Lange v Australian Broadcasting Corporation

1997 Australian High Court case

Lange v Australian Broadcasting Corporation is a High Court of Australia case that upheld the existence of an implied freedom of political communication in the Australian Constitution, but found that it did not necessarily provide a defence to a defamation action. The High Court extended the defence of qualified privilege to be compatible with the freedom of political communication.

The plaintiff, David Lange, who was the Prime Minister of New Zealand, was the subject of a report on the Australian Broadcasting Corporation current affairs program Four Corners. He brought defamation proceedings in respect of that broadcast. In April 1990, the defendant broadcast on its Four Corners program a report which had been broadcast the previous night in New Zealand on Television New Zealand's Frontline program. The program alleged that the New Zealand Labour Party, then in government, had come to be improperly under the influence of large business interests as a result of those interests making large donations to New Zealand Labour's 1987 election campaign funds. The plaintiff was the Prime Minister of New Zealand at the relevant time referred to in the report. He contends, among other things, that the report conveyed the false and defamatory imputations that, as Prime Minister, he:
a. had permitted big business donors to dictate government policy, and had allowed public assets to be sold to some of those donors in repayment for their donations;
b. had abused, and was unfit to hold, public office in that he had permitted a debt incurred by his party in the election campaign to be written off by awarding a government contract to the creditor;
c. was corrupt and deceitful in that he had accepted gifts of shares and profits on share trading from a leading business figure, and had permitted that figure to set up a share trading account on his behalf, all in return for permitting the business figure to influence government policy in favour of business interests.

The Court was prepared to reconsider the reasoning of the decisions in Theophanous and Stephens because neither of the cases contained strong constitutional law principles. In both earlier cases, Deane J agreed with Mason CJ, Toohey and Gaudron JJ on the outcome, but he differed in the view of the scope of the implied freedom.

The Court held that the "common law must conform with the Constitution", and the common law cannot run "counter to constitutional imperatives". The common law and constitutional law questions differ: the common law question defines the scope of the right of the defamed, while the constitutional law question specifies the area that cannot be infringed by a Commonwealth or State/Territory law.

Although this case does not entirely clarify the issue, discussion of matters at other levels of government (such as at State or Territory level) may impact federal matters, so the fact that Lange was from New Zealand does not preclude the matter.