Roberts v Bass [2002] HCA 57; 212 CLR 1; 194 ALR 161; 77 ALJR 292

Roberts v Bass [2002] HCA 57; 212 CLR 1; 194 ALR 161; 77 ALJR 292 - HCA 2002 case summary — Zoe

[113]

Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive[53]. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication[54]. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication[55]. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information[56]. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion[57]. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.

[292]

"[M]any of my amendments that were accepted by the Police Minister, made the Act a lot easier to understand, made it workable by the police, and an example is, under the definitions, they wish to have a definition of action, the registerable part of a firearm, which was absolute lunacy, which would have meant any person with a screw, spring or split washer at home, would have been in possession of an action of a firearm, and many of the parts that they were trying to define as a firearm were identifiable. It was my amendment, moved in the House and accepted by the Police Minister, that the frame be the definition of a firearm, because without the frame, you have no firearm. You can have all the other parts that they wish to have as a definition, and they haven't got a gun. So that amendment actually brought the legislation into a workable legislation so the police could take action. The frame, in most cases, also bears the registered number, or the number that the gun could be registered, and that was accepted throughout all those amendments in relation to that. Some of the amendments I also moved, would have made the legislation a lot safer, if they had been implemented and I just mention too, it was one of my amendments that the drinking of alcohol while you had a loaded firearm, would be an offence, and this was an amendment that was suggested by the firearms fraternity. So it would have meant if that amendment would have got up, no-one could have a loaded firearm within six hours of drinking alcohol. Another amendment that I put forward, which I might say was rejected by the parliament, would have seen legally qualified medical practitioners have a legal obligation to report to the Registrar of Firearms, any person he believed that was unstable that had firearms in his possession, the same with the clubs who sacked or expelled a member, whose possession of a firearm was a condition of being a member of a club, to make it an obligation that they notify the Registrar of Firearms immediately, and these amendments would have, in fact, increased the effectiveness of the legislation, and made it a lot safer for the families of South Australia."

[331]

The defence of conventional qualified privilege failed. His Honour held that reciprocity, or sufficient reciprocity of interest had been demonstrated[235]. The occasion of each publication was therefore a privileged one[236]. But, his Honour also held, the respondent had established malice sufficient to defeat or rebut the plea of qualified privilege. In so deciding, his Honour was attentive to the fact, as Lange holds[237], that it might not be improper, and therefore not malicious, for a person to have a motive of causing political damage to a person or to that person's party in a case in which a defence based on that case is properly raised[238]. He next said that it was an open question whether, in a case of conventional qualified privilege, a motive of causing political damage might still, in some circumstances, constitute malice. It was unnecessary, however, for the trial judge to answer that question in this case because the appellants' "main intention was to injure the [respondent] and to lower his estimation in his fellow persons by making them think less of him." All three publications were part of a strategy designed to have this effect[239]. It was his opinion that the improper conduct of the appellants was compounded by, on the part of the first appellant, his indifference to the truth of the defamatory matter, and on the part of the second appellant, his indifference to the truth, by his abstention from doing any research or making any inquiries about its accuracy before he distributed it[240]. Other matters also gave rise to his Honour's inference of malice. One of these was the first appellant's failure to take positive steps to discontinue the distribution of the FTT and his failure to retract it. The actions of the second appellant, his Honour thought, might not have been as recklessly blatant as those of the first appellant, but nonetheless, the former's motive to injure the respondent's reputation and remove him from office was improper and malicious. He expressly found that "the [appellants'] dominant purpose went far beyond the mere desire to foil the [respondent's] prospects of re-election."

[358]

With respect generally to the Lange defence I would adhere to the opinions I expressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[255]. It is unnecessary, however, for me to decide whether I am bound to, or should apply it, in this appeal for a number of reasons. But I would add this to what I said in Lenah. Freedom of speech is no more under threat today than it was when the Constitution was drafted. That situation owes nothing to Lange. It is a situation that has existed throughout at least the last 40 years. Indeed, if anything, the contrary is the case. This has explicitly recently been recognized in the United States and the United Kingdom by practitioners and academic observers of the art of journalism[256]. Australia is not unique in this respect. The same trends are readily apparent here. The expression "chilling effect [upon political discourse]" is no more than a metaphor, and, like many metaphors, an extravagantly inaccurate one. And, if proof be needed of the undesirability of the importation, after more than 90 years, into the Constitution of an hitherto undetected judicial implication, this case provides it. It will take years, years of uncertainty and diverse opinion for the Court to reach a settled view of the elements of the defence and the way in which it is to be applied. Lange certainly does not exhaustively define its impact on the law of defamation. I doubt whether any case, or series of cases will ever do so, and, as defamation is not a head of federal constitutional power, legislation can never be enacted to resolve the recurrent uncertainties to which it gives rise. Furthermore, as the Chief Justice in his reasons in this case points out[257], the need for the common law to conform to the Australian Constitution [and therefore, I would add, the need at all for a new form of constitutional defence] is difficult to reconcile with the co-existence of different tests for qualified privilege in the context of political debate.

At a glance

Court

Decision date

Before

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Judgment (629 paragraphs)

Roberts v Bass [2002] HCA 57; 212 CLR 1; 194 ALR 161; 77 ALJR 292 (12 December 2002)

Parties

Legislation Cited (8)

Cases Cited (46)