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[1994] HCA 45
High Court of Australia
1992-10-05
McHugh JJ, Gaudron JJ
Original judgment source is linked above.
This matter arises by way of case stated pursuant to s. 18 of the Judiciary Act 1903 Cth. The circumstances appear sufficiently from other judgments and I shall not repeat them. The questions asked are whether par. 20A and par. 20B of the further amended defence are bad in law.
The defence pleaded in par. 20A is that "the newspaper articles complained of were published pursuant to a freedom guaranteed by the Commonwealth Constitution and the Constitution Act, 1889 WA ". The defence relies on a freedom of speech said to be guaranteed by those sections of the Commonwealth Constitution and the Constitution Act 1889 WA which provide for representative government. For the reasons which I gave in Theophanous v Herald Weekly Times Ltd. [82] , I am of the view that no such freedom as that upon which the defence relies can be implied from those provisions. Accordingly, I do not think that the defence can be made out. I would answer the first question, yes.
Paragraph 20B attempts to raise the common law defence of qualified privilege but does so upon the basis of matter consisting of comment rather than fact. Nothing appears from the pleadings which could be said to constitute information which the defendant had a duty or interest to impart and the recipients had a corresponding duty or interest to receive. I agree with McHugh J., for the reasons which he gives, that the available plea is fair comment rather than qualified privilege. It is not apparent whether the defendant could recast its pleading so as to raise the defence of qualified privilege, even though the publication was to the world at large rather than to a restricted class of interested persons. It is, therefore, unnecessary to consider further the scope of that defence in the present proceedings. I would answer the second question, yes.
This case stated arises out of a defamation action pending in the Supreme Court of Western Australia which has been removed into this Court pursuant to the provisions of the Judiciary Act 1903 Cth.
At all relevant times, the plaintiffs were members of the Legislative Council of Western Australia. The defendant publishes the newspaper, the West Australian. In 1992, the plaintiffs commenced the present action against the defendant after the publication of three articles in the West Australian. The first two articles were published in June 1992; the third article was published in September 1992. The first article reported statements allegedly made by Mr. Lockyer, another member of Parliament, to the effect that an overseas trip taken by the plaintiffs as the members of a parliamentary committee "is a junket of mammoth proportions". Mr. Lockyer was reported as saying: "They've gone in secret hoping no one would find out about it and this is nothing but a rort which is costing taxpayers thousand of dollars." The second article reported that the Premier had "rejected a plea" to recall the committee. It repeated Mr. Lockyer's claim that "six members of the government agencies committee had gone on a junket at taxpayers' expense without Parliament's knowledge." The third article, after referring to trips taken by two other members of Parliament, reported that Mr. Lockyer had said that these two trips and the trip taken by the plaintiffs were "junkets". Mr. Lockyer was also reported as having "accused all involved of sneaking off in secret".
The case stated asks whether two defences pleaded by the defendant in pars 20A and 20B of its further amended defence are bad in law. Paragraph 20A asserts that "the newspaper articles complained of were published pursuant to a freedom guaranteed by the Commonwealth Constitution and the Constitution Act 1889 WA and are therefore not actionable". Paragraph 20B asserts that "the newspaper articles complained of were published on occasions of qualified privilege".
In Theophanous v Herald Weekly Times Ltd. [1] , I have set out my reasons for concluding that the Commonwealth Constitution contains no guarantee of freedom of expression that would render the defendant immune from an action for defamation arising out of the publication of these three articles. The substance of those reasons also applies to the claim of the defendant that the Constitution of Western Australia contains an implied guarantee of freedom of expression that would render the publication of the articles immune from an action for defamation. It follows, in my opinion, that the defence pleaded in par. 20A is bad in law.
The defence of qualified privilege set out in par. 20B contains sixteen lettered paragraphs of particulars. The essential points raised in these particulars are:
(1) The articles related to the performance by the plaintiffs of their functions and duties as members of Parliament and their suitability and qualification to continue to hold office.
(2) The articles related to possible misconduct in public office and to the spending of public money.
(3) The articles related to matters that were relevant to electors in determining whether they should cast a vote for the plaintiffs in elections to the Western Australian Parliament.
(4) The matters referred to in (1) were matters of public interest.
(5) The articles were written and edited by persons enrolled as electors in Western Australia.
(6) The articles were published predominantly to persons enrolled as electors. Publication in a newspaper is one of the most reasonably practicable modes of communication with the electors of Western Australia, and the mode, manner and extent of the publications were reasonable in the circumstances.
The defendant alleges that, by reason of these matters, it had an interest in publishing the matter complained of and that the readers of the West Australian had a reciprocal interest in receiving information about those matters.
In my opinion, the defence set out in par. 20B is not good in law because the defamatory matter consists of comment and not fact and the comment was not published in the course of publishing facts that would attract the defence of qualified privilege. If the defamatory matter is protected material, it is protected by the defence of fair comment or justification, not qualified privilege. In any event, the particulars of the defence are not sufficient in point of law to raise a defence of qualified privilege even if, contrary to my view, the defamatory imputations arise out of statements of fact in the articles. Even if the articles consisted mainly of fact, the particulars would need to allege two further facts to be good in law: (1) The statements attributed to Mr. Lockyer were in fact made by him with the intention that they be published to the general public. (2) Mr. Lockyer is a member of the Parliament of Western Australia.
At common law, it is a defence to the publication of defamatory matter that the matter was published in good faith on an occasion of qualified privilege. Statements "fairly made by a person in 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 is concerned" are privileged even though they contain untrue defamatory statements [2] . However, the defence of qualified privilege is generally not available where defamatory matter is published in a newspaper. At common law, the defence is not open unless the recipient of the publication possessed an interest in receiving or was under a duty to receive the communication that corresponded with the interest or duty of the person making the publication [3] . In Mowlds v Fergusson [4] , Jordan C.J. explained the nature of the defence of qualified privilege as follows:
A privileged occasion comes into existence whenever something occurs which creates in one person an interest or duty, legal, social, or moral, to communicate information to another to serve some particular purpose, and creates also in the other a corresponding interest or duty to receive the communication for that purpose. When such an occasion arises, any person having an interest or duty to make a communication to serve its purpose may make it to any person entitled to receive it; and if he restricts himself to a communication which is capable of serving the purpose of the occasion and is made with no other object than that of serving that purpose, he incurs no liability for libel or slander to any person of whom his communication may be in fact defamatory. 1. Toogood v Spyring (1834), 1 C.M. R. 181, at p. 193 [149 E.R. 1044, at pp. 1049-1050]. 2. Harrison v Bush (1855), 5 El. Bl. 344, at pp. 348-349 [119 E.R. 509, at p. 512]; Pullman v Hill Co. , [1891] 1 Q.B. 524, at p. 528; Adam v Ward , [1917] A.C. 309, at p. 334; Watt v Longsdon , [1930] 1 K.B. 130, at pp. 147-148; Mowlds v Fergusson (1940), 64 C.L.R. 206, at pp. 214-215; Guise v Kouvelis (1947), 74 C.L.R. 102, at p. 113; Andreyevich v Kosovich (1947), 47 S.R. (N.S.W.) 357, at p. 362; Morosi v Mirror Newspapers Ltd. , [1977] 2 N.S.W.L.R. 749, at p. 775; Duane v Granrott , [1982] V.R. 767, at pp. 781-782; Nationwide News Pty. Ltd. v Wiese (1990), 4 W.A.R. 263, at p. 267; Pearce v Hailstone (1992), 58 S.A.S.R. 240, at p. 264; Radio 2UE Sydney Pty. Ltd. v Parker (1992), 29 N.S.W.L.R. 448, at p. 459. 3. (1939) 40 S.R. (N.S.W.) 311, at p. 318.
Reciprocity of interest or duty is essential to a claim of qualified privilege at common law [5] . The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large [6] . Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested [7] . In Howe McColough v Lees [8] , Higgins J. said that the word "interest" was not used in any technical sense. However, his Honour said that the person must not be "interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news" [8] . In the same case, O'Connor J. said [9] that the interest must be "of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it".
As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. If such information is published in good faith, both the author and the publisher of the article are protected "for the common convenience and welfare of society" [10] . The privilege of the publisher is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents" [11] to the general public. In Adam v Ward [12] , a claim of qualified privilege was upheld in respect of a letter, published at the direction of the Army Council, that was intended to be and was published widely "in the British and Colonial Press". The House of Lords held that the general public had a sufficient interest in the contents of the letter to make the occasion one of qualified privilege because the letter recorded that the Council had acquitted a British Army General of charges of misconduct made against him by the plaintiff in the House of Commons. Lord Atkinson said [13] "[e]very subject who had an interest in the Army had an interest in being by a public communication informed of General Scobell's acquittal". Similarly, in Loveday v Sun Newspapers Ltd. [14] this Court upheld a claim of qualified privilege where a newspaper article contained a reply to an attack on a municipal council made in the same article.
Both Adam and Loveday were concerned with publications in reply to attacks on the plaintiff or some other person which had been published to the world at large. But at least two cases show that the defence of qualified privilege may succeed even though the defamatory publication is not in reply to any attack. In Allbutt v General Council of Medical Education and Registration [15] , the English Court of Appeal held that the Medical Council was entitled to a defence of qualified privilege in respect of a fair and accurate report to the public of the grounds for removing the name of a medical practitioner from the register of practitioners. In Dunford Publicity Studios Ltd. v New Media Ownership Ltd. [16] Macarthur J. upheld a defence of qualified privilege in respect of a Minister's criticism of the plaintiff, which had been published in a newspaper with a wide circulation. The criticism was the result of the Minister's belief that he had been misled into giving a letter of commendation in support of a road safety competition associated with the sale of Christmas cards by the plaintiff. Macarthur J. said [17] :
Here, the Minister was misled by the organizers of the road safety contest. It was the duty of the Minister to ensure, and it was in the interests of the public, that his statement on the matter be given wide circulation. The wide circulation afforded by publication in a newspaper was proper. The matter was undoubtedly a matter of public interest. The Minister requested Truth to publish his statement. 1. (1889) 23 Q.B.D. 400. 2. [1971] N.Z.L.R. 961. 3. ibid., at p. 968.
These two cases show that the proprietor of a newspaper or a radio or television station is entitled to a defence of qualified privilege when it publishes statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the general public about a matter.
In determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed [1] . It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication [2] . If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication.
Although, as the foregoing account of the case law demonstrates, the common law has upheld defences of qualified privilege for publications to the world at large, common law courts have taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. Protection of reputation has generally been preferred to the right of the public to know. It is not surprising that successive generations of common law judges have been loath to extend the categories of qualified privilege to protect publications in the general media. Although the tort of defamation became established at an early stage in the history of common law, the defence of qualified privilege, as we know it, was not recognized until the first part of the last century [3] . New legal doctrines take time to win general acceptance in the legal profession, and the low quality and sensational nature of significant parts of the late nineteenth century and twentieth century media have not been conducive to the extension of a defence that protects the publication of untrue defamatory material. However, as Cockburn C.J. is reported to have said [4] "those who administer [the law of qualified privilege] must adapt it to the varying conditions of society".
In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally. If this legitimate interest of the public is to be properly served, it must also follow that on occasions persons with special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties will have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public. In Jenoure v Delmege [5] , Lord Macnaghten said that "[t]o protect those who are not able to protect themselves is a duty which everyone owes to society".
Accordingly, it is now appropriate for the common law to declare that it is for "the common convenience and welfare" of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers. The scientist who discovers that lack of governmental action is threatening the environment, the "whistleblower" who observes the bureaucratic or ministerial "cover up", and the investigative journalist who finds that grants of public money have been distributed contrary to the public interest are examples of persons who have special knowledge of matters affecting the exercise of public functions or powers or the performance of duties by public representatives or officials. If such persons, acting honestly, inform the general public of what they know about such matters, their publications will be made on an occasion of qualified privilege. The defence of qualified privilege will be available even if the information is subsequently proved to be incorrect. Thus, the occasion will still be privileged even if the "whistleblower" mistakenly but honestly publishes information which defames another person or the scientist or journalist honestly overlooks some fact which undermines the thesis of his or her claim. The publication of erroneous information may be evidence of malice in some cases. But by itself an error in the published information will not destroy the occasion of privilege.
No doubt in some exceptional cases the information published may be so unrelated to the kind of powers or functions invested in the person defamed that a defence of qualified privilege could not be upheld. But, speaking generally, the occasion will be privileged whenever a person with the requisite special knowledge honestly publishes information about the functions or powers or the performance of duties by public representatives or officials for the purpose of informing the public about such matters. The officiousness of the person publishing the information can never be decisive against the existence of an occasion of qualified privilege, although it may be relevant in determining whether there was a duty to publish to the world at large [6] .
Moreover, if the information is to reach the general public, it will often be necessary for the person wishing to convey that information to use a media outlet of wide circulation. In Attorney-General v Times Newspapers [7] , Lord Simon of Glaisdale pointed out that:
People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. I see no difficulty, having regard to the case law, in holding that the media has an ancillary privilege to publish in good faith apparently reliable information obtained from a person who has an apparent duty or interest in making the information available to the public. However, where the media outlet relies on an ancillary privilege derived from the privilege of the person making the statement, the outlet's claim for qualified privilege will be lost if the privilege of the original holder is lost. 1. [1974] A.C. 273, at p. 315.
In my opinion, however, the common convenience and welfare of Australian society does not require that every defamatory comment made by a person with special knowledge of the functions, powers or performance of duty by public representatives or officials should be protected by qualified privilege. If the comment is based on, and published with, facts about which that person has special knowledge, it would be in accordance with authority to hold that any defamatory comment on those facts was privileged if the facts themselves are privileged [8] . But it does not follow that the existing categories of qualified privilege should be extended to cover bare defamatory comment.
It is true that, if a comment is published in respect of a subject of public interest, a defence of fair comment is open even though the publication does not set out the facts upon which the comment is based [9] . As long as the subject matter of the comment is indicated with sufficient clarity, the defendant may establish the fairness of the comment by proving any fact which would justify its fairness [10] . Furthermore, in many situations, the existing categories of qualified privilege protect bare defamatory comment. But if the doctrine of qualified privilege at common law was extended beyond the existing categories to cover the publication to the general public of bare defamatory comment made by a person with a special knowledge of a subject of public interest, it would render the defence of fair comment in such a situation largely, if not entirely, superfluous. If the defence of fair comment or the existing categories of qualified privilege do not protect the publication of a bare defamatory comment, it is difficult to see how the public interest is served by extending the defence of qualified privilege to protect that comment. In such a case, the public is not given the facts that are the basis of the comment and the public is not in a position to make any judgment about the fairness of a comment which, by hypothesis, is unfair and defamatory.
It is one thing to extend the doctrine of qualified privilege to protect the publication of defamatory facts that turn out to be untrue and to protect any comments that are based upon them. If the facts are published to those who have an interest or duty to receive them by a person with a corresponding duty or interest to publish them, society benefits because experience has shown that, in the absence of malice, the factual content of such publications is generally true. Society benefits even though some statements made on those occasions are in fact untrue. But, although some champions of freedom of expression might argue otherwise, I am not convinced that society benefits by allowing persons to make defamatory comments that injure the reputations of others unless that comment is fair and based on facts that are true or on facts that attract the defence of qualified privilege. The defence of fair comment on subjects of public interest already gives wide protection to the publication of defamatory comments made to the general public. I do not think that this Court would be justified, either as a matter of legal principle or by contemporary need, in extending the defence of qualified privilege to bare defamatory comments in cases where it is not protected by the existing categories of that defence.
The performance by members of Parliament of their duties and the use of public moneys by parliamentarians are subjects concerned with the exercise of public functions and powers and the performance of the duties of persons invested with those functions and powers. Members of the public have a legitimate interest in receiving information on those subjects from any person having a duty or interest to communicate that information to the general public. Mr. Lockyer is, according to the articles sued upon, a member of the same Parliament as the plaintiffs. He is in a position where it is likely that he has special knowledge of the matters that are the subjects of the article. Every resident of Western Australia has an interest in receiving information about the subjects of public interest referred to in the article whether that resident is enrolled as an elector or not. In the words of Williams J. in this Court in Mowlds v Fergusson [11] "the great mass of Australians of ordinary intelligence and moral principle would have recognized the right" of a person, with special knowledge, to publish information on the subjects of public interest dealt with in the articles, if that person honestly believed the information to be true.
In addition to the duty or interest arising from special knowledge, the position of Mr. Lockyer, as a member of the Parliament of Western Australia is sufficient, by itself, to generate a duty to make public statements concerning matters relevant to his parliamentary duties. The common law has long recognized that those elected to public bodies have a duty to speak freely at meetings of those bodies and that any defamatory statement made at a meeting of such a body is privileged unless lack of good faith is proved [12] . Indeed, parliamentarians have an absolute privilege to publish statements in the course of parliamentary proceedings. Any fair report of defamatory statements made at a meeting of Parliament or an elected body is also published on an occasion of qualified privilege [13] . To hold that statements made by elected representatives are protected by privilege if they are made during a meeting of the body to which they are elected but not if made before or after a meeting of that body would be to allow form to triumph over substance. Moreover, it would mean that the common law was out of touch with contemporary notions of informing the public about matters of public interest. Publicly elected representatives no longer wait until meetings of the bodies, to which they are elected, before they make public statements concerning matters of public interest. Indeed, the "common convenience and welfare of society" often requires that they should make such statements without waiting for a sitting of the body to which they are elected. If the common law of qualified privilege would protect a factual statement made by a public representative at a meeting of a public body, it is simply to adapt established principle to contemporary needs to hold that it also protects the same statement if it is made in good faith outside the course of that meeting. However, for the reasons I have already given, I do not think that it is for the common convenience and welfare of society to extend the doctrine of qualified privilege to defamatory comments made by elected representatives when those comments are not published in the course of providing factual information to the general public.
In the present case, the material which is capable of being regarded as defamatory of the plaintiffs is essentially comment. To attract the protection of the doctrine of qualified privilege for defamatory comments published to the world at large, more is required than the publication of comments and opinions concerning a subject of public interest. In a case such as the present, the comment must be on facts which provide information to the public about the exercise of the powers, functions or performances of public officials or representatives. If the doctrine of qualified privilege is to serve its purpose, however, much latitude must be given to statements that are ostensibly made on an occasion of qualified privilege. It is well settled that malice should not be inferred because of the use of extravagant language on such an occasion [14] . Similarly, the privilege should not be lost because of the irrelevance of some statements or, in a case depending on the special knowledge of the publisher, because the defamatory material is largely comment. But here the defamatory imputations arise from defamatory comment and the basis of that comment is not disclosed except in one comparatively minor aspect.
The trip of the plaintiffs is described as "a mammoth junket", "a junket of mammoth proportions". Mr. Lockyer is said to have claimed that the plaintiffs "had gone on a junket at taxpayers' expense without Parliament's knowledge". The plaintiffs are said to have "gone in secret". Mr. Lockyer is reported to have "accused all involved of sneaking off in secret". The trip is said to be "nothing but a rort". The Council President is claimed to have "a lot of answering to do". If "the electors knew what was up, they'd be appalled." Mr. Lockyer is reported to have said that the "affair made him cringe with embarrassment." These statements, so far as they give rise to defamatory imputations are comment, not fact.
The statement that the plaintiffs had gone on the trips "without Parliament's knowledge" appears to be the basis of the claim that the plaintiffs had gone in secret. To that extent the article provides the basis for the comment that the plaintiffs had gone in secret. If that comment is defamatory of the plaintiffs, it is protected by the doctrine of qualified privilege, no matter how unfair the comment may be. But that is only a small part of the articles. There is no information to explain why the trip is a "junket", a "mammoth junket" or "a rort". There is no information to justify the comment that the plaintiffs were involved in "sneaking off" in secret. Nor are the electors informed of the matters which would make them "appalled" if they "knew what was up".
In my opinion, Mr. Lockyer had no duty for the purpose of the law of qualified privilege to publish these comments and opinions to the general public. Furthermore, the public had no duty or interest in receiving what is essentially bare defamatory comment unaccompanied by explanatory statements of fact. If the statements of Mr. Lockyer are protected, they are protected by the defence of fair comment or justification, but not by the defence of qualified privilege.
Accordingly, quite apart from its technical deficiencies, the defence pleaded in par. 20B is bad in law.
The questions in the case stated should be answered:
Stephens
West Australian Newspapers Ltd
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Stephens v West Australian Newspapers Ltd [1994] HCA 45