Theophanous v Herald & Weekly Times Ltd [1994] HCA 46 | Case summary

Theophanous v Herald & Weekly Times Ltd [1994] HCA 46 | Case summary | Zoe

[160]

In the interpretation of the Constitution, judicial policy has no role to play. The Court, owing its existence and its jurisdiction ultimately to the Constitution, can do no more than interpret and apply its text, uncovering implications where they exist. The Court has no jurisdiction to fill in what might be thought to be lacunae left by the Constitution. If there be a lacuna in the text, it can be filled, if at all, only by the common law or by another law which binds the courts and people of the Commonwealth and applies in all parts of Australia. Under the Constitution, this Court does not have nor can it be given nor, a fortiori, can it assume a power to attribute to the Constitution an operation which is not required by its text construed in the light of its history [32] , the common law and the circumstances or subject matter to which the text applies. The notion of "developing" the law of the Constitution is inconsistent with the judicial power it confers. Clearly the Court cannot change the Constitution, nor can it convert constitutional silence into a legal rule with constitutional force. I do not mean that, in changing conditions, the Constitution does not have a changing effect [33] , that the denotation of its terms does not change [34] , that the course of judicial interpretation does not reveal that a past constitutional doctrine is untenable [35] or that new situations do not reveal new doctrines inherent in the constitutional text [36] . The Constitution speaks continually to the present and it operates in and upon contemporary conditions [37] . But, in the interpretation of the Constitution, judicial policy provides no leeway for judgment as it does when the Court is developing the common law. Nor can the Court find implications in the text by referring to extrinsic sources [38] . The difference in curial function in declaring the common law and in interpreting the Constitution is important in the present case where the questions reserved for the opinion of this Court are questions of constitutional interpretation, not questions as to the state of the common law. The answers to these questions in no way depend on what the Court perceives to be desirable policy. The task is to expound the text of the Constitution: to ascertain what is implied in the text and to declare whether and in what manner the implication operates on the law of defamation.

[178]

It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure. I respectfully agree. The relevant implication here arises from the need for the people of the Commonwealth to form and to exercise political judgments. The formation of a political judgment may be affected by a variety of factors: interest in political affairs, education, information and opportunities for the interchange of ideas. Not all of these factors are within the gift or control of government. None of them is a right enforceable against government or against others. But if it be implicit in the system that the people of the Commonwealth should be able to form and to exercise political judgments, it is implicit that government should not unnecessarily restrict their ability to do so. Freedom of discussion about government, governmental institutions and political matters is conducive to the formation and to the exercise of political judgments and that freedom must not be unnecessarily restricted. Thus the powers of government are impliedly limited. Although the plenary power of the Parliament to make laws for the peace, order and good government of the Commonwealth remains, laws that restrict the absolute freedom to discuss government, governmental institutions and political matters are invalid unless the restriction is imposed incidentally as part of the means that are appropriate and adapted to achieve a legitimate purpose. That is the extent, and the only extent, of any relevant limitation on power that is to be derived from the Constitution. Sometimes that limitation has little practical significance, as in the case of laws imposing censorship in wartime or proscribing treason and sedition [50] . But the limitation is significant when a law places a restriction on the freedom to discuss governments, governmental institutions or political matters to an extent that goes beyond what is appropriate and adapted to achieve a legitimate purpose: that was the case in Nationwide News. 1. ibid., at p. 135. 2. Davis v The Commonwealth (1988), 166 C.L.R. 79, at p. 110; Australian Communist Party v The Commonwealth (1951), 83 C.L.R. 1, at pp. 141, 187-188.

[203]

The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The constitutional standard was held to demand that the onus of proving actual malice should rest on the plaintiff [17] and be discharged only by proof of "convincing clarity" [18] . The rule owes its origin to the view that the First Amendment reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials" [19] . That commitment led the people of the United States to embrace freedom of political expression "in spite of the probability of excesses and abuses" [20] . Brennan J. noted that, at the end of the eighteenth century, Madison had said that the press had "exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law" [21] . The frequently encountered difficulty of proving the truth of a libel was said to dampen the vigour and limit the variety of public debate and, on that account, to be inconsistent with the First and Fourteenth Amendments [22] . The Fourteenth Amendment was held [23] to apply the freedom guaranteed by the First Amendment to the common law and to State statutes because a judgment in the court of a State applying a State rule of law was a "State action" that, by force of the Fourteenth Amendment, could not infringe the guarantee. 1. Chaplinsky v New Hampshire (1942), 315 U.S. 568, at pp. 571-572. 2. (1963) 376 U.S., at pp. 279-280. 3. ibid., at pp. 283-284. 4. ibid., at pp. 285-286. 5. ibid., at p. 270. 6. ibid., at p. 271, citing Cantwell v Connecticut (1939), 310 U.S. 296, at p. 310. 7. (1963) 376 U.S., at p. 275. 8. ibid., at p. 279. 9. ibid., at p. 265.

[207]

it is difficult, if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted. In this country, following the long tradition of the common law, we have accepted that personal reputation is a proper subject of protection, no less for those in public office as for private citizens. In the history of our Federation and in the earlier history of colonial Australia, we have not paid for a vigorous democracy by exposing to adverse imputation without qualification the reputations of those in public office nor have we risked the chilling of their ardour for public service by a fear that they and their families might be traduced without remedy. Indeed, the action for defamation has been a feature of Australian public life, establishing the truth or falsity of allegations published against public figures, vindicating the reputations of plaintiffs who have exposed them to examination by bringing action and sometimes working the political destruction of those who would not sue or who, having sued, were found to be defamed by the truth or to have reputations of little worth. It is not open to this Court to hold that the workings of the law of defamation show that the capacity of the people of the Commonwealth to form and to exercise political judgments has been damaged by those laws. 1. See A.C.T.V. (1992), 177 C.L.R., at p. 182, per Dawson J. 2. See Attorney-General (Vic) (Ex rel. Black) v The Commonwealth (1981), 146 C.L.R. 559, at p. 603. 3. (1992) 177 C.L.R., at p. 136. See La Nauze, The Making of the Australian Constitution (1972), pp. 227-232. The proposal to introduce into our Constitution a provision similar to s. 1 of the Fourteenth Amendment was rejected by the Melbourne Convention in 1898: Debates, vol. 4, p. 690.

[238]

Although there is no special section affirming the existence of Federal privileges and immunities, such privileges and immunities may be gathered from the express provisions or necessary implications of the Constitution. Among the most prominent Federal privileges may be mentioned those relating to the suffrage - the right to vote at elections for both houses of the Federal Parliament (s. 41); the right to participate, on terms of equality, in trade and commerce between the States and with other countries (ss. 51-i and 99); the right to have the benefit of the postal, telegraphic, and telephonic services (s. 51-v); the right to share the protection of the naval and military forces of the Commonwealth (s. 51-vi); the right to use the navigable waters of the Commonwealth for the purposes of trade and commerce (s. 98); the right to pass from one State into another and to hold intercourse with foreign countries (ss. 51-i and 92). To be allowed to visit the seat of Government, to gain access to Federal territories, to petition the Federal authorities, to examine the public records of the Federal courts and institutions, are rights which, if not expressly granted, may be inferred from the Constitution, and which could not be taken away or abridged by the States any more than those directly and clearly conveyed. The relevance of that passage for present purposes lies not so much in the details of the catalogue of implied rights, privileges and immunities which it recognized as being beyond the reach of State legislative powers. Its main relevance is that, like the perception that a provision corresponding with the immunity clause of the Fourteenth Amendment was implicit in our Constitution, it makes plain that Quick and Garran would have rejected any suggestion that the absence of an express bill of rights in the Constitution somehow precluded or impeded the implication of rights, privileges and immunities from either its express provision or from the doctrines which it incorporated. 1. Annotated Constitution of the Australian Commonwealth (1901), p. 958. 2. Annotated Constitution of the Australian Commonwealth (1901), p. 958.

[239]

The present legitimacy of the Constitution as the compact and highest law of our nation lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people. While they remain unaltered, it is the duty of the courts to observe and apply those provisions, including the implications which are legitimately to be drawn from their express terms or from the fundamental doctrines which they incorporate and implement. There is absolutely nothing in the provisions of the Constitution which suggests an intention on the part of the people either that the ordinary rules of construction should be ignored or that the failure to include a detailed list of their constitutional "rights" should be treated as somehow precluding or impeding the implication of rights, privileges and immunities from either the Constitution's express terms or the fundamental doctrines upon which it was structured and which it incorporated as part of its very fabric. That being so, even if it could be established that it was the unexpressed intention of the framers of the Constitution that the failure to follow the United States model should preclude or impede the implication of constitutional rights, their intention in that regard would be simply irrelevant to the construction of provisions whose legitimacy lay in their acceptance by the people. Moreover, to construe the Constitution on the basis that the dead hands of those who framed it reached from their graves to negate or constrict the natural implications of its express provisions or fundamental doctrines would deprive what was intended to be a living instrument of its vitality and its adaptability to serve succeeding generations. Indeed, those errors of such a dead hands theory of construction were made plain by Inglis Clark in explaining why the Constitution was "to be construed as having reference to varying circumstances and events" [16] . Though the passage is a lengthy one, it is of such importance and contemporary relevance that it is appropriate to incorporate it in this judgment [17] :

[240]

The Constitution was not made to serve a temporary and restricted purpose, but was framed and adopted as a permanent and comprehensive code of law, by which the exercise of the governmental powers conferred by it should be regulated as long as the institutions which it created to exercise the powers should exist. But the social conditions and the political exigencies of the succeeding generations of every civilized and progressive community will inevitably produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and construed, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document. Every community of men is governed by present possessors of sovereignty and not by the commands of men who have ceased to exist. But so long as the present possessors of sovereignty convey their commands in the language of their predecessors, that language must be interpreted by the judiciary consistently with a proper use of it as an intelligible vehicle of the conceptions and intentions of the human mind, and consistently with the historical associations from which particular words and phrases derive the whole of their meaning in juxtaposition with their context. If the present possessors of sovereignty discover that the result so produced is contrary in particular cases to their will in regard to future cases of a like character, they will amend the language which they previously retained as the expression of their will. If they do not amend it they must be presumed to accept the interpretation put upon it by the judiciary as the correct announcement of their present commands. The last two sentences rightly direct attention to the fact that, if the Parliament disagrees with any decision of the Court about the meaning or effect of provisions of the Constitution, it can submit it to the people to be overruled by amendment of the Constitution. Nonetheless, it must, in the light of decisions stretching back at least to Duncan v Queensland [18] and the Engineers' Case [19] , now be accepted that those last two sentences are mistaken to the extent that they elevate decisions of the "judiciary" on the meaning and effect of provisions of the Constitution to a comparable level of legitimacy and permanence to that of the actual text of the Constitution itself. Otherwise, I agree with and respectfully adopt all that is said in the above passage. In it, the primary architect of our Constitution makes plain that the doctrine of representative government, with its underlying thesis of the sovereignty of the governed, cannot properly be seen as but an extraneous theory irrelevant to the Constitution except to the extent to which it is reflected in the electoral provisions of Ch. I. That doctrine and that thesis were and are of central importance both to the Constitution as a whole and to its construction. Indeed, it is by implication from them that Inglis Clark deduced the fundamental principle of constitutional construction expressed in the above passage, namely, that the Constitution must be construed as "a living force" representing the will and intentions of all contemporary Australians, both women and men, and not as a lifeless "declaration of the will and intentions of men long since dead". 1. Studies in Australian Constitutional Law (1901), p. 20, sidenote. 2. ibid., at pp. 21-22. 3. (1916) 22 C.L.R. 556. 4. Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129. See also the reasons of Aickin J. in Queensland v The Commonwealth (the Second Territory Senators' Case) (1977), 139 C.L.R. 585, at pp. 623-629.

[242]

Since 1901, a variety of important developments have combined to transform the nature and extent of political communication and discussion in this country and to do much to translate the Constitution's theoretical doctrine of representative government with its thesis of popular sovereignty into practical reality. The more important of those developments include: the introduction of both universal adult franchise [20] and compulsory voting [21] ; the extraordinary development and increased utilization of the means of mass communication; advances in general education; and, the increasing appreciation and assertion of the intrinsic equality of all human beings. These developments have greatly enhanced the need to ensure that there be unrestricted public access to political information and to all political points of view. Yet, in the same period, the use of defamation proceedings in relation to political communication and discussion has expanded to the stage where there is a widespread public perception that such proceedings represent a valued source of tax-free profit for the holder of high public office who is defamed and an effective way to "stop" political criticism, particularly at election times [22] . That widespread perception may well be exaggerated or unjustified. Its effect is, however, to intensify the chilling effect of a threat or perceived risk of defamation proceedings. In the context of those dramatic changes since 1901, there is manifest wisdom in Inglis Clark's instruction that, in its application to contemporary conditions and exigencies, the Constitution must be treated as "a living force" and not as "a declaration of the will and intentions of men long since dead". In following that instruction in the present case, the Court must take full account of contemporary social and political circumstances and perceptions in determining whether an unqualified application of State defamation laws to political communication and discussion is consistent with the constitutional implication of freedom.

[246]

The available defences in defamation proceedings vary from State to State. Four main general categories of defence can, however, be identified as being available in the various jurisdictions, namely, "truth" (or the combination of "truth" and either "public benefit" or "public interest"), "fair comment", "absolute privilege" and "qualified privilege". A defendant will fail in a defence based on truth unless he or she is able to establish by admissible evidence that each defamatory component of the particular statement is substantially true. A defence of "fair comment" will fail unless the comment be on a matter of "public interest" and unless, regardless of absence of malice, the comment be within the limits of what is fair. The defence of absolute privilege applies, when available, to all (or in some cases all relevant) statements made on the occasion of absolute privilege regardless of their truth or falsity or the motive which inspired the making of them. However, putting to one side special and exceptional circumstances such as statements made in judicial or certain quasi-judicial proceedings or between spouses, the defence of absolute privilege is unavailable to the ordinary citizen who makes a defamatory statement in the course of ordinary political communication or discussion. The defence of qualified privilege is more likely to be available. It is, however, an unreliable shield. Even in a case where the allegedly defamatory statement was made about a subject of public interest, such as the performance a parliamentarian or holder of high office of his or her functions, the defence will fail if it be found that the defamatory statement was made not in good faith but maliciously. Even when the defamatory statement was made in good faith about a subject of public interest, there are circumstances, particularly in States such as Victoria where the common law applies, in which a defence of qualified privilege will be unavailable [27] . Where defamatory comment is involved, the defence of qualified privilege will ordinarily be unavailable if the comment was unfair.

[248]

The effect of the foregoing can be summarized by the following generalizations which are sufficiently accurate to be accepted for present purposes. The law of all Australian jurisdictions renders prima facie wrongful the publication of a defamatory statement and renders the publisher of such a statement liable in damages in legal proceedings unless he or she can persuade the court by admissible evidence either that each defamatory element of the statement is substantially true (or, if comment, fair) or that the circumstances were such as to found a defence of absolute or qualified privilege. The informed citizen will be aware that, in a context where a plaintiff in defamation proceedings bears no onus of establishing either the falsity of the defamatory statement or the existence of malice, negligence or other fault on the part of the defendant, there will inevitably be cases where problems of proof by admissible evidence result in a defendant being held liable in damages for publishing a statement which was in fact true. To that disincentive of the publication of even well founded damaging statements must be added the disincentive of the legal costs which a successful defendant will commonly [28] and an unsuccessful defendant will almost inevitably be required to bear. Quite apart from liability in damages, the direct and indirect costs involved in defending defamation proceedings in a superior court are likely to represent a crushing burden for the citizen who is unable to obtain legal aid from some government source. The result is that the informed citizen who is not foolish or impecunious will inevitably be deterred from making, repeating, or maintaining a statement which causes injury to the reputation of another if there be a perceived risk or actual threat that the publication or further publication of the statement or a refusal to retract it will give rise to defamation proceedings. And that will be so even if the defamatory statement is known or believed to be true. As the United States Supreme Court observed in New York Times Co. v Sullivan [29] :

[278]

There are three further matters which should be mentioned. The first is that I have used the phrase "holder of high public office" to refer to persons who "have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs" [50] . The second matter is that in what I have written above, I have confined consideration of the operation of the implication with respect to defamation laws to statements about the official conduct or consequent suitability for office of parliamentarians and other holders of high public office, or candidates for such positions. As I indicated, such statements lie at the heart of the political communication and discussion which is an essential incident of responsible government. It is unnecessary to consider whether the implication precludes or qualifies the application of ordinary defamation laws to impose liability for injurious statements made in the course of political discussion or communication either about the private conduct of such persons or about other persons, such as those who "have thrust themselves to the forefront" of political contests or controversies in order to influence the outcome thereof [51] . The third matter is that I would make clear that nothing in this judgment should be understood as suggesting that the traditional powers of the Parliament and superior courts to entertain proceedings for contempt are not justifiable in the public interest. In that regard, it is important to remember that, while the distinction is not always as clear as it should be [52] , the justification of proceedings for contempt of court or parliament lies not in the protection of the reputation of the individual judge or parliamentarian but in the need to ensure that parliaments and courts are able effectively to discharge the functions, duties and powers entrusted to them by the people [53] . Nor should anything in this judgment be understood as precluding the establishment of alternative procedures (not involving the imposition of liability to pay damages or costs) to which a parliamentarian or other holder of high office might resort for the purpose of vindicating his or her reputation when subjected to unjustified attack.

[280]

The overall effect of the various judgments in this case is that four Justices, Mason C.J., Toohey J., Gaudron J. and I, have reached the conclusion that an unqualified application of the defamation laws of Victoria to impose liability in damages in respect of political communications and discussion is precluded by the constitutional implication of political communication and discussion. There is, however, disagreement within that bare majority of the Court about what flows from that conclusion for the purposes of the present case. Mason C.J., Toohey and Gaudron JJ. would hold that the implication precludes the application of State defamation laws to impose liability in damages for the publication of a statement about the official conduct or suitability of a member of the Parliament only if the defendant establishes that "it was unaware of the falsity of the material published", that "it did not publish the material recklessly, that is, not caring whether the material was true or false" and that "the publication was reasonable in the circumstances". For the reasons which I have given, I am quite unable to accept that the freedom which the constitutional implication protects is, at least in relation to statements about the official conduct or consequent suitability for office of holders of high government office, conditioned upon the ability of the citizen or other publisher to satisfy a court of matters such as absence of recklessness or reasonableness. Nonetheless, I necessarily agree with their Honours that the constitutional implication precludes the imposition of liability in damages under State defamation laws to the extent which they would exclude it in a case such as the present. That means that majority support for the operation of the implication in a case such as the present exists for, but is limited to, that attributed to it by Mason C.J., Toohey and Gaudron JJ. In these circumstances, the appropriate course for me to follow is to lend my support for the answers which their Honours give to the questions reserved by the stated case.

[338]

With great respect, it seems to me that those judgments in Australian Capital Television and Nationwide News Pty. Ltd. v Wills [42] that hold that the institution of representative government is part of the Constitution independently of the terms of certain sections of the Constitution unintentionally depart from the method of constitutional interpretation that has existed in this country since the time of the Engineers' Case. Those judgments hold that, because the makers of the Constitution intended that the Commonwealth should have a representative government and that certain sections of the Constitution give effect to that intention, the institution itself is part of the Constitution. From that premise the conclusion is reached that the rights of the people inherent in that institution are constitutionally entrenched and extend to all tiers of government in Australia. The majority judgments seek to imply a general concept of representative government with a wide meaning from the terms of the Constitution - ss. 7 and 24 in particular. But those sections do not support that implication. Even if the concept of representative government has a wide meaning akin to that of representative democracy, ss. 7 and 24 simply give effect to one aspect of the institution of representative government. Section 7 requires that the Senate "shall be composed of senators for each State, directly chosen by the people of the State"; s. 24 requires that the House of Representatives "shall be composed of members directly chosen by the people of the Commonwealth". Those sections deal with elections, not general political rights. To give them the efficacy that their purpose requires, it is legitimate to imply other freedoms during the course of elections, as I sought to show in Australian Capital Television [43] . But with great respect, I do not see how there can be implied into the Constitution from the terms of those sections - whether by necessity or otherwise - the whole apparatus of representative government in the sense used in the majority judgments, with consequential restraints on the powers of the Commonwealth, State and Territory governments and the common law, when no federal election is pending. It does not follow either logically or as a matter of necessary implication that, because some provisions of the Constitution give effect to an aspect of a particular institution, that institution itself is part of the Constitution.

Theophanous v Herald & Weekly Times Ltd

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