Australian Broadcasting Tribunal v. Comalco Ltd [1986] FCA 381

AUSTRALIAN BROADCASTING CORPORATION v. COMALCO LIMITED

Mr T.K. Tobin Q.C. Solicitors for the appellant : Colquhoun Murphy

Counsel for the respondent : Mr S.P. Charles Q.C. and

Mr R.C. Macaw Solicitors for the respondent : Macphillamy Cummins & Gibson

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN : AUSTRALIAN BROADCASTING CORPORATION Appellant AND: COMALCO LIMITED

judgment of the Supreme Court of the Australian Capital Territory given on 22 February 1985 awarding Comalco Limited damages in the sum of $295,000 against the Australian Broadcasting Corporation and ordering the Australian Broadcasting Corporation to pay the taxed costs of Comalco Limited of the proceedings in that Court be varied by substituting for the sum of $295,000 the sum of $100,000.

Bach party bear its own costs of the appeal to this Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

) ) ) ) NO. ACT G19 OF 1985 DISTRICT REGISTRY ) ) )

SMITHERS J.: The appellant is a statutory corporation charged with the duty of providing broadcasting and television services to the Australian people. One of its functions is to provide information to the public on current affairs and other

In connection with this function it has for more' than twenty years prior to the event with which this proceeding is concerned conducted a television programme, called Four

Corners, which deals with current affairs and presented

weekly. The programme 15 well known and is generally well

About the beginning of 1979 1t acquired from Granada, an English television company, a film made by Granada which dealt with the effect on the Aborigines at Weipa in Queensland of the conduct of open cut mining of bauxite. The film was published by the appellant as part of a Four Corners Programme telecast on 19 and 20 May 1979. It contained material

critical of Comalco Limited, a company which had mining rights

Comalco Limited sued the appellant for libel claiming that the film contained much that was defamatory of it. It was said in the statement of claim that the published material

contained ten defamatory imputations concerning its alleged

1. That the plaintiff treats the Aborigines at Weipa shamefully.

2. That the plaintiff treats the Aborigines at Weipa like dogs.

4. That by its mining operations at Weipa, the Plaintiff continues the deliberate killing of

S. That the plaintiff, as did the early Australian settlers, deliberately kills Aborigines so as to obtain the benefit of their land.

That the plaintiff is without decency and integrity in 1ts treatment of the Aboriginal community at Weipa.

That the plaintiff is responsible for segregated schooling of Aborigines at Weipa.

That the Plaintitf is responsible for discrimination against the Aboriginal community at Weipa in relation to housing and health care.

That the plaintiff conducts an unequal conflict with the Aboriginal people at Weipa.

That the plaintiff does not attempt to restore the environment at Weipa affected by its mining operations. The appellant denied that the imputations were made in the published material or were defamatory or were made of the respondent, or were made by the appellant. It pleaded also that certain parts of the material complained of were fair comment on matters otf public interest and that the whole of it was privileged as a publication of a matter of public interest. The respondent pleaded by way of reply that any of the published material which was comment was not fair and that the defendant published such material maliciously and that if the published matter complained of constituted matters of

public interest the defendant made such publication

The learned Chief Justice, the trial Judge, found that except for the ninth imputation the imputations alleged were made in the published material and were defamatory. He held that the defence of privilege did not extend to the

publication of defamatory material. He found further that, in

any event, the defendant was actuated by malice. He found in

respect of one item relied upon in respect of the eighth imputation the defence of fair comment was established. He found that 1n respect of such of the other material as was comment it was not fair and the defendant was actuated by Malice. He gave judgment for the respondent for damages in a

The appellant appeals against the decision of the learned Chief Justice. The grounds of appeal relating to

"2. His Honour was in error in holding that the matter complained of was as a matter ot law, capable of giving rise to the imputations

numbered 1 to 8 and i0 in the Statement of Claim as amended.

His Honour was in error in holding that the matter complained of was capable of giving rise to and did give rise to the imputations contended for by the respondent numbered 1 to

His Honour was in error in holding that, as a Tactter of fact, the passages contended for by

the appellant were not comments but were svatements of fact.

His Honour was in error in holding that the matter complained of was not published on an occasion of qualified privilege.

His Honour was in error in holding that there was evidence of malice such as would defeat the defence of fair comment.

His Honour was in error in holding that, as a Matter of law, there was evidence capable of establishing malice on the part of the appellant to defeat the defence of qualified

privilege and that, as a matter of tact, the appellant was actuated by malice in the publication complained of.

His Honour was in error in refusing leave to the appellant to file a defence of

12. His Honour was in error in finding that' the passages alleged to be comment numbered 1,2,4,7,9-11 in the reasons for judgment were not based on facts truly stated."

At the outset Mr. Gyles QC for the appellant submitted that with respect to each of the imputations there were four questions to be asked, first, is the imputation made in the telecast?, second, is it made by the appellant?, third, is it made of the respondent?, and fourth is it defamatory of the

Mr. Gyles pointed out that it is a question of fact whether a particular imputation is made in particular

published material, the relevant test being that expressed by

Lord Selborne in Capital & Counties Bank v. Henty (1882) 7 App. Cas. 741 at 745 in the following words:

"The test, according to the authorities, is, whether under the circumstances in which the

writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense."

Me. Gyles referred in confirmation to Nevill v. Fine Art Co.

{189713 AC 68 and Mirror Newspapers Ltd. v. Harrison (1982) 149 CLR 293. And he uSed the observation of Mason J. in this last

mentioned case at pp.300 and 301 setting out the distinction referred to in the last paragraph of that observation as being

critical to this appeal. The observation in full was as

"Sugerman ACJ:'was correct also in stating that a case of this kind is to be distinguished trom the 'rumour' cases. The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing 1t on he gives it credence, implying that it is well founded or that it may be so.

authority supporting the view that a report which does no more than state that a person has been

arrested and has been charged with a criminal effence 15s incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that 1s involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime 1s presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.

In this situation the reader will view the Plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned 1s guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to Say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It 1s quite another thing to say that a statement 1s capable of bearing such an imputation merely because it excites in some readers a belief or prejudice trom which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality otf the published material is to be determined by the first, not by the' second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader."

If this passage 18s to be regarded as critical in this case it would be so because only some viewers, namely those in whom the telecast excited a belief or prejudice from which they proceeded to arrive at conclusions unfavourable to the respondent would do so, whereas that conclusion would not be drawn by ordinary reasonable viewers seeing and hearing the telecast and drawing on their own knowledge and experience of human affairs. And there is a question with respect to each

imputation alleged by the respondent whether that imputation

would be carried to the mind of the ordinary reasonable viewer drawing on his own knowledge and experience of human affairs only, rather than to the mind of a viewer in whom it excited what may be called personal emotional feelings of animosity or prejudice which themselves, to his mind, added defamatory

meaning or sting to the words and images portrayed.

The following discussion as to the possible defamatory mature of the words and images portrayea does proceed with this question in mind. It is essential that in relation to the subject matter, which as is well known, excites emotional and racial reactions, and on occasion much heated controversy, the warning presented by this question has to be remembered. There are undoubtedly potential viewers who, excited perhaps by the mere public mention of the subject, would add to what was said and shown conclusions of their own, not fairly arising out of those words and images. Suffice it to say that in the following discussion a reference to what 13 defamatory

is to material which carries defamatory imputation only to the

ordinary reasonable viewer drawing on his own knowledge and

In this connection it is useful to remember that in respect of the various imputations alleged, it is the message conveyed to the ordinary reasonable viewer by the whole of the telecast which is critical. The statements carrying what i3 called a defamatory sting are to be considered in the light of those, if any, which would qualify that sting. As Lord Shaw said in Stubbs Ltd. v. Mazure £1920] AC 66 at p.80:

from the impression which it - alli of it, including reservations, cautions and all the rest

• makes upon the minds of the readers, an impression which may be quite apart from any artificial restriction which the author of the falsehood sought to impose. It is for those results that the author or promulgator of the libel is responsible."

But in relation to a publication of views on some controversial subject of people who take opposing sides, it is not a question of taking into account reservations or cautions. The unfortunate viewer is assaulted by assertion

and contradiction in circumstances in which there is neither

time nor opportunity to cross examine the contestants or to

In Bik v. Mirror Newspapers C1979] 2 NSWLR 679 the defamatory matter was 30 qualified that it was held that in the light thereof the ordinary fair minded reader would conclude that there was no defamatory sting in the

publication. In Savige v. News Limited & Ors £19321 SASR 240

notwithstanding denials coming from an authoritative source.

"The argument put forward on behalf of the defendants which I have endeavoured to summarize emphatically, is no doubt strong, but on the question of libel or no libel, it is in my judgment, not sound, for a reasonable reader would understand that the paragraph contained two conflicting assertions, one by Essad Bey, and the

other by Mayjyor-Gen. Dunsterville. The reading public would believe either, according to its selection. The refutation is not of something which has been published in what is sometimes reterred to as 'the gutter press', which, there appearing, might count for little, but the charge is alleged to be contained in a book to which some importance has been attached in that it has been translated from the original German language in which it was written into English. Moreover, the author is not some anonymous writer, or a person notoriously of no character or no standing, but it is a Bey, and would from bearing that title he known as an important person. ... however great the standing and authority of Major-Gen. Dunsterville may be, certainly not beyond what is stated in the notice, and it is not unreasonable to hold that some readers would prefer the statement of Essad Bey to the denial of the alleged commanding officer. These readers might reason intelligently that this is not an irresponsible charge by an insignificant person, but is one made by a man of some distinction who, it might be thought, is not likely to have concocted what he is alleged to have written, but is one who writes with such knowledge that he not only graphically describes an incident, but also particularizes three Australian officers by name as participants in it, and knows their rank and the battalions in the Australian forces from which they had been drawn for service. There is, the reader might think, such an appearance of intimate knowledge 1n the paragraph that though the denial is emphatic and circumstantial, the reader might believe that the 'son of a wealthy Baku o1l Magnate' would not be likely to expose himselt to actions for libel by publishing false charges against named officers whose alleged marriages to Persian girls were only three out of what he said were numerous marriages''."

Where, as in this case the viewer 1s invited to treat seriously the contributions of all contestants, it is inevitable that some ordinary reasonable viewers reacting according to their knowledge and experience of human affairs, . will be induced to accept the asertions of one party and to discount those of the other. And in this telecast the problem is presented in vivid form. Thus, one of the participants in the broadcast, Mr. Wolomby, asserts that the respondent's bulldozers have destroyed the land, the trees and the animals and that no one will bring the trees back. Mrs. Hall, in effect, asserts the same. Mr. Stewart asserts that the trees are being put back to the satisfaction of the people of Weipa

South. Mrs. Hall and Mr. Penrith assert that there is

segregation in the schools. Mr. Stewart denies this. Mr.

Miller asserts that the standard of housing at Weipa South is

so low that three feet of water comes into the houses. Mr.

It is Mr. Gyles' submission that the ordinary reasonable man in contemplation, when the question is libel or no libel, will refrain from drawing any conclusion save that there is a question or suspicion that the respondent has acted in a reprehensible way in relation to the Aborigines of Weipa. And if that is all then the imputations alleged, which are of

guilt, but not of suspicion, are not sustained. The matters

discussed in Mirror Newspapers Ltd. v. Harrison (supra) are in point. But the better view would seem to be that the

knowledge and experience of human affairs of persons in the

ranks of ordinary reasonable viewers will vary infinitely,

and, when invited, impliedly, by the telecast to treat all of it serlously, some will believe the harsh things said against the respondent and some will not. Some, influenced perhaps by the images of large bulldozers arrayed on treeless brown soil and the sad lament of Mr. Wolomby and Mrs. Hall, will believe the land is destroyed and unrehabilitated. Some will regard the credibility of the Aboriginal speakers as biased and self interested. And some, on the other hand will regard Mr. Stewart as bound to support his company and will discount his testimony accordingly. But with respect to each of the imputations it is impossible to say that some ordinary reasonable viewers calling upon their knowledge and experience

of human affairs would not accept the imputations made against

So far as it is true that some will accept' the defamatory imputations the libel is proved. Of course when one comes to damages the circumstance that the defamatory assertions were denied and to some persons, no doubt,

Mr. Gyles said that the publication of the telecast by

the appellant in this case is to be distinguished from

statements made by way of publication of rumour. Thus the party who states what 1s rumoured and is defamatory must, to support a plea of justification, prove the truth of what is said to be rumoured, because he has given his authority thereto. But where, as in this case, the appellant did not,

give its authority to any defamatory statement made by any

person or image portrayed in the telecast, and was not understood by the viewers so to do, the situation 1s different. It was the contention of Mr. Gyles that, where a defamatory statement is a republication of what another person has said, it is not a necessary consequence that the party . republishing adopts the defamatory sting. The method of republication may disassociate the publisher from the sting. In that case the republisher 1s not the publisher of defamatory matter. As Mr. Gyles said, the manner of republication may be such that the viewer understands that the republisher, 1n this case the appellant, is saying nothing at all. It will be seen merely as the provider of a forum, a vehicle by which others put forward their views. It was

described as his simple submission, that that does not involve

It was said that it was a question "of high public policy and of high interest to the common iaw of defamation" to know how the law handles the sort of programme in question in this case. If the provider of the mechanism for a telecast is always responsible for what is said by speakers in the programme then there must be censorship. In that case there will be lost to the public that open discussion which the

benefits of qualified privilege are intended to support.

Mr. Gyles sought assistance from the observations of

Griftith CJ in Ronald v. Harper (1910) 11 CLR 63 at p.77 that:

"It 13 said that when a person repeats a slander he adopts 1t as his own. That is a very good general

rule, but I decline to adopt it asa rule of invariable application. Words injurious or another may be used under such circumstances as to show that the person who has repeated them gives

them his own authority. {ft is entirely a matter of fact..."

But these observations have not been regarded as supporting the kind of submission as that made by Mr. Gyles. The observations of the Full Court of New South Wales in Wake v.

John Fairfax & Sons Limited £19731 1 NSWLR 43 at pp.49 and 50

"Another ground of appeal relates to the eighth count. Part of the matter complained of in that count was what purported to be a report of a statement by Carr including the following words: 'Details of how bookmakers Wake and Field knew Amerigo Lady was "dead" will come out either in their appeals to the Greyhound Control Board or in possible later court action.' The jury were instructed that this was capable of conveying the defamatory imputation that 'the plaintiff knew that Amerigo Lady was "doped" and had taken

dishonest advantage of that knowledge.' The argument for the appellant is that this

publication is not equivalent to passing on a rumour or embracing er adding weight to a defamatory utterance by a third party. It was, so the argument ran, merely reporting what a steward hrd said. The main, if not the sole support for this argument was Ronald v. Harper (1910) 11 CLR 63; and in particular a passage in the judgment of Griffith Cd (1910) 11 CLR 63 at p.77: 'It is said that when a person repeats a slander he adopts it as his own. That is a very good general rule, but I decline to adopt it as a rule of invariable application. Words injurious to another may be used under such circumstances as to show that the person who has repeated them gives them his own authority. It is entirely a matter of fact, and I do not think that, in a case such as this, the

jury, in finding that the defendant used these words, intended to find that he meant to re-affirm the charge.'

The Chief Justice cannot be understood to be asserting in the passage quoted that the publisher of defamatory hearsay is in some special position if he does not adopt the imputation or re-affirm

1t. He was not purporting exhaustively to state the law on this topic.

There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether 1t 1s adopted, repudiated or discounted. The purpose ot the republication will also have a significant bearing. There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable

as for defamation unless he adopts it or re-atfirms it. Principle and authority both lead

Lewis v. Daily Telegraph Ltd. [£1964] AC 234, at p.284: 'For the purpose of the law of libel a

hearsay statement is the same as a direct statement, and that is all there is to it.'

Bell _v. Byrne (1811) 13 East 554; 104 ER 486 is authority for the proposition that if one asserts defamatory matter as from himself or says that it was asserted or written by another, it is equally the subject of an action.

When a defamatory publication purports to repeat or report the defamatory statement of another it is an essentially different libel from one where the same imputation is conveyed directly. It may require to be charged or defended differentiy, but it is nonetheless libel.

In 'Truth' (NZ) Ltd. v. Holloway £1960] 1 WLR 997 which was an appeal to the Privy Council from the Court of Appeal of New Zealand, Lord Denning, speaking for their Lordships, said at p.1002: 'Their Lordships see nothing wrong in this direction. It is nothing more nor less than a statement of settled law put cogently to the jury. Gatley opens his chapter on Republication and Repetition with the quotation: 'Every republication of a libel is a new libel, and each publisher 13 answerable for his act to the same extent as if the calumny originated with hin.'' Gatley on Libel and Slander 6th Ed. (1967) now adds a note as to Lord Denning's apparent approval."

There is, however, in any event, a difficulty in accepting the submission that, in relation to the telecast ot 19 and 20 May 1979, the appellant was in any sense the mere

provider of electronic equipment to persons desiring to put

forward points ot view on a public question. This telecast was made on the initiative ot the appellant as part of the activity ot "Four Corners" as an entity whose function it was to provide entertaining and high class material including unformation on public questions. This activity involved Four. Corners using its equipment, on occasion, as a vehicle which enabled persons to telecast their views. But this programme was and was understood to be a Four Corners programme in which it purported to inform viewers as to what was said and shown in the Granada film. It was presented under the general control and direction of Four Corners, the content thereof being its choice. The telecast the subject of this case was peculiarly that of Four Corners. The film which was shown was one which Four Corners had purchased and made its owm property. It did this for the express purpose of itself presenting the words and images therein as a matter of interest to the Australian public. Four Corners was proud of its initiative in obtaining the film. It realised that portions of it would shock viewers and in that sense was good television. It was part of Four Corners modus vivendi to present itself as an energetic, progressive and efficient purveyor of entertaining and well informed programmes. [t had its own reputation to think of and develop. And by introducing comments of its own it set up what may be called the atmosphere, namely an expectation of disclosures of hardships suffered by the Aborigines arising out of mining

operations in Queensland in relation to which the respondent

was named as a mining company having a relationship of

potential benefactor towards the local Aborigines. Four

Corners introduced the programme ina trailer showing an

"Why can't they give us back our land? If not, why can't they stop the mining, or give compensation

to the people, where we could go back to our tribal lands."

"A moving response to one impact of mining in Australia, seen in the recent controversial British current affairs report."

In the opening of the programme itself the compere said:

deal in their own land -- illustrations abound, most prominently in country town fringe dwelling, where the scandal of black infant mortality,

unemployment levels and rampant sickness confronts us all,

But Australia's heightened conscience about Aborigines is a product of the 60s and 70s. When the national focus is on uranium in 1979 as it

were, then recent but earlier arrangements can be overlooked and often forgotten.

For example, Comalco in 1957 signed a mining agreement with the Queensland State Government, which as well offered Aborigines a good deal -- it was a lease to mine bauxite at Weipa. Not only an exciting new mineral development but a bonus for Aborigines on a remote reserve -- they would be given work, financial assistance and the prospect of a new life in a new community.

This year that community was examined by a British current affairs team -- an outsider's view of the way we look overseas.

The result was shown to more than 20 million viewers in the United Kingdom. It coincided with an activist campaign mounted by Aborigines to bring their case to international notice in Europe and ultimately to the United Nations.

The two combine to bring alive once again, and into critical attention abroad, the vexed issues

When Four Corners decided to replay the Granada Film ut knew what was init. Clearly, it knew that parts thereor were - critical of the respondent's conduct in relation to the Aborigines and also defamatory. And so far as statements and images were defamatory it was the decision of Four Corners that those statements would be made and that the defamatory sting therein, if there were such sting, should take effect, albeit, that the sting would be understood as not being put

forward as representing the views, of Four Corners. Four

Corners were aware of every word and image that was to be presented in the telecast. It edited the materz1al to avoid

Realising that the Granada film contained much material critical of the respondent it designed a debate at which representatives of the Aboriginal people and the local manager of the respondent would have an opportunity to contribute. It was the decision of the appellant that the words and images of the Granada film and the material in the debate should be telecast. It did not make its facilities available to any party. It used its facilities for its own purposes which were to portray matters of public interest and to perform its function in an entertaining way so that the reputation of Four Corners as part of the appellant would be maintained and

enhanced and the public would be informed. In these circumstances it is quite unreal to suggest that Four Corners

in presenting the programme in question was merely providing

the vehicle for persons desiring to discuss a current affair

publicly to do so. The method of presentation would not have

It 18 a consequence of this assessment of what 1t was - that Four Corners was engaged in, in presenting the programme, that in respect of each of the imputations made in the

programme the answer to Mr. Gyles' second question must be

But that does not mean that the statements of speakers in the programme would be understocd as being put forward by Four Corners as statements of fact made by or of opinion held

by it. It would be understood by viewers, certainly in

general, that Four Corners was not expressing any views of its own on the matters dealt with in the programme. But it was impossible for a person in the position of Four Corners to Present and publish matter spoken by strangers which was defamatory of other pérsons, wash its hands of the responsibility for what was shown and depicted, and take up the attitude that it had no connection with the defamatory

sting, if any, in the statements and images in the telecast.

At the same time, so far as the images of the locality and activities thereat were presented in the programme, viewers would understand that Four Corners was presenting them as images actually observed through the cameras of Granada when it made the film, and as representing features which the

viewer could accept as authentic. Subject thereto, so far as

the images contributed to the making of any of the amputations, the situation 1s the same with them as with the statements of fact and comment made by speakers. They are images which Four Corners chose to present and which it did present as statements attributed to another, namely Granada, ~

The circumstance that viewers would understand that, in

general at least, Four Corners was not expressing any views of

its own as to the propriety or otherwise of the conduct of the respondent raises questions for consideration in relation to the defences of fair comment and qualified privilege, but does not throw doubt on the proposition that such defamatory matter as was contained in the telecast was published by Four Corners

As to the first imputation, that the respondent treats the Aborigines at Weipa shamefully, the conclusion of the learned Chief Justice that the imputation was made in the telecast, that it was made of the respondent by the appellant and that it was defamatory, was in my opinion correct. The other imputations found to have been made of the respondent by the appellant support the overall imputation that the telecast as a whole detames the respondent by saying in various ways

that the respondent treats the Aborigines at Weipa shamefully.

This imputation is but a reflection of those other more specific imputations. In addition the Granada film is constructed from first to Last to suggest that the respondent and its parent companies are exploiting what was an Aboriginal reserve, making large profits, neglecting the housing and health of the Aborigines, denying them compensation, destroying their hunting and recreational lands, discriminating against them in living standards and ignoring the social evils caused by drink for which they are ultimately

As to the imputation concerning the treatment of the Aborigines like dogs, the second imputation, it is conceded by the appellant that these words appear in the programme and were spoken of the respondent. In the light of the foregoing the answer must be that the words were published by the appellant. The only question therefore is Whether the imputation alieged, does, in the light of the programme as a

It is the appellant's contention that, taking the telecast as a whole, the imputation that the respondent treated the Aborigines like dogs just did not arise therefrom. It 1s put that the critical question is what impression would be made in the mind of the ordinary reasonable viewer of the telecast upon viewing and hearing the whole of the programme. The submission is that there is so much said of the benefits

bestowed upon the Aboriginal people of the area that a viewer

assessing the programme as awhole, just would not draw the conclusion that the message ot the telecast was that the respondent treated the Aborigines like dogs. Thus, it was pointed out in the programme that the respondent had contributed much money to the Aboriginal Assistance Society ~ and indeed had set it up and that it had contributed to various facilities at Weipa South. But in submitting an argument of this kind it is important to have regard to the nature of the publication. In the course of a monograph canvassing various views of the conduct of persons it may he natural for the reader or viewer to form a view of what, in the end, the publication 1s saying about the conduct in question, treating specific statements as subject to qualification. But where what is submitted are the statements of various persons as to alleged conduct of others and the statements are in the form of accusation and refutation thereof, and the contending statements are all put forward as statements to be taken seriously, the viewer 1s left to make up his mind whether or not he accepts the accusation. The situation may well be that certain ordinary reasonable viewers will believe the accusation and others will not. And while in the mind of relevant viewers, the accusation stands as something not refuted or washed away, it remains, even after the telecast 1s considered as a whole, asa straight out statement defamatory of the party accused. And that is the situation 1n relation to the second imputation. Taking the telecast as a whole, some reasonable viewers might have good reason to and believe that imputation. Thus Mrs. Hall states

that they are treated like dogs. The viewer 1s told and shown

that the Aborigines live in poor standard houses and are in a cramped area and that there is drinking which 1s said to have been introduced by the respondent. They are told other tacts suggestive of the Aborigines being disadvantaged by the respondent's mining operations and conduct. But there is no~ refutation of the fact that the Aborigines lived in poor housing, cramped areas and that the respondent introduced drinking. Accordingly, the statement that the Aborigines are treated Like dogs has a foundation which is cerainly not

It is, I think, impossible by any bane and antidote approach to eliminate from the telecast the defamatory imputation that the respondent treated the Aborigines like

It is another question however whether the statement is to be regarded as one of fact or comment. The learned Chief Justice considered 1t to be comment. The respondent contends to the contrary. It was necessary for it to show at least that the decision of the Chief Justice was manifestly wrong. But the relevant passage appears after a recital of conduct of the respondent criticised by Mrs. Hall and after the reporter in the film said to her, in effect, that she had no high opinion of the respondent's conduct. She confirmed this with

emphasis, giving her opinion that the respondent's conduct was

As to the third imputation, namely that the respondent had brought the Aboriginal community into shame and disgrace, the questions are whether the imputation which, if made was clearly defamatory, was made at all, or of the respondent, or made by the appellant. As indicated above, this last question .

The third imputation was that arising from the following

"... and, again what they brought to the community was shame and disgrace to the people, brought in drinking -- that's the worstest thing, after destroying our land, taking the land away from us, which now today most of the younger ones are suffering; also not only the younger ones, the married people whose homes are broken, children deserted, deaths and accidents."

One question 1s whether the imputation is made of the respondent. The learned Chief Justice decided that it was and I am unable to say that he was in error in this. The appellant suggests that the imputation is made of the white people generaily or the Government of Queensland in sanctioning the whole enterprise and the bringing in of drinking. The learned Chief Justice took the view that the imputation was made of the respondent. The words were spoken

got good housing, they've got good parks, lawns, alr conditioned homes. Which for blacks, we are

in one little block. All they did was gave us these few houses what I call them Box Houses, and that's the only thing that they have given us. Not all the men are employed, there are about twelve or twenty. Young people who leave school

and who have passed their exams, can ask tor a job

• they can't get a job.

And ot course, there 1s still discrimination between the blacks and the whites in the school. The blacks are in one class, and the whites are in one class. And again, they brought to the community was shame and disgrace to the people - brought in drinking, that's the worstest thing after destroying our land, taken the land away from us which now today, most of the younger ones are suffering. Also not only the younger ones, the married people whose homes are broken, children deserted, deaths and accidents. These

are the problems we are facing. How could we stop them? "

When she refers to "they" in this monologue Mrs. Hall would be

regarded as casting a wide net extending over all those reasonably indicated in the telecast. Those so indicated may

be identified from the terms of the monologue and the rest of the telecast.

The opening comment of the compere in the trailer referred to above are material to the question. The Granada

" This is the Aurukun reserve on the remote northern-most tip of Queensland -- these are some of the most under-privileged people in the world, yet they live in one of the most richest countries. They're Aborigines, the first Australians.

where they still live on their own land. Now that last foothold is under threat.

Fifty miles away, here at Weipa, is the world's biggest bauxite mine. Strip-mining on a massive scale produces the vital raw material for one in five tons of the western world's aluminium.

Ten thousand miles away in London, the Weipa mines profit have helped create the world's top international mining group, whose discreet

the white settlers first arrived." Mrs. Hall's comments are made after the "reporter" has drawn attention to various circumstances. They are that strip mining 1s being conducted at Weipa, the profits from which have helped to create Rio Tinto-Zinc, the world's top international mining group "which doesn't draw attention to its spectacular success". Rio Tinto-Zinc's major Australian subsidiary is "in the forefront of the struggle between mining

companies and the Aborigines", that struggle is unequal

because it 1s between Australia's most influential business

and the people on the bottom rung of its society, that Rio Tinto-Zine's profits were 270 million dollars in 1978 nearly half of which came from Rio Tinto-Zinc's 73% owned Australian subsidiary CRA which owns 45% of the respondent. Also that the respondent leased 2400 acres of a former Aboriginal reserve from the Queensland Government in 1957 and conducts large open strip mining thereon. Also that the Weipa mining agreement bound together the respondent and the Queensland Government for more than twenty years, the respondent paying royalties to the Government but "Comalco didn't pay the

It was pointed out also by the reporter in the Granada tilm that the respondent built a town at Weipa North for 3000 people predominantly white who enjoy luxuries and facilities available elsewhere, that most of the Aborigines "dispossessed" trom their former reserve, live at Weipa South . which 1s what remains of the reserve and is "run by Comalco's

In this setting Mrs. Hall speaks of the destruction of the Weipa bush, the beauty of which is now gone, the area being "ripped out" leaving big holes, the place being red and dusty. Mrs. Hall refers to the white people in Weipa North with good housing and other conditions and says, "all they did was give us these few houses". She adds that the young people cannot get employment and that there is discrimination in the

schools on racial grounds between blacks and whites.

It is against this background that Mrs. Hall spoke what I have called her monologue. As to who "they" are the ordinary reader would be likely to note that "they" are the people who have destroyed the land and failed to employ the Aborigines and of whom Mrs. Hall spoke when in answer to the reporter's question "So you wouldn't say that in fact Aborigines are treated the same way as Europeans as far as Weipa and Comalco are concerned?" and she replied, "No ~ we

respondent by the reporter, especially his emphasis on the

profitability of Rio Tinto-Zinc, CRA and the respondent, the 1dentification ot Comalco as the actual strip miner at We1pa and the builder ot Weipa North, the references to the potential employer who has tailed to employ, are plainly to the respondent. The ordinary reasonable viewer could hardly - fail to understand that Mrs. Hall was blaming the respondent primarily and perhaps also the Queensland Government for all the various disabilities referred to in the monologue as being

Accordingly, the conclusion of the learned Chief Justice

that the words complained of were used of the respondent is

But it is also a question whether the imputation is made at all in the programme. It is pertinent to ask whether Mrs. Hall should be understood to be saying more than that the respondent brought in drinking and as a consequence shame and disgrace followed. To say of the respondent that it brought in drinking, and shame and disgrace resulted, is very different from saying, simpliciter that the respondent brought shame and disgrace to the people or even did so by bringing in drinking with overtones that it knew or ought to have known that Aboriginal shame and disgrace would follow. Taking Mrs. Hall's statement as a whole there is the categorical statement that the respondent brought shame and disgrace to the people, but it is immediately qualified by Mrs. Hall giving particulars of the sense in which she used that statement. It

is a genuine case of bane and antidote. To my mind the

message she conveyed was that the respondent brought in drinking and shame and disgrace to the people was a consequence of that. There is no suggestion in what Mrs. Hall said that the respondent was responsible for the shame and disgrace resulting from bringing in drinking on the ground" that it knew or ought to have known that 1f it brought in drinking shame and disgrace would follow. The imputation which does arise, namely that the respondent brought in drinking, is not the imputation which 1s pleaded. If it had been pleaded it would not have been defamatory. In modern conditions to provide drink and drinking facilities in any community, although deplored by many people, cannot be regarded as deserving condemnation. Accordingly imputation

number three is not shown to have been made in the telecast.

The appellant's primary submission in respect of both these alleged imputations is that they do not arise from cne

words and images said by the respondent to support them.

(a) portion of the editorial comment by the compere of the

"For example, Comalco in 1957 signed a mining agreement with the Queensland State Government, which as well offered Aborigines a good deal --- it was a lease to mine bauxite at Weipa. Not only an exciting new mineral development but a bonus for Aborigines on a remote reserve --- they would

be given work, financial assistance and the prospect of a new life in a new community."

(B) the statements of the reporter 1n the Granada tilm,

"Now such mining is seen as a continuation of the shameful treatment Aborigines have suffered since the white settlers first arrived. ... Rio Tinto-Zinc's major Australian subsidiary is in the forefront of the struggle between mining companies and the Aborigines. But the struggle is unequal -~ Australia's most influential business interests un conflict with people on the bottom rung of its society."

"Nothing has changed from the days when the early settlers wanted the land for, for pasture, for the

grazing of their sheep and cattle. In those days they, they went out and they killed Aboriginal

people. They shot them down, they poisoned their water holes, they poisoned their food -- today it's done a little bit more subtly. They're doing it by other means, by moving in with the bulldozers and flattening the lands of the Aboriginal people. And when they destroy the land belonging to the Aboriginal people, they destroy the Aboriginal pecple themselves." The learned Chief Justice found that the imputations numbered four and five were made in the programme, that they were made ot the respondent and by the appellant. Of course

respondent at Weipa. The real question is whether the words

and images would convey to the ordinary viewer that it is being said that the respondent by engaging in that mining

deliberately kilis or has killed Aborigines or deliberately

kills Aborigines so as to obtain the benefit of their land. And the critical question is whether the ordinary viewer would understand from the words and images that it was being said

that the respondent engaged in killing which was deliberate.

The relevant passages state that the early white settlers treated the Aborigines shamefully and that the current mining is seen as a continuation of that shameful treatment. Mr. Miller explains that nothing has changed. I think at that stage he 1s to be taken as asserting that shameful treatment is continuing. He then goes on to explain that the early form of shameful treatment was for the settlers to shoot the Aborigines and poison their water holes and kill them to obtain the land for grazing. He goes on to say that today "it's" done more subtly and "it" is being done by other means. And whatever "it" i3, is being done by the miners by other means. In other words there is no shooting or poisoning of wells but the objective is achieved "by moving in with the bulldozers and flattening the lands of the Aboriginal people". In the whole of the passage to that stage Mr. Miiser has been referring to the methods by which the white men took the land, in the early days by killing, and in present days by bulldozing the land. In other words the respondent does not achieve his object by killing. The final passage spoken by Mr. Miller indicates that bulldozing destroys the land and that that destruction of land destroys the Aboriginal people themselves. Looked at fairly that last passage has the appearance of the giving by Mr. Miller of a piece of

information to viewers, so that they would understand that

destruction ot the land ot the Aboriginal people operates to destroy the people.themselves. That result is stated to be a consequence of the destruction of the land. And undoubtedly Mr. Miller 1s saying that as a result of destruction ot the land which is being engaged in by the respondent, if carried . out to aie sufficient degree Aboriginal people will be destroyed. But so to say is far from saying that the

respondent deliberately kills or has killed, or intends or ever intended to kill Aborigines. That could possibly be imputed 1f words were used indicating that the respondent knew, when 1t engaged in the bulidozing, that the result of bulldozing would be to "destroy" the land in the sense referred to by Mr. Miller and that as a consequence of such destruction Aborigines would die. In the absence of words 30 indicating there is no element of deliberation in the alleged causation of Aboriginal deaths by the conduct of the respondent, even if what was done by it was to destroy the land, in the relevant sense. The imputation in both the fourth and fifth imputations is not that as a consequence of bulldozing of the land for the purpose of the mining there

were deaths of Aborigines. It is that the respondent deliberately killed Aborigines. It is my view, therefore,

that 1t was an error to hold that imputations four and five arose from the telecast.

There 18 another approach which to my mind is valid and leads to the same result. Viewers would know that, so far as

the land could be said to he destroyed, it was destroyed in a

Special sense. The top layer of the vegetation of a

substantial area, not being most of the reserve, had been removed. But 1t could recover, and in every real sense, the land itself remained in situ and as such was not physically destroyed. It remained living earth. To speak of the destruction of the land was to speak figuratively rather than ~ literally. To speak in the same figurative sense about consequential destruction of the Aboriginal people was not to import the notion of physical death, but something short of

The connection of the Aborigines with the land is inevitably a spiritual thing. But even to destroy the spirit of the people is not to kill them. To speak of destroying the people, by destroying their land is to refer to an assault on the spiritual bond between the land and the Aborigines. The fruitfulness of the land may have been lost but the land persists. The fruitfulness of Aboriginal existence may have

been lost, but the life of the Aboriginal people persists.

Accordingly, I do not consider chat i1t 1s possible to conclude, from the words and images relied upon, that the

respondent deliberately killed any Aboriginal people.

As to the sixth imputation concerning the allegation of lack of integrity on the part of the respondent, the appellant contended that the words used would not be understood as words implying a reprehensible attitude or reprehensible conduct on the part of the respondent, but would be understood rather as

creating only a suspicion or suggestion of attitude or conduct

actually reprehensible. As guilt and not suspicion was pleaded as the imputation, only the lesser defamatory element was shown and was not pleaded. However, the learned Chief Justice concluded the words implied an actual lack ot integrity and decency on the part of the respondent and I~ cannot see any reason for a challenge to that conclusion. The appellant also contended that the second question should have been answered in its favour. But as indicated above it is not possible to take the view that the imputation is not made by

As to the seventh imputation, it is areal question whether it is said of the respondent that it is responsible for segregation. The appellant relles on the refutation by Mr. Stewart of the allegation that there is segregation in the debate. But Mr. Stewart knowing that 'the respondent was heing blamed for the alleged segregation, dealt with the question as though the real point, so far as he was concerned, was not whether the respondent was responsible for it, if it existed, but whether in fact it did exist. And the questions put to him by the Four Corners interviewer, Mr. Ross, are in the same vein. It is quite apparent that Mr. Ross was aware that Mr.

Stewart's role was to protect the respondent from allegations

made against it. He describes the matter of education which has arisen in the telecast as a very important matter, namely, whether there 1s segregation in fact. There is then assertion and counter assertion between Mr. Penrith and Mr. Stewart as to the fact. Underneath is an assumption that somebody,

allegedly the respondent, was to blame for segregation if it

existed. There was no protest by Mr. Stewart that ir there was segregation the respondent had nothing to do with it, .1t being a matter ror the Education Department. {r the respondent was not responsible for segregation, if it existed, a protest to that etfect from Mr. Stewart would have been - natural. The absence of such protest could not fail to have an influence on the understanding of the ordinary reasonable viewer. Mr. Stewart's attitude would tend to support the allegation made in the telecast by Mrs. Hall in direct terms,

and Mr. Penrith by implication, and which was impliedly wrapped up in the attitude of Mr. Ross, that if there were

segregation that was a matter for which the respondent had at

If one looks at what was said by Mrs. Hall it is clear that she said that the respondent was responsible for

"The white people are in the best places, they've got good housing, they've got good parks, lawns, air conditioned homes. We blacks ~- we're in one little block. All they did was gave us these few houses what £ call them Box Houses, and that's the only thing that they have given us. Not all the men are employed, there are about twelve or

twenty. Young people who leave school and who have passed their exams, can ask for a job - they can't get a job.

And of course, there is still discrimination between the blacks and the whites in the school. The blacks are in one class, and the whites are in one class. And again, they brought to the community was shame and disgrace to the people - brought in drinking, that's the worstest thing after destroying our land, taken the land away from us which now today, most ot the younger ones are suffering. Also not only the younger ones, the married people whose homes are broken, children deserted, deaths and accidents. These

are the problems we are tacing. How could we stop them?"

In this speech of Mrs. Hall it is clear that every wrong alleged is attributed to the respondent. It 1s the respondent which has given just a few houses, who fails to employ ~ Aborigines, who committed "the worstest thing" in bringing in

drink, atter destroying the land. Discrimination in classes

1s in a central part of the catalogue of conduct of the respondent detrimental to the Aborigines. I[t is apparent that Mr. Ross proceeded on the unspoken assumption from the material in the telecast that the allegation was that if there were segregation the respondent was responsible for it. I am unable to respond to the submission that the learned Chief Justice was in error in concluding that the imputation made in the telecast was that there was segregation and that the

Mr. Gyles referred to the passage in the judgment of the

learned Chief Justice numbered 2.46 in the following terms:

"The next question is whether these words and images are defamatory of the plaintiff. It was not suggested that the imputation, as alleged, was not defamatory of the plaintiff; the defendant's contention was that the imputation alleged was not a proper or reasonable inference from the telecast, when the whole context was considered. The defendant's contention was again the 'debate' argument. This time it was fortified by an argument based on the actual words of the discussion between Mr. Ross, Mr. Penrith and Mr. Stewart. The defendant relied on Mr. Stewart's flat and emphatic denial that there is any segregation, which is repeated after Mr. Penrith's allegation. It was said that Mr. Stewart on the whole has the better of Mr. Penrith in the debate and that the reasonable viewer would therefore accept that there was no segregation in the

schools at Weipa. This argument was presented as an alternative to the argument as earlier explained, namely that the whole telecast conveyed the idea of discussion, that both sides were put, and that the viewer was left in a state of irresolution. In my opinion these arguments ali fail. The topic is particularly unsuitable for resolution by way of discussion or debate; the matter is purely one of fact; did such a rule or practice exist 1n the schools or not? Issues of fact cannot be resolved in a telecast by assertion and counter-assertion by persons who claim to know the truth, however evenly balanced the assertions May be. In my opinion, the assertions of Mr. Penrith and the counter-assertions of Mr. Stewart are evenly balanced and would not leave the reasonable viewer to conclude that there was no segregation."

Mr. Gyles contended that the considerations stated by

his Honour could provide ground for a tribunal of fact decide that the defamatory statement was not being made

that his Honour tailed to come to grips with that point.

",..the way in which Chel] deals with the so called resolution of the issue of fact is quite unsatisfactory. True it is the question is: Does a rule or practice exist in the relevant school or schools? Now, how is that to be resolved? It can be resolved by hearing from people who know what the situation is. Both Mr. Stewart and Mr. Penrith asserted that they did and here we have a situation which the viewer has the benefit of seeing both of them present their point of view. What better way of helping the public to resolve a public issue than to present the evidence of people who claim to know? And the viewer may be satisfied one way or the other or he may remain unsatisfied, but in my submission it is wrong to say that the topic is unsuitable for resolution in that fashion.

SMITHERS J: If you cannot leave it Like that, you cannot do it at all.

MR GYLES: Yes, that is right because how else - it does not matter how many witnesses you

call, there 1s always a question of fact involved, is there not?

MR. GYLES: Because the Education Department say there 15 not does not establish that there is

not, and because the Aboriginals say 1t does exist does not establish that it exists.

MR. GYLES: ... what his Honour did not do was to consider what effect the counter balancing assertions had upon the statement that is being made by the programme. In my respectful submission either our principal submission 1s correct that the ABC is simply saying nothing or, alternatively, if it 1s

saying anything it is saying that there is a question ot fact here which has to be

determined and that some people take the view that there is segregation in the schools in Weipa. That of course is not the imputation pleaded."

These comments appear to me to go to the root of the problem facing the publisher of material on controversial public issues particularly those where the conduct of persons is itself a matter of legitimate public interest. As indicated below if the programme is genuinely of such public interest that according to modern standards and conditions there was a duty to publish material relating thereto, defamatory material therein is privileged and without liability unless malice is proved. Thus, when it is said in a programme that the respondent engages in segregation of school children on the ground of race or colour and that is not justified there will be liability for the defamation if the person defamed shows that the publisher was guilty of malice. There can be little

doubt that an imputation that the respondent was responsible

As to the eighth imputation it 1s put for the appellant that 1t 1s not detamatory to say that a business entity is carrying on its activity within the limits prescribed by the law. To be defamatory of a trading corporation the relevant © imputation must injure the reputation of the corporation in

It ts said further that 1t was not defamatory tor Mrs. Hall to say that poor standard houses at Weipa South were all that the respondent had given to the Aborigines there. There is no obligation shown to exist by reference to which it was reprehensible in the respondent not to supply houses in Weipa South of the same standard as those at Weipa North or of any Particular standard. Some basis might have been shown if the allegation were linked to broken promises. But the respondent did not sue in respect of broken promises. So far as any fault could arise in the respondent for not supplying the

Aborigines at Weipa South with houses of the Weipa North

standard there would have to be alleged an obligation to supply better standard houses. Mrs. Hall's statement that the white people are in the best places with the best housing and all they gave Weipa South is those few box houses cannot be defamatory unless there is wrapped up in that = statement simpliciter, or taken with other factors in the telecast, that it was in some way reprehensible on the part of Comalco, as a trading corporation, not to supply better housing at Weipa. It is one thing to say they were not generous to people in the

corporation. In his summation of his reasons ror finding that imputation number eight was made in the telecast and made of

"The imputation as pleaded means 1n my opinion, that the plaintiff is responsible for the unequal treatment of the blacks and whites at Weipa, because of what it deliberately does and refrains from doing. As for the meaning of the word 'discrimination', in my opinion the ordinary usage of the word in the community generally, in the 1970's and 1980''s, implies not merely difference or distinction, but 'unequal treatment' and it carries a very strong pejorative flavour against the person practising it; discrimination, in this sense, is generally thought to be a wrongful

activity. The plaintiff itself recognized this in its framing of the imputation, that the plaintiff

aboriginal community'. In my opinion the words and images are capable of meaning that (whatever

the Government of Queensland) the plaintiff is responsible for, in the sense that it is morally

aboriginals." But the imputation is not that the respondent was responsible for unequal treatment of the blacks and wnites but that the respondent actively discrimates between them in matters in which it is somehow reprehensible for it to do so. However, it is difficult to resist the conclusion that the message carried by Mrs. Hall and Mr. Penrith to viewers is that the standard of housing at Weipa South is deplorable. And this is supported by observations of Dr. Hollows. Included in the message, by implication, is that a self respecting mining company operating in the circumstances and having regard to

the past history of the Weipa project would have done much

better 1n the provision ot houses for the Aborigines at Weipa

South. Those Aborigines, so the message 1s, had been moved, against their will, from their homes to We1pa South. That there was responsibility in the respondent for the proper housing otf those persons 1s implied from the words or the compere in the introduction of the telecast that the project © would be a bonus for the Aborigines. It is implied also from the words ot the pledge given by the respondent to. the Queensland Government that the project "will be the front door of our development. If we do not make this place impressive, any visitor coming to this place will say, what sort of a

To my mind the telecast carries the message that the respondent had a responsibility for housing the dispossessed Aborigines, that it had acknowledged such a responsibility and that the standard of housing at Weipa South was at an unacceptable low standard, strikingly different from that

provided at Weipa North. Once there is the message that the respondent did have a responsibility for the housing at Weipa and that the houses at Weipa South are so poor and those at Weipa North so good, the inference that there was discrimination in housing against the Aborigines is a clear one. Again Mr. Stewart does not deny that there was a responsibility in the respondent as to the houses at Weipa

South. He merely argues that they are not as bad as is

organization may, as an aspect of carrying out its trading

activities have responsibilities of a social character in relation to employees, and neighbours inthe locality, is accepted. [t is not to be regarded as novel that where a company receives a licence to occupy and use land on which local people have been settled for a long time, and the project is likely to be profitable, that it would in its own trading interests attend to resettling those people. It

appears to me that 1t is inevitable that the conclusion of the

learned Chief Justice in this respect should be accepted.

With respect to that part of the imputation as relates to health, a similar situation exists and the same conclusion is to be reached. There is much in the passages out of which the imputation 1s said to arise which puts responsibility for the different standard of health on the respondent and which asserts that the respondent- has responsibility for the lower state of health of the residents of Weipa South, particularly the children, and that for the respondent to permit continuation of the markedly lower state of children's health

Accordingly, in my view, it was not established that the conclusion of the learned Chief Justice that the eighth imputation was defamatory and made by the appellant of the

As to the ninth imputation the learned Chief Justice found that it did not arise from the words and images ot the

As to the tenth imputation, namely, that the respondent does not attempt to restore the environment at Weipa affected by its mining operations the learned Chief Justice found this imputation did arise from the telecast that it was made of the respondent by the appellant and was defamatory. In my view

The assertions that the respondent has "destroyed" the land, that the animals and birds were gone and that no one was going to bring them back again, that the shameful treatment of the early days was matched by the moving in of bulldozers and

flattening of the lands of the Aboriginal people, the statement of Mr. Penrith that the respondent was prepared to

rip off as much of the land as it wanted, are relevant. The repeated images of mighty bulldozers and red earth, the result of bulldozing, and the absence of any sign of rehabilitiation carry the implication that at the time of the telecast the

land is still in its bare "ripped off" condition after

In the "debate"" towards the close of the telecast Mr. Stewart said "There's a statement that nobody's going to put back the trees. The animals aren't going to come back. That is completely inaccurate because the trees are being put back. The trees are being put back to the satisfaction of the people of Weipa South. The animals are coming back into the

regenerated areas. And yet this sort of statement is made in

that film and its just completely inaccurate. It is wrong.

This is a spirited reply and the Court had evidence before it which confirms Mr. Stewart's assertions. But the impression created by the other statements and images is so strong that it is not to be doubted that many reasonable people viewing the telecast would gain the impression that

nothing had been done to rehabilitate the bulldozed area.

Accordingly, it is my view that the conclusion of the

Chief Justice as to the tenth imputation was correct.

I conclude that, the first, second, sixth, seventh, eighth and tenth imputations are established as defamatory imputations made in the telecast of the respondent by the appellant. The third, fourth, fifth and ninth imputations

were not established as having been made in the telecast.

In the reagons for judgment ot the learned Chiet Justice his Honour pointed out that the respondent's special position as the grantee of a mining lease, giving it the right to conduct profitable mining operations in circumstances in which its activities may have an effect on the lives of Australian citizens, and in particular of Aborigines who live in the area where it conducts its operations, puts it into the category of entities whose activities are properly the subject of public interest, and even scrutiny, and that 1t is morally obliged to submit to such scrutiny. His Honour might have added that the

lease was of land which was formerly an Aboriginal reserve of

some three thousand square miles under the law of Queensland. The mining lease granted in 1957 was originally all of that area less one square mile. That square mile was the site of the town of Weipa South. Later the lease was considerably reduced in area but the reserve remained limited to one square mile. However, whilst recognizing the validity of the public's interest in the matter and that public scrutiny of the operations ot the respondent was appropriate, his Honour posed what he considered the critical question, namely, whether the public interest in the scrutiny of the respondent's activities was so great that the appellant was under a duty to publish observations of its servants, of television reporters employed by other companies and of members of the public, even if those observations were defamatory of the respondent. As his Honour said in another passage in his reasons "the question is

whether the defendant had a duty to publish the material which

is defamatory of the respondent". His Honour found no such

duty and concluded that the defence of qualified privilege was

not available to the appellant in the case against it.

His Honour also rejected the plea of qualified privilege so far as the appellant sought to invoke the notion that the publication 1n question was justifiable as a statement to the Australian community of the views expressed overseas upon the conduct of an Australian mining company and upon Australian government policy in relation to the Aboriginal people and the environment. And his Honour also rejected the plea so tar as it was based on the statutory duty of the appellant under

s.59(1) of the Broadcasting and Television Act 1942.

However, in his approach to the defence of qualified privilege so tar as it rested upon the validity of public interest in and public scrutiny of the conduct of the mining company, the view was taken by the learned Chief Justice that that defence was not available in respect of any statement published which was defamatory of the respondent. An alternative approach to the question would have been to ask whether, having regard to the nature of the subject on which the publication was made and the circumstances in which it was made, there was a duty in the appellant to publish information, albeit defamatory, on that subject and a legitimate corresponding interest in the viewers to receive at. If the answer to this question were in the atfirmative, the occasion would be one of qualified privilege which,

however, would be lost 1f the occasion were shown to have been

abused, in other words, if the appellant were shown to be

To determine whether there 1s an occasion based on the existence of a relevant duty one does not look for a legal duty. A moral duty is enough. One view 1s that the existence of either duty depends on the nature of the subject matter and the nature of the interest therein of the audience. The other view 1s that it depends on the extent and justification of the publisher's belief in the reliability of the matter published.

To my mind the better view 1s that the subject matter and the nature ot the interest of the audience therein provide the

basis for according privilege to the occasion if, out of that interest, the social or moral duty to communicate arises. In Watt _v. Lonqsdon £1930] 1 KB 130 Greer LJ at pp.152 referred to the words of Blackburn J. "that where a person is so situated that it becomes right in the interests of society that he should tell a third person certain facts, then if he bona fide and without malice does tell then it is a privileged

"These words clearly indicate that the privileged occasion is based on a duty in the person making the communication to do what is right in the

interests of society. It may be, of course, that the interest of the person receiving the communication is of such a character as by its very nature to create a social duty in another under the circumstances to make the communication that he does infact make. In such a case the cause of the privileged occasion 1s not merely the interest ot the recipient; it is that interest plus the corresponding social duty which arises in the circumstances of the case by reason of the mature of the interest. ... In his judgment Lindley LJ cites with approval the following words

Spyring 1 CM & R 181, 193: 'If fairly warranted by any reasonable occasion or exigency, and honestly

common convenience and welfare of society.' These words seem to me to indicate that there must be

'reasonable occasion or exigency.' Assuming that the defendant has no common interest with the

person to whom the libel 18 published, and it is necessary that there should be some moral or social duty to make the communication, what 1s the test by which duty 1s to be determined? This may be a question which it is very difficult to answer. Opinions may easily differ as to whether the circumstances are such as to make the

communication a moral or social duty. ... But it is well settled that whether an occasion be privileged or not is a question for the judge, though he may ask the jury to determine any particular facts that are in dispute. The only guide one can get from previous decisions is to he obtained from the judgments of the Court of Appeal in Stuart v. Bell £1891] 2 QB 341, 350. There Lindley LJ says: 'I take moral or social duty to mean a duty recognized by English people of ordinary intelligence and moral principle, but at

communication?" Accordingly, in matters depending on public interest there is a privileged occasion if the publication 1s of information on a subject of legitimate public interest of such a nature that for the convenience and benefit of society there is a duty in the publisher to publish (compare Gatley 8th Edition para. 503). If it is said that there is no occasion unless the publisher has good reason to think that what he is saying is true the freedom to publish may be unduly fettered. [t may be said, however, that the contrary view validates an undue freedom to defame. But the loss of privilege if the occasion

is abused is no doubt a potent corrective of that. In the

case of the "exceptional cases" referred to by Lord Diplock in

Horrocks v. Lowe £19751 AC 135, the publisher may have no reason to believe what he publishes and may possibly disbelieve 1t. Yet, the occasion is privileged because of the paramount interest which the audience has in receiving the information. [ft it is said to a person that someone well

known to him as an honest and sane person has planted a bomb

behind the book case in the Court library, the person so unformed will not believe it, but the passing of this information to those in the library and probably to the police would be privileged. The audience would have an interest of great weight and peculiar significance. Accordingly, privilege may exist although the publisher believes the matter published to be untrue where there is a sufticient interest in the potential audience to receive the published material. Thus, the quality of the occasion as one of privilege depends rather on the nature of the subject matter and of the interest of the audience therein, than on the degree of belief of the

Perhaps, except with respect to the onus of proof, it is amatter of little importance whether the occasion arises merely out of the subject matter and the legitimacy of the interest of the audience therein, or, whether there is no occasion unless it is also established that what was published was believed or that the urgency of the circumstances justified publication of something not believed. If there is no belief or no sufficient belief in the truth of what is

published the defendant may fail to establish the relevant

duty. On the other hand if the duty depends upon the subject

Matter and the nature of the interest of the audience therein, then absence of belief or ot sufficient belief in or the failure to make inquiries as to the validity of the information will be evidence that the occasion was abused, and

if so, of malice. It is to be noted that in Horrocks v. Lowe

(supra) Lord Diplock stated that knowledge of the untruth of what was published, or complete indifference as to whether what was published was true or false, was generally conclusive evidence of express malice. Certainly, he also said that there was no duty to publish what was known to be false. But he also spoke of the absence of belief as something to be proved against the defendant in support of the plea of malice. The "duty", as supporting the existence of the privilege in the occasion, and thus as repelling, prima facie, the inference of malice, may exist without proof by the defendant

As was said by O'Connor J. in Howe & McColough v. Lees (1910) 11 CLR 361 at 373,

"Once there is proof that the defendant published the defamatory matter on a privileged occasion, it

will be assumed that he did so honestly believing the statement to be true, unless there is evidence, the onus of giving which is on the Plaintift, from which a contrary inference may be drawn,"

To identify those circumstances which will confer upon an occasion the quality of being one of qualified privilege, Lindley LJ in Stuart v. Bell C18913 2 QB 341 at 350 said, "The question of moral or sgocial duty being for the judge,

each judge must decide it as best he can for himself. I take

moral or social duty to mean a duty recognized by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, civil or criminal." Although in legal language relating to occasions of privilege the test 1s expressed in terms of a duty to publish, the reference to duty would seem to be used ina special sense. Thus, the publication of a fair and accurate report of a parliamentary debate 1s privileged at common law. But if a moral or social duty to publish a debate, in the sense of an obligation to publish it, is to be found, the relevant obligation can arise only from the circumstance that it is beneficial to the public that such publication be made and that the media, carrying out its function as citizens might expect it to do, should respond by

rendering to the public the service of keeping it informed.

The principle upon which the publication is privileged

is the same as that afforded to a fair and accurate report of judicial proceedings, namely that the advantage of publicity to the community at large outweighs any private injury resulting from the publication. See Gatley Bth Ed. para. 635, Wason v. Walter (1868) LR 4 QB 73.

In the judgment of the judges of the Court of Queen's Bench, Cockburn CJ, Lush, Hannen and Hayes JJ, in this just

"In the English law of libel, malice is said to be the gist of an action tor defamation. And though it is true that by malice, as necessary to give a cause ot action in respect of a defamatory

statement, legal, and not actual malice, is meant while by legal malice, as explained by Bayley, J., un Bromage v. Prosser 4 B& C at p.255, 1s meant no more than the wrongtul intention which the law always presumes as accompanying a wrongtul act without any proof of malice in tact, yet the presumption of law may be rebutted by the circumstances under which the defamatory matter has been uttered or published, and, if this should be the case, though the character of the party concerned may have suffered, no right of action will arise. 'The rule,' says Lord Campbell, CJ., in the case of Taylor v. Hawkins lo QB at p.321; 20 Ld (QB) at p.314, 'is that, if the occasion he such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, 1f he can, give evidence of malice.'"

The initial question therefore igs whether the circumstances and character ot the telecast programme under attack in this case were such that the appellant was under a social or moral duty in the relevant sense, to proceed with the telecast. It has been decided in respect of fair and accurate reports of judicial and parliamentary proceedings that privilege attaches to publication thereof. But the privilege attaches, not

because there was an element of official status in the

judicial proceedings, but because, as it was said in the last

"It seems to us impossible to doubt that it is of Paramount public and national importance that the proceedings of the houses of parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done,

the welfare of the community depends. Where would be our contidence in the government of the country

framed, and to whose charge the great interests of the country are committed, - where would be our

live, - 1f the proceedings of the great council of the realm were shrouded in secrecy and concealed

from the knowledge of the nation? How could the communications between the representatives ot the people and their constituents, which are so

essential to the working of the representative systen, be usefully carried on, uf the constituencies were kept in ugnorance of what their representatives are doing? ... It may, no doubt, be said that, while 1t may be necessary as a matter ot national interest that the proceedings of parliament should in general be made, public

yet that debates in which the character of individuals 1s brought into question ought to be

suppressed. But to this, in addition to the difficulty in which parties publishing parliamentary reports would be placed, 1f this distinction were to be enforced and every debate had to be critically scanned to see whether i1t contained defamatory matter, it may be turther answered that there is perhaps no subject in which the public have a deeper interest than in all that relates to the conduct of public servants of the state, - no subject of parliamentary discussion which more requires to be made known than an

inquiry relating to it." See also per Lawrence J. in Rex v. Wright (1799) 8 TR 293 at

298. It was "impossible to doubt" the matters referred to by their Lordships because it was clear to the Court that the

great majority of honest men of good sense would so think.

Considerations relevant to the question whether qualizied privilege attaches toa particular situation were discussed 1n the Court of Appeal in Purcell v. Sowler & Ors (1877) 2 CPD 215. The question was whether the occasion of publishing a report of proceedings at a meeting of poor law guardians, at which ex parte charges of misconduct were made against the medical otticer for not attending the pauper patients when sent for, was the subject of qualified privilege. In the judgment of Cockburn CJ, after reciting at p.219 that there was no question that proceedings in a court of justice or otf parliament may be published although

statements therein may prejudicially affect the character of

"But those cases torm no precedent for the present. Many intermediate cases may be put. Take the meetings of the corporation ot the City of London

• the discussion at such meetings might involve strong observations on the conduct of particular individuals: so also as to the municipal councils of other cities or boroughs: s0 again as to the meetings of magistrates in quarter sessions, not as courts of justice, but for transacting the business of their county. In all these cases [I should be sorry to lay down as law that' the proceedings of such meetings may not be fully reported, although the character of private individuals may be incidentally attacked. But it is unnecessary, for the decision of the present case, to lay down any such rule; and I wish to be understood as by no means saying that the proceedings of different bodies to whom part of the administration of the public business of the

country is committed would not be a matter of general discussion and publication. In these

instances publicity may be essential to good administration. But here we have to deal with the case of a body of very limited jurisdiction, and as to which it cannot be asserted that publicity is essentially necessary or usual. It is quite clear that the meetings of poor-law guardians are not necessarily public: they have full right to close their doors, and although the public are generally admitted yet, when charges are to be made affecting private character, the more proper

course would be to close the doors and hold the discussion in camera. In the present case' that

of a newspaper was admitted, and he communicated what had been said to the newspaper, and so. the

There 18 no authority for holding 1t to be so, and I think it was not."

The test applied was whether in the judgment of the Court it would be the view of men of good sense and morality that in the circumstances the requirements of the community justified the possible injury to the individual, whether, in the words

of Lord Bagallay at p.222, "the advantage of general publicity" justified the publication. In London Artists Ltd.

v. Littler £1968] 1 WLR 607 the circumstances under

published to the general public through the national press a letter assumed to suggest that the plaintiffs, who were persons and organizations in the entertainment industry, had taken part ina plot to force the end of the run of a play he was producing by arranging for four players in the cast simultaneously to give identical notices to leave; the letter was written after he was informed of a desire by the management to transfer another play to the theatre and after he had received the players' notices in accordance with their contracts to appear."

"The cases to which I have referred show a uniformity of approach. In my view the privilege for publication in the press of information of general public interest is confined to cases where the defendant has a legal, social or moral duty to communicate it to the general public, or does so in reasonable self-defence to a public charge, or in the special circumstances exemplified by Adam v. Ward £1917] AC 309.

interests of the public that the publication should be made and will not arise simply because

the information appears to be of legitimate public interest.

In the present case I am not satisfied that the defendant was under any duty to communicate this information to the public generally. It was merely his own ex parte impression and deduction which, as such things often do, turned out to be sadly wrong. I am not satisfied that the public generally had any legitimate interest in receiving this information, although they no doubt found it very interesting. Nor amI satisfied that the defendant's own legitimate interests required this hasty and unfortunate publication to be made.

I reject the wide principle which it was originally sought to derive from Webb v. Times Publishing Co., £19601 2 QB 535 although I do not, of course, for a moment presume to doubt the correctness of that decision in the circumstances of that case. I do not think that, on examination of that decision, 1t has extended the detence of

privilege beyond the principles enunciated by Buckley LJ 1n Adam v. Ward 31 TLR 299, 304 which I have already read.

In my view, before the protection of qualified privilege 13 extended beyond its existing limits

first take unto account the extent to which public advantage may be out-weighed by private injustice

and injury. In the present type of case any public advantage is likely to be heavily so

out-weighed. " Here again, the test of the quality of the occasion 1s seen to be the judgment of the Court as to the view of men of good sense on the competing claims of public advantage and protection of the private citizen. In Toogood v. Spyring (1834) 1 CM & R181 the Court of Queen's Bench comprising Parke B, Bolland 8, Alderson 8 and Gurney 8, considered defamatory statements of theft and drunkeness and inefficiency made by a tenant farmer against the plaintiff in relation to

the plaintiff's alleged misconduct in performing work on the farm, first, to the plaintiff himself in the presence of a stranger, second to the same stranger in the absence of the plaintiff, and third to B., B being the agent of the landlord and he who had directed the plaintiff to do the work. It was held in relation to the first and third incidents that the occasion was privileged but that in the second incident a privileged occasion was not disclosed. At p.193 of the

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious,

unless it is fairly made by a person i1n the discharge of some public or private duty, whether legal or moral, or in the conduct of his own

affairs, in matters where his interest 1s concerned. In such cases, the occasion prevents the interence of malice, which the law draws trom unauthorized communications, and atfords a qualitied detence depending upon the absence ot actual malice. If tairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them

within any narrow limits." As stated above, whether the protection is "fairly warranted" in any occasion depends upon the view of the Court as to the competing claims of public advantage and private protection. The problem is illustrated in Howe & McColough v. Lees (supra) in respect of a publication by a member of an association of stock salesmen of an erroneous report of default in payment by

In Adam v. Ward £19173 AC 309 the House of Lords dealt with a publication defamatory of the plaintiff contained in a letter published by a newspaper at the behest of the defendant. The purpose of that letter was to publish the finding of the Army Council that serious imputations made in Parliament by the plaintiff with respect to alleged conduct of a General, as regimental commander, were without foundation. The matter defamatory of the plaintiff was said to have no relevance to the alleged misconduct of the General. It was held that in the circumstances the matter defamatory of the plaintiff was pertinent and relevant to the central fact that the plaintiff had made the charges against the General for his own private purposes. So considered, publication of the matter detamatory of the plaintiff tended to confirm, in the

public mind, that the views of the Army Council were likely to

be correct. Thus, the defamatory matter was published om an occasion ot vindication of the General which was a privileged eccasion. It was not suggested that the findings of the Army Council carried some otficial authorisation tor their publication. It was said that every citizen who had an interest in the Army had an interest in being informed, in a public communication, of the exoneration of the General, and that, where there was a publication through Hansard's reports of Parliament to the world of a serious slander of a senior officer, it was appropriate to publish the officer's exoneration to the same audience. See per Lord Atkinson at

p.544. It was said by Buckley LJ 1n the Court of Appeal in Adam v. Ward (1915) 31 TLR 299 at 304:

--. the following proposition is true - that if the matter 1s matter of public interest and the party who publishes it owes a duty to communicate it to the public, the publication 1s privileged, and in this sense duty means not a duty as matter of law, but, to quote Lindley LJ in Stewart v. Bell £18911] 2 QB 341 at 350 'a duty recognized by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or

criminal'." These words have been oft quoted and always with approval. It appears therefore that the analysis, in accordance therewith, of any situation, for the purpose of identifying whether an Occasion of qualified privilege has arisen, will be sound. The notion that privilege claimed on the ground of public interest depends on some element of officialism in the situation 1s unsound. In Perera (MG) v. Peiris & Anor £19493 AC 1 where privilege was claimed in relation to the

publication of an official report of a bribery commission in

Ceylon, 1t was suggested that the 1ssue depended upon whether, according to the Dutch-Roman Law or the Common Law, privilege was accorded to that report. It was observed by the Privy Council that "much time might be spent in an inquiry" whether the reports ot the proceedings in question had the status of

reports of judicial proceedings or of proceedings of

"Their Lordships do not propose to enter on that inquiry. They prefer to relate their conclusions to the wide general principle which underlies the defence of privilege in all its aspects rather than to debate the question whether the case falls within some specitic category. The wide general principle was stated by their Lordships in Macintosh v. Dun £19083 AC 390 to be the 'common convenience' and 'welfare of society' or 'the general interest ot society,' and other statements to much the same effect are to be found in Stuart v. Beil £18911 2 QB 341 and in earlier cases, most of which will be found collected in Mr. Spencer Bower's valuable work on Actionable Defamation. In the case of reports of judicial and parliamentary proceedings the basis of the privilege is not the circumstance that the proceedings reported are judicial or parliamentary

• viewed as isolated facts - but that it is in the public interest that all such proceedings should be fairly reported. As regards reports of judicial proceedings reference may be made to Rex v. Wright (1799) 8 TR 293, 298 where the basis of the privilege is expressed to be 'the general advantage to the country in "having these proceedings made public," and to Davison v. Duncan (1857) 7 E & B 229, 231, where the phrase used is "the balance of public" benefit from publicity'; while in Wason_v. Walter (1868) LR 4 QB 73 the privilege accorded to fair reports of parliamentary proceedings was put on the same basis as the privilege accorded to fair reports of Judicial proceedings - the requirements of the public interest.

Reports of judicial and parliamentary proceedings and, 1t may be, ot some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings. As

regards reports of proceedings of other bodies, the status ot those bodies taken alone is not conclusive and it 1s necessary to consider the subject matter dealt with in the particular report with which the court is concerned. {t it appears that it is to the public interest that the particular report should be published privilege will attach. If malice in the publication 1s not present and the public interest 15 served by the publication, the publication of the report must be taken for the purposes of Roman-Dutch law as being in truth directed to serving that interest. Animus injuriand1 is negatived."

It is apparent from Webb v. Times Publishing Co. Limited (19601 2 QB 535 that the the foundation of all privilege is the public interest in the sense of a legitimate and proper interest as opposed to interest due to idle curiosity or a desire for gossip and that where such an interest could be

shown there was such privilege 1n a newspaper report of a

It is apparent therefore that to determine whether' the publication complained of by the respondent in these Proceedings was made on a privileged occasion the question is whether the occasion was one in respect of which the Court ought to hold that the great majority of honest citizens would consider that the subject dealt with was one in relation to which there was a duty, in the relevant sense, in the appellant, to publish information on the subject and that there was a legitimate interest in the public to receive such information the quality ot such duty and interest being such

that the desirability of the public being informed outweighed

the risk that the reputation of private persons might be

injured. A consideration of all relevant circumstances 15s

To apply this to the activity 1n which the appellant engaged, when on 19 and 20 May 1979, 1t published the programme under discussion, the circumstances ot the publication must be identified. The appellant is a statutory _ corporation. Certain of 1ts3 duties are stated in s.59(1) of

the Broadcasting and Television Act 1942 as tollows:-

"Subject to this Act, the Commission shall provide, and shall broadcast or televise from stations provided in accordance with section 73, adequate

and comprehensive programs and shall take in the interests of the community all such measures as, un the opinion of the Commission, are conducive to the full development of suitable broadcasting and television programs."

As the learned Chier Justice held, the statute does not of

itself authorise the appellant to communicate matter to the Australian community which defames any of its citizens. However, apart from statutory support, the circumstances and subject of the broadcast would support the view that, applying the principles discussed above, the Court should regard an occasion of telecasting information on the subjects mentioned

above as one to which qualified privilege attaches.

The reciprocal duty and interest will not arise from the mere fact that the publisher has intormation which would interest the public to hear. There must be an interest ot a particular kind. The kind of interest which will justify the

publication is an interest arising from some particular

quality in the subject. In Adam v. Ward the interest was in

the quality of the character of the man who had attacked the

General. fn Perera v. Peiris 1t was conduct concerning which a committee made a report. In Allbutt v. The General Council of Medical Education and Registration (1889) 23 QBD 400 the subject was the conduct ot a medical practitioner in connection with which an authorised body had made a decision. In Wells v. Wellington Local Bodies & Ors, [£1952] NZLR 312 communications concerning a threatened extension of a_ strike

were accorded the protection of qualified privilege.

One comes back to the words of the Privy Council in Macintosh v. Dumn £19087 AC 390 at 400 that the test is "the

common convenience and welfare of society" or "the general

In relation to this test the subject of the broadcast does fall within the range of privileged publications. The publication touched the conduct of the Queensland government in reducing a vast Aboriginal reserve to one square mile for the purpose of permitting a private company to remove and export for profit the bauxite in or comprising the topsoil of the reserve. It was conduct which involved a considerable change, possibly for the worse, of the life style and conditions of a substantial body of Aborigines who theretofore had access to, and some of whom lived on, the land which had formerly been in the reserve. It cannot be doubted that the treatment of Aborigines by Australian authorities and white Australians is a matter ot public interest, not 1n the sense of mere interest such as the result of a football match or the

Melbourne Cup, but as a matter in respect of which all

responsibility to examine developments and policies and in

relation to which the formation of an intormed public opinion 1s of importance for the formation of official policy and the establishment ot standards of private conduct. It 13 not too ~- much to say that it is a subject which touches the conscience of all. The extension of measurable treatment towards Aborigines is inevitably a matter of public concern, indeed, a matter ot international concern, in connection with which Australia must cope with the interest, sometimes critical, of international bodies. The fact that Granada displayed so much energy 1n researching and publishing the film that "shocked Britain" is but a symptom of that wider interest abroad. To cope with this it is essential that Australians generally should be as accurately and as fully as possible informed of the conduct of governments, business men and others in Australia in relation to the Aborigines. The displacement and resettlement of a body of Aborigines from a reserve and the destruction, temporarily at least, of the vegetation and wild life thereon, must constitute a subject of public interest in the narrowest interpretation of that term. Accordingly, any publication genuinely for the purpose of satisfying the public

need for information on a subject of that kind is a privileged

privileged the privilege was lost because in publishing the

defamatory material the appellant was guilty of malice. The

Thé programme which was the subject ot the appellant's Four Corners telecast in May 1979 comprised various elements. - It included a "report" by a journalist, one Mike Gillard, presenting facts and opinions relating to mining operations on land which was previously an Aboriginal reserve by a local associate of an overseas company. It posed questions as to the effect of such operations on the lifestyle and welfare of the Aboriginal people of the locality. It purported to examine the propriety 'of the respondent's conduct in its dealings with the Aborigines and otherwise in relation to the Weipa project. Intention to present the programme was announced in a trailer in which the viewers were informed by the appellant that the programme to be shown was "the film which shocked Britain". His Honour said "It is obvious that the plaintiff's special position as the grantee of a mining lease, giving 1t the right to conduct profitable mining operations, in circumstances in which its activities may have

an effect upon the lives of Australian citizens, and in

particular of Aboriginals who live inthe area where it conducts 1ts operations, puts 1t into the category of a person

whose activities are rightly and properly a matter of public interest. . Public scrutiny therefore is something to which it

But it is one thing to look at the problem of mining as

a matter of national, governmental or economic policy, another

to examine the propriety of the respondent's conduct in relation to the various aspects ot the project. In a programme like that presented by Four Corners on 19 and 20 May 1979 criticism of the national policy behind the project or criticism ot the respondent for taking part in 1t because of ~ its effect or potential effect on the Aboriginal population was no doubt something that the respondent had to face and of which 1t could not complain in law. But obviously criticism along such lines could easily "spill over" to an attack on the attitude of the respondent to the local Aborigines even to the extent of suggesting that the respondent was hostile to or indifferent to the welfare of the Aborigines and subjected them to conditions or treatment contrary to the standards to be expected of a company in its position. As soon as the programme entered upon areas such as these, comments made were likely to be defamatory, and the question of the appellant's responsibility for that defamation arose. It is necessary therefore to examine the part played by the appellant in the

It appears that the appellant, having learnt of the programme being shown in England, decided to buy it from Granada who had produced it. The programme became its property. It was by its initiative that 1t was shown in Australia. The appellant decided to provide for the film an editorial introduction by a member of its staff. It edited the tilm. [t decided also to provide a debate at which the Manager of the respondent at Weipa might add any comments he

wished. In view of the direct and severe criticism made in

the tilm of the conduct and attitude ot the respondent in relation to the land and the Aboriginal people these comments inevitably took the form of a defence of the company. It was clearly placed "in the dock" by the allegations made against 1t.

The appellant was of course well aware of the defamatory nature ot some of the statements made by participants in the Tilm. It is a reasonable inference that it was on this account that it afforded the opportunity to the Manager to

The view of the appellant was, according to the learned judge, that so far as there were defamatory statements or representations in the film the publication thereof was justified by reason of the nature of the subject matter thereof, so long, at any rate, as the persons making such

statements were thought to believe them to be true.

This privileged occasion was used by the appellant to publish the relevant material to a great number of people. It 1s estimated by the appellant that the viewing audience was some two million people. The medium of television is the most effective available in modern times to illustrate a point and exercise persuasion. If the publication contained defamatory matter injurious to the reputation of any person that injury would be widely and probably dramatically inflicted and cause great harm to the victim. The privilege to communicate to

such a large audience in such a medium, matter which might be

detamatory or persons, was a privilege ot a high order. [t is supported only by the public advantage ot the community being unformed on subjects of significance in the social and economic Life ot the nation. It was a privilege resting upon that purpose. A party exercising the privilege will abuse the occasion it it uses 1t for a purpose other than that for which the privilege is granted by the law. And to abuse the occasion 1s to be guilty or malice. The responsibility of the

Party exercising the privilege is to observe the purposes

It is not to be thought that the appellant will have

expertise or special knowledge on the issues involved in every public issue. And in respect of most issues of importance to the public and involving environmental, social and economic considerations 1t 1s inevitable that contilicting views will be

In modern conditions, namely that the public is well educated, keenly interested in political, social, economic, racial, cultural and many other aspects of community life and policy, television debates on matters of public interest are an accepted method by which the television medium gives information to the community. It provides facilities for

persons who can speak with knowledge and authority and who hold opposing views to put these views, it being left to the viewers to gain such benefit as they can from what they hear and see. It 1s usually understood that the television

entrepreneur puts forward no views of his own as to the

validity of what 1s said. This technique 183 a useful process in the development of informed national attitudes to national questions. If the medium presenting the programme knows that certain statements injurious to an individual are untrue or are slanted to create an injurious impression which it is ~ known would be erroneous, the occasion, 1f otherwise privileged, is abused. If the medium has available to i1t evidence of facts which contradict defamatory statements made 1n a programme, and tails to publish those facts, such failure

The community cannot be assisted in the formation of its opinions on public questions if the material published to 1t is untrue. To publish such material knowing it to be untrue would be to abuse the occasion. To slant the material to

promote a conclusion known to be unsupported by fact would be

To refrain from publishing available material explaining, correcting or contradicting statements of fact injurious to the reputation of an individual may well constitute an abuse of the occasion. Whether there 1s an abuse of the occasion in such cases is a question of fact

The learned trial judge found that the appellant did not believe in the truth of any of the material published by it which was defamatory of the respondent. In respect of some of

this material the learned judge made findings that the

defamatory 1mputations arising theretrom were known by the appellant to be false. His Honour tound, that the appellant did not believe that there was segregation inany of the schools in Weipa (imputation No. 7) and that the appellant did not believe that the respondent made no attempt to restore the

There 1s no reason shown which could lead a court of

appeal to disturb these findings. The question is therefore whether there was an abuse of the privilege in publishing Material which the appellant did not believe to be true and which was defamatory. I[t was said by Lord Diplock in Horrocks v. Lowe £1975] AC 135 at pp.149 and 150:

"The public interest that the law should provide an effective means whereby aman can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What 1s published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is

lost if the occasion which gives rise to it is misused. ...

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection

might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or adesire to protect the relevant interest. So he us entitled to be protected by the privilege unless some other dominant and improper motive on his part 1s proved. Express malice' is the term ot art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who 1s defamed and this is

generally the motive which the plaintirr sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that eftect 13 not enough if the defendant 1s nevertheless acting 1n accordance with a sense of duty or in bona tide protection ot his own legitimate interests.

The motive with which a person published defamatory matter can only be interred from what he did or said or knew. If 1t be proved that he did not believe that what he published was true this 1s generally conclusive evidence of express malice, tor no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what 1s required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest beliet." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes 1s not to be equated with carelessness, impulsiveness or irrationality in

arriving at a positive belief that it 1s true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. I[n ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree

according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they

reach. But despite the impertection of the mental process by which the belief is arrived at it may

the conclusions they have reached are true. The law demands no more.

Even a positive belief 1n the truth of what is published on a privileged occasion - which 18 presumed unless the contrary is proved - may not

be surficient to negative express malice 1r it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege 1s accorded by law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved

then even positive belief in the truth of what 1s published will not enable the defamer to avail

himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the

duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true." As indicated by Lord Diplock, there may be exceptional cases,

which justify publishing even deliberate and injurious

falsehoods about another. Stephenson LJ indicated an Blackshaw v. Lord £19841 QB 1 at 27, exceptional cases where publication ot that which is merely suspected may be made on a

"There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there 13 danger to the public from

a suspected terrorist or the distribution of contaminated food or drugs ..."

These would be examples of genuine exceptions of the kind referred to by Lord Diplock. And in this case 1t 1s submitted

for the appellant that the nature of the subject matter and

the public interest was of such a quality as to inject into

the occasion such urgency or intensity ot social concern that a duty to publish defamatory statements, not believed by the publisher to be true, could be perceived. I do not think this contention can be maintained. The consequences ot omitting from a programme concerning conditions at Weipa of the defamatory passages might have reduced the entertainment value of the programme, but would not have resulted in injury to any relevant public interest. A delay in publication for the short time necessary to investigate the allegations not believed by the appellant would have been no more than an

inconvenience to those concerned. The adjustment of the

programme to neutralise the detamatory material could have been undertaken. The degree of public interest in the subject matter was in itself a good reason to refrain from publishing

So far as the finding of malice depends on belief of the appellant as to the truth of the defamatory statements in the published material, 1t 18 a question whether malice 1s to be inferred where all that is shown »y the person defamed is that

the person publishing did not believe that what was stated was

As to certain of the condemnatory statements it was not shown that the respondent knew them to be untrue. It was shown that the appellant did not believe those statements to be true. If 1t were said that when the appellant published the detamatory matter he was iunditferent to whether the

statements were true or talse, the situation would have been

the same as 1f the appellant knew that they were fraise. But, as indicated above, ina situation ot publication genuinely

for the iantormation of the public on a subject of sufficient

public significance it would seem that the fact that the publisher did not believe that the incidental detamatory - statements were true would not necessarily destroy the privilege. In Horrock's Case (supra), Lord Diplock said that to publish deliberate and injurious talsehoods of another was generally conclusive evidence of express malice. It 1s not

certain from what he said that mere non-belief in the truth of

the matter published would, necessarily, be conclusive. I think 1t would not necessarily be so in the case of a public affairs programme bona fide presenting material for public consideration. Not however, that it is irrelevant that the publisher does not believe the matter to be true. And in certain circumstances, such as where there are multiple defamatory statements which the publisher does not believe, it may well be critical. As was said by O'Connor J. in Howe and McColough v. Lees (supra) at p.377, "It is of the essence of the law relating to privileged occasions that their nature and

their limits cannot be exhaustively described by any form of

It was the appellant which chose what was shown, what was said and who 1t was that spoke in the programme. The pictures and statements in the programme were submitted by the Four Corners public atfairs division of the appellant as a serious contribution by it to public consideration of the

issues dealt with. And it impliedly said to the public "you

May take seriously everything that 1s contained in the programme". There being contradictions in the programme 1t 13 a question whether Four Corners was saying "don't form any view about the truth of anything that 1s contradicted" or "where there are contradictions you make up your own mind which statement you accept". Inevitably I think it is the latter. In such an exercise it would not be acceptable and almost inevitably would constitute conclusive evidence of malice to publish statements known by the publisher to be untrue or to be unworthy of credence, even although they are contradicted on the same programme by a person having a

However, I would think it not necessarily conclusive evidence of malice to publish statements which the publisher does not himself believe to be true, but does believe to be made bona tide by the persons making then. In certain circumstances it would be legitimate for the publisher, acting bona fide, to surrender his views to those of the speaker, for the purpose of public consideration of the subject. In a ditferent circumstance it would be legitimate to publish only after investigation of the validity of the statement. The legitimacy of publication might depend on the publisher's assessment of the speaker's motives and degree of familiarity with the subject. As Gord Diplock said what one is concerned with on the question of malice or no malice 1s the motive of the publisher. It the statement is defamatory in a high

degree and there is good reason to doubt its truthfulness and

no steps are taken to confirm 1t, or if the publisher is in

possession ot credible information which contradicts it, and 1f the entertainment value of the programme 1s greater, if the statement is published, than it would be with the statement qualitied or omitted, then, the motive of the publisher in publishing 1t or publishing it in an unqualified way is- suspect. According to circumstances the interence may be drawn that the publisher was in reality concerned with entertaining the viewers at the expense of truth and thus was using the occasion for a reason not covered by the relevant privilege. When the appellant published the defamatory statements it did not assert their truth. It put them forward as the bona fide views of the persons who spoke the words. But they were none the less defamatory statements for which

the appellant was responsible. Although it did not put them

forward as being its views, it did put them forward as statements of fact to be taken seriously by viewers and as

statements which, although contradicted by statements by other

In the presentation or telecast "debates" on controversial subjects it is inevitable that statements made in support of a proposition will be in conflict with statements put forward against it. The publisher could not believe both. It is no doubt a feature of publication of such programmes that in the absence of conduct on the part of the publisher indicating the contrary, viewers understand quite

well that the publisher puts forward no view of his own as to

the truth or falsity orf what the participants state. However, in this case, the statements ot both sides were put forward as

If, 1n such a debate, defamatory statements are made by a debater 1t may occur that matter published in association with the detamatory matter actually destroys the defamatory message, sO that to an ordinary reasonable viewer ot the programme no such message is conveyed. In that case no libel is published. But if what is published by way of antidote does no more than indicate that the defamatory message 15 denied by persons, but not in such a manner that it is utterly destroyed, then it stands as a defamatory allegation that is not eliminated. There may be many persons of ordinary good sense who accept the defamatory message and reject the contradiction and who will remain under the influence of the libel. Some, of course, may not know whether to believe it or not. As Aickin J. said in Mirror Newspapers Utd. v. World Hosts Pty. Ltd. (1979) 141 CLR 632 at 646: "To say that consideration must be given to the statement as a whole does not mean that the court or the jury must give equal significance to each part of the publication". And the same

must be true of the ordinary reasonable viewer of a programme.

In relation to the publication under discussion there are therein quite categorical implications, for instance that

the respondent 1s not replacing trees in the areas worked,

that the respondent treats the Aborigines like dogs, that the

respondent has brought the Aborigines at Weipa South into

shame and disgrace, that the respondent was without decency and integrity in its treatment of the Aboriginal community at Weipa and that the respondent was responsible tor discrimination against Aborigines at Weipa in relation to housing and health care. To some extent the statements ot the ~ respondent's manager, Mr. Stewart, appearing, as 1t were for the defence, provided contradiction ot these statements. But as the learned judge pointed out it was impossible for the issues to be determined by a viewer faced with assertion and counter assertion in the course of the programme. And the defamatory statements may well have been believed by many viewers. They have not been justified. Accordingly, fair comment and qualified privilege are the remaining defences to the appellant. And so far as qualified privilege 1s concerned that must depend upon the appellant's motive in publishing the materials, and if malice, in the form of abuse of the occasion, was involved in publishing the material then the privilege was lost. It was found by the learned judge that the appellant's reason for publishing the material was that, in its view, it treated matters of public interest ina way which provided good television viewing and at the same time

raised issues for consideration and judgment by the viewers.

The appellant accepts, indeed asserts, that the matter published was put forward by the appellant on the basis that

it should be treated seriously by the viewers. Accordingly, at the end of the programme there remained defamatory

statements categorically made and categorically contradicted.

Where parts of a publication are detamatory and others favourable to a plaintitf the publication should be looked at

un its entirety to decide whether on balance 1t 1s injurious

to the plaintiff. As Alderson 8 said in Chalmers v. Payne & Another (1835) 2 U.M. & R 156 at p.159:

"I quite agree, that, where slanderous words are used, which are actionable in themselves, and no justifiable cause is shewn for uttering them, the law will presume malice from the language itself. But the question here is, whether the matter be slanderous or not, which 18S a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff 1s stated but that is removed by the conclusion; the bane and antidote must be taken together."

This principle was applied by Hutley JA in Sergi v. Australian

Broadcasting Commission £1983] 2 NSWLR 669 at p.670;

"There being no doubt that 1f portions of the material published stood alone, the

plaintifft/appellant would have been defamed, it 15

only if the whole of the material published does not permit of a defamatory meaning that there is

no case to go to the jury. The bane and antidote theory upon which Hunt J relied is merely a vivid way ot stating that the whole publication must be considered, not a segment of it: cf World Hosts

Pty. Ltd. v. Mirror Newspapers Ltd £19761 1 NSWLR 712, at 719, 725. It must follow that it is only

rarely that it will be possible for a judge to remove from the jury the issue whether the whole publication 1s defamatory where a publication contains clearly defamatory statements 1f they had been published on their own. As Samuels JA said: '...cases (1.e., when a publication which seeks to refute a calumny which 1t expressly states may he held incapable of conveying any defamatory meaning) must be comparatively rare": Moros1 v.

Broadcasting Station 2GB Pty. Ltd. £19803 2 NSWLR 418(n), at 419." '

But in this instance the viewer was lett to choose tor himselt. The contradictions, 1t considered as an antidote to the defamatory statements, did not operate to take way the operation thereot. The antidote did not dissolve any imputation contained 1n other parts of the publication. As in Bik v. Mirror Newspapers £19791 2 NSWLR 679 the defamation contained in part of the publication persisted, notwithstanding matters in the remaining part which might, in the reasoning of some readers, have given it a non-defamatory

meaning. Similarly in Savige v. News Limited & Ors £19321 SASR 240.

The privilege arising out of the occasion might well, [ think, extend to publication of matter which the appellant believed to be the opinion of the makers of the statement and bona fide made by them on the issues of public interest. According to the circumstances it might so extend although the appellant itself had no opinion as to the truth or falsity of what was said. It might also extend to statements which the appellant did not believe to be true. It is the subject matter which provides the privileged occasion. It is not, necessarily, for the appellant to be the judge of the truth of what other persons bona fide believe to be true. But if the appellant used the occasion to publish what it knows to be untrue there 1s an abuse of that occasion. The legitimate public scrutiny to which, as pointed out by the learned judge,

the respondent's conduct in conducting 1ts industrial

operation 1s the subject, 1s scrutiny which 1s covered by the privilege, and not scrutiny merely to the extent of the

However, the implied message of the whole programme reflected the notion that mining operations at Weipa and the conduct of the respondent in all aspects in relation thereto deserved scrutiny because ot the suggestion that undesirable features, particularly in relation to Aborigines, were involved therein. And in relation to the publication, 1t was not as though the appellant was a mere bystander putting forward nothing; a mere provider of a medium of communication for the use of other people. It owned the Granada film. it told the viewers that it dealt with events at Weipa which shocked Britain, that 1t contained matter which was to he taken seriously. Impliedly it put forward the programme as one which viewers could regard as a programme fairly reflecting the information in its possession covering the issues presented. It omitted part of the Granada film. It chose the participants in the "debate" segment. It participated therein itself. It excluded from the programme information 1n its possession cogently relevant to the truth of the defamatory impressions which might have been created in the programme and which were erroneous. It had information that the views, stated as views of the generality of the local

Aborigines, were repudiated strongly by at least one section

The appellant was saying to the viewers, "This, so far as we are concerned, 15 a statement of the situation at Weipa upon which you can make an assessment or the justification tor mining at Weipa and ot the propriety ot the conduct of Comaico." From an entertainment point of view 1t was no doubt more etfective to shock than to inform. Any shock element in the programme inevitably contributed to the view that the conduct of the operations at Weipa as carried on by the respondent was deserving of criticism. The occasion would be abused if defamatory statements 1n the programme not known by the appellant to be true or untrue, were allowed to stand uncontradicted, when the appellant was in possession of information of significance which did contradict them. if statements defamatory, and prima tacie covered by privilege, were put forward as entitled to a degree of credence to which the appellant knew they were not entitled, the occasion would

be abused. In this case this consideration 1s critical.

The appellant displayed repeated visual shots of the land reduced to bare brown and yellow earth, bereft of vegetation as the result of activity of the giant bulldozers repeatedly depicted. It presented Mr. Wolomby saying "Who's going to bring those same trees back and plant them? No one. And the earth will be tlying everywhere". [It presented Mr. Mick Miller saying "They're doing 1t by other means, by moving in with the bulldozers and flattening the lands of the Aboriginal people. And when they destroy the land belonging to the Aboriginal people ...". It presented Mrs. Hall saying

"Weipa was just all bush, they were our tribal lands. There

were beautitul trees, ... All the beauty 1s gone. The area is ripped out - left with big holes. The place is all red and dusty". But 2t knew that Mrs. Hall knew, and on viewing a clump of young trees planted by the respondent of some eight or ten teet had said, "The bush 1S coming back". This knowledge had been conveyed to the appellant by the respondent before the programme went on view in the rorm or a film made by it showing Mrs. Hall inspecting the clump of young trees. It 1s one thing to say that an opportunity was atforded by Mr. Stewart to point out that the respondent was planting trees but it was an opportunity from which the appellant excluded the convincing vision of Mrs. Hall viewing and acknowledging the return ot the bush. With the respondent on the detensive, and against the repeated visions of the red bare land and the great bulldozers, the picture of the growing trees would have

carried weight of a difterent order trom the statement of Mr.

The critical point is that the appellant allowed the false statement to stand when it knew it was false or at least greatly exaggerated and likely to create a false belief in viewers. The respondent was, perhaps properly, in the dock. The tact that the respondent was defamed in the programme and that the appellant was presenting a scrutiny, presumably fair, made it essential that it be fair. And it was not tair if statements were allowed to stand as fit for serious consideration it they were known to be untrue or subject to

serious qualification, even 1f an opportunity to deny what had

been said was afforded. Accordingly, 1t is my view that the

Further the programme suggests that the views of Aborigines which 1t published were those held generally by the Aborigines 1n the area. It was known to the appellant that there was a body of Aborigines who stated that they held views that the Granada film misrepresented the situation and was an insult to the Aborigines of Weipa. It as said that the appellant regarded the views of those Aborigines as having been evoked, and even as being the result of manipulation by persons in an official position, andas not being genulne.

But, of course, once the appellant descended to judgments of

that kind in deciding on the message it would transmit to viewers, it was inevitably engaged in an operation of itself choosing the message to be telecast. If that message was defamatory and not justified the validity of the use of the occasion for the publication that was made is inevitably in question. In so far as the appellant portrayed the message that the Aborigines were united in condemning the respondent with respect to their living conditions and the alleged state of degradation which had overtaken them, it was the appellant which published that message and knew it was talse. And this Matter 1s the more significant when ait is revealed that Mr. Miller who was put torward. in the tilm as expressing a representative view held by the Aborigines, had been disowned

A similar situation exists in relation to imputation No. 7 that the respondent was responsible for segregated schooling at Weipa. In view ot my conclusion that a viewer might reasonably attribute segregation in the schools to the respondent the fact that this was not so and that this wags

easily ascertainable by simple enquiry is critical.

The relevance of the foregoing on the issue of malice is that the appellant permitted the publication of the statement that there was such segregation and that the respondent was responsible for it, notwithstanding that the appellant did not believe either of these statements to be true, that it had good reason to believe that neither was true, and that there was in the possession of the appellant convincing evidence to the contrary which was not mentioned in the programme and of which the compere of the programme was left in ignorance. In addition, the appellant made no etfort to inform itself authoritatively by making enquiries of the Education Department or otherwise as to whether there was segregation in

In respect of this matter, there was certainly no urgency or special reason for including the defamatory statements 1n the programme which, if such had been present, might have repelled the inference of malice otherwise arising from the publication of injurious statements not believed by

In the Light of all these factors, there 183 good reason to draw the inference that the appellant was more concerned with the entertainment value of the programme than with the presentation of accurate information to assist the public in its consideration ot the problem of mining or Aboriginal reserves. To publish defamatory statements not believed to be true and in respect of which 1t had reliable information that the same were untrue, would in the circumstances of this publication, constitute an abuse ort the occasion and thus

The inference that the appellant's real intention was to use the programme for the purposes of entertainment and thus

to enhance the reputation of Four Corners as an entertaining

and hard hitting current affairs programme is supported when one takes into account that the defamatory statements were quite violent in their condemnation of the respondent. They included that the respondent treated the Aborigines shamefutly, indeed like dogs, that the respondent had brought the Aboriginal community into shame and disgrace, that the respondent was in the line of succession to those earlier white settlers who sought the land so keenly that they even killed Aborigines, and that the respondent was without decency or integrity in its treatment of Aborigines. If one had set out to find words with which to besmirch the reputation of the

respondent to the greatest extent possible, one could hardly

The circumstances of an occasion of privilege would need to be special, indeed, to embrace within the privilege,

allegations such as those mentioned in which the publisher had

Having regard to the foregoing the defence of qualified

It was pleaded by the appellant that certain of the statements made in the telecast ot 19 and 20 May 1979 if defamatory were nevertheless mere comment on facts which were. specified in the matter published and were fair. It was said that the whole publication was made ona matter of public

(lil) the mining operation of the respondent as a subsidiary ot a large international

It was found by the learned Chief Justice that the matter of the telecast did concern and relate toa matter of public interest. This is not in issue in this appeal. During the course ot the hearing before the Chief Justice the appellant

gave particulars of the portions of the telecast alleged to be comment and of the facts put torward in the alleged published

Material on which the comment was. based. It was for the

appellant to prove that the statements ot fact upon which the

comment was based were true and that the opinion expressed in the comment was actually held by the persons who spoke 1t and was one which a tair minded man might reasonably form upon the

However, the appellant contended failure to prove one or more of the alleged facts put torward in the telecast as those on which the comment was based was not fatal to the defence if Suttficient facts were proved to sustain the comment. According to Gatley on Libel & Slander 8th Ed. at para. /13 the failure to prove one of a number of facts put forward as the basis for the opinion expressed 1s fatal. Of course, 1f any of the statements of fact are defamatory they are actionable as such. And it 1s no defence in respect thereof that 1t 1s relied upon as supporting a comment. But the rationale of the rule may well depend upon the view that if a defamatory comment is made and is put forward on the basis of alleged facts, the comment 1s misleading to the reader or listener of the published material if one or more of those alleged facts is not true. There 1s to my mind nothing to qualify the view stated in Gatley atoresaid to be found in the observations in Kemsley v. Foot £19523 AC 345 at 357, or those in Sutherland v. Stopes

£19251 AC 47 at 62, to which reference was made by the appellant.

However, 1n Goldsborough v. John Fairfax & Sons Ltd. (1934) 34 SR (NSW) 524 there 1s a passage at p.534 in the

"Tt rollows that in my opinion, in New South Wales, where the detamatory matter complained of consists of both facts and comment, the detence or tair comment 1s not, 1n principle, available as to the comment unless it can be established that' the defamatory tacts relied onas the basis tor the comment, or some ot them, were true, and that it

was tor the public benefit that they should be published."

This passage 1s relied upon in support of the view that

defence ot fair comment will not fail on the ground that

or some of the facts put frorward as the basis of the comment

"For the defence to succeed, it is essential that the whole of the words in respect ot which it is

relied on should be comment, that they should be fair, and that they should be ona matter of

public interest. It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts:..."

This 1s in line with the comment of Lord Porter with

concurrence of Lord Goddard, in Kemsley v. Foot (supra)

there 1s a sutticient substratum of fact stated or indicated 1n the words which are the subject-

expressed in the remarks contained in Odgers on Libel and Slander (6th ed., 1929), at p.166.

distinguish an allegation ot tact from an expression of oplnion. It often depends on what 1s stated inthe rest of the article. fr the

defendant accurately states what some public man has really done, and then asserts that 'such

conduct is disgracetul,' this 15 merely the expression ot his opinion, his comment on _ the plaintiff's conduct. So if without setting 1t

comments by a clear reference. In either case, the defendant enables his readers to judge for

allegation of fact becomes merely a comment.'" The passage at p.534 in the judgment of Jordon CJ in Goldsborough (supra) is part of a discussion of the effect upon the detence of fair comment of the circumstance that in New South Wales truth alone will not support a plea of justification. Public benefit of the publication must accompany truth. The learned Chief Justice took the view that in relation to a defence of fair comment based upon statements of fact the defence could not succeed unless in addition to the statements being true their publication was for the public benefit. That was a novel question and a decision upon it was not necessary for the decision in that case. In its context I think the words of thre learned Chiet Justice are to be understood as saying no more than that, in New South Wales, a detence ot fair comment would not fail if the facts upon which it was based were true provided that publication of some of those facts was shown to be for the public benefit. For him to have said that 1t would not tail if only some of the facts upon which it was based, or was put forward as being based, were not proved to be true would have been in conflict with the basic notion expressed by him at pp.53l1 and 532 as set

forth above. If some of those facts are not shown to be true

ut cannot "be seen whether the opinions are such that they can tairly be tormed upon the facts". In such a case the publisher of the defamatory comment does not show that he has enabled the person to whom publication 1s made, in the words ot Lord Porter, "to judge for himself how tar the comment is well -

I am therefore unable to accept the submission of the appellant that the defence of fair comment may succeed although some of the statements of fact put torward as those upon which it 1s based are not established. The situation would be different in relation to comment not on facts stated in the published material but on facts assumed to be Known to the reader of the published material. Kemsley (supra) was such a case. There the comment was addressed to the readers of a newspaper in an article in which the Beaverbrook press was described in most derogatory terms, and there was added the statement that the Beaverbrook press was "lower than Kemsley". Lord Kemsley was the proprietor of another well known newspaper. Lord Kemsley sued for disparagement of his

conduct as such. It was held that the words "lower than

Kemsley" might be comment and that a sufficient substantiation of tact to support a plea of tair comment was to be implied from the words in the context in which they appeared, namely,

that he was responsible tor the press ot which he was' the active proprietor, and that his conduct in relation thereto

was low. Particulars of that conduct so tar as relied on ag

showing that such conduct was of a low standard were given. On appeal an order striking out the plea or tair comment was

"One further matter on which some discussion took place does not, in my opinion, directly arise on this appeal, but as it may be raised in interlocutory proceedings later in the course of the action, I think i1t desirable to express an opinion on it. In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the samé principle

apply where the facts alleged are found not in the alleged libel but in particulars delivered in the

Where the facts are set out in the alleged libel, those to whom it is published can read them and

may regard them as facts derogatory to the plaintiff but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject matter of

the comment but facts alleged to justify that comment.

In the present case, for instance, the substratum of fact upon which comment is based 1s that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism 1s that the press is a low one. As I hold, any facts sufficient to justify that statement would

entitle the defendants to succeed in a plea of fair comment."

With this Lord Oaksey and Lord Radcliffe at pp.360 and 361

respectively expressed their agreement. At p.362 Lord Tucker

"I also desire expressly to state my concurrence in his opinion that where the facts relled on to justify the comment are contained only in the particulars it 1s not incumbent on the detendant to prove the truth of every fact so stated in order to establish his plea ot fair comment, but

that he must establish sufficient facts to support the comment to the satisfaction of the jury."

In the case before this Court there 1s no reliance on any tacts not said to be found in the published material. However, the distinction made by their Lordships between the ~ necessity tor the defendant to prove ail the facts relied on which are found in the published material and the absence ot that necessity in respect of particularised facts not found in that material, gives emphasis to the rule that, at common law, a defendant relying upon a defence of fair comment based on facts stated in the published material must prove all those facts. Of course, absolute truth may not be essential, but, that degree of truth which will enable the reader to judge tor

As to the statements in the telecast alleged by the appellant to be matters of comment, the learned Chief Justice decided that the facts relied upon save with respect to the words of Professor Hollows to the effect that "I don't think any white community would live under conditions like most of

the houses here" were not proved. His Honour made findings:

(1) that the words "No we are treated Like dogs I would say"

spoken by Mrs. Hall were comment and not statements of fact, but that the facts put forward as the basis of the

(2) that the words""Again what they brought to the community

was shame and disgrace to the people" spoken by Mrs.

(b) We tew blacks - we're in one Littie block, that all they

did was gave us these tew houses what [ call them hox

(d) there are about twelve or twenty, young people who leave

school and have passed thelr exam and ask for a Job,

(e) and, of course, there is still discrimination between the blacks and the whites in the school, the blacks are

To sustain the comment the first task of the respondent was to prove that each of the facts put forward as the basis

for the comment were true or at least substantially true.

As to tact (a) it was certainly true. As to the fact (b), 1t was not true that all that Comalco had given the blacks at Weipa was "these few houses". Comalco had provided sixty four houses at Weipa South, a much greater number than

was to be understood by Mrs. Hall's reterence to "these tew

In addition, Comalco had organized the formation of the Weipa Aboriginal Society, a body whose object was the

advancement of the welitare of the Aborigines at Weipa. The

Company had resolved to provide one million dollars for the project to be approved by the society and a pre-school had been constructed at the cost of $380,000 and sewage was

unstalLied at Weipa South at the cost of about $200,000 and the

As to fact (c), it was true that not all the men of

As to fact (dad) the fact was that at the relevant time some forty five persons from Weipa, of sexes unidentified were employed by the respondent. It was not true that young people who had passed exams had asked the respondent for employment

As to fact (e) it was not true that there was discrimination between white and black children on the ground of colour or race at the schools at Weipa South or Weipa North. There were some occasions on which for educational reasons a class was comprised only of white children or black children. But unless the facts alleged in item (e) are to be understood as meaning that children were segregated at school on racial or colour grounds 1t had no point and could not support the comment that the respondent treated the Aborigines

It 1s apparent theretore that not all the tacts put forward as those upon which the comment was based were true.

Indeed, save that the people living at Weipa North had better

housing than those in Weipa South the tacts relied upon were just not proved. [t 1s apparent therefore that the detence of

fair comment in relation to item one cannot succeed.

With respect to item two, namely, "Again what they brought to the community was shame and disgrace to the people". This was the commencement otf a passage which continued as follows, "brought in drinking, that's the worstest thing, after which now today much of the younger ones are suffering, also not also the younger ones, the married people whose homes are broken, children deserted, deaths and accidents".

To my mind, if the words in this item or any of them are properly classified as comment the statement as a whole also contains fact. The fact 1s that Comalco brought in drinking. The comment, 1f there be comment, 1s that drink having been

brought in by the respondent shame and disgrace to the people

I agree with the finding of the learned Chief Justice that none of this item was comment. It ts all a straight statement that the respondent brought in drinking which has led to shame and disgrace to the people. I therefore agree with the learned Chief Justice that the defence ot fair

If 1t were available it would to my mind be applicable

only to that portion of the words of the item stating in

effect that that drinking having been brought in by the respondent shame and disgrace to the people was a consequence. Such an opinion would no doubt be supported by the fact that drunkeness and other disreputable conduct had occurred. There is evidence of such conduct. If that portion of the words in question are comment [ would regard the defence of fair comment 1n all its elements as being established in relation thereto. But as indicated above [ think 1t is unsound to

Item three was tound by the learned Chief Justice to he

comment and no ground for hoiding otherwise has been

The facts upon which the comment was said to be based

It was true that the respondent does not pay royalties to the Aborigines or any section thereot. It is true in a limited sense that land was destroyed by the respondent, that sense was that on a small proportion of the land in the lease, top soll with its trees and vegetation, had been removed to an average depth of about eight feet. A substantial portion of

that land had been levelled, Planted with trees and

To ascertain whether the comment was fair one must apply the test enunciated by Lord Esher MR in Merivaile v. Carson (1887) 20 QBD 275 at 281. _-The-question 1s "would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has ~ said of the work which is criticised?" And of course the comment must be honest. There can be little doubt that Mr. Miller who spoke the words in question was prejudiced and given to exaggeration in criticising the respondent in relation to ats conduct at Weipa. Nevertheless, any intelligent Aborigine might well and honestly consider that the removal of the top soll by the respondent from land formerly an Aboriginal reserve, for its own protit without compensating the Aboriginal people by way of royalty was greedy conduct and unfair to the Aborigines. If he _ so commented, then the comment was one which passed Lord Esher's test. The fact that the comment was expressed in colourful

It 18 said, in relation to this last item of comment, that the defence of fair comment must fail because it 1s shown that the appellant did not believe that the respondent lacked decency or integrity in its dealings with the Aborigines. It was submitted that in the case of a publication of a comment based on tacts which would support it the defence of fair comment must fail it. as ain this case, the publisher did not

In this case the publisher ot the words in question was the appellant. The words it published except tor certain

identitiable portions would not be understood by the viewers as words, to the truth or validity of which the appellant gave - its authority. It 1s of the essence of the kind of telecast in which the appellant engaged that viewers inevitably understand that the statements made are those of the persons to whom they are attributed and not of the appellant. The role of the appellant is to present the statements of persons believed to have some knowledge of the subject whose

statements of fact and comment are believed to be bona fide

It is also understood by viewers that in the type of telecast presented persons may speak who are partisan of one view or another and may desire to promote a cause and in the implementation thereof may criticise persons or institutions having aunterests opposed to theirs. ft is a question therefore whether where, in relation to a statement of fact or opinion, the speaker holds and expresses in the telecast comment on the conduct of others which are not those of the

publisher, the latter 1s deprived ot a defence of fair

It 1s said for the appellant that if in relation to the presentation of public questions in the name ot providing the

opportunity to persons to present conflicting views then there

could be no reality in the privilege prima facie attracted

thereto 1t that privilege evaporated when a speaker stated a defamatory tact or opinion with which the publisher was not in

It 1s said that 1t cannot be the law that the publisher must have a beliet in everything said in the telecast where it 15 apparent to viewers that it is not the publisher whose opinions are being stated. Of course the present case is not one 1n which a live debate was presented, the words to be used by the participants not being known to the publisher in advance. In this case s0 far as concerned the matter contained in the Granada film the appellant knew every word

and image to be presented. Also the "debate" inthe film

actually telecast was not telecast live. Before being presented to the public the appellant vetted everything that was to be telecast. In such a case the responsibility or the publisher would be expected to be of a higher order than in the case of live telecasts of unrehearsed material. The question 1s whether non-belief by the publisher of a comment believed by the speaker deprives the publisher of the defence

The privilege to publish matter of genuine public interest but the subject of dispute, in which the publisher's opinion is not relevant or understood to be presented, the satisfaction of the public interest to be informed on matters of genuine public interest would be greatly hindered if the -publisher were not protected, where he presents a comment by a

speaker 1n which he had no beliet. Such a situation would be

inconsistent with the nature ot the privilege. The public interest is to have the statements ot fact and comment on both

sides, not only the comments approved by the publisher.

It 1s to serve the interest of the viewer in having the conflicting viewpoint presented which is the reason for the privilege. If the existence of the privilege 1s made dependent on the belief of the pubiisher the essential validity of events as an exercise in informing the public is

According to Gatley, 8th Ed. at para.730 where a defendant has published the comment of another he may rely on the defence of fair comment at least to the same extent as the person whose comment it was. Thus if the speaker would have a good defence ot fair comment so will any other person who has participated in the publication. It is noted to para. 730 that according to English authority it was taken for granted that the publisher and the maker of the comment stand or fall together. Thomas v. Bradbury Agnew L1906] 2 KB 627; McQuire

v. Western Morning News £19031 2 KB 100 and Kemsley v. Foot

It would appear that once it is established that a publication relates to a matter of public interest to which privilege is attached, then in relation to a publication by a person of the statement of another of tact or opinion relating to that matter, for the validity of which it is understood by

the viewer or reader that the publisher does not give his

authority, non-belief or the publisher ot the truth of that statement or comment does not ot itselt, deprive the publisher of the defence ot fair comment, which 1s available to the speaker or involve himain malice. Ot course, where, as in this case the publisher chose the material to be telecast, the circumstance that the publisher did not believe that the comment was true or valid might be evidence of malice. The aspect 1s discussed above in these reasons. As a result of that discussion the inevitable conclusion is that the appellant was guilty of malice in publishing the programme in

question and the defence of fair comment inevitably fails.

The decision of the Court that imputations numbers 4 and 5, mamely, that the respondent engaged in deliberate killing of Aborigines, were not sustained obviously affects the

assessment of damages by the learned Chief Justice in a

I have had the advantage of considering the reasons for judgment of my brothers Neaves and Pincus. I agree with the reasoning therein. {I ditfer from the views of Neaves J. in respect of the seventh and tenth imputation and from the views of Pincus J. in respect of the third, seventh and tenth imputations. I would, nevertheless, reduce the award of

damages to the respondent from $295,000 to $100,000.

As to costs I agree with the order proposed, namely that each party bear its own costs ot the appeal. There 1s no good reason to interrere with the order of the Chiet Justice that the appellant pay the costs ot the proceedings before hin. As to the appeal, the appellant has succeeded on 1ssues concerning a number of imputations and in achieving a substantial reduction of the damages awarded by the Chief Justice. But it failed in respect of its arguments directed to achieving its complete exoneration and much time of the

I certify that this and the 102 preceding pages are a true copy of the Reasons for Judgment herein of his Honour

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: AUSTRALIAN BROADCASTING CORPORATION Appellant AND: COMALCO,_ LIMITED Respondent

appellant") has appealed from a judgment of the Supreme Court of the Australian Capital Territory (Blackburn C.J.) given on 22 February 1985 awarding Comalco Limited ("Comalco") damages

in the sum of $295,000 against the appellant for defamation. The defamatory matter in respect of which the damages were awarded was contained in a segment of a programme telecast by the appellant, then known as the Australian Broadcasting

Commission, over its television stations in the Australian

Capital Territory and the States of Victoria and South Australia on 19 May 1979 and repeated over those stations on 20 May 1979, The programme was one of a series of programmes on

current affairs under the title "Four Corners". For

convenience, I shall refer to the segment which contained the

The fsllowing introductory paragraph from the reasons for judgment of the learned trial judge sufficiently identifies Comalco (referred to therein as "the plaintiff") and its

"The plaintiff is avery large company which isa member of a group of companies engaged in, inter alia, mining for various kinds of minerals in various parts of the world. The plaintiff's business consists of mining bauxite and selling aluminium products made from it in various forms. Among the mining operations of the plaintiff is the conduct of an open-cut bauxite mine at Weipa, on the western coast of Cape York Peninsula in Queensland. Before this mining operation began, there was living at Weipa a ocommunity of aboriginais based on a mission conducted by the Presbyterian Church. The commencement of the mining operation was preceded by a period of negotiation between the plaintiff and its predecessor companies, the Government of Queensland, and the Presbyterian Church, whose responsibilities were exercised by a Board of Missions. The present situation at Weipa, in summary, is that the plaintiff has a mining lease on which it mines for bauxite, and it pays royalties to the Government of Queensland on the bauxite so mined. There is, in addition to the actual mining operation, a town known as Weipa North of which the inhabitants are largely employees of the plaintiff, (including some, but not many, aboriginals), and another town, known as Weipa South, of which the inhabitants are nearly all aboriginals, some of whom are employees of the plaintiff. It is probably fair to say that the activities of the plaintiff and of the Government of Queensland necessarily exert strong influence upon the lives of persons living in the Weipa area."

It ig impracticable to reproduce in these reasons the whole of the words spoken in the programme. A transcript of the words is in evidence and a substantial part, though not the whole, of it is reproduced as a schedule to the reasons for judgment of the trial judge. No reference is made in that schedule to the visual images which form an integral part of the programme but the trial judge has, in a number of instances, proferred a description of the images which

The Court has had the benefit of viewing the programme which falls into three parts. First, there is a _ short introduction spoken by the compere, Mr Peter Ross, an employee of the appellant, his spoken words being accompanied by images of himself. He begins by saying that everyone knows that

aboriginals have had "a bad deal in their own land" and notes

that, while the focus in 1979 is on uranium mining, there are

other earlier arrangements which can be overlooked and

"For example Comalco, in 1957, signed a mining agreement with the Queensland State Government which as well offered Aborigines a good deal. It was a lease to mine bauxite at Weipa. Not only an exciting new mineral development, but a bonus for Aborigines on a remote reserve. They would be given work, financial assistance, and the prospect of a new life in a new community.

This year that community was examined by a British current affairs team - an outsiders' view of the way we look overseas. The result was shown to more than 20 million viewers in the United Kingdom. It coincided with an activist campaign mounted by Aborigines to bring their case to international notice in Europe and ultimately to the United Nations.

The two combine to bring alive, once again, and into

critical attention abroad, the vexed issues between the white Australians and the black Australians."

I might interpose at this point that, although Comalco sought support in these introductory statements for some of the defamatory imputations alleged, neither the words spoken, nor their manner of delivery, seem to me to be of particular significance. The introduction is not, of itself, defamatory of Comalco and, although the words used may have provided some support for an imputation that Comalco failed to carry out the terms of the agreement in that the promised benefits to

aboriginals on the Weipa reserve had not eventuated, such an

referred - described as a "report by Granada Television's Mike

A telecast of the Granada report, though with the deletion of a reference to the Premier of the State of Queensland, follows and constitutes not only the second, and a substantial, part of the programme but is the source of much of the material said to support the defamatory imputations

The Granada report begins with a reference by Mr Gillard to the Aurakun reserve, reserves like that being, he says, "the last remaining places where they Cthe aboriginals1 still live on their own land". The accompanying images are, first, of aboriginal children sitting down in the bush and, then, of a group of aboriginal men performing tribal dances. The report then refers to the Weipa bauxite mine, said to be some fifty miles distant from Aurakun, this reference being accompanied by a close-up view of a large earth-moving machine and, as it passes, a picture of a large area of land stripped

After a reference, with an accompanying picture, to the headquarters of Rio Tinto Zinc, described as the world's top international mining group which the Weipa mine's profits have helped create, Mr Gillard says:

"The Aborigines who used to live at Weipa are dispossessed. Mining has meant broken promises, social problems and destruction of their way of life. Now such mining is seen as a continuation of the shameful treatment Aborigines have suffered since the white settlers first arrived."

This is immediately followed by a statement by an aboriginal who is not at that stage named but is soon to be identified in the report as Mr Mick Miller and to be described as the head of

"Nothing has changed from the days when the early settlers wanted the land for pasture, for the grazing of their sheep and cattle. In those days they went out and they killed Aboriginal people. They shot them down, they poisoned the water holes, they poisoned their food. Today it's done a little bit more subtly. They're doing it by other means, by moving in with the bulldozers, and flattening the lands of the Aboriginal people. And when they destroy the land belonging to the Aboriginal people, they destroy the Aboriginal people themselves."

The accompanying visual images sre of large earth-moving

machines moving across bare, dusty land, close-up views of such

Mr Gillard then refers to Rio Tinto Zinc's major Australian subsidiary being in the forefront of the struggle -

an unequal struggle - between mining companies and * the aboriginals. The threat from mining, he says, is felt most by aboriginals like those at Aurakun whose tribal land is threatened with a second giant bauxite mine. An aboriginal,

"Mining is not a good thing. It might be a good thing for white man. It's no good for Aboriginals because the dozer can destroy and make big holes here and there. They can damage our sacred places too. They can knock these big trees - who gonna bring those same trees back and plant them? No one. And the earth will be all flying everywhere.

The kangaroos, the emu, wallabies, they be all gone. There won't be any more animals living around the place because of the noise. Who gonna bring those birds back? Who gonna bring the kangaroo back? Nobody.

The total land is their land. Once we say that we don't want the mining, let it stay like that."

The images in this part of the report are successively of aboriginals in the unspoiled bush and of earth-moving machinery

in operation. Another aboriginal, Mr Harry Penrith, then

refers to the very strong bond between the aboriginal people and the land.

After further reference to the aboriginal people at Weipa having been dispossessed, to the reduction in the size of the two aboriginal reserves at Weipa to an area of just one square mile so that the remainder of the land could be leased

for mining operations and to the gradual whittling away of

other existing aboriginal reserves, the following dialogue

"MR_GILLARD: The Weipa mining agreement has bound together Comalco and the Queensland Government for More than 20 years. In return for the Government giving it the right to mine, Comalco agreed to pay the Government a royalty. Comalco didn't pay the Aborigines either any royalty or compensation. The Government said they had no rights to the land.

Many Weipa Aborigines bitterly regret what happened. Joyce Hall is one.

MRS_HALL: Weipa was just all bush - they were our tribal lands. There were beautiful trees. We used to go out hunting. It was worthwhile staying, and we were happy. All the beauty is gone. The area is ripped out - left with big holes. The place is all red and dusty. They did not ask us whether to mine there. Really, our churches sold us out. And, of course, before the mining came in, all missions ... we know that we were Christians; and the lives that

we lived were happy, with all the bush trees and the

birds, the animals, life ... we went out fishing, camping out. And now today all is gone because of the white man who have destroyed our place.

MR GILLARD: But for the 3,000 people, predominantly white, who live in the town Comalco has built, things are different. Though isolated, those who work for Comalco enjoy most of the luxuries and facilities available elsewhere.

Comalco has spent 120 million pounds here, much of it on making a model company town equipped with the best possible housing. As a result, today there are two Weipas just seven miles apart in distance but a world apart in appearance and facilities, the township bullt by Comalco, and the Aboriginal reserve at Weipa South run by Comalco''s landlords - the Queensland Government. It's here that most of the original Weipa people are forced to live.

MRS HALL: The white people are in the best places. They've got good housing; they've got good parks, lawns, air conditioned homes. We few blacks ~ we're in one little block. Ail they did was gave us these few houses - what I call them, box houses - and that's the only thing that they've given us.

Not all the men are employed - there are about 12 or 20.

Young people who leave school and who have passed their exam and ask for a job, they can't get a job.

And, of course, there is still discrimination between the blacks and the whites in the school.

The blacks are in one class and the whites are in one class.

And again, what they brought to the community was shame and disgrace to the people: brought in drinking - that's the worsest thing after destroying our land, taking the land away from us - which now today most of the younger ones are suffering; also not only the younger ones, the married people whose homes are broken, children deserted, deaths and

accidents. These are the problems we are facing. How could we stop them?

MR GILLARD: So you wouldn't say that in fact Aboriginals are treated the same way as Europeans as far as Weipa and Comalco are concerned?

MRS HALL: No, we are treated like dogs I would say."

The visual image which accompanies Mr Gillard's question and Mrs Hall's answer is that of the head and shoulders of Mrs

Hall. The immediately preceding words are accompanied by

images of unattractive houses in Weipa South and children Playing around them. Immediately before that are images of

some of the attractive facilities in the township of Weipa North.

Mr Ernest Hall, Mrs Hall's husband, is then introduced as the Chairman of the Weipa Aboriginal Society. That Society is said by Mr Gillard to have carried out improvements to the facilities on the reserve, helped in that regard by Comalco

finance. Mr Hall speaks of severe overcrowding in the houses in Weipa South, up to 17 persons living in one house. The accompanying images are of a room in a house with aboriginals

sitting closely together or lying on beds which are in close

Next, the Granada report turns to problems of aboriginal health at Weipa South. Comments are made by Professor F. Hollows, Director of the National Anti-trachoma

Programme, who is said to have visited Weipa in 1977 and

examined children in Weipa South and the Comalco township. The

"MR _GILLARD: They found that, whereas in Weipa only one per cent of white children aged under 11 had signs of trachoma, the figure was no less than 15 per cent for Aboriginal children in Weipa South. No white child in the mining town had infected ears, against 15 per cent of the Aboriginal children in Weipa South.

We asked Professor Hollows how this disparity could be overcome.

PROFESSOR HOLLOWS: A health ... an investment ... a real health investment in these areas could completely overcome this difference.

MR_ GILLARD: Then we asked him about the difference between the health investment in the Comaico township and on the reserve.

PROFESSOR HOLLOWS: Oh, I think if you were to cost that out you'd find there'd be a difference of it by a factor of 10 at least. There'd be at least 10 times the health investment in Weipa North than Weipa South.

I don't think any white community would live under conditions like most of these houses here. It's unusual to find a situation where Aboriginal children sleep in their own beds between their own sheets. And till that happens, we're going to have things like trachoma, like the ... affecting tens of per cents of these communities. We're going to have otitus media - middle ear infections - respiratory disease, impetigo with its renal complications, leprosy and those sort of diseases.

MR__GILLARD: Comalco convinced the Queensland Government in 1957 that:

'The company was anxious that the mission should trust it to do the right thing over the years.'"

Professor Hollows' comments are accompanied by images of him

examining aboriginal children, speaking in an out of doors

Mr Karl Stewart, Comalco's General Manager at Weipa,

then appears and, in answer to a question from Mr Gillard, says that there have been to his knowledge no detrimental effects whatsoever from the mining operations "as far as the lifestyle and the living standards of the people are concerned". In relation to the employment by Comalco of aboriginals, Mr

"We have as many as we can possibly put in... given the fact that the education which these people have had unfortunately has not allowed them to take their

place in the operation. And one thing which you must appreciate, and everybody must appreciate, is that it does no good to completely downgrade the operation by putting unskilled, incompetent people - not through their own fault but through their education, incompetent - into areas of activity

The discussion concerning the employment of aboriginals is accompanied by images of earth-moving machinery, Comaico's "logo", and of workers partaking of a meal in what appears to

Mr Gillard then turns to another subject - the payment of royalties - on which Mr Miller comments. The following

Government declared that the Weipa people would benefit to a great extent.

During the past 10 years, Comalco has earned much more than fifty million pounds from mining bauxite at Weipa, In that period it's provided at most one-and-a-quarter million pounds towards facilities in Weipa South against nineteen million pounds paid in royalties to the Queensiand Government and twenty-five million pounds paid in dividends to the RTZ subsidiary, CRA.

It's because of this disparity that the Weipa Aborigines are pressing Comalco to pay royalties to then.

MR_ MILLER: Other countries pay a royalty to the indigenous people who own that land where mining is taking place. We want the same thing. If you're going to destroy our land we have no say in it, we want something for that destruction.

They're prepared to take and rip off as much of the land and the bauxite that they want but, when it comes to showing a little bit of integrity anda little bit of decency, they forget about that, and only the dollar signs are the only signs that are showing in their eyes, and nothing else."

The images which accompany Mr Miller's words are, first, of

bauxite being carried on a conveyor belt and, then, of Mr

The Granada report then examines the activities of CRA

in identifying other areas, including aboriginal reserves, on

which mining operations could profitably be conducted and in

mining for diamonds in the Kimberley area of Western Australia.

Sir Mark Turner, Chairman of Rio Tinto Zinc, is then shown answering certain questions put to him by Mr Gillard. He says that, while the company is concerned about the people in Weipa South, they are not the company's responsibility. The company is, he says, in the business of looking for minerals wherever they are to be found and of exploiting mineral deposits. Its policy is to obey the laws of the countries in which it operates but it is not the company's concern to take care of sectional interests. That is a task for the government having responsibility in the area in which the company operates. Land rights for aboriginals, he says, is alsoa matter for government, not the company, as is the question whether mining in particular areas is or is not permissible. Sir Mark makes it clear that, where the company has obtained from the appropriate authorities a lease for the purposes of

"Why can't they give us back our land - if not, why can't they stop the mining, or give compensation to the people where we could go back to our tribal lands? We can't ask them, they are educated people - well, educated better than me. I hada poor education, and yet I know what is right and wrong. Even, I don't think the white people know the Ten Commandments which they - the white people - have broken: 'Thou shalt not covet: Thou shalt not steal.'"

The third part of the programme follows. It consists of a studio presentation, under the chairmanship of Mr Ross, in which statements are made by Mr Karl Stewart and an aboriginal, Mr Harry Penrith, who had made two brief appearances in the Granada report. The images during this part of the programme

Mr Ross first refers to the reaction of the Queensland

"The Queensland Government's comment is that 'What it depicted is not a proper reflection of the Weipa South community and is not indicative of the general

conditions applying to Aboriginals throughout Queensland. '"

"But since so much of the report focussed on Weipa and Comalco, we invited two of the people you've just seen in that film - Comalco's manager at Weipa, Mr Karl Stewart, and a former CRA employee, Mr Harry Penrith, to join us in the studio to take up the issues raised in the Granada report.

Well, first of all Mr Stewart, your company was extremely annoyed by Granada's treatment of the

situation at Weipa. Principally what do you complain of?"

"Well, inno way did that film really represent Weipa or Weipa South - the aboriginal community of Weipa South. As afilm it is dishonest, it is insulting to the people of Weipa South. It shows none of the good points which the people of Weipa South have got. It shows the people of Weipa South as drunkards, as passive people, as lay-abouts, as people who are incapable of organising their own things, and their own affairs. It shows them as people who are completely without any hope whatsoever of having any chance of making a go of it. And that is a racist representation, because it represents the stereotype which the Australian white population has of the Aboriginal person, and it is an extreme insult. And from the point of view of the people of Weipa South and the effort that they have put in and that the company has put in, it is just a disgusting film."

Asked whether he wishes to raise specific points, Mr Stewart categorises as dishonest the statement in the report that the schools are segregated, the statement that the aboriginal people have been refused access to their land and the statement that nobody is going to put back the trees. Each of these statements, he says, is incorrect and dishonestly made. He agrees with Mr Ross that Comalco completely rejects the charge

that it has dispossessed the Weipa aboriginals saying:

"The people of Weipa South, the Aboriginal people of Weipa South, are living in the same community that they lived in when we came to Weipa, we being Comalco. They are living in better housing. The housing for example, we saw no photographs whatsoever of the new housing which has been put up in Weipa South and was being put up largely by the people of Weipa South themselves. That's not shown. It is a completely dishonest representation."

Then follows a short segment (of about one minute in

duration) of a film made by Comalco in an attempt to counteract

what it saw as the effect of the Granada report. The thrust of that segment of film is that the aboriginals at Weipa South have continued to carry on many of their old skills and tribal customs in spite of the mining operations and are passing on

those skills and customs to the younger generation.

Mr Penrith is then invited to respond to Mr Stewart's rebuttal of the statements made in the Granada report. The

remainder of the dialogue should be set out in full:

"MR PENRITH: Well, first of all films don't tell lies. That's the benefit of film. And both stories are correct. The rebuttal comes in the form of traditional pursuits followed by Aboriginal people. And the film by Granada is a true picture of a huge company ripping minerals out of the ground. It's all there for us to see,

The statements about housing: no matter how bad it fs or what level it is or when the houses were being

built - nonetheless all those houses were actually built by Comalco. Corrugated shacks...

MR_ STEWART: The houses were not built by Comalco. They were built by the Presbyterian Church. All we did was supply the money.

MR_PENRITH: Nonetheless they're there for everyone to see. At the wet period, in the winter time, the houses are inundated with three feet of water. And, where do the people live ...

MR STEWART: Oh come on, Harry, please. They're not inundated with three feet of water at all - that's just not so. And it's ary during the winter time in Weipa anyway.

MR PENRITH: You know it's correct, as well as I do.

MR ROSS: Can we move on to education, because that seems to be a very important matter, because clearly Granada have not bothered to qualify their statement

that there is segregation, that the white and the black kids are in separate parts of the school. What's your experience?

MR_ PENRITH: In my opinion they are segregated. And also the other ...

opinion' - I mean have you seen the children segregated?

MR_PENRITH: I've been to Weipa, yes, and they are segregated.

MR STEWART: Harry, that is not so. It is just completely inaccurate. The children in the schools in Weipa are not segregated.

MR PENRITH: Well, can we get to the other statement of yours, the hard working teachers. They actually see it as a gaol sentence to be sent to Aboriginal reserves. So I refute the spirit in which those teachers go there, and the kind of learning that's supposed to be imparted to Aboriginal children is a

far cry to the educational expectations of people in the southern parts of Australia.

MR_ROSS: We don't seem to be resolving very much. First of all there are three or four feet of water comes in during the wet. That doesn't happen

according to Mr Stewart. There is segregation according to you which simply does not happen according to Mr Stewart. Perhaps we can move on to another area.

What about the chance of the people of Weipa getting some return direct from the Comalco Company that is not via the DAIA, but money direct which seems to be some sort of a movement in that part of the world for that to happen?

MR_ STEWART: Well, as stated in the film, we pay our royalties. And the royalties we pay to the Queensiand Government are two and a half times the royalties which will be paid by Ranger. As well as that, as stated in the film, we do support Weipa South community, the aboriginal community of Weipa South. And last year, that support ...

MR__ ROSS: That's ona dollar by dollar basis I understand, is it?

MR_ STEWART: We organised the formation of a thing called the Weipa Aboriginal Society into which we put money for the supply of community benefits in Weipa South. And the thing the film did not show was those benefits. Now there is a cultural centre in the Weipa South community, the Aboriginal community which the people themselves built with funds supplied by the organisation we formed. And it didn't show that in the film. This is the sort of thing which was left out and this is why the film is biased.

MR ROSS: But the black community of Weipa isa happy and settled community, in your estimation?

MR STEWART: The community of Weipa South, the Aboriginal community, has got stresses and strains within it just as any community has. It would be foolish and stupid to say that it didn't. They have their problems, and there would be no objection whatsoever to have a film representing those problems fairly. But that was not done. The film was biased and unfair.

MR PENRITH: All those problems are a part of the social problems that have been developed as a result of Comalco actually being on the reserve, being in the area.

completely not so. I've lived there for ten years, Harry - that is not so."

Comalco pleaded that the words relied upon and their

associated images, in their ordinary and natural meaning, meant

"1. That the plaintiff treats the aborigines at Weipa shamefully.

2. That the plaintiff treats the aborigines at Weipa like dogs.

3. That the plaintiff has brought the aboriginal community of Weipa South into shame and disgrace.

4. That by its mining operations at Weipa, the Plaintiff continues the deliberate killing of aborigines commenced by early Australian settlers.

5. That the plaintiff, as did the early Australian settlers, deliberately kills aborigines so as to obtain the benefit of their land.

integrity in its treatment of the aboriginal community at Weipa.

7. 'That the plaintiff is responsible for segregated schooling of aborigines at Weipa.

8. That the plaintiff is responsible for discrimination against the aboriginal community at Weipa in relation to housing and health care.

9, That the plaintiff conducts an unequal conflict with the aboriginal people at Weipa.

10. That the plaintiff does not attempt to restore the environment at Weipa affected by its mining operations."

It was further pleaded that, so understood, what was published was defamatory of Comalco thereby injuring its reputation in

The Supreme Court held that the words and their associated images were capable in law of conveying the meanings ascribed to them in each of the imputations alleged other than the imputation numbered 9 and that those words and images did, in fact, convey those meanings. The Court further held that each of those imputations was defamatory of Comalco. The appellant contends that the trial judge was in error in holding that the matters complained of were, as a matter of law, capable of giving rise to the imputations alleged and in further holding that they did, as a matter of fact, give rise to those imputations. By its notice of contention, Comalco

disputes his Honour's finding in relation to the imputation numbered 9.

Before discussing the issues raised on the appeal in regard to the imputations which the trial judge found the words and images bore, it will be convenient to notice certain submissions of a general nature advanced on behalf of the

For the purpose of the first of these submissions it must be assumed that the ordinary reasonable viewer, considering the programme as a whole, would understand some of the statements made by participants in the programme as being defamatory of Comalco. Nonetheless, it was submitted, the appellant is not liable in damages for defamation in respect of

the publication of any of those statements unless the ordinary

reasonable viewer would conclude that the defamatory statement

was being made by, or had received the imprimatur of, or was being given credence by, the appellant. The consequence of accepting this submission was said to be that liability in damages in respect of any defamatory statement in the programme would rest only on the participant making that statement. No

The circumstances which were said to lead to this result were the format of the programme, its subject matter, the nature of the issues discussed and what was said by the various participants in relation to those issues. It was

submitted that the ordinary reasonable viewer would conclude that the appellant was not subscribing to, or supporting, or giving credence to, the views expressed by the participants; that it was standing neutral, its true role being simply the making available of the technical facilities to enable the

participants to express their views on a matter of great social

importance and one of concern to the whole community.

According to the submission, there was a question of fact to be decided whether, by what it had done, the appellant, as the

proprietor of the television stations over which the programme was telecast, was adopting the views that were being expressed. Unless that question was answered affirmatively, there was no

Counsel acknowledged that. if that factual question were answered by saying that the appellant was making the defamatory statements, it would be no defence to assert that it

was only repeating what another person had said: see Wake v. John Fairfax & Sons Ltd. £19733 1N.S.W.L.R. 43. But, according to the submission, there was a threshhold question whether the appellant would be taken by the ordinary reasonable viewer to be itself making the statements. The so-called "rumour" cases were to be distinguished, so it was submitted, on the basis that, in those cases, the defendant is taken to be giving his imprimatur to the rumour, implying that it is well founded or that it may be so. It was also said that the proprietor of a television station is in a better position than the publisher of a newspaper because, in the case of television, the participants are actually seen by the viewer to

Counsel frankly conceded that the proposition for which he was contending had not been recognised in any of the

authorities. Indeed, the question had not squarely arisen for

decision in any of the reported cases. But it was said to be consistent with legal principle of which illustrations were to be found ina number of the decisions. He referred, in

particular, to the decision of the House of Lords in Lewis v. Daily Telegraph Ltd. £1964] A.C. 234 and the decision of the

High Court of Australia in Mirror Newspapers Ltd. v. Harrison (1982) 149 C.L.R. 293.

In the former, the House of Lords held that a report

in the defendant's newspaper that the police fraud squad was conducting an inquiry into the plaintiff's affairs was not capable of bearing the imputation that the plaintiff was guilty of fraud. The latter is authority for the proposition that a newspaper report which does no more than state that, after intensive police investigation, a person has been arrested and

charged with a criminal offence is not capable of bearing the

imputation that he is guilty or probably guilty of the offence.

Counsel for the appellant sought to extract from those decisions an underlying principle that, to sustain a claim for defamation, the Court must find that "the defendant is the one who is actually making the statement". I am unable to read those decisions as being in any sense relevant to the issue

raised by the appellant or as supporting the proposition for which counsel contended. There was no dispute in either of

those cases that the defendant made the statements complained

of and was responsible for them. The only issue was whether the words used were capable of conveying the imputation

According to the appellant, rejection of the argument would have the consequence that the proprietor of a television

station would be held responsible for defamatory statements made by the participants ina televised discussion of an issue of public importance notwithstanding that the proprietor has not adopted, or given his support or imprimatur to, those statements. This, it was said, would inhibit greatly the opportunities for the "free and proper" expression of views on such issues and would oblige the proprietor of the television station to control - or, as it was put, censor - the views

being expressed by the participants in the discussion.

In my opinion, the argument is misconceived in that it poses the wrong question. The question is not whether the appellant is, in the programme, itself making the statements

relied on as being defamatory but whether, by its telecast, it

Whatever may be seen by the community as the merits or otherwise of the law providing that the proprietor of a television station may, without fear of incurring liability in damages for defamation, make available his facilities to enable

the proponents of differing points of view ona subject of

public importance to air those views widely, or perhaps nationally, even if they be defamatory, the law does not, so it seems to me, at present so provide. Whether it should do so is a matter for the appropriate legislature. But, in any event, I am unable to regard the circumstances in which the programme the subject of these proceedings came to be telecast as involving no more than the making available by the appellant of its facilities to those who wished to make use of them. The programme was conceived and presented as a programme of the appellant. It purchased or otherwise acquired a copy of the Granada report. It chose to publish that report and it chose the speakers who were asked to comment upon it and upon matters raised for discussion by Mr Ross as the compere of the programme. The appellant had, and exercised, full control over

the content of the programme and what was telecast was what it

The first of the general submissions made on behalf of

I turn to the second of the appellant''s general submissions. This was that, in order to determine whether the programme was defamatory of Comalco, the programme as a whole must be considered and the question asked whether the ordinary reasonable viewer, so considering the programme, would understand the programme to be conveying what is stated in the

imputations pleaded. It was submitted that to pick out

particular words from the programme and to draw imputations

from those words is to adopt an inappropriate approach.

Counsel acknowledged that simply by including a refutation with a statement which, considered alone, would be defamatory would not necessarily protect the publisher. It is, he said, a matter of fact and degree in each case whether, taking the matter as a whole, a defamatory statement is being made. It was submitted that, in the case of the programme here

in question, the ordinary reasonable viewer would regard it as

being a genuine attempt by the appellant to inform the Australian community of a report prepared by a British television company upon the social problems inevitably generated by the juxtaposition of an aboriginal reserve and

large scale open-cut mining operations and to give a

representative of Comalco an opportunity to put the company's point of view. The programme it was said, left to the judgment of the viewer what conclusions were to be drawn from it, both as to the existence or otherwise of the problems and the degree of blame to be attached to any party in relation thereto. Counsel referred to Savige v. News Ltd. £1932] 5.A.5.R. 240 and Bik v. Mirror Newspapers Ltd. £19791 2 N.S.W.L.R. 679n. It was submitted that the presentation of the programme could not properly be seen as the appellant availing itself of an opportunity, under the guise of a public discussion of the

issues, to make or repeat defamatory statements about Comalco.

I did not understand counsel for Comalco to dispute the general proposition of law that it is necessary to view the programme as a whole in reaching a conclusion whether the words and their accompanying images are defamatory of Comalco. Where the parties diverged was in relation to the question whether the trial judge had consistently adopted that approach. Counsel for the appellant contended that the trial Judge, at least in considering a number of the imputations alleged, did not consider what the publication as a whole, including the qualifications, repudiations and discountings which it contains and its purpose, was saying. In this, it was said, he had fallen into error. Counsel for Comalco, on the other hand, submitted that his Honour's approach was clearly in accordance with the relevant legal principles. It will be convenient to discuss these conflicting submissions in relation to the individual imputations to which I shall now turn. It will be conventent to consider those imputations in the order in which

To support these imputations, which refer to the deliberate killing of aboriginals by Comalco, Comalco relied primarily upon the statement made in the Granada report by Mr Miller (the text of which is set out above) equating the actions of those engaged in destroying the land belonging to aboriginal people with the activities of the early settlers who

wanted land for pasture. That statement was immediately

preceded by a statement by Mr Gillard that mining is seen as a continuation of the shameful treatment aboriginals have

words and images were capable of conveying the imputations

alleged. His Honour accepted the submission made on behalf of

Comalco that the word "it" in the sentence "Today it's done a little bit more subtiy" referred to the killing of the aboriginal people and rejected the submission on behalf of the

appellant that the reference was to the taking of the

"A close analysis of the words in combination with the concurrent images leads me to decide that EtheJ] words are capable of bearing the imputation alleged by the plaintiff. If the passage is about the taking of the land, and not about the killing of aboriginals, it appears to me to make no sense whatever to say 'today it's done a little bit more subtly'. It is not easy to see how it can be more subtle to take land by digging it up with bulldozers than to take it by killing the aboriginals who were a hindrance to the depasturing of cattle. A more natural interpretation of the words is that flattening the land with bulldozers is a more subtle method of destroying the aboriginal people than shooting and poisoning then. If this is so, then the implication of the opening words 'nothing has changed' must be that the plaintiff kills aboriginals with the same degree of calculation and for the same purpose as did the early settlers."

His Honour recognised that his analysis might be thought to be too subtle to be applied to a quick succession of

words and images heard and seen once by the viewer of the

television programme. However, he considered that the imputations alleged were ones that an ordinary viewer, having no time to ponder the precise implications of what is said and shown contemporaneously, "May accept": such a viewer "could understand" the words and images as conveying those imputations. His Honour was further of opinion that the capacity of the words and images to convey the alleged imputations was not destroyed by the gross iniquity of those

Having found that the words and images were capable of bearing the imputations alleged, his Honour, without further elaboration, found that they did so in fact. He also found

that the words and images, as so understood, were defamatory of

Counsel for the appellant submitted that the proper test to apply was whether the ordinary reasonable viewer of the programme would, not might, understand that Mr Miller was putting forward the proposition that Comalco was deliberately killing aboriginals (imputation numbered 4) and was doing so, in the case of the imputation numbered 5, in order to obtain the benefit of their land. He submitted that no ordinary reasonable viewer would so conclude, the words used, the context, the accompanying images and the manner of Mr Miller's speech all telling against such a conclusion. In particular,

it was said that Mr Miller's reference to the destruction of

the aboriginal people themselves would not properly be

understood as referring to the deliberate taking of aboriginal life: that was a reference to the destruction of the tribal

and cultural fabric unique to aboriginals as a people.

The question is whether the ordinary reasonable viewer, drawing on his own knowledge and experience of human affairs, would carry away from his viewing of the programme an understanding that what was being conveyed was what is alleged in the imputations at present under discussion. As Lord Devlin

observed in Lewis v. Daily Teleqraph Ltd. (supra) at p.285:

"... ait is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis."

However, being largely a matter of impression derived from the ephemeral nature of the words and images which are said to give rise to the defamatory imputations, particular respect and weight must be given to the decision of the trial judge. Nonetheless, with all due respect to his Honour, I am unable to agree that the ordinary reasonable viewer of the programme

would have understood that an allegation was being made that

Comalco was, by its mining operations at Weipa, engaged in the deliberate killing of aboriginals. To my mind, the words and their associated images are not capable of supporting the

To support this imputation, Comalco relied upon the words spoken in the Granada report by Mrs Hall in answer to a question put to her by Mr Gillard. Mrs Hall had, in her comments, drawn a comparison, adverse to Weipa South, between the housing and other facilities available in that township and what Comalco had provided at Weipa North. She had also referred to the lack of employment opportunities for aboriginals at the Comalco mine site, to discrimination between

the blacks and the whites in the school and to the introduction

of drinking and the bringing of shame to the community. She was then asked whether she would regard the aboriginals as being treated the same way as Europeans so far as Weipa and Comalco were concerned. She then used the words relied upon as

As already mentioned, the visual image which accompanies Mr Gillard's question and Mrs Hall's answer is that of the head and shoulders of Mrs Hall herself. The immediately preceding words are accompanied by images of unattractive houses in Weipa South and children playing around them. Immediately before that are images of some of the facilities in the township of Weipa North.

The trial judge held that the words used by Mrs Hall in answer to Mr Gillard's question and their associated images, in the context of the whole telecast, were capable in law of

conveying the defamatory imputation alleged and found that they

Counsel for the appellant conceded that he could not dispute his Honour's findings that the words were spoken of Comalco and that they were defamatory. He submitted, however, that the trial judge was in error in holding the appellant responsible for the words used by Mrs Hall and that the ordinary reasonable viewer would understand the words as simply Mrs Hall's opinion based on the particular matters to which she had earlier referred and as not having the imprimatur of the

This argument requires the acceptance and application

of the principle of law for which the appellant was contending.

For the reasons already given, I reject the arqument.

It was also submitted that the programme as a whole would not be understood by the ordinary reasonable viewer as making the allegation that Comalco "treats the aborigines at Weipa like dogs". Reference was made to other parts of the programme as indicating that whatever defamatory sting was implicit in the words used by Mrs Hall, that defamatory sting

was neutralized when the totality of the programme was

The other parts of the programme relied upon by the appellant include those relating to the benefits received by the aboriginals in the area from Comalco, the statements made by Mr Stewart as to the employment of aboriginals by Comalco and the interview with Sir Mark Turner, Chairman of Rio Tinto Zinc. Attention was particularly directed to the information given in the programme concerning the substantial financial contributions made by Comalco towards the provision of facilities, including housing and other community services, at Weipa South. It was said to have been made clear in the programme that these were contributions which Comalco was under no legal obligation to make because it was the Queensland Government and not Comalco which had responsibility for the Weipa South community, a point emphasised by Sir Mark Turner. Reference was also made to Mr Stewart's statement during the studio presentation that the aboriginal people of Weipa South were living in the same community that they lived in when Comalco began operations in the area but in much better housing than was available to them previously. A further matter relied upon was the segment of the film made by Comalco showing that the aboriginals comprising the community at Weipa South have been able to continue to carry on many of their traditional activities notwithstanding the mining operations. Mr Stewart's denial of segregation in the schools was also mentioned. It was submitted that, considering the programme as a whole and,

in particular, the above matters, no reasonable viewer would

regard the programme as asserting that Comalco treated the

Considering all these matters, however, I am of opinion that it was open to the trial judge to find that this

imputation had been established and that there is insufficient

For this imputation, namely that Comalco had brought the aboriginal community of Weipa South into shame and disgrace, Comalco relied primarily on the words spoken by Mrs Hall in the Granada report immediately preceding the words

relied on in relation to the imputation numbered 2, namely -

"And again, what they brought to the community was shame and disgrace to the people: brought in drinking - that's the worsest thing after destroying our land, taking the land away from us - which now today most of the younger ones are suffering; also not only the younger ones, the married people whose homes are broken, children deserted, deaths and accidents."

The trial judge held that the words and the accompanying images referred to Comalco, that they were capable of conveying, and did in fact convey, the imputation that Comalco had brought the aboriginal community of Weipa South into shame and disgrace and that that imputation was

argument, which I have rejected, that the appellant was not responsible for the statements which Mrs Hall made as it did

In relation to the argument that the ordinary reasonable viewer would not understand the programme as a whole to be making the imputation alleged, counsel for the appellant submitted that there was a great deal of other information, both in the Granada report and in the studio presentation, that would make it plain to the ordinary reasonable viewer that Comalco was not responsible for the conditions to which Mrs Hall referred. It was submitted that in so far as those conditions existed, they were either the inevitable consequence of the nature of the activity being carried on lawfully at Weipa or were the responsibility of government - State or Federal - the result particularly of the action of the Government of Queensland in granting the mining lease permitting mining operations to be carried on, its receipt of royalties in respect of the bauxite mined and its failure to provide adequate and

The trial judge found that the ordinary reasonable viewer of the programme would understand Mrs Hall's words to

be said of Comalco, even if that viewer would also conclude

that they were being said of others, including the Government of Queensland. The appellant has not, in my opinion, shown that finding to be erroneous as, in its context, the word "they" as used by Mrs Hall would, I think, clearly be taken by the viewer to refer to Comalco. The references Mrs Hall made to the mining operations and employment therein and the standard of housing and other facilities at Weipa North, for which Comalco was

responsible, suffice to demonstrate the sense in which she

But it remains to consider whether what she said amounts to a statement that "Comalco brought the aboriginal community of Weipa South into shame and disgrace". In my opinion the gravamen of what Mrs Hall is asserting in the passage relied upon by Comalco is that the company "brought in drinking". The ordinary reasonable viewer would, I think, understand Mrs Hall to be saying that, by reason of events related to the mining operations of Comalco in the immediate vicinity of the aboriginal community of Weipa South, including the introduction of a non~aboriginal work force to carry on those operations, alcohol became readily available to the aboriginal community and that the consumption of alcohol by members of the aboriginal community resulted in accidents and deaths, in marriages

breaking up, and in children being deserted or abandoned.

In other words, Mrs Hall regarded shame and disgrace as

having come to the aboriginal community as a consequence, perhaps an inevitable consequence, of the availability of alcohol and that that consequence could, in turn, be traced to Comalco's presence in the area and its mining operations. But, the imputation as pleaded goes well beyond an assertion that, as a result of Comalco's operations, the aboriginal community were detrimentally affected by the introduction of alcohol: it asserts that Comalco brought the community into shame and disgrace, that is to say, that Comalco was directly and consciously involved in bringing about that result. The ordinary reasonable viewer would not, I think, regard the assertion that shame and disgrace had resulted in the manner I have described as being equivalent to an assertion that Comalco had itself brought shame and disgrace to the aboriginal people of Weipa South. The third

This imputation was claimed by Comalco to arise from the introductory statements by Mr Ross, the text of which is set out above, and certain words spoken by Mr

Miller. Mr Miller's words were said in the context of a statement by Mr Gillard concerning the amounts earned by Comalco from mining bauxite at Weipa (50 million pounds over 10 years), the amount expended by Comalco on facilities at Weipa South (1.25 million pounds), the amount paid to the

Queensland Government by way of royalties (19 million

pounds) and the amount paid in dividends to CRA (25 million

pounds). Mr Miller then said the words relied upon, namely,

" They're prepared to take and rip-off as much of the land and the bauxite that they want but, when

it comes to showing a little bit of integrity and a little bit of decency, they forget about that, and only the dollar signs are the only signs that are showing in their eyes, and nothing else."

Counsel for the appellant again relied upon the argument, which has been rejected, that the appellant was

It was also argued that, when the programme is considered as a whole, the ordinary reasonable viewer would not regard it as making the allegation that Comalco lacked decency and integrity in its treatment of the aboriginal

community at Weipa. It was conceded that the ordinary

reasonable viewer might well be left with a suspicion that Comalco had displayed a reprehensible attitude towards the aboriginal community but that the imputation pleaded was not

The trial judge concluded that the words used would convey to the ordinary reasonable viewer that Comalco had shown a lack of integrity and decency in its dealings with the aboriginal community and that the imputation pleaded was made out. I am not satisfied that his Honour was wrong in

The passages in the transcript of the programme which are of particular relevance in relation to this imputation - an imputation that "Comalco is responsible for segregated schooling of aborigines at Weipa" - are referred to below. The first reference to the subject is in the

Granada report - a statement by Mrs Hall as follows:

"And, of course, there is still discrimination between the blacks and the whites in the school.

The blacks are in one class and the whites are in one class."

This was part of a longer statement to which reference is

made above in relation to the imputation numbered 2.

The images accompanying Mrs Hall's statement are of aboriginal children playing in what is apparently the town of Weipa South. The school is not depicted in the Granada

The other statements are part of the _ studio presentation under the chairmanship of Mr Ross, the text of which, so far as relevant to the imputation numbered 7, is set out above. It may be summarised by saying that Mr Stewart strongly attacked the Granada report as not really representing the aboriginal community at Weipa South and as

being insulting to the aboriginal community and dishonest.

Specifically he emphatically denied the statement in the Granada report that the schools are segregated.

Subsequently, Mr Penrith states that he has seen the black and white children segregated which is immediately followed by a further denial of the fact by Mr Stewart. Mr Ross then

"We don't seem to be resolving very ch .... There is segregation according to you [Mr

Penrith] which simply does not happen according to Mr Stewart."

None of the speakers in the programme alleges in so many words that Comalco is responsible for the running of the school or schools at Weipa or that they administer the education policy in relation to aboriginals in the area. On the contrary, Sir Mark Turner makes the point quite strongly that Comalco is not responsible for the health, education or

welfare of the aboriginals living at Weipa South, those

functions being the responsibility of government. It seems clear enough that Mr Stewart did not take the allegations made by Mrs Hall in the Granada report and by Mr Penrith in the studio discussion as amounting to allegations that Comalco was responsible for segregation in the schools. The thrust of his response was that the allegation of segregation was without foundation and it is inconceivable

that, had he regarded the allegations as being directed at

Comalco, he would not have addressed some remarks to that

issue as well as to the issue whether segregation was in

In my opinion, the ordinary reasonable viewer would not take from the programme that Comalco was responsible for

This imputation - that Comalco was responsible for discrimination against the aboriginal community at Weipa in relation to housing and health care - was said by Comalco to rest on the introductory passages spoken by Mr Ross to which reference has already been made and a large number of

passages from the Granada report, including statements by Mr Gillard, Mr Miller, Mr Penrith, Mrs Hall and Professor

I have no doubt that the ordinary reasonable viewer would carry away from the Granada report the clear

impression that the standard of housing provided by Comalco to those living at Weipa North was far higher than that

which the residents of Weipa South enjoyed. That impression

would clearly arise not only from the visual images but from a number of the statements made in the report, including

statements by Mr Gillard and Mrs Hall. In addition there

was the dialogue between Mr Penrith and Mr Stewart during the studio presentation. A similar impression would clearly be gained by the ordinary reasonable viewer concerning the standard of health care provided in the two communities. On this aspect of the matter it is sufficient to refer to what

Professor Hollows had to say in the Granada report.

The question arises, however, whether the ordir-cry reasonable viewer would understand the programme tc be asserting that Comalco was responsible for the difference in treatment between the two communities. The viewer would have no doubt that Comalco had provided the high standard of facilities at Weipa North. Would he regard the programme as

attributing to that company the much lower standard at Weipa South?

On the one hand there are the various statements made in the Granada report concerning the dispossession of the aborigines who lived at Weipa to make way for the mining operations on the former reserves, the amounts spent by Comalco on housing at Weipa North, the provision by Comalco

of finance to assist the community at Weipa South through the Weipa Aboriginal Society and the comparison between the

large sums paid by Comalco to the Queensland Government by way of royalties and to its parent company by way of dividends with the comparatively small amount contributed by

On the other hand, are the assertions by Sir Mark Turner that the aboriginal community at Weipa is not the responsibility of Comalco and by Mr Stewart that the new housing at Weipa South was provided not by Comalco but by

the Presbyterian Church, although, as he said, with finance

that Comalco had amoral, if not alegal, obligation to provide better facilities by way of housing and health for the Weipa South community. After all, those people had, so the report asserted, been dispossessed of the areas where they previously lived - albeit ona reserve - for the purpose of enabling Comalco to conduct mining operations and make very large profits. Thus arose at least a moral obligation to take proper care of those dispossessed. Then the impression is clearly created that Comalco failed to fulfil that obligation. This is, I think, the overall impression that the ordinary reasonable viewer would carry

In my opinion imputation numbered 8 must be taken to have been established and that it is defamatory of

Imputation 9 The trial judge found that this imputation - that Comalco conducts an unequal conflict with the aboriginal

people at Weipa - did not arise from the programme.

Counsel for Comaico submitted that his Honour's finding should not be sustained but, in my opinion, it has not been shown that his Honour was in error in reaching that

Imputation 10 This imputation is that Comalco does not attempt to restore the environment at Weipa affected by its mining

There is, as counsel for the appellant conceded, much in the Granada report showing the devastating impact of the operation of large scale machinery in clearing land Preparatory to open cut mining. But that is not the

imputation pleaded. The only statements relied upon by

Comalco to support the imputation pleaded are the statements

by an unidentified aboriginal asking who was going to bring back "those same trees and plant them" and by Mrs Hall that the "area is ripped out - left with big holes". The statement made by the unidentified aboriginal was the

In my opinion the programme, considered as a whole, 1S mot concerned to address itself to the question of

restoration of the environment following upon the extraction of the bauxite. The statements relied upon relate only to the initial destruction of the vegetation and do not, in my

Imputation 1 It remains to consider imputation numbered 1 - that

In the light of the conclusion to which I have come that no sufficient ground has been established to warrant

interfering with the trial judge's findings that Comalco had

made out imputations numbered 2 (that Comalco treats the aborigines at Weipa like dogs), 6 (that Comalco is without

decency and integrity in its treatment of the aboriginal

community at Weipa) and 8 (that Comalco is responsible for discrimination against the aboriginal community at Weipa in relation to housing and health care), the conclusion is, I think, inevitable that, considering the programme as a

8 are established as being defamatory imputations made of

Comalco by the appellant. However, imputations numbered 3,

4, 5, 7, 9 and 10 are, in my opinion, not established.

Counsel for the appellant submitted that the trial judge was in error in holding that the occasion upon which the matter complained of was published was not an occasion of qualified privilege. In his careful and detailed submissions on this aspect, as on other aspects, of the appeal, counsel examined a large number of authorities. He referred to Brown v. Croome (1817) 2 Stark 297; Toogood v. Spyrin (1834) 1 C.M. & R. 181 at p.193; Cox v. Feeney (1863) 4 F. & F. 13; Allbutt v. General Council of Medical Education and Registration (1889) 23 Q.B.D. 400; Howe v. Lees (1910) 11 C.L.R. 361; Adam v. Ward £1917] A.C. 309; Robertson v. McBride £19311 4 D.L.R. 132; Chapman v. Lord Ellesmere £19323 2 K.B. 431; Lang v. Willis (1934) 52 C.L.R. 637; Loveday v. Sun Newspapers Ltd. (1938) 59 C.L.R. 503; Braddock v. Bevins [1948] 1K.B. 580; Perera v. Peiris [1949] A.C. 1; Wells v. Butler [19523 N.Z.L.R. 312; Webb v. Times Publishing Co. Ltd. £19603 2 Q.B. 535; O'Sullivan v. Schubert [£1963] V.R. 143; London Artists Ltd. v. Littler [19681 1W.L.R. 607; Dunford Publicity Studios Ltd. v. News Media Ownership Ltd. £19711 N.Z2.L.R. 961; Morosi v. Mirror

Newspapers Ltd. C1977] 2 N.S.W.L.R. 749; Lucas & Son (Nelson

Mail) Ltd. v. O'Brien [19787 2 N.Z.L.R. 289 and Blackshaw v. Lord £19847 Q.B. 1.

I have considered the authorities cited but I do not find it necessary, for the purposes of these reasons, to discuss them in detail. They clearly establish that, in order to sustain the proposition that a publication was made on an occasion of qualified privilege, the publisher must show that the publication was made in pursuance of a legal, social or moral duty and that the publication was made only to persons who had a corresponding interest to receive it. Thus, in the present case, the appellant must show that it had a duty (using that word in the special sense which it bears inthis branch of the law) to publish the Granada report and the matter the subject of the studio presentation to the intended recipients, namely the public at large in the States of Victoria and South Australia and the Australian Capital Territory, and that the intended

recipients had an interest to receive the information so

According to the appellant's submissions, the relevant duty arose from a consideration of the nature and subject matter of what was published and its source and the status of, and the statutory obligations imposed on, the appellant. In relation to the latter, the appellant

referred particularly to sub-s.59(1) of the Broadcasting and Television Act 1942 (Cth) which, at the relevant time,

"(1) Subject to this Act, the Commission shall provide, and shall broadcast or televise from stations provided in accordance with section 73, adequate and comprehensive programs and shall take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable

(b) the existence of racism discrimination in Australia;

public interest and importance as to warrant the conclusion

that the appellant had a moral or social, and a public, duty

to publish what was contained in the Granada report and what

interested persons invited to speak on those subjects might

wish to say about them, albeit that what was published might

The appellant's submissions involve the proposition

that it is sufficient to constitute an occasion one of

qualified privilege if it be shown that what is published can properly be characterised as the public discussion of matters germane to a general subject matter which can itself

be classified as one of great public interest or concern.

In my opinion, the authorities do not suprert the proposition for which the appellant contends. I respectfully adopt what was said by Stephenson L.J. in Blackshaw v. Lord (supra) at p.26:

"No privilege attaches yet to a statement ona matter of public interest believed by the publisher to be true in relation to which he has exercised reasonable care .... Public interest and public benefit are necessary ...., but not enough without more. There must be a duty to publish to the public at large and an interest in the public at large to receive the publication; and a section of the public is not enough.

The subject matter must be of public interest; its publication must be in the public interest. The nature of the matter published and its source and the position or status of the publisher distributing the information must be such as to create the duty to publish the information to the intended recipients...."

Thus, it is not sufficient to attract the privilege to show that the subject matter of the publication isa

Matter of great public interest or concern even if it be

also established that the publisher took reasonable care to verify what was being published and believed it to be true. The position must be a fortiori in a case such as the

present where the appellant, far from expressing its belief

in the truth of what was published, has consistently maintained that it had no belief one way or the other in the views expressed by those appearing either in the Granada report or in. the studio presentation, its position being

that it was simply providing a forum for the expression of

differing points of view. To this may be added that there

is nothing in the material before the Court to show that the Granada report itself was produced in such circumstances as

to confer upon it a particular status such as to give rise

to a duty to publish. Nor was its status enhanced by the

In my opinion, the appellant has not established that it had a duty in the accepted sense to publish the programme or that the public at large had a correlative interest to receive the information contained in it so as to make the occasion one of qualified privilege. It is implicit in what I have said that I do not regard

sub-s.59(1) of the Broadcasting and Television Act 1942

As I have conciuded that the occasion of the publication was not one of qualified privilege, I need not consider, in any detail, the question whether the appellant was guilty of malice sufficient to destroy such privilege had it existed. Having considered all the relevant material, however, it may be appropriate to say that, had this question arisen, I should have answered it adversely to the appellant. The matters supporting this conclusion are these. First is the fact that there were statements in the Granada report which the appellant, before its publication was made, knew to be untrue, namely the statement by Mrs Hall that all that Comalco had provided to the Weipa South community were a few houses and the statement, again by Mrs Hall, as to the number of aboriginals employed by Comalco at Weipa, yet it made no reference to these matters in the introduction to the programme or in the course of the studio presentation. Secondly is the evidence, accepted by the trial judge, that the appellant had good reason to believe that the Weipa South Community Council (a body of aboriginals) regarded the Granada report as false and insulting and objected to Mr Miller speaking on behalf of the community, yet the appellant allowed the programme to proceed without reference to this, though some of Mr Miller's words, those relating to the Premier of Queensland,

The trial judge, in his reasons for judgment, examined the words spoken in the programme on which the appellant relied as being fair comment, the relevant Passages being, for convenience, numbered 1 ~ 11 inclusive. His Honour concluded that the defence of fair comment almost entirely failed in respect of those parts of the programme to which it was claimed to apply: that it succeeded only in respect of the first sentence of the passage numbered 8 and,

even so, had no significant effect on any imputation. His

Honour then considered what the result would have been if, contrary to the conclusion to which he had come, the defence of fair comment were held to succeed in respect of all the passages for which it was claimed. On that assumption, his Honour concluded that it would provide a defence in respect of three only of the imputations alleged, namely those

Before us, counsel for the appellant challenged his Honour's conclusions only in respect of three of the

Passage numbered 1, comprising the words used by Mrs Hall: "No, we are treated like dogs I would say";

. Passage numbered 2, being the words, again spoken by Mrs Hall: "And, again what they brought to the community was shame and disgrace to the people" immediately preceding the words "brought in drinking"; and

. Passage numbered 4 comprising the words spoken by Mr Miller: ".... but, when it comes to showing a little bit of integrity and a little bit of decency, they forget about that, and only the dollar signs are the only signs that are

In view of the conclusion to which I have come that the imputation numbered 3, for which purpose Comalco relied on the passage numbered 2 and certain words used by Mrs Hall immediately after that passage, has not been established, I need not consider the defence of fair comment in relation

Turning to the passage numbered 1, I am satisfied that the words used by Mrs Hall are properly to be regarded as comment. The words are her comment upon the factual Matters to which she had referred immediately preceding a question asked of her by Mr Gillard and in answer to which she used the words constituting the comment. It may be

"The white people are in the best places. They've got good housing; they've got good parks, lawns, air conditioned homes. We few blacks - we're in one little block. All they did was gave us these few houses - what I call them, box

houses ~- and that's the only thing that they've given us.

Not all the men are employed - there are about 12 or 20.

Young people who leave school and who have passed their exam and ask for a job, they can't get a job.

And, of course, there is still discrimination between the blacks and the whites in the school. The blacks are in one class and the whites are in one class."

The trial judge examined each of the factual statements contained in what Mrs Hall had said and made findings as to their truth or falsity. It is unnecessary to set out each finding. It is sufficient for present purposes to say that his Honour concluded that the statements of fact relied upon to support the comment were to such a

substantial extent false that the plea of fair comment could

Counsel for the appellant sought to challenge some of his Honour's findings but conceded that, even if he were successful in that, the position would remain that some of the statements contained in what Mrs Hall said had not been shown by the appellant to be true. The submission was to the effect that, if certain of the findings of the trial

judge were overturned, the appellant would have established a sufficient substratum of facts which were true to support

Counsel's submission cannot be sustained if the relevant principle of law requires that a defendant who

seeks to make out the defence of fair comment in a case

where the facts relied upon to support the comment are set

out in the defamatory publication must prove the truth of all of the facts so stated. In submitting that the law does

not so require, counsel challenged what is said in Gatley on Libel _ and Slander, 8th ed., par.713:

"If the facts stated in the publication as a basis for comment are themselves defamatory, the defendant must plead justification in relation to them, and fair comment will be no defence. Even if they were not in themselves defamatory, it was necessary at common law to prove that all the allegations of fact in the words complained of were true, and that the comment upon those facts was bona fide and fair comment ona matter of public interest. The regular form of plea ran:

'The words complained of are fair and bona fide comment made in good faith and without malice on facts truly stated in{e.g. the said article] which are matter of public interest.' The alternative 'rolled-up' plea was equally explicit: 'In so far as the words complained of consist of statement of fact, they are true in substance and in fact; and in so far as the said words consist of expressions of opinion, they are bona fide and fair comment made in good faith and without malice on the said facts which are matter of public interest.' At the trial it was accordingly incumbent on the defendant to prove:

(1) that each and every statement of fact in the words complained of was true; and (2) that the comment on the facts so proved was bona fide and fair comment on a matter of public interest. On these pleadings, if the defendant failed to prove the truth of any of the statements of fact, he necessarily failed in his defence."

Counsel also referred to passages in the speeches of Viscount Finlay and Lord Carson in Sutherland v. Stopes C1925] A.C. 47 and to the dictum of Lord Porter in Kemsley v. Foot (19521 A.C. 345 at pp.357-8:

the alleged libel, each fact must be justified and if the defendant fails to justify one, even

if it be comparatively unimportant, he fails in his defence."

In Sutherland v. Stopes (supra) Viscount Finlay said at pp.62-3:

"It is clear that the truth of a libe'™ affords a complete answer to civil proceedings. This defence is raised by plea of justification on the ground that the words are true in substance and in fact. Such a plea in justification means that the libel is true not only in its allegations of fact but also in any comments made therein.

The defence of fair comment on matters of public interest is totally different. The defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard toa matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence there must, of course, be a basis of fact on which the comment is made.

For a good many years past a practice has prevailed of raising this defence by what has been called the 'rolled up plea', but it will be found that this term is a misnomer based ona misconception of the nature of the plea. Sucha plea states that the allegations of fact in the libel are true, that they are of public interest, and that the comments upon them contained in the libel were fair. The allegation of truth is confined to the facts averred, and the averment as to the comments is not that they are true but

only that they were made in good faith, and that they are fair and do not exceed the proper

There has been a good deal of misconception as to the nature of this plea. It has been sometimes treated as containing two separate defences rolled into one, but it in fact raises only one defence, that being the defence of fair comment

on matters of public interest. The averment that the facts were truly stated is merely to lay the necessary basis for the defence on the ground of fair comment. This averment is quite different from a plea of justification of a libel on the ground of truth, under which the defendant has to

prove not only that the facts are truly stated but also that any comments upon them are correct."

Lord Carson, referring to the rolled-up plea, said at

"And I desire to express my entire concurrence with the statement of the late Lord Collins when he was Master of the Rolis in the case of Digby v. Financial News, Ld. (£19071 1 K.B. 502, 507), which is as follows: 'When a plea of justification is pleaded, it involves the justification of every injurious imputation which a jury may think is to be found in the alleged libel. This plea does not purport to be a plea of justification of the imputations, if any, contained in the libel; it is nothing of the sort, but is a plea intended to raise a totally different defence, that of fair comment. Comment, in order to be fair, must be based upon facts, and if a defendant cannot shew that his comments contain no misstatements of fact, he cannot prove a defence of fair comment.' "

It should also be noted that, immediately following the words of Collins M.R. quoted by Lord Carson, Collins M.R. continued (C€19073 1 K.B. 502 at pp.507-8):

"The usual way to begin such a plea is by asserting that the facts on which the comment is based are true, that is, that the defendant has made no misstatements in formulating the materials upon which he has commented. If the defendant makes a misstatement of any of the facts upon which he comments, it at once negatives the possibility of his comment being

fair. It is therefore a necessary part of a plea of fair comment to shew that there has been no misstatement of facts in the statement of the materials upon which the comment was based."

Counsel submitted that the above statements should not be read as supporting the proposition that a defendant must prove the truth of all of the facts set out in the defamatory publication upon which the comment was made as that question was not in issue in either Digby v. Financial News Ltd. (supra) or Sutherland v. Stopes (supra). He further submitted that, if the dictum of Lord Porter referred to above is to be read as supporting that proposition of law, the dictum is incorrect and should not be followed. Counsel sought to find support for his

argument in what was said by Jordan C.J. in Goldsborough v. John Fairfax & Sons Ltd. (1934) 34 S.R. (N.S.W.) 524 at p.534:

"It follows that in my opinion, in New South Wales, where the defamatory matter complained of consists of both facts and comment, the defence of fair comment is not, in principle, availabie as to the comment unless it can be established that the defamatory facts relied on as the basis for the comment, or some of them, were true, and that it was for the public benefit that they should be published."

In my opinion the argument put by counsel for the appeliant cannot be sustained. There is, in my opinion, no authority to support it. All that can be said is that in

none of the cases to which we were referred has the question

arisen directly for decision. But, what the defence of fair comment involves has been consistently explained in terms

which are inconsistent with the submission put on behalf of

the appellant. In so far as Jordan C.J. suggested in the passage quoted that proof of the truth of some of the facts stated in the defamatory publication is sufficient, that statement is not supported by authority and, indeed, is not consistent with the formulation of the principle as stated

In my opinion, in the light of counsel''s concession that some of the facts stated by Mrs Hall cannot be shown to be true, the defence of fair comment cannot be made out in

As to the passage numbered 4, I am satisfied that the finding by the trial judge that this passage is properly described as comment is correct. The statements of fact upon which the comment is based are the statement by Mr Miller that, unlike the position in other countries, no royalties are paid to the indigenous people on whose land

mining takes place and the further statement by him that the