as the extended category of common law qualified privilege. For convenience, I will refer to this defence as the extended defence. The plaintiff applied to strike out the plea of the extended defence. The appeal to this Court raises the question of whether the courts below were correct to refuse to strike out that plea.
The test on an application to strike out a defence, or part of a defence, is whether the defence is clearly without merit, or, put another way, whether it is so clearly untenable that it cannot possibly succeed. The power to strike out a pleading will only be exercised in a clear case: Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Furthermore, on such an application the Court does not go outside the pleadings. On the other hand, as Barwick CJ said in General Steel Industries Inc v Commissioner for Railways (NSW) (supra), the fact that extensive argument may be necessary does not of itself mean that an application to strike out cannot succeed.
The power to strike out a pleading is to be contrasted with the power to determine a preliminary point of law: Supreme Court Rules 1987, r 75.02. As I have said, under the former procedure the question is whether the defence is clearly untenable, whereas under the latter procedure the point of law is decided.
The plaintiff’s claim
In his statement of claim, the plaintiff alleges that the publication, which comprised words and pictures, was of and concerning the disposal of property of one Peter Liddy, a person represented by the plaintiff in proceedings before the Supreme Court, and the role of Mr Liddy’s lawyers. A transcript of the publication is annexed to the plaintiff’s statement of claim and is in the following terms:
Leigh McLuskey on Channel 7 News Preview:
LM at news desk:
“… Also tonight, where has all the money gone?”
Scene depicting Peter Liddy leaving Sir Samuel Way building:
“The paedophile judge leaves his victims with almost nothing …”
Scene depicting new victim, Andrew Martin, examining mementos from childhood:
“… and now a new victim speaks out.”
LM at news desk:
“We’ll have those stories and more coming up tonight right after the news.”
Leigh McLuskey:
LM at news desk:
“Hello, welcome to the program. Tonight, extraordinary pictures of hoons doing 300 kilometres an hour on our roads beating speed cameras.
But first tonight, another twist in the tale of Adelaide’s disgraced magistrate paedophile, and more surprises about his treasured gun collection.
While Peter Liddy’s victims are still trying to come to terms with his effect on their lives, more questions have been raised about why Peter Liddy would agree to sell his home to someone like ex-con man Terry Stevens [sic] in the first place.
As Rowan Wenn reports, now another victim of the once trusted magistrate has come forward asking where has all the money gone?”
Victim, Andrew Martin:
AM talking to reporter:
“He thought of me as a piece of rubbish, as far as I’m concerned.”
Terry Stevens [sic]:
TS talking to reporter:
“I’m saying it’s time to pay my penance for what I have done wrong in my life, and the only way I can do that is to help the people that have been hurt.”
Reporter:
Scene depicting Terry Stevens [sic] looking out of the window of his home:
“You know a story runs deep when the more you find out, the less you realise you actually know.”
Terry Stevens [sic]:
TS talking to reporter:
“People like you live in a dream world. You think everything is rosy. You go home to a beautiful wife, and in future hopefully kids, umm like the average family do. They don’t know what a real world is.”
Reporter:
Scene depicting TS looking through documents:
“Throughout the Terry Stevens [sic] saga, many questions remain unanswered, but one stands out.”
Scene depicting Peter Liddy approaching car with a woman:
“Why would former magistrate Peter Liddy agree to sell his …”
Scene depicting Peter Liddy’s mansion from helicopter view:
“… mansion, guns and all …”
Scene depicting TS sitting outside smoking a cigarette:
“… to a convicted criminal?”
Now for the first time, Today Tonight can reveal details of that deal which …”
Scene depicting frontal views of Liddy’s mansion:
“… saw Stevens [sic] get the house while …”
Scene depicting Peter Liddy walking past journalists and news video cameras:
“… Peter Liddy’s victims seem set to get nothing.”
Andrew Martin:
AM talking to reporter:
“Put a price on your youth, put a price on that, ‘cause these people do take away your youth.”
Reporter:
“This is the first time Andrew Martin has spoken publicly …”
Scene depicting AM looking at ribbons or flags won from Surf Lifesaving involvement:
“… about the terrible secret he kept for more than two decades until one Saturday morning when the police came to his home.”
Andrew Martin:
AM talking to reporter:
“They knock on the door and a couple of under cover gentlemen from the Child Exploitation Unit, aah, approached me asking if I was, um Andrew Martin who went by PB. And I went: “Yes, Panda Bear”.”
Reporter:
Scene depicting Peter Liddy walking past Sir Samuel Way building:
“Panda Bear was the nickname paedophile Peter Liddy gave the …”
Photo of young AM smiling:
“… 9-year-old when he was a member of the Seacliff Surf Lifesaving Club.”
Andrew Martin:
“I often wondered that, but probably cuddly, cute, cuddly, … I put it down to …”
Reporter:
Shot of reporter asking AM:
“When you slept over at Peter Liddy’s house, what sort of things would happen?”
Andrew Martin:
AM talking to reporter:
“It was all done in games, and er um strip kelly pool type games would go on, and er, I remember it got to the stage where a part of my training he focused on, ‘cause I was a good sprinter and that, and he focused on that and part of my training he would, you know, he would get me to do pushups …nude?”
Reporter:
“You’re joking?”
Andrew Martin:
“No, no.”
Reporter:
Scene depicting AM looking through a scrapbook containing newspaper clippings of Liddy’s trial:
“After talking to police, Andrew was determined to have his day in court, but as it turned out he would never be part of Liddy’s criminal trial.”
Scene depicting Peter Liddy walking into Sir Samuel Way building:
“Because, incredibly under South Australian law, no one can be charged with child molestation if the crime occurred before 1982, by which time Liddy had moved on to other victims.”
Andrew Martin:
AM talking to reporter:
“Once you hit a like a certain age, it was like: ‘See you later’. He had to go scalp someone young again.”
Reporter:
Scene depicting Peter Liddy’s mansion:
“The only way Andrew could pursue him was through the Civil Court, and this is where Liddy’s mansion Shenandoah …”
Scene depicting antique guns laid out on a table:
“… and those guns become so important as a potential source of compensation.”
Andrew Martin:
AM talking to reporter:
“I don’t want much, you know, just enough to keep my head above water, ‘cause I’ve lost so much.”
Reporter:
Scene depicting injunction, with “In the District Court of South Australia” and “Peter Michael Liddy” highlighted:
“To ensure the house was not sold before their case was heard the victims were granted this injunction in the District Court.”
Aerial view of small country township:
“But then last year to the victims’ distress, the court agreed to the sale so …”
Scene depicting Liddy leave a four wheel drive vehicle:
“… Liddy could pay his lawyers. But what was really baffling …”
Scene depicting TS walking outside, leaning on his knee while smoking a cigarette:
“… the buyer was convicted criminal Terry Stevens [sic].”
Terry Stevens [sic]:
TS talking to reporter:
“If I’m paying $500,000 for a property and it’s got the best part of 10 to 20 million dollars worth of collectables inside it, I’d say that was a pretty good return.”
Reporter:
Scene depicting Peter Liddy walking towards Sir Samuel Way building:
“So what was Liddy’s role in effectively denying his victims any chance of damages? Well, if you believe what he recently wrote from prison to one of his supporters, he was apparently against the sale.”
Scene depicting handwritten letter, one paragraph highlighted with Liddy’s face in the background.
Voice-over quoting letter:
“The creeps who put me in here blocked the sale of my house for six months but then withdrew their objections when Stevens [sic] offered to buy it.”
Scene depicting Peter Liddy talking in the presence of a police officer:
“But how can that be right when it was Liddy’s own lawyers who beat the injunction and worked hard to set up the deal?”
Scene depicting letter highlighting following quote:
Voice-over quoting letter:
“Could you please confirm in writing the offer made by your client of $500,000 on a walk-in, walk-out basis in relation to the property at Kapunda?”
Reporter:
Scene depicting AM walking a large dog:
“And as the victims feared, the lawyers pocketed almost all of it. Leaving them little to gain from court action.”
Scene depicting someone handling antique guns:
“So should the house and contents have sold for significantly more?”
Scene depicting valuation report highlighting “Re: Liddy Estate”
“Well, this is the contents valuation prepared by a valuer and then presented to the court by Liddy’s lawyers.”
Scene depicting Liddy’s mansion:
“With the house put at $350,000 …”
Scene depicting same valuation report, also highlighting “$150,000.00”:
“ … it estimates all of Liddy’s other possessions were worth at best, just $150,000.”
Andrew Martin:
AM talking to reporter:
“I couldn’t believe what I was seeing.”
Reporter:
“Cause you’ve seen the collections, hadn’t you?”
Andrew Martin:
“Yeah.”
Reporter:
Reporter talking to camera in a room, supposedly a studio:
“And it seems even Peter Liddy agrees.”
Reporter holds up copy of Australian Shooters Journal:
“This is the Australian Shooters Journal from July 1989. Inside there’s an article about Peter Liddy’s extensive antique collection. It’s four pages long and we know it’s accurate because it was actually written by Peter Liddy under the fake name of Adam Dixon.”
Scene depicting magazine open to Liddy’s article:
“In the article Liddy brags about owning literally dozens of guns, some dating back to the 1700s as well as holsters, swords, powder horns and historic documents including one signed by George Washington.
So what was it all worth? Well according to Liddy …”
Voice-over depicting journal:
“The guns are not for sale, but if they were the sale price would have set an Australian record for antique guns.”
Scene depicting copy of valuation:
“But amazingly none of this appears in the valuation.”
Voice-over quoting valuation:
“I have not made any specific allowance for the collection of books nor any of the guns, holsters or powder horns.”
Photo depicting young boy posing with antique gun, his face obscured:
“A fact that absolutely stunned Andrew Martin, because he says Liddy had so many guns, he’d even let the 9-year-old sleep with one.”
Reporter:
“Were there always guns around?”
Andrew Martin:
“Definitely, always guns. I used to, I remember a er, like a German pistol like a, like a Ruger type, aah, used to go up the handle, like a nine shot maybe. I used to sleep with that under my pillow. And ‘Andrew, you hear a noise, you shoot. We’ll ask questions later.’”
Reporter:
Scene depicting valuation report:
“The valuer also admitted to not having checked the entire house.”
Following passage highlighted in the same report:
Voice-over quoting valuation:
“I do not pretend that this is a comprehensive list of items in the residence. I have not gone through all the cupboards, nor have I appraised each item minutely to establish authenticity.”
Aerial view of Liddy’s mansion:
“But despite all that, the valuation was accepted by lawyers on both sides.”
Andrew Martin:
AM talking to reporter:
“I am angry with the judiciary system.”
Reporter:
Scene depicting AM looking at mementos from Surf Lifesaving Club including a jacket and flags:
“And for the victims there was even more bad news last week, according to Liddy’s lawyers …”
Scene depicting letter with quote “the superannuation entitlements were dispersed on legal fees” highlighted.
“his very generous superannuation pay-out has also disappeared on legal fees.”
Reporter to AM:
AM talking to reporter:
“You never got your day in court to tell Liddy how what he did to you affected you. What would you say to him?”
Andrew Martin:
“I don’t think I would have to say much. He’ll know by looking at me the befores and the afters. He’ll know what he’s done to me.”

The plaintiff alleges that the publication and the words and pictures in the publication referred to, and were understood to refer to, him. He alleges that he appeared as senior counsel representing Mr Liddy in proceedings in the Supreme Court, including the Court of Criminal Appeal, on 18 occasions between 21 August 2001 and 4 June 2002. Mr Liddy was charged on 13 July 1999 with serious sexual offences and the plaintiff alleges that, as at 12 August 2002, the proceedings against Mr Liddy had received, and would continue to receive, extensive publicity, including on many occasions the publication of newspaper articles and the broadcasting of radio and television programmes. The plaintiff alleges that, by reason of other publicity, he has been identified and referred to as one of Mr Liddy’s lawyers. It is not necessary to set out the allegations in the statement of claim of this other publicity. The plaintiff alleges that the words and pictures in the publication were defamatory of him in that in their natural and ordinary meaning they meant, and were understood to mean, that Mr Liddy’s lawyers, including the plaintiff, and I quote from paragraph 6 of the plaintiff’s statement of claim:
6.1     procured and presented to the District Court a valuation of Mr Liddy’s property that was false or misleading or manifestly inadequate;
6.2     in the alternative, negligently procured and presented to the District Court a valuation of Mr Liddy’s property that was false or misleading or manifestly inadequate;
6.3     conspired with lawyers acting for some of the victims of his offending to vary the injunction so that Mr Liddy’s property could be sold to pay his lawyer’s fees;
6.4     conspired with or knowingly assisted Mr Liddy to deprive the victims of his offending of their compensation by disposing of his assets at a gross undervalue for a sum sufficient to pay the lawyers’ fees but so as to leave nothing over for the victims;
6.5     conspired with or knowingly assisted Mr Liddy in a vindictive scheme to deny the victims of his offending their due compensation;
6.6     acted unscrupulously and unethically in their own interests and to the detriment of Mr Liddy’s victims to procure payment of their fees;
6.7     acted unscrupulously and unethically in their own interests to procure payment of fees that were exorbitant;
6.8     conspired with or knowingly assisted Mr Liddy to connive with a person of ill-repute, one Terry Stevens [sic], to put his assets beyond the reach of the victims of his offending.
The plaintiff alleges that certain conduct by the defendant aggravated the damage he has suffered and he claims exemplary damages from the defendant. The plaintiff pleads a number of matters in support of those allegations and claim, but it is not necessary to summarise those matters.
The defendant’s defence
The document before the single judge was an amended defence dated 8 May 2003. During the course of the appeal, the judge gave the defendant leave to file a further defence and this resulted in a further amended defence dated 5 February 2004. As I understand it, the judge gave leave to ensure the defendant had every opportunity to plead everything it wished to plead. I will refer to the further amended defence as the defence.
The defence is a very long document, consisting of almost 100 pages. The only part of the defence which is relevant for present purposes is the plea of the extended defence in paragraph 9. It is in the following terms:
Further or in the alternative, the broadcast was published on an occasion of qualified privilege in that the broadcast constituted the discussion of government and political matters and the Defendant’s conduct in publishing the broadcast was reasonable in the circumstances.
There is then a heading that reads “Particulars of the Discussion of Government and Political Matters”, and under it there are 96 paragraphs containing particulars in support of the plea that the publication involved the discussion of government and political matters.
It is convenient to summarise the particulars by reference to the headings in paragraph 9. The first heading is “The Proceedings Involving Liddy” and under it there are 84 paragraphs. The allegations are sometimes difficult to follow and that is sometimes because a chronological order is not observed. What follows is a summary of the allegations.
On 5 June 2001 Mr Liddy was convicted of a number of serious sexual offences against young boys and sentenced to imprisonment for a period of 25 years. Between 2000 and 2002, a number of his victims brought actions against him in the District Court claiming damages in relation to that sexual abuse. Mr Liddy was represented in those actions by solicitors and counsel. At no stage was the plaintiff acting as counsel for Mr Liddy in the actions in the District Court. In June 2001, one of the plaintiffs applied for an interlocutory injunction restraining Mr Liddy from removing from the jurisdiction, disposing of, securing in any way, or otherwise dealing with in any manner, his assets. In other words, he applied for what are commonly referred to as Mareva orders.
On 18 June 2001 a judge of the District Court made Mareva orders in relation to Mr Liddy’s assets, including an order that Mr Liddy file and serve an affidavit disclosing details of his assets.
It is not clear on the pleadings whether all the plaintiffs in the actions were represented, but it does appear that two firms of solicitors represented a number of the plaintiffs. Mr Liddy wished to have access to funds to pay for his appeal against the convictions in the criminal proceedings and to pay for his defence of the civil actions. His solicitors entered into what were referred to in the defence as “dealings” with the solicitors for the plaintiffs. A document called a memorandum of understanding was exchanged.
It seems that on or about this time Mr Liddy owned superannuation policies of substantial value and a property and contents at No 5 Cameron Street, Kapunda. I will refer to this property as the Kapunda property. Mr Liddy was a collector of items and the contents of the Kapunda property were said to include valuable antiques, furniture and decorative items.
The affidavit of assets sworn by Mr Liddy at about this time was said to be deficient.
On or about 10 October 2001, a Mr Terry Stephens through his solicitor made an offer to purchase the Kapunda property, including its contents, for a certain sum. A little later, Mr Stephens increased the offer. At about this time there was correspondence between Mr Liddy’s solicitors and the solicitors for the plaintiffs about the offer.
On 19 October 2001 the terms of the Mareva orders were varied by the same judge of the District Court who had made the orders on 18 June 2001. One aspect of the variation was that a sale or disposal of Mr Liddy’s assets with the consent of the plaintiffs’ solicitors was not to constitute a breach of the Mareva orders.
At about this time a Mr Van Krussyen, who was said to be a legal practitioner and antique dealer, became involved in a valuation of the artefacts, antiques and collectables in the house on the Kapunda property. Mr Van Krussyen provided his valuation on 29 October 2001. It is alleged by the defendant that that valuation grossly undervalued the contents of the Kapunda property.
On 16 November 2001 a judge of the District Court varied the terms of the Mareva orders so as to facilitate the sale and purchase of the Kapunda property and contents to Mr Stephens. Settlement of the property took place on 20 December 2001.
The defendant alleges that, as at 24 December 2001, a substantial amount of the superannuation policies had been used to pay Mr Liddy’s legal fees. In late January 2002, Mr Stephens conducted an auction at the Kapunda property of items which were said to be from the Peter Liddy collection and Mr Van Kruyssen was the purchaser of certain items.
The next heading in paragraph 9 is “Publicity Surrounding the Proceedings”. There are three paragraphs under this heading. It is alleged that the criminal charges against Mr Liddy and the conduct of those charges within the South Australian judicial system had been the subject of widespread publicity and had attracted significant public interest and debate. It is alleged that the attitude and role played by Mr Liddy in his defence of the criminal charges against him and the proceedings in the District Court warranted report and comment within the context of the ongoing public debate.
The next heading in paragraph 9 is “Circumstances Surrounding the Variation of the District Court Injunction”. There are four paragraphs under this heading. The defendant alleges that the circumstances surrounding the variation of the Mareva orders were worthy of investigation and scrutiny, and it is said that there were a number of matters of concern with the processes followed and the consequences of that variation. It is alleged that the publication by the defendant was an appropriate and practicable mode of communication of those matters.
The next heading in paragraph 9 is “Involvement of Lewis”. At the time of the broadcast Mr Lewis was a Member of Parliament and held the balance of power in the South Australian Parliament. It is alleged that Mr Lewis was involved in a dispute with Mr Stephens and that the dispute included allegations by Mr Stephens that Mr Lewis had removed a large number of antique revolvers from the Kapunda property. I have summarised the allegations under this heading in more detail below (see [105]).
The next heading in paragraph 9 is “Call for a Royal Commission”. It is alleged that Mr Lewis has publicly criticised the function of the State’s court system and judiciary, both generally and particularly in relation to the civil proceedings brought against Mr Liddy. It is alleged that in July 2002 Mr Lewis put forward a proposal that the State Government of South Australia establish a Royal Commission into, among other things, the civil proceedings brought against Mr Liddy.
The plea that effectively summarises why it is said that the publication was a communication on a government or political matter is contained in paragraph 9.96:
9.96in the circumstances the broadcast related to matters which were relevant to the public of South Australia and, in particular, electors in that State
9.96.1in determining the merits of the proposal of a Royal Commission into matters including the circumstances surrounding the variation of the Mareva injunction in the proceedings;
9.96.2in determining the appropriateness of the conduct of Lewis and his suitability for office;
9.96.3in ascertaining the role played by members of the South Australian Parliament in the events referred to in the broadcast;
9.96.4in assessing the potential consequences for the future of the agreement between Lewis and the South Australian Labor Government;
9.96.5in assessing the potential consequences for the ability of the minority South Australian Labor Government to continue in power;
9.96.6in considering whether further more formal investigations and enquiries into the matters which are the subject of the broadcast should be initiated or supported by the South Australian Parliament;
9.96.7in determining whether the administration of justice in this State was satisfactory;
9.96.8in determining whether the rights of persons in the position of the Plaintiffs in the proceedings had been adequately protected by the Court system;
9.96.9in determining whether in the circumstances of the Liddy proceedings it was appropriate or right for the potential fund available to meet damages claims by the Plaintiffs in the proceedings to be virtually exhausted by payment of legal fees.
The defendant pleads that its conduct was reasonable and it provides particulars in support of that plea. It is not necessary to relate the details of that plea, as it is not relevant on this appeal.
The matters referred to in paragraph 9.96 may be divided into two broad categories. The first category relates to the call for a Royal Commission, Mr Lewis’ conduct and action that might be initiated or supported by the South Australian Parliament. The second category relates to the administration of justice and the court system.
The respective submissions
As the submissions were developed on the appeal, it became clear that there were three grounds upon which it was said that the publication was a communication on a government or political matter. Those grounds expressed in my own words are as follows:
1The publication was a communication about the court system or administration of justice in South Australia and that is a government or political matter. The judge seems to have based his decision on this broad ground. This ground was not the principal submission advanced by the defendant on the appeal, although it did not abandon its reliance on this ground. The plaintiff submits that the court system or the administration of justice in South Australia is not a government or political matter.
2The publication was a communication about the court system or the administration of justice in South Australia and contained by implication or inference a call for remedial action in relation to the alleged deficiencies of the system. The only bodies that could take remedial action were the legislature or the executive and in those circumstances the communication was on a government or political matter. The plaintiff submits that there is no implication or inference that the legislature or executive should take action and, even if there was, the publication was not a communication on a government or political matter.
3The publication was about a government or political matter because, when considered with other material, it raised issues about Mr Lewis’ activities and suitability for office, and the action that should be taken by the South Australian Parliament, including, for example, the calling of a Royal Commission. The judge mentioned this submission, but it does not appear to have formed the basis of his decision. The plaintiff submits that in characterising the publication regard should not be had to other material and the publication was not about Mr Lewis or his activities or his fitness for office or action that should be taken by the South Australian Parliament.
In stating the submissions in this way I have not overlooked the fact that at this stage the defendant need only show that they (or any one of them) are arguable, or the fact that a publication may be about more than one subject matter.
The reasons of the judge
The judge said that judicial power forms part of the system of representative government enshrined in the Constitution. He referred to the decision of the High Court in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1 and said that the Court there emphasised the independence of the judicial arm of government as a fundamental principle of representative democracy. The judge said that the concept of judicial power as part of the system of responsible government extends to government at a State level and that “just as the High Court constitutes an indispensable, constitutionally protected ‘arm’ of the Commonwealth Government, so too do the Courts of State jurisdictions”. The judge said that the work of the District Court of South Australia is part of the administration of justice and constitutes part of the system of government existing within the State. The judge held that the constitutional protection extended to discussion of political and government matters at the State level. The judge then said that the extended defence may, in certain circumstances, extend to matters relating to the activities or officers of State courts. The judge said that counsel were officers of the court and that the role of counsel constitutes an integral part of the proper administration of justice. The judge said that the judiciary forms part of the third branch of government and that “matters that may reflect adversely on the quality of the administration of justice are matters of proper public debate on which the community is entitled to be fully informed”. The judge said that the extended defence “may have application to a defamation claim in the context of comments concerning the conduct of an officer of the court”.
The judge held that it was arguable the communication was a communication on or about a government or political matter because, to use the judge’s words:
It is arguable that the broadcast item goes to the heart of the public’s confidence in the proper administration of justice. Its contents question the ability of the judiciary to attend to the fundamental obligation to exercise judicial power free from abuse of process. It is arguable that the broadcast item further touches upon the obligation of candour placed upon lawyers as officers of the court which is paramount to ensuring public confidence in the judicial system.
The judge said the implication that an officer of the court had misled the court and acted in his or her own interests at the expense of the interests of victims of crime “coincidentally” implicated Mr Lewis by virtue of his involvement in the matter. The judge referred to counsel’s submission that the implied reference to Mr Lewis meant that the publication was a communication on a government or political matter, but he did not express a view on the submission.
Authorities on the meaning of “government or political matters”
I turn now to examine the authorities that have considered the meaning of the expression “government or political matters”.
The extended defence consists of two elements. First, the communication must be a communication on a government or political matter, and secondly, the defendant’s conduct in publishing the communication must be reasonable. The defence may be defeated if the plaintiff proves that the defendant was actuated by malice. The extended defence was developed against a background in which the traditional common law qualified privilege was rarely available in a case involving a communication to the public at large.
In this case the Court is only concerned with the first element of extended defence and the question is whether it is arguable that the publication is a communication on a government or political matter.
There is no exhaustive definition by the High Court of what constitutes a government or political matter and in those circumstances it is necessary to look carefully at the rationale for the extended defence. The extended defence is grounded on an implication in the Constitution and the leading High Court authority is Lange. The Constitution embodies a system of representative and responsible government. The relevant sections are identified in the reasons for judgment in Lange. Freedom of communication on matters of government and politics is an indispensable incident of the system of representative government that the Constitution creates. The High Court in Lange said (at 560, footnotes omitted):
While the system of representative government for which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections under that system in Australia prior to federation, that the elections for which the Constitution provides were intended to be free elections … Furthermore, because the choice given by ss 7 and 24 must be a true choice with "an opportunity to gain an appreciation of the available alternatives", as Dawson J pointed out in Australian Capital Television Pty Ltd v The Commonwealth, legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.
That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors.

The sections of the Constitution which embody a system of representative and responsible government and which deal with the amendment of the Constitution mean that the freedom of communication is not confined to the election period. The relevant sections do not confer personal rights on individuals; rather, they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. The freedom of communication is not absolute and it will not invalidate a law “reasonably appropriate and adapted to serve a legitimate end”: Lange at 567. The common law of defamation must conform to the constitutional implication. The protection given to personal reputation must not unnecessarily or unreasonably impair the freedom about government or political matters required by the Constitution.
The High Court referred to the changing conditions of society and the need for the rules of common law qualified privilege to be adapted to those changing conditions. The Court cited the following passage from the reasons for judgment of McHugh J in Stephens v West Australian NewspapersLtd (1994) 182 CLR 211 (at 264):
In the last decade of the twentieth century, the quality of 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 functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.
I do not think the Court in Lange was citing this passage because it contained a definition of what constituted government or political matters. Rather, it was a convenient description of the changing conditions of society, which justified a broadening of the common rules of qualified privilege to recognise the constitutional implication.
Later in their reasons the Court did discuss the scope of extended defence. The Court said that the common law had failed to develop to meet the constitutional requirement and, in an important passage, said (at 571 – 572):
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. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.
The Court then discussed the requirement of reasonableness of conduct. That discussion is not relevant on this appeal.
The decision of the High Court in Levy v Victoria (1997) 189 CLR 579 was handed down a short time after Lange. In an important passage, McHugh J said (at 622, footnotes omitted):
It is not open to doubt that the Constitution protects the freedom of "the people of the Commonwealth" (the members of the Australian community) to communicate with each other concerning those political and government matters that are relevant to the system of representative and responsible government provided for by the Constitution. By a necessary implication drawn from ss 7, 24, 64 and supporting sections, the Constitution strikes down laws burdening freedom of communication on these matters. The implication is necessary because, without it, people of different backgrounds or with different perspectives or information could be legally prevented from exchanging views on matters relevant to choosing their representatives at federal elections and on matters relating to the performance of federal Ministers. Consequently, no Commonwealth or State law can validly impair the freedom of communication that the Constitution protects and, as the decision in Lange demonstrates, the common law cannot be at odds with the Constitution. The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States, our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters.
A number of intermediate appellate courts around the country have considered the scope of the Lange defence and, in particular, the first element of the defence: John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2001) 181 ALR 694 (“John Fairfax Publications v Attorney-General”); John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts R 81 - 789 (“O’Shane”); Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 (“Chapman”); Cornwall v Rowan (2004) 90 SASR 269 (“Cornwall”); Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1 (“Popovic”).
The approach of the courts in New South Wales is that the conduct of the courts is not, of itself, within the scope of the extended defence. In John Fairfax Publications v Attorney-General, Spigelman CJ, with whom Priestly JA relevantly agreed, said (at [83]):
The inclusion of courts and judges in the scope of the subject matter with respect to which the public as a whole can be identified to have an interest, for purposes of applying the traditional rules of reciprocity in the context of qualified privilege for a defamatory statement, is not coextensive with the constitutional protection of freedom of communication. That protection, as Lange made clear, is an implication to be derived from the text and structure of the Constitution insofar as it makes provision for representative government. The conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based.
See also O’Shane per Giles JA at [91] – [99]; Ipp JA at [139], Young CJ in Eq at [250] – [308].
In Chapman, there were three publications in issue. The publications occurred in the course of considerable publicity and public debate about the construction of a bridge to Hindmarsh Island. For the purpose of identifying the relevant principles which emerge from the case, it is only necessary to consider the first publication. Both the Commonwealth government and the State government were involved in aspects of action taken, or which could have been taken, in relation to the construction of the bridge. The first publication was about certain orders that had been made by the Federal Court on the application of the developers. The question was whether the publication was a communication on a government or political matter. Doyle CJ and I held that it was not. Gray J held that it was.
The Chief Justice referred to the more cautious view that the extended defence only arose if the communication had a bearing on matters of government at the Commonwealth level: John Fairfax Publications v Attorney-General per Spigelman CJ at [87]. The Chief Justice said that while there were aspects of the debate about the construction of the bridge which brought it within the area of discussion that attracted the constitutional protection, it was necessary to show a link between the particular publication and the debate. That is, although the issue was to be approached on a broad basis, it was necessary for the particular publication to be one concerning government and political matters. The Chief Justice gave the following example (at [13]):
A simple example will illustrate this point. Assume that an opponent of the bridge alleged that the bridge was unsafely designed due to incompetence by a structural engineer. That defamatory statement would not attract the constitutional protection in my opinion. The communication would not be one on the protected topics, even though it related to a matter, debate over which involved the protected topics.
The Chief Justice further said (at [15]):
I agree with Besanko J that, in the present context, the fact that the publication refers to the Federal Court and to court orders is not of itself enough to attract the constitutional protection. The mere fact that the publication deals with the use of the litigation by the Chapmans does not bring it within the constitutional protection. … The fact that the publication refers to freedom of speech is not, of itself, sufficient to bring the publication within the constitutional protection. Nor, in my opinion, does the fact that the publication links these two elements by referring to the use of legal proceedings to stifle free speech.
Importantly for the purposes of this appeal, the Chief Justice considered the broader approach favoured by Gray J that each publication had “directly contributed to the ongoing public comment and debate” about construction of the bridge. The Chief Justice said that the issue of whether a publication attracted the constitutional protection was one of substance and it should not be assumed that a particular publication should be characterised in only one way. In concluding that the publication was not a communication on a government or political matter, the Chief Justice said (at [17] and [18]):
In my opinion it is not sufficient that the publication can be said to make a contribution to the “ongoing public comment and debate”. To say that is to do no more than link the publication to the dispute. It is a separate question whether or not the publication itself attracts the constitutional protection.
In the end, I agree with Besanko J that the publication does not attract the constitutional protection. In my opinion the article, having regard to its contents, does not deal with “government and political matters”. Nor, placed in the wider context, does it make a contribution to the dissemination of information about those matters. The publication is made in the course of a public controversy that raises those matters, but that in itself is not enough. The publication is properly characterised as a publication about use by the Chapmans, and developers generally, of legal proceedings to silence or subdue opponents of proposed developments. As such, it does not attract the constitutional protection.
My approach was similar to that taken by the Chief Justice. After referring to a number of relevant authorities, I identified features of the debate concerning the construction of the bridge to Hindmarsh Island that were capable of attracting the constitutional protection (at [294]). However, I said that the question was whether the publication could be characterised as an article about one or more such matters. I found that it could not and I said (at [295]):
It seems to me that there are a number of possibilities in terms of how this publication is characterised. It is either a publication about the orders of the Federal Court of Australia, or the reasons Mrs Chapman took the action she did or the limits of freedom of speech or one or more of these matters. I do not think the publication is a comment about the orders of the Federal Court and, even if it is, I do not think that topic is a government or political matter. I do not think that comments about the courts and the orders they make is a government or political matter. The publication is to an extent about freedom of speech. As important as that topic is in our community, it seems to me that it is not a government or political matter unless it is raised in the context of conduct by the executive or legislative branch of government. The publication does not deal with the topic in that context. The publication is to an extent about Mrs Chapman’s conduct. Clearly, her conduct is not a government or political matter. Nor can it be said that her conduct is so linked or intertwined with a communication about a matter which is government or political that it should be characterised in the same way.
In Cornwall, two television stations had each broadcast programmes about the withdrawal of public funding to a woman’s shelter and the allegations in a report provided to a Minister in the State government of South Australia who made the decision to withdraw funding. The report had been tabled in the State Parliament the day before each programme was broadcast. In a joint judgment of Bleby, Sulan JJ and myself, the Court held that each television programme was a communication on a government or political matter. After considering the relevant authorities, including Chapman, the Court summarised the relevant principles for the purposes of that case (at [623] – [624]):
We think the present position as to what constitutes a government or political matter may be summarised as follows. Relevantly for the purposes of this case, a communication about the elected representatives of Commonwealth and State governments and a communication about the conduct of those governments (including statutory authorities and public utilities who are obliged to report to the legislature or to a Minister who is responsible to the legislature) is a communication about a government or political matter. In our opinion, there is sufficient in Lange to conclude that, until the High Court says otherwise, the concept of a government or political matter includes a communication about the conduct of the elected representatives of State governments and the conduct of those governments even though the particular discussion does not have a bearing on matters of government at the Commonwealth level. In discussing such matters, private individuals or organizations may be defamed. Furthermore, a particular communication may contain no criticism of the elected representative or government if, for example, the author of the publication argues that the decision of the elected representative or government is right. However, if as a matter of characterisation, the publication is no more than an attack on a private individual or organization the communication is not a communication on or about a government or political matter. The fact that the communication is on or about a matter of public interest and is the subject of public debate is relevant but not of itself sufficient.
It is necessary for the court to undertake a process of characterisation to determine the true nature of the publication. The context in which the publication appears is relevant and the court will take a liberal approach to the question of characterisation. Nevertheless, in characterising the publication the primary focus must be on the terms of the publication itself. In other words, the publication itself must be a communication on or about a government or political matter, and it is not enough that it would not have been published but for the presence of issues which might fairly be described as issues of a government or political nature.
I mention at this point that one submission put in Cornwall and again on this appeal was that authorities decided before Lange are relevant to the issue of what is a government or political matter. The submission was that prior to Lange certain Justices of the High Court had expressed the view that the constitutional freedom included the judicial as well as the legislative and executive powers of government (Nationwide News Ltd v Wills (1991) 177 CLR 1 per Deane and Toohey JJ at 74) and that “political” discussion included debate about the performance of public officials and those engaged in activities which became the subject of public debate (Theophanous v Herald and Weekly Times (1993) 182 CLR 104 (“Theophanous”) per Mason CJ, Toohey and Gaudron JJ at 124) and that those categories were wide enough to include judges. I reject that submission for the same reasons this Court rejected the submission in Cornwall. First, the Court in Lange noted the difficulty of identifying a majority view in Theophanous (at 554 – 556) and, secondly, the Court in Lange (in the passage set out in [67], above) made its own observations as to the scope of the extended defence of qualified privilege.
In Popovic, a magistrate in Victoria was the subject of criticism in an article in the Herald Sun newspaper. She sued the author of the article and the proprietor of the newspaper. The defendant raised the extended defence. The defence failed on the ground that the defendant’s conduct was not reasonable and that decision of the trial judge was unanimously upheld by the Court of Appeal. The trial judge held that the article was a communication on a government or political matter because it called for the magistrate’s removal from office. The plaintiff challenged this holding by notice of contention and it was considered by all members of the Court of Appeal. Winnecke ACJ and Warren AJA held that the communication was not a communication on a government or political matter. Gillard AJA reached a contrary conclusion.
Winnecke ACJ said that criticism by a newspaper of a magistrate’s performance in conducting or handling isolated proceedings in the Magistrates Court, even to the point of inferring that he or she is unfit to hold office, is not a discussion of government or political matters of the type that attracts the constitutional protection. He said that it was not necessary in the relevant sense for the effective operation of representative and responsible government. Winnecke ACJ said (at [9], footnotes omitted):
However, as I have already said, I do not consider that a criticism of the performance of a magistrate in the management of an isolated proceeding in his or her court is a discussion of political or government matters in the sense that such discussion is necessary for the effective operation of representative and responsible government. Quite apart from the fact that - as Spigelman, C.J. pointed out (in a different context) in John Fairfax Pty. Ltd. v. Attorney-General (NSW) - the conduct of courts "is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based", the conduct of individual judicial officers is carried out independently of the legislative and executive branches of government, and is not to be described, in my view, as an exercise of power at a government or administrative level. It can be conceded that judicial officers are "public figures" appointed, or recommended for appointment, by the executive branch of government. It can also be conceded that the executive branch of government has a strong interest in the due administration of justice. However those concessions, at least to my mind, do not carry with them the implication that a discussion about the discharge by a judicial officer of his or her function in a particular case is a discussion concerning political or government matters in the relevant sense. It is true that, when discharging their functions, judicial officers are performing a public role; one which is to be performed in the "public gaze" and, thus, open to public scrutiny and comment. It is also true that the discharge of functions by judicial officers in particular cases will attract comment by the media; some of it strongly critical of the judicial officer's handling and disposition of the case. However, that is not to say that such comment assumes the status of a communication concerning political or government matters which are relevant to the system of representative and responsible government so as to attract the freedom which the Constitution protects. Such comment and criticism could, in my view, have no impact or influence upon the choice of their representatives by the people of Australia.

Winnecke ACJ did accept that there might be a case where criticism of a judicial officer might be relevant in the necessary sense to the system of representative and responsible government and therefore attract the constitutional privilege. He said that that might occur where the discussion impacts directly or indirectly on the executive government itself, whether in the exercise of its powers to appoint the officer, or in exercising or failing to exercise powers to initiate the officer’s removal. However, an opinion piece about the manner in which a judicial officer has handled individual court proceedings was not such a communication, even if it could be inferred from the strength of the criticism that the author considered that the officer should be removed from office.
Warren AJA said that, although the principle adopted in Lange was expansive and wide-ranging, it was confined to matters of government and politics, which did not embrace the judiciary. Rather, in Lange, the reference to “government” and “politics” was always in a legislative or executive context, never in a judicial one. Warren AJA said (at [504] and [507], footnotes omitted):
It is this fundamental demarcation that differentiates the judiciary from the legislature and the executive. With this in mind I turn to the statement of principle in Lange. As I discern the statement there is no expression, directly or indirectly, that indicates an intention to extend the privilege to the judiciary. Some members of the High Court before Lange indicated in obiter a view that the implied constitutional freedom might extend to the judiciary. The judgment in Lange emphatically declared the principle of extended qualified privilege and its context. Indeed, throughout the judgment in Lange the court repeatedly refers to government, the legislature and the executive in a political, that is, electoral and parliamentary sense. The judgment does not appear to contemplate application of the privilege to the judiciary.
…
These views appear to support the approach I adopt and lead on to a sound policy reason for treating the judiciary differently from the legislature and the executive. As Saunders observed, the separation of judicial power protects judicial independence and shields the courts from undue influence by the legislature and the executive. It also encourages public confidence in the judicial process. The significance of public confidence in the judiciary is vital. This of itself is a separate and special basis for exempting the judiciary from the province of "government" and "politics" as applied in Lange. For my part, I would be most hesitant to view the defence of qualified privilege as extended to applying to the judiciary. On the basis of political theory and constitutional principle I would reject its inclusion.
Gillard AJA was provisionally of the view that the publication was a communication on a government matter. He said (at [250] – [252]):
The administration of justice in this State is a vital and essential ingredient in the system of government. The government in this State since the establishment of the Colony of Victoria has recognised this and established and maintained the various courts in the judicial system. The magistrates are appointed by the government of the day, and they are paid out of the public purse. The way they behave in court, their fitness for office and their conduct as magistrates are all matters which in my view every member of the Victorian community has a real and legitimate interest in knowing about.
In my opinion, a discussion of the conduct of a judicial officer and the way the officer behaves in court is a government matter. Paraphrasing what McHugh, J. said in Stephens, the quality of life and freedom of the ordinary individuals in this State are dependent on the exercise of functions and powers vested in the public representatives by a vast legal apparatus funded by public moneys. How they perform are matters that are of a real and legitimate interest to every member of the community.
The article sued upon concerns the topic of the behaviour of two magistrates and is a critical appraisal of their conduct in court. It would be open to some members of the community to draw the conclusion that the article raises their fitness for office, that it advocates they should be removed from office or alternatively that their conduct should be investigated by the responsible Minister. In my opinion, the article is referring to government matters. The defamatory sting and also the imputations raised by the defendants concern the very issue of the way Ms Popovic behaved in court and arguably there is a suggestion that Ms Popovic may not be fit for office. The article is concerned about the performance in public of a person appointed by the government to perform on its behalf the judicial function in this State, namely, interpreting, applying and upholding the law. These functions directly affect members of the community and it is in the public interest to know of the behaviour in court of the judicial officers.
I turn now to consider the issues raised on this appeal.
Issues on the appeal
The starting point is to identify the subject matter of the publication. The plaintiff said that the publication was about four matters; namely, Mr Liddy’s offending and its effect on his victims, the purchase by Mr Stephens of the Kapunda property and its contents, the fact that the victims will recover nothing and the fact that the valuation obtained by the lawyers to secure the lifting of the Mareva orders was said to be incorrect and to grossly undervalue the relevant assets. In my opinion, that is a satisfactory working description of the topics dealt with in the publication.
In its characterisation of the publication, the defendant sought to emphasise the alleged victim’s criticism of the system and in that regard it referred not only to the outcome of the actions in the District Court but also to the fact that, because of a statute of limitation, Mr Liddy could not be prosecuted for his offending against the alleged victim. I will come back to the submission that the publication was about the court system, but at this point I indicate that I reject the submission that the publication was in any significant way about the law that prevented the prosecution of Mr Liddy in relation to the alleged victim. That argument was not raised until oral submissions before this Court. Insofar as the publication contained a criticism of the system (and I will examine this submission shortly), it was based on what transpired in the actions before the District Court.
In considering whether a communication is on or about a government or political matter, the question of characterisation is to be approached in a broad way. As I pointed out earlier, the publication may be about more than one subject matter. On the other hand, it is not sufficient of itself that the subject matter of the publication is a matter of public interest. The criminal proceedings against Mr Liddy, a former magistrate, had generated considerable publicity and no doubt the plight of Mr Liddy’s victims and their ability to obtain compensation was a matter of public interest. However, the constitutional protection is not based on the broad ground of public interest, but on the system of representative and responsible government enshrined in the Constitution.
The first and second grounds upon which it is said that the communication is on a government or political matter, set out in [55], above, are related and I will deal with them in that way. In submissions, the terms “court system in South Australia” and “the administration of justice in South Australia” were used. Neither party attempted a definition of the expression, “the administration of justice”. The term is one which is capable of a wide variety of meanings. Justice in the Australian context is administered by various courts and tribunals which make decisions and orders according to legal principles and I propose to attribute to the term “administration of justice” the meaning of the work of the courts. In that sense, it is very similar in meaning to “the court system in South Australia”.
The first question is whether it is arguable that the publication was about the court system or the work of the courts in South Australia, and I include in that notion of the conduct of counsel, at least insofar as it might affect the operation of the system or work of the courts. If the answer is yes, the second question is whether that topic is a government or political matter.
I do not think it is arguable that the publication was about the court system or the work of the courts. The defendant relied on three matters in support of its submission that it was. First, it was submitted that there was no criticism of the particular judge who made the variation to the Mareva orders that allowed the sale of the Kapunda property and its contents. Secondly, it was submitted that the effect of the complaint was that there was something wrong with a system that allowed a series of events to take place whereby the victims were likely to receive nothing. Thirdly, the defendant referred to the statement by the alleged victim towards the end of the publication that he was “angry with the judiciary system”.
The defendant’s submissions must be rejected. In my opinion, from start to finish the publication was about a small group of cases being managed by a judge in the District Court and it is the orders made by that judge in those cases which are the subject of criticism. The absence of criticism of the particular judge cannot be decisive. Nor can the one comment of the alleged victim towards the end of the publication control the proper characterisation of it. I think that the ordinary reasonable viewer, looking at the publication as a whole, would not see it as a criticism of the court system or the work of the courts, but rather as a criticism of the processes and result in a small group of similar cases, including the conduct of the lawyers in those cases.
I do not think that criticism of the processes adopted in a particular case, or in a small group of similar cases, or the result reached in a particular case or small group of similar cases, whether it be inferred that the asserted deficiencies came about because of the conduct of the judge who heard the case or the lawyers who were involved in the case, is a communication on a government or political matter. I have reached that conclusion for two reasons.
First, I think it accords with what the majority said in Chapman and with the tenor of the decisions of other intermediate appellate courts in Australia. I have already referred to the relevant decisions.
Secondly, and perhaps more importantly, that conclusion accords with principle. The exercise of judicial power by courts, and for present purposes I will not distinguish between Federal and State courts, is not an element of representative government. Nor is it an element of responsible government; namely, the responsibility of ministers of the Crown to the Parliament: Hood Phillips, Jackson and Leopold, O Hood Phillips and Jackson: Constitutional and Administrative Law (8^th ed, 2001), [2-015]. Judges are not elected; nor do they advance or apply policies in the course of discharging their duties. They do not respond to criticisms of particular decisions they may make. Leaving aside the power of removal, they are not accountable to Parliament for those decisions. The independence of the judiciary and the obligation to observe the rule of law are important aspects of our system of government, which includes representative and responsible government, but those aspects of our system are not themselves elements of representative or responsible government. To adopt the words of McHugh J in Levy v Victoria (supra), set out in [69], it is not necessary as a matter of constitutional implication for the purposes of electors choosing their representatives at elections, or for assessing the performance of ministers of the Crown, to extend the freedom of communication to the processes adopted and the result reached in a particular case or a small group of similar cases. The importance of the court system in our community and the fact that, not infrequently, matters come before the courts that are of considerable public interest cannot be allowed to obscure or distort the basis of the constitutional implication. On the other hand, as the authorities make clear, none of this is to say that the conduct of a judge may not become part of a government or political matter if, for example, the real thrust of a communication is the conduct, acts or omissions of an elected representative and how that representative is responding to or dealing with the conduct of that judge. I will return to this point in a moment.
In my opinion, even if, contrary to my view, it is arguable that the publication is a communication on the court system or the work of the courts, including the suggestion that lawyers involved have acted improperly or incompetently, the same result follows, for the same reasons.
I do not think the first ground relied on to establish that the communication was a communication on a government or political matter is arguable.
The second ground relied on to establish that the communication was a communication on a government or political matter was that the publication was a criticism of the court system or the work of the courts and, therefore, it was about the conduct of the legislature or executive, because only the legislature or executive can address problems with the system. It was said that by implication or inference there was a call for remedial action to be taken by the legislature or executive. It was said that Mr Lewis’ subsequent call for a Royal Commission confirmed the fact that the criticisms were in fact government or political matters. It must be said that in cases, of which I think this is one, where there is no specific reason to make the implication or draw the inference, there is very little difference between the first ground and the second ground. I reject the defendant’s argument. I assume for the moment that the publication is about the court system or the work of the courts. To my mind, the question is what would the ordinary reasonable viewer understand the publication to be about. I think he or she would see it as a publication about the conduct of lawyers and the outcome, whereby it was alleged that the victims of serious offending would receive very little compensation. The legislature or executive are not mentioned, nor is it suggested that they should take any particular form of action. I realise that this view means that a matter relating to the court system or the work of the courts may after a short period of time become a government or political matter, but that is the reality in any event because some issues are taken up by our elected representatives and others are not.
As I have said, the characterisation of a publication is to be approached on a broad basis and the ordinary reasonable viewer is no doubt capable of and will often read between the lines. There may well be cases where it is appropriate to infer or imply a call for the legislature or executive to take action or a criticism of the legislature or executive for failing to take action. However, a good deal more than is present in this case is necessary before that should be done.
In my opinion, it is not arguable that the publication was a communication on a government or political matter on the second ground.
The third ground upon which the publication is said to be a communication on or about a government or political matter is that it was a communication about the activities of Mr Lewis and his suitability for office.
Mr Lewis held the office of Speaker of the South Australian Legislative Assembly. He had previously been a member of the Liberal Party. He held the balance of power in the Legislative Assembly. He was a party to an agreement with the Labor Party whereby the Labor Party was able to govern. It was said that he was the subject of proceedings instituted by the Liberal Party in the Court of Disputed Returns, and he was also said to be the subject of civil proceedings brought by Mr Stephens regarding certain business dealings between Mr Stephens and himself involving Mr Liddy’s assets. It was also said that he was the subject of other investigations and inquiries by certain authorities in South Australia.
I do not think that there can be any doubt that the activities of Mr Lewis and his suitability for office are government or political matters. This Court held in Cornwall that the extended defence applied to a government or political matter arising at State level. However, the issue in relation to the third ground is not whether the activities of Mr Lewis and his suitability for office are government or political matters, but rather whether the publication is about those matters.
Mr Lewis is not mentioned by name in the publication. Nor is he identified in some other way. Furthermore, there is no reference in the publication to the Speaker of the Legislative Assembly or any Member of Parliament or any member of a political party or a political party.
The publication refers to Mr Stephens and to Mr Liddy’s gun collection and the defendant submits that these provide the necessary links between the publication and other publications both before and after the publication which deal with the activities of Mr Lewis and his suitability for office and that therefore the publication is also about that topic. The other publications relied on by the defendant, and a brief summary of their contents, are as follows:
1On 21 February 2002, the Honourable Patrick Secker raised in the House of Representatives Mr Lewis’ links with Mr Stephens and stated that Mr Lewis’ links with this “convicted criminal should remove him from the candidature for the position of Speaker”.
2On 22 February 2002, The Advertiser, a newspaper circulating in South Australia, reported Mr Secker’s statements made the previous day.
3On 6 March 2002, The Advertiser reported that during a hearing in the proceedings between Mr Stephens and Mr Lewis the previous day, Mr Stephens accused Mr Lewis of having taken documents from the Kapunda property.
4On 4 April 2002, The Advertiser reported that the Anti-Corruption Branch of the South Australian Police had commenced investigations of the business activities of Mr Lewis, which activities were understood to include his dealings with Mr Stephens.
5On 5 April 2002, The Advertiser reported that Mr Lewis had confirmed that he was the subject of a police investigation, and that he had said that he would be cleared by the investigation and that the allegations were part of a foul-mouthed campaign run against him. The same newspaper reported a statement by Mr Stephens that he had been interviewed by detectives of the Anti-Corruption Branch in relation to his dealings with Mr Lewis including the circumstances surrounding “the removal of a large number of antique revolvers – which he said he had valued at up to $2 million – from Shenandoah, the mansion owned by disgraced magistrate Peter Liddy”.
6On 6 April 2002, The Advertiser reported details of an approach by Mr Lewis to the former Police Minister, the Honourable Mr Robert Brokenshire MP, in relation to the sale of up to 200 colt revolvers that had been purchased by Mr Stephens as part of the sale of the Kapunda property.
7On 9 April 2002, The Advertiser reported a statement by Mr Lewis that he denied that he had the 200 antique weapons missing from the Kapunda property, but he acknowledged that he had been assisting Mr Stephens to obtain permits to allow them to be sold. The same newspaper referred again to Mr Lewis’ activities being the subject of a police investigation and reported that “government adviser, Randall Ashbourne, said that if the investigation ‘finds Mr Lewis acted improperly or illegally, then we would have no option but to cancel the compact (which put Labor in power in SA) and to stand him down as Speaker’”.
8On 20 May 2002, The Advertiser contained an article about the dispute between Mr Stephens and Mr Lewis concerning the disappearance of the guns from the Kapunda property, and Mr Stephens’ intention to sue Mr Lewis in the Supreme Court of Victoria.
9On 22 May 2002, The Advertiser reported Mr Lewis as saying that the Liberal Party had encouraged Mr Stephens to sue him in relation to the disappearance of the guns.

The publication occurred on 10 June 2002 and the following occurred after the publication:
1On 22 July 2002, the Today Tonight programme broadcast by the defendant contained a further story concerning the sale of antique guns and collectables kept on the Kapunda property. The story reported Mr Lewis making a number of statements calling for a Royal Commission into various allegations.
2On 24 July 2002, The Advertiser reported Mr Lewis’ call for a Royal Commission and the responses of the Premier, the Honourable Mr Mike Rann MP, and the Opposition justice spokesperson, the Honourable Mr Robert Lawson MP. The same newspaper also referred to the Solicitor-General, and possibly the police, examining evidence about the sale of assets and a request by the Attorney‑General, the Honourable Mr Michael Atkinson MP, that the defendant give to the Solicitor-General all material relating to claims about the role of the District Court in the sale of the Kapunda property.
In my opinion, the ordinary reasonable viewer must understand at the time of the publication that the publication is about what the law characterises as a government or political matter. In other words, in this case he or she must understand that the publication is a communication about Mr Lewis’ activities and his suitability for office, or at least that that is one of the topics of the publication. As the Court said in Cornwall (at [413]):
In determining the question of characterisation, the primary focus must be on the terms of the publication itself. That must follow from the nature of the constitutional freedom. As the majority said in Chapman, the particular publication must be shown to be one concerning government and political matters that affect the people of Australia.
It is not enough that the publication directly contributed to the ongoing public comment and debate about Mr Lewis’ activities and his suitability for office. That view was rejected by the majority in Chapman. Furthermore, insofar as the defendant relies on publications after the event, I cannot see how such publications can be used to characterise an earlier publication. As I have said, the ordinary reasonable viewer must understand at the time he or she sees the publication that it is a communication on or about what the law characterises as a government or political matter.
In my opinion, it is not arguable that the publication is a communication on or about a government or political matter because it is a communication about Mr Lewis’ activities and his suitability for office.
Conclusion
In my opinion, the appeal must be allowed and paragraph 9 of the further amended defence must be struck out. I would hear the parties as to the appropriate orders.
After the submissions on this appeal, the High Court delivered judgment in APLA Limited v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620. One issue in that case was whether Part 14 of the Legal Profession Regulation made under the Legal Profession Act 1981 (NSW) impermissibly infringed the freedom of communication on political and governmental matters guaranteed by the Constitution. Although some of the Justices of the Court discussed the meaning of the expression “a political or governmental matter” no principle emerges from the decision that determines the outcome of this case. Gleeson CJ and Heydon J said (at [27]) that the meaning of the expression was imprecise but even so it concerns a freedom that arises by necessary implication from the system of responsible and representative government set up by the Constitution, not a general freedom of communication of the kind protected by the First Amendment to the United States Constitution. McHugh J discusses the meaning of a governmental or political matter and his reasoning supports the conclusions I have reached (at [60] – [71]). It was not necessary for Gummow, Hayne and Callinan JJ to consider in detail the meaning of the expression “government or political matter”. There are observations by Kirby J in the context of a submission that an implication arose from Chapter 111 of the Constitution that provide some support for the defendant’s submission in that he expresses the view that communication about access to courts is communication about governmental and political matters and that the courts are part of government. There is nothing in the case which causes me to alter the conclusions set out above.