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Stone, Adrienne --- "Freedom of Political Communication, the Constitution and the Common Law" [1998] UMelbLRS 1

Last Updated: 15 July 2010

FREEDOM OF POLITICAL COMMUNICATION, THE CONSTITUTION AND THE COMMON LAW

Adrienne Stone[*]

INTRODUCTION

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication.[1] One important effect of this development has been to focus Australian constitutional debate on the long standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution[2] and over the century since the framing, it has been a constant point of reference for the High Court of Australia.[3] However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share.[4]
The influence of American constitutional jurisprudence, and specifically First Amendment law, in the High Court of Australia has never been more significant than in the most adventurous of its decisions on the freedom of political communication: Theophanous v Herald and Weekly Times [5] and Stephens v West Australian Newspapers.[6] Here, the High Court significantly expanded the protection of political communication by adopting a rule similar to the New York Times v Sullivan doctrine.[7] That is, the Court limited the capacity of political figures to bring actions for defamation. However, most unusually for recent decisions of the High Court, these cases were reconsidered and considerably reformulated by the Court only three years after they were first announced, in Lange v Australian Broadcasting Commission.[8]
The short life of these cases appears to lend fuel to those who argue against the use of the American precedent, and specifically First Amendment jurisprudence, in interpreting the Australian Constitution.[9] In this article, I will join those who have expressed such concerns. My focus, however, is somewhat different from previous analyses. I will consider a difference between the two systems that has been overlooked: the different jurisdictions of the highest appellate courts. The High Court, unlike the Supreme Court of the United States, has jurisdiction to hear appeals from all courts, state and federal. In hearing these appeals, it has jurisdiction over matters of common law as well as federal law and the Constitution. The significance of the High Court's role as the interpreter of the common law was highlighted by Theophanous and Stephens. In those cases, argument was addressed to the High Court on both the protection of freedom of speech by the Constitution and by the common law of defamation. Had it been so inclined, the Court could have avoided the constitutional issue entirely through a decision on the common law. However, the principal basis of the decision of the majority was the Constitution.[10] In my view, the Court’s failure to appreciate the significance of its common law jurisdiction helps explain where the High Court went wrong in Theophanous and Stephens, and how it might have avoided facing so serious a challenge to recent cases as it did in Lange.
Before proceeding to make this point, however, I devote Part I of this article to explaining the nature and origins of the High Court’s jurisdiction on matters of common law and compare it to the jurisdiction of the United States Supreme Court. In Part II, I outline Theophanous and Stephens and compare the constitutional approach of the majority to the common law approach of two of the dissenting Justices. Part III contains the heart of my argument. I consider how the High Court ought to proceed when a case before it can be decided either by the common law or by interpretation of the Constitution. I argue that the common law brings with it significant advantages so that in many cases where the two overlap, the High Court ought to prefer the common law and I use Theophanous and Stephens to illustrate my point. In Part IV, I identify more precisely the kinds of cases in which the benefits of a common law solution should lead the High Court to prefer it and defend my argument against some of the most obvious objections to it. Finally, in Part V, I consider the reformulation of the Theophanous doctrine in Lange and the extent to which that decision is responsive to the critique I have launched.
I. THE POWER TO DECIDE THE COMMON LAW - THE HIGH COURT OF AUSTRALIA AND THE SUPREME COURT OF THE UNITED STATES

The High Court has a general power to decide matters of common law as a result of s 73 of the Australian Constitution, which provides that the High Court shall have jurisdiction to hear appeals from “all judgments, decrees, orders and sentences of any . . . federal court, or court exercising federal jurisdiction, or of the Supreme Court of any State”.[11] This provision gives the High Court control over all of the law of Australia, including the common law as developed by state courts.
By contrast, federal courts in the United States principally exercise power over federal law, relying on a grant in Article III of power over “All Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made . . . under their Authority”. Under other clauses, such as the grant of jurisdiction over cases “between Citizens of different States”, federal courts have jurisdiction over cases in which state law provides the rule of decision. This may require federal courts to decide matters of common law, but in these cases federal power over state law is limited. The well known case Erie RR v Tompkins ensured this by limiting the power of federal courts in relation to matters of state law.[12] The Supreme Court held that because there is no constitutional authority for Congress to act in some areas in which the federal courts had been deciding common law cases, and because the Constitution did not itself bestow such a power on the federal courts, the assumption by the federal courts of power to decide the common law was unconstitutional.[13] Since Erie, the federal courts have had no general power to develop the common law. Where state law governs the case, they must follow or predict[14] the common law of the relevant state.[15] The High Court’s power to exercise its own judgment as to the nature of the common law and overrule the decisions of the highest state courts, thus sets it apart from its United States counterpart.
The consequence is that the Australian High Court’s jurisdiction does not reflect the federal division of powers which governs other constitutional arrangements. As Sir Kenneth Wheare explained:

If the federal principle were to be strictly applied one would expect a dual system to be established in a federation, one set of courts to apply and interpret the law of the general government, and another to apply and interpret the law of each state.[16]

The historical record reveals two explanations for the less distinctively federal structure of the Australian federal courts. Perhaps the dominant influence on the framers in this regard was the model of the Privy Council which, prior to the federation of the Australian colonies, supervised the development of the common law by colonial courts. Under the Australian Constitution, it was proposed from the start that the High Court would hear appeals from all decisions of state courts.[17] Consequently the High Court would sit at the apex of the court system as the Privy Council had over colonial courts.[18] Although it was initially proposed that the High Court would replace the Privy Council,[19] a role for it was ultimately preserved.[20] The result was that the common law remained a unitary system synthesised in Australia by the High Court and throughout the British Commonwealth by the Privy Council.
In addition to consistency with the model of the Privy Council, the conferral of general appellate jurisdiction on the High Court made uniformity of the common law, which had eluded the American federal courts, possible in the Australian system.[21] Further, any misgivings about the effect of this arrangement on the federal balance were apparently allayed by confidence in the judiciary.[22] Quick and Garran, in their influential commentary, summarised the basis of s 73:

[I]n Australia, as in Canada, the appellate jurisdiction is not one of those jealously guarded State rights which make anything more intimate than a federal union impossible. We are accustomed to a common court of appeal in the shape of the Privy Council: we are so assured of the independence and integrity of the Bench that the advantages of having one uniform Australian tribunal of final resort outweigh all feelings of localism [.][23]

The jurisdiction of the High Court can therefore be explained by the framers’ desire to achieve uniformity of the laws, consistency with the model of the Privy Council and their confidence that the federal judiciary would use its power responsibly. What has been less explored, is how the High Court ought to proceed in cases in which these bodies of law overlap. To this I direct the remainder of this article.
II. DECISION MAKING IN THE HIGH COURT
Theophanous and Stephens
The Decision of the Majority in Theophanous and Stephens
Theophanous v Herald and Weekly Times[24] and its companion case Stephens v West Australian Newspapers[25] marked a dramatic turn in Australian constitutional law. In these cases the High Court addressed a question similar to that which faced the United States Supreme Court in New York Times v Sullivan.[26] In Australian terms the issue was whether the constitutional freedom of political communication allowed political figures to maintain an action for defamation. In Theophanous, which contains most of the reasoning concerning the freedom of political communication,[27] the High Court held that the implied freedom of political communication had a similar effect to the New York Times v Sullivan rule. That is, it held that the constitutional implication protecting freedom of political communication placed limits on the capacity for political figures to bring actions for defamation.[28]
The Overlap of the Common Law and the Constitution
One of the most significant features of these decisions was the High Court’s attention to the relationship between the common law and Australian constitutional law. Because of the nature of the Australian Constitution, these bodies of doctrine had previously operated within largely different realms. The Australian Constitution is primarily devoted to delineating the extent of federal power, providing the basic structure of the federal government, the relationship between the federal government and the states, and the relationship between the states. The few provisions which protect individual rights[29] have, at least until very recently, been narrowly construed.[30] Consequently constitutional law has not often dealt with the regulation of relationships between the individual and the state or between individuals which has generally remained the province of the common law. But, once the High Court ventured into the protection of communication on political matters, the possibility of overlap arose, notably with the common law of defamation.
In Theophanous and Stephens each of the majority justices held that the Constitution affected the common law, finding that the common law of defamation was affected by the constitutional requirement of freedom of political communication.[31] This decision aligned the High Court, at least temporarily,[32] with the United States Supreme Court rather than its Canadian counter-part. The Canadian Supreme Court has held that the Canadian Charter of Rights and Freedoms applies only to legislative, executive and administrative branches of government and not the common law. [33] By contrast, in the United States, the common law is subject to the First Amendment and most other guarantees of the Bill of Rights.[34]
The Common Law Alternative
Following the decisions in Theophanous and Stephens then, the reach of the freedom of political communication under the Australian Constitution appeared to be closer to that of rights guarantees in the United States Constitution than to the Canadian Charter of Rights and Freedoms. However, Theophanous and Stephens demonstrated an important remaining difference between the United States and Australian positions. Because of the High Court’s common law jurisdiction, argument was also addressed to the Court on the operation of the common law defence of qualified privilege,[35] and the High Court had a choice as to how to proceed.
For the majority, the answer to the constitutional question dictated their approach to the common law: it followed from their opinion that the Constitution limited actions for defamation by political figures, that the common law must give way to the constitutional requirement of freedom of political communication.[36] For the dissentients,[37] however, the common law question survived. Having declined to extend the constitutional protection of communication, the question remained: did the common law defence of qualified privilege protect speech relating to public or political matters? In Theophanous, the dissentients found the question strictly unnecessary to decide.[38] In Stephens, however, two of the Justices dealt with the matter in some detail. In its traditional form, the defence of qualified privilege had excluded publications, such as those in newspapers or broadcasts, which are to the world at large.[39] It was considered that the interest of the general public in information was not established merely by the fact that it concerned a matter in which the public was interested.[40] A newspaper publication was therefore generally not privileged, because it would usually carry a communication beyond those who have a legitimate interest in it.[41] Of the dissentients, Justice Brennan and Justice McHugh proposed extensions of the traditional rule of qualified privilege to cover some publications to the world at large. Though they differ in detail,[42] as I will later show, each Justice’s response allowed greater protection of political communication.[43]
III. THE COMMON LAW AS AN ALTERNATIVE TO CONSTITUTIONAL CHANGE

My central point is that the common law analysis advanced by Justices Brennan and McHugh is preferable to the majority’s constitutional analysis. However, I make the argument for different reasons than those advanced by their Honours. Unlike Justices Brennan and McHugh, I do not argue that the majority’s constitutional analysis was flawed. Rather, my point is that regardless of the correct constitutional analysis, the common law is a preferable basis for decision because it reduces the risk involved in decision making. Before I make this argument however, I will make three preliminary points.
Preliminary Matters
First, it should be stressed that my criticism is addressed to the High Court’s decisions in Theophanous and Stephens rather than the United States Supreme Court’s decision in New York Times. I stress this because, particularly in the light of its history, it is easy to have sympathy with New York Times. In that case, the New York Times was sued by an Alabama official for carrying an advertisement critical of the actions of Alabama authorities during the American civil rights movement. As Anthony Lewis relates, the trial occurred amidst enormous hostility to the New York Times, which stemmed from Southern determination to resist the civil rights movement.[44] The hostility was such that the New York Times had difficulty finding an Alabama lawyer to represent it; the jury was made subject to this hostile feeling by the publication of their names and faces on the front page of the Alabama Journal and there is even a suggestion that the trial judge helped plan the plaintiff’s action.[45] Finally, despite the weakness of the plaintiff's case,[46] the jury awarded, and the Supreme Court of Alabama upheld, a judgment of $500,000 against the New York Times. This was the largest libel judgment in Alabama history and extraordinary by national standards.[47]
The impropriety of the proceedings in Alabama and the racist motivations of many of those involved seem clear. The case for Supreme Court intervention was, therefore, particularly compelling and, moreover, because of its jurisdictional limitations, the United States Supreme Court did not have the common law available to it. My criticism then, is less of the use of constitutional means to protect speech in this judgment, than its adoption by the High Court of Australia where a common law alternative was available.
Secondly, I should acknowledge at the outset that the High Court’s failure to consider the common law as an alternative to constitutional law in Theophanous and Stephens may result simply from the nature of Australian constitutional law and from the procedural context of these cases. For the reasons I have explained, the common law and Australian constitutional law have not often overlapped, if at all. Consequently, the idea of such a choice was quite new and the High Court’s failure to consider it quite understandable. Further, these cases came before the High Court as cases stated,[48] according to which the issue of common law qualified privilege only arose if the Court found that the Constitution protected discussion of government or political matters from defamation action.[49] Consequently, the consideration of the constitutional issue naturally came before the consideration of the common law issue.
However, this point has little significance for my argument. Although it explains why the High Court failed to consider the common law as an alternative to constitutional decision making, it does not undermine the point that the common law was a more appropriate basis for decision. My concern is not to prove the High Court’s lack of foresight but to show how use of the common law would have improved its decision making.
Finally, I should acknowledge that the idea that constitutional decision making should be avoided, where another ground of decision is available, is familiar. In the United States and Australia there have long been rules that counsel avoidance of constitutional decision making through the preference of a non-constitutional ground of decision.[50] An example is the rule that a court should, where fairly possible, prefer a construction of a statute that is consistent with the Constitution, rather than the review of the statute against the Constitution.[51]
The approach I am proposing could be seen as a common law version of this statutory rule. Perhaps it could roughly be expressed as follows: a court should, where fairly possible, prefer a construction of the common law that is consistent with the Constitution, rather than the enunciation of a constitutional standard to replace an unconstitutional common law standard.
Given its relationship to arguments for constitutional avoidance in other contexts, the rule of common law preference may find justification in some arguments traditionally made in favour of constitutional avoidance. The most prominent of these relies on the “counter-majoritarian” nature of judicial review.[52] The argument is that, because judicial review thwarts the power of elected branches and is not easily reviewable by democratic means,[53] it should be used sparingly. In addition, concerns over the political vulnerability of courts,[54] their limited capacity to fashion and enforce solutions,[55] and the desire to show proper respect to other branches of the federal government[56] and to the states,[57] have inspired further arguments for judicial restraint in respect of constitutional decision making.
Although these arguments might seem to support my thesis, I do not seek to rely them here. First, there is a question as to the extent that these concerns are relevant when the High Court is considering the constitutionality of the common law. After all, the common law is not so obviously the result of a majoritarian process. Moreover, if the High Court decides upon the constitutionality of some common law doctrine, it is not interfering with the decisions of other branches of the state or federal governments but with judge made doctrine. At most, a decision on the constitutional issue has counter-majoritarian implications through its power to restrain the future legislative and executive action.[58] More fundamentally, however, I do not rely on such arguments because I am interested in another reason for constitutional avoidance that applies particularly when the alternative basis of the decision making is the common law. As I have stated, my argument is that the common law reduces the risks of decision making and is more likely, therefore, to produce a good substantive result.
The Risk Posed by Theophanous and Stephens
Theophanous and Stephens are important decisions on matters of high public importance. In advancing a vision of constitutionally protected communication and a rule according to which such communication is protected from defamation, the High Court has made some important commitments. As I will now show, in taking such an important stand, the High Court has made commitments that may later be regretted.[59]
The Philosophical Basis of the Freedom of Political Communication
One of the most important aspects of these decisions is the development of a philosophy to explain the freedom of political communication. One important influence on the High Court is the United States Supreme Court’s interpretation of the First Amendment. This entailed a high degree of protection for speech because, as is well known, First Amendment jurisprudence is characterised by scepticism of government regulation of speech. Among the strongest manifestations of this scepticism are the subjection of much regulation of speech to an exacting standard of review known as “strict scrutiny”[60] and a distrust of any role government might have in improving the quality of public discourse.[61]
This hostility to government intervention is evident in the early High Court cases on the freedom of political communication. On the issue of the standard of review, a majority of the High Court initially adopted an approach that closely resembled American free speech law. In Australian Capital Television, Chief Justice Mason and Justice McHugh drew a distinction between “restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted.”[62] In the first category, content based regulation, both Justices used language reminiscent of the “compelling interest” requirement of the American strict scrutiny standard.[63] A similar standard was articulated by Justices Deane and Toohey.[64]
The protectiveness of this approach can be contrasted with that of Justice Brennan, who was far more sympathetic to regulation. He articulated a single proportionality requirement which is applicable to all regulation of speech. The validity of legislation is determined by the “proportionality between the restriction which a law imposes on the freedom of communication and the legitimate interest which the law is intended to serve.”[65] Moreover, he stressed the “supervisory” role of the Court[66] and concluded that it should allow the Parliament a “margin of appreciation”[67] in assessing the need for regulation.
Further influence of the American model of free speech can be seen in the High Court’s position on regulation designed to improve the quality of political discourse. In contrast to the United States Supreme Court,[68] in Australian Capital Television,[69] Chief Justice Mason and Justices Deane and Toohey indicated that the High Court may entertain the argument that such regulation of communication is justified.[70] However, the Chief Justice expressed a level of scepticism which might be familiar to a student of the First Amendment:

[T]he Court should scrutinize very carefully any claim that the freedom of communication must be restricted in order to protect the integrity of the political process . . . All too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims . . . that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process.[71]

In the end, moreover, each of these Justices found the legislation in Australian Capital Television wanting.[72] Only Justice Brennan, whose approach was particularly deferential to the legislature, upheld the legislation on that basis.[73] Theophanous and Stephens, then, represent an extension of this influence of the First Amendment in Australia. The High Court was explicitly influenced by New York Times v Sullivan, adopting its analysis of the chilling effect of libel action on speech.[74]
This attention to First Amendment jurisprudence is perhaps explained by an underlying philosophical affinity. One of the most influential ideas underlying the First Amendment is a belief that free speech supports democracy.[75] Free speech is valued because it allows citizens to get information about their government; to hold their governments accountable to them and exercise choice as to who governs them. Moreover, it assists citizens in communicating their wishes to their government, enabling governments to be more responsive.[76] New York Times v Sullivan clearly reflects the link between freedom of speech and democratic values. Freedom of expression on public issues is secured because “the First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”[77] As the Australian freedom of political communication is derived from the notion of representative democracy,[78] it appears to have a similar philosophical foundation and the adoption of New York Times, or rather a form of that rule, may be explained on that basis.
However, a commitment to the protection of democracy need not have led the High Court to adopt New York Times and the strong stand against regulation embodied in that case. That attitude to regulation of speech is attributable to other aspects of First Amendment theory which the freedom of political communication may not share. A central feature of New York Times is the Supreme Court’s decision to protect false defamatory information. The Court held that a defence where truth is proved does not satisfy the First Amendment.[79] The Court acknowledged that false statements will be made[80] and reputations will be damaged by them.[81] However, it held that the injury to reputation does not justify regulation of speech by the law of libel. The Court quoted the Supreme Court of Kansas:[82]

It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great.

It may be that freedom of political communication must protect communication in the face of some harms which, in other circumstances, would justify regulation. Professor Blasi has argued that the protection of speech, even though it causes harm, is an essential part of the notion that freedom of speech serves democracy.[83] However, the particular decision made by the Supreme Court in New York Times, that the harm caused by false speech does not outweigh the interest in free speech need not be accepted by the High Court. As Professor Blasi explains, “exponents of the self-government theory [of the First Amendment] may reach rather different conclusions regarding what harms can serve as a justification for limiting freedom of speech.”[84]
The Supreme Court’s conclusion in New York Times is strongly influenced by the notion of “the market place of ideas” which draws on Justice Holmes’ famous argument that “the best test of truth is the power of the thought to get itself accepted in the competition of the market”.[85] In its strongest form, the belief is that only the truth will survive competition between ideas.[86] Another version, most famously articulated by John Stuart Mill, points to the fallibility of human knowledge and the consequent value in subjecting our beliefs to contradiction.[87] Professor Schauer has suggested a third and more limited version of the argument. He argues that speech should be unregulated because there is reason to be especially sceptical about the motives and abilities of government in determining which information should circulate and which should be suppressed.[88] According to this analysis, the case for free speech reflects, not a faith that the market place of ideas will produce the truth, but a belief that it is “the most viable alternative to authoritative decree.”[89] This argument suggests that the importance of free speech lies in its power to prevent authoritarianism.
The high value the Supreme Court places on freedom of speech in New York Times reflects the influence of these various arguments for a free market place of ideas. The belief that debate must be “uninhibited, robust and wide-open”, that it requires “vigor” and “variety”[90] appears to value the competition and contradiction of the “market place of ideas”. Indeed, Schauer’s form of the argument, the notion that a “free market” in ideas is the only reliable alternative to authoritarian control of speech is evident in the Supreme Court’s citation of Learned Hand’s statement, that the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.”[91]
It is this part of the American free speech tradition that the High Court could have rejected consistently with its commitment to representative democracy. American scholars have shown that the relationship between democracy and freedom of speech can be seen differently. Some American commentators, who value freedom of speech for its capacity to promote public deliberation, have argued that the current American approach is not consistent with that ideal. In particular, it neglects the distorting effect of existing inequalities in access to information and the capacity to communicate.[92] Consequently, protecting speech from regulation may hinder rather than advance public debate by excluding the voices of some and emphasising the voices of others. A truly full and fair discussion of public affairs may actually require government intervention.
If the High Court had been convinced by these arguments, it may have placed less emphasis on the “vigor” and “variety” of debate and been more concerned about, say, the accuracy and fairness of the debate. It may then have come to a different assessment of the magnitude of danger posed by regulation of communication in Theophanous. The Court could perhaps have taken the view that the evils of false information were not outweighed by the need for free speech. Reflecting the view of those who have argued for the use of regulation to enhance political debate, the Court may have concluded that the existing law of defamation actually benefited public debate by encouraging accurate reporting in the first place.[93] So, even though the freedom of political communication is designed to promote democracy, the High Court could have adopted a vision of how that goal is to be achieved which is different from the Supreme Court’s approach.
In summary then, the High Court rather quickly allied itself with a philosophical tradition based on suspicion of government, a choice which does not necessarily follow from its identification of the freedom of political communication with representative government. My point here is not to argue that the High Court was actually wrong. The tradition which influences it may well be worthy of emulation. My point is much more modest. There are serious competing visions of freedom of speech and to make a choice between them at this point is a relatively risky enterprise which should be avoided where possible.
This last point explains why my argument is addressed to Theophanous and Stephens rather than earlier decisions on the freedom of political communication. Although the adoption of the free speech philosophy I have criticised began in Australian Capital Television and Nationwide News, the extension in Theophanous and Stephens is particularly problematic given that it could have been avoided by turning to the common law. Before explaining how the common law avoids the problems posed by the adoption of a philosophical perspective on the freedom of political communication, I want to explore other aspects of the Theophanous decision which give cause for concern.
The Theophanous Rule: The Lessons of New York Times v Sullivan
Even if one accepts the underlying philosophy of the freedom of political discussion, the practical effect and subsequent development of these cases might give rise to concern.
The history of New York Times v Sullivan suggests how the future development of the Theophanous rule might encounter difficulties. The New York Times rule has been widely recognised as seriously problematic even by those sympathetic to the Supreme Court’s desire to protect public discourse from the “chilling effect” of libel action.[94] Part of the criticism is that the Court has extended the doctrine too far beyond the political context.[95] But even in its original formulation, the rule contains some serious flaws. Litigation under the rule has proved complex and expensive. The focus the New York Times test places on the motives of journalists has placed reporters and editors under intense scrutiny. They are frequently subject to intrusive discovery proceedings and pressure to reveal their sources, in order to establish that they did not act with “actual malice”.[96] Further, the focus on the defendants’ motives has been blamed for high awards of damages against media defendants.[97] Critics have claimed that the prospect of such intrusion and a high damages award creates just the kind of chilling effect that New York Times was designed to prevent.[98]
As New York Times shows then, judicially formulated rules may have unexpected consequences. There is first, the possibility that the deciding court may not foresee the practical effects of the rules it formulates and second, the unpredictability that follows the subsequent interpretation of rules. So, in the case of New York Times v Sullivan, we see both the overextension of the rule in subsequent decisions and unexpected consequences of the rule even in its original formulation.
In Theophanous, the High Court was more able than the New York Times Court to assess the practical result of the rule precisely because it had the benefit of the New York Times experience. The High Court rejected the American decisions extending the notion of “a public figure” beyond public officials and candidates for public office[99] and, concerned that New York Times’ “actual malice” standard combined with the requirement that the plaintiff make out a case with “convincing clarity” afforded insufficient protection for reputation,[100] the High Court reversed the onus of proof and substituted the “reasonableness” test for the “actual malice” standard.[101]
However, this reformulation of the New York Times v Sullivan rule opens the way for the second kind of problem, those which result from subsequent judicial interpretation. A striking feature of the test is that it employs the open standards of “recklessness” and “reasonableness”. To recall, the protection depends on the defendant establishing that the material was not published “recklessly” and that it was “reasonable in the circumstances”.[102]
The broadly formulated terms of the new rule left much discretion in the hands of the courts who were to apply and develop it. Although not unheard of, the standard embodied in the recklessness and reasonableness requirements would have to be defined in the context of the freedom of political communication by the courts. The notion of a “reasonable” publication was particularly unclear. One important outstanding issue was whether this required that the defendant establish an honest belief in the truth of the matter published.[103] The little clarification given by the Court raised further questions. Although the Court indicated that “[t]he publisher should be required to show that, in the circumstances which prevailed, it acted reasonably, either by taking some steps to check the accuracy of the impugned material or by establishing that it was otherwise justified in publishing without taking such steps”,[104] it was not at all clear what kinds of steps are necessary or when a publisher is justified in disregarding them. These judgments were for later development, principally by the lower courts.
The test’s novelty also leaves other important issues undecided. Even during the short time in which Theophanous stood unaltered, lower courts had to decide matters not clearly addressed by the High Court but which nevertheless may have a profound effect on the ultimate operation of the rule, namely its application to defamatory comment[105] and whether the test was for the judge or the jury.[106]
Of course, there is too little evidence to conclude that the Theophanous rule failed. The rule might ultimately have succeeded in striking an appropriate balance between the protection of reputation and freedom of communication. My point again is modest. The New York Times experience shows that there is a substantial risk of the rule not achieving its aims and that risk, as I shall now explain, can be minimised by adopting the common law alternative.
Risk and the Common Law
My suggestion that a common law solution in Theophanous and Stephens might have allowed the High Court to avoid these risks, is obviously based on a greater confidence in common law reasoning. There are two bases for this confidence.
The Stakes of a Decision: Top Down and Bottom Up Reasoning
One feature of the freedom of speech cases, including Theophanous and Stephens, which I have suggested is particularly troubling is that they committed the Court to a particular understanding of freedom of speech. In doing so, the High Court has engaged in what Judge Posner has described as “top down” reasoning.[107] That is, the High Court has adopted a theory, in this case a theory that the Australian Constitution limits the power of laws to interfere with representative government, and it then has approached individual cases by reference to this idea.[108]
The problem with “top down” reasoning is that it involves an ambitious statement about an underlying principle. The stakes of a single decision are therefore high. This is exemplified by the High Court’s vision of freedom of political communication in Theophanous and Stephens. By contrast, common law reasoning can be unambitious in the level of justification it advances for a particular decision. A hallmark of common law reasoning is that law is made through the adjudication of individual disputes. The proposition for which a case is taken to stand is determined by a later court which then applies, distinguishes, develops or (if the later court is a superior court) overrules. In counter-point to top down reasoning, development of a rule by determination of individual disputes is reasoning from the bottom up.
Bottom Up Reasoning in Stephens
The “bottom up” nature of common law reasoning can be seen in the discussion of the common law of qualified privilege by Justices Brennan and McHugh in Stephens.
As I have said, both these judges developed that doctrine to provide greater protection to political communication. In doing so, they relied principally on extensions of decided cases. Although Justice Brennan upheld the traditional rule denying protection to publications to the world at large, as it related to the publication by a newspaper of its own defamatory allegation,[109] he held that where a newspaper publishes a report containing a statement by a third party, standards are different. Relying on cases extending qualified privilege to reports of the proceedings of Parliament, the courts and some other public bodies,[110] he concluded that “[i]n principle, an occasion of qualified privilege may arise where there is a need to inform the public in order to allow the public to perform its own proper functions as perceived in the ‘varying conditions of society.’”[111] This required the defence of qualified privilege to respond to the recognition in earlier freedom of political communication cases that the public interest includes “the discussion and formulation of judgments relating to government, government institutions and political matters.”[112] Subject to some limitations[113] therefore, he held that an occasion of qualified privilege may arise in relation to the discussion of such matters even where they are published to the world at large.
In extending the common law of qualified privilege,[114] Justice McHugh also relied on cases in which the privilege had already been extended to publications to the world at large. He relied on the extension of the privilege to publications in newspapers made in reply to attacks on the plaintiff or some other person[115] and even to publications not in reply to such an attack.[116] It was, Justice McHugh concluded, a narrow reading of the occasions on which a person has an interest or duty to publish material to the general public which had so far denied the protection of qualified privilege to most publications in newspapers.[117] Like Justice Brennan, he concluded that the privilege was available in principle if the requisite public interest could be identified. He then extended the notion of public interest. Having noted the importance of open debate about public officials, he concluded:

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.[118]

Conceptual Ascent?
Not all scholars agree that this form of decision making avoids the enunciation of underlying principle which I have identified as a troubling feature of Theophanous and Stephens. It has been argued that “bottom up” reasoning is ultimately theory laden. Judge Posner advances this argument:

[T]here isn’t much to bottom-up reasoning. We don’t ever really “start” from a mass of cases or from a statute or from a clause of the Constitution. To read a case, to read a statute, a rule, or a constitutional clause presupposes a vast linguistic, cultural, and conceptual apparatus . . . And if, as is so common, the case or statute or other enactment is unclear, and maybe even when it seems quite clear, the reader, to extract or more precisely to impute its meaning, must interpret it; and interpretation, we now know, is as much creation as discovery. [119]

It is certainly true that one method of legal reasoning is the discernment of principle underlying a series of individual decision,[120] and that future cases may then be determined by reference to such an underlying principle.[121] Indeed, it has been argued that the very process of drawing an analogy, a classic “bottom up” style of legal reasoning, requires some kind of theory to determine whether one case is relevantly “like” another.[122] To some extent, these cases bear how common law reasoning might be underscored by a more general idea. After all, Justices Brennan and McHugh did not just assert that the discussion of political matters was “like” other occasions of qualified privilege. They identified that each case concerned a matter of “public interest” and then extended the notion of public interest to political discussion.
However, distinctive features of “bottom up” reasoning remain and are illustrated by the judgments of Justices Brennan and McHugh. Although the common law of qualified privilege is clearly founded on the notion of “public interest”, that notion is undefined. There is perceived to be a “public interest that persons should be allowed to speak freely on occasions when it is their duty to speak . . . in the protection of some (self or) common interest.”[123] The general emphasis is on the public rather than the individual good,[124] but the parameters of this concept are set not by some overriding theory of the purpose it is to serve, but through incremental extension of individual cases. Indeed, the cases reiterate that the decision will be made on the facts of a particular case.[125]
The vagueness of the overriding principle and the comparative specificity with which applicable factual circumstances are identified is seen in both judgments. Justice Brennan stressed that the broad and flexible nature of the principle underlying qualified privilege required close attention to the facts of individual cases.[126] He quoted Justice Dixon:[127]

Whatever advantages may be found in ‘broad’ or ‘flexible’ categories or tests of responsibility or immunity, they are not felt by a judge who wants to be guided in his decision. But the very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication.

Justice Brennan does just this, reviewing decided cases to determine the kinds of circumstances in which the privilege has been extended.[128]
Although Justice McHugh similarly relied on the importance of open discussion of public affairs,[129] he also continued to express the underlying concern of the common law in very general terms. It is a concern for “the quality of life and the freedom of the ordinary individual” which he identifies as “highly dependent on the exercise of functions and powers vested in public representatives and officials”[130] which justifies the extent of the privilege. Again, the focus of his decision is to identify the factual circumstances in which the public interest arises rather than its philosophical explanation.
These judgments form what Professor Sunstein has called an “incompletely theorized agreement”.[131] That is, an agreement which does not contain a complete account of the theory or principle which justifies it. Justices Brennan and McHugh can identify a particular outcome (that qualified privilege ought to attach to newspaper reports of matters concerning public or government affairs) and although they state a general principle that justifies it (that the discussion of these matters is within the public interest), they do not provide a fully articulated theory of the public interest. The result is that these Justices are not required to explain, and have not committed the Court to, a particular understanding of the value of freedom of expression. Although a theory, or theories may emerge over time, this decision forms only a step toward the formation of that theory. This, I suggest, avoids the risk that attends an ambitious decision which formulates a theory of freedom of political communication.
Development of the Rule
The common law also helps to avoid the second kind of problem which attends the New York Times v Sullivan rule, that which arises with the practical application and subsequent extension of the rule.
The Practical Effects of the Common Law are Known
First, by building on an established system of law, the Court is less likely to be taken unawares by the results of its decisions. After Theophanous, a judge who adopted Justice McHugh’s or Justice Brennan’s position would approach a false and allegedly libellous statement concerning a public figure with the established standard for qualified privilege: that there exists between the speaker and listener the requisite duty to communicate, and interest in the communication.[132] Justices Brennan and McHugh have made only an incremental extension of that test. Under Justice McHugh’s approach, for example, a lower court judge now knows that “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”[133] satisfy the reciprocity of duty and interest test. In other respects, the rule remains intact and its elements are defined by the case law.
Given its long history, the practical operation of the common law is easier to assess. The High Court can avail itself of critical analysis and respond accordingly. Of course, the critical analysis of the common law may be inadequate or the Court may not fully avail itself of it. The common law, moreover, may also not produce a perfect result. Nevertheless, an unexpected, self defeating result, the failure of a rule to achieve its own aims, that followed New York Times is less likely if the Court builds on an existing body of common law instead of formulating a constitutional standard.
Interpretive Resources of the Common Law
A second feature of the common law is that the body of decided cases provides an interpretive basis for the development of the law. These interpretive resources make the second kind of problem seen with the New York Times rule, overextension by lower courts, less likely. The underlying case law assists both in formulating a more precise rule and in the application of that rule. This is important because the terms in which the common law is framed might otherwise not seem to have much more content than the constitutional rule. The common law concepts of “special interest”, “exercise of a public function” and “public interest” which appear in Justice McHugh’s formulation of the rule,[134] for example, might seem equally as malleable as the recklessness and reasonableness requirements of the majority’s constitutional approach.
An illustration of the importance of underlying case law is found in Justice McHugh’s consideration of the protection of comment. Justice McHugh was able to determine the application of the extended form of qualified privilege i.e., that which applies to publication to the world at large, with some precision. Justice McHugh declined to extend the defence to the protection of “bare defamatory comment”; that is, comment published without the facts on which it is based. In drawing this limit, he noted that the defence of fair comment already protected comment, including bare defamatory comment, on matters of public interest so long as the factual basis could be proved.[135] The only question, then, was whether the extended form of the privilege should protect bare defamatory comment based on false assertions of fact. The protection of comment based on false factual information could be justified where those facts were published with the comment since “experience has shown that, in the absence of malice, the factual content of such publication is generally true” and consequently “[s]ociety benefits even though some statements made on those occasions are in fact untrue”.[136] However, because Justice McHugh was not convinced of any additional benefit in protecting bare defamatory comment based on false information, it remained unprotected.[137]
Of course, Justice McHugh’s determination that the new defence of qualified privilege did not extend to bare defamatory comment was based on his own assessment of the value of false information.[138] However, the existing law’s emphasis on the truth of the facts underlying comment guided his inquiry. He accepted the existing law and sought a reason to extend the privilege to comment based on false factual information. That reason could be found with respect to comment generally, but not with respect to bare defamatory comment. So, I do not mean to deny an element of choice in the interpretation of the common law.[139] I rely on the relatively modest point that the common law guides, but of course, does not determine the development of the rule. The result, nonetheless, is that the ultimate direction of the rule is likely to be more easily apparent at the time of its formulation and its development by lower courts less likely to take it in unexpected and unfortunate directions.
Justice McHugh’s approach to the matter of comment is to be contrasted with the Supreme Court of South Australia’s position in Peterson v Advertiser Newspapers Ltd.[140] That Court held that the “reasonableness” requirement of the Theophanous rule applied to comment as well as to statements of fact, rejecting the argument that the “reasonableness” requirement was difficult to apply to material that does not include factual assertions.[141] However, the Court had far less authority on which to rely. Although Justice Olsson considered and distinguished some American case law[142] much of the decision was based on the High Court’s failure to draw any such distinction and its apparent inclusion of comment in its observations about the coverage of the rule.[143] Rather than considering the overall operation of and justification for a well developed body of law, as Justice McHugh did, the Court was reduced to examining a single High Court decision for clues. The Supreme Court’s ultimate decision may or may not have been right. The important point is that in dealing with a new constitutional standard, courts have little precedential guidance and unguided lower courts have more scope to overextend a doctrine.
The Interpretive Resources of the Common Law and Constitutional Analysis
Before continuing, I want to address one possible objection to this argument. It might be argued that the resources of the common law are available to the constitutional decision maker who chooses to incorporate common law standards into constitutional analysis. That is, if we consider that the common law is likely to provide us with greater wisdom in relation to matters with which it has long dealt, then the best solution is to incorporate the wisdom of the common law into the interpretation of the Constitution. This would reduce my argument to a claim that the Court ought to rely on the guidance of the common law in formulating constitutional standards.
In reply to this, it must first be said that this argument does not address one justification for common law preference, the desirability of leaving open legislative and executive action, at all. However, because my argument principally relies on other benefits of common law reasoning, there is some undeniable force to this objection. It is true that the common law can inform the constitutional decision maker as well as the common law judge. Indeed, this is very close to the approach which the Supreme Court of South Australia took in Peterson to the interpretation of the “reasonableness” requirement of the Theophanous rule. In applying the rule, Justices Olsson and Mullighan took the view that the High Court intended to adopt the standard of reasonableness developed under s 22 of the Defamation Act 1974 (NSW).[144] Consequently, they interpreted the requirement by reference to the authorities interpreting that section.[145] Far from beginning with a clean slate therefore, they had the interpretive resources of those cases. In a similar manner, a court could incorporate a common law standard and avail itself of the greater understanding of the practical effect of its ruling and the more certain basis for the elaboration of a rule.
However, there is a limit to what this method can achieve in terms of my argument. Before incorporating a standard developed by the common law, or as in Peterson, through the interpretation of a statute, a judge would have to decide that the common law standard was an appropriate guide for the development of constitutional doctrine. In cases like the freedom of political communication, where the development of constitutional doctrine is governed by an overarching theory, the incorporation of a common law standard brings with it some elaboration of that theory. If therefore, the Supreme Court of South Australia was correct, and the High Court intended to incorporate the reasonableness requirement of s 22, then the High Court was making an important statement about the nature of the freedom of political communication. The cases elaborating the s 22 requirement are generally very protective of reputation. The following passage from Austin v Mirror Newspapers Limited is indicative of the general approach:

A newspaper with a wide circulation that publishes defamatory comments on untrue facts will in the ordinary course of events have no light task to satisfy a judge that it was reasonable to do so. Those in public life must have broad backs and be prepared to accept harsh criticism but they are at least entitled to expect that care should be taken to check that the facts upon which such criticism is based are true. [146]

The adoption of this standard into constitutional analysis appears to imply that this standard is appropriate for the purposes of representative democracy.
The Supreme Court of South Australia does not make the implications of its analysis for the freedom of political communication explicit.[147] However, any sustained analysis of this would have to justify it in terms of the theory which governs the freedom of political communication. The question for a court would be how such protection fits the notion of representative government which underlies the freedom of political communication.[148] Consequently, as long as the freedom of political communication is interpreted by reference to the principle of representative government, then the incorporation of the common law is likely to involve just the kind of decision making which I have suggested should be avoided.

IV LIMITS AND OBJECTIONS

The Limit of this Approach
Although I have argued that Theophanous and Stephens were cases in which the common law was an appropriate alternative to constitutional decision making, I do not want to suggest that the Court should automatically prefer a common law solution. The approach I have advocated ought to be seen as an appropriate strategy for the High Court in some cases.
Most obviously, common law preference is less likely to be appropriate when constitutional reasoning can proceed without the elaboration of an important overarching theory as is the case, for example, where constitutional interpretation relies primarily on construction of the text[149] or the interpretation of precedent. In the latter case in particular, constitutional decision making is much like the common law, depending on analogical reasoning from case to case and the gradual construction of principle over time.[150]
Therefore, there may be cases in which constitutional reasoning can proceed in an incremental “bottom up” fashion in much the same way as, and consequently with many of the advantages of, the common law. These may well be cases in which common law preference brings few of the advantages I have identified. For the moment, however, it is sufficient to say that Theophanous and Stephens were not such cases. Those cases relied upon a doctrine that went beyond straightforward interpretation of the text or extrapolation from decided cases. Instead, the High Court relied upon the structure of representative government created by the Constitution and determined that a level of political communication is necessary to assure its effective operation.[151] I do not mean to suggest that the arguments are without foundation or are an illegitimate form of constitutional argument.[152] However, they require a court to interpret principle abstracted from the Constitution and consequently will involve the elaboration of the concept involved in that principle. This is the kind of reasoning I have suggested that the High Court should avoid where there is a more secure basis for its decision, in the form of the common law.

Objections to this Approach
The need for a clear articulation of the constitutional standard
Perhaps the strongest argument against my position is that the High Court’s role requires it to decide, not avoid, important constitutional matters. Harry Kalven’s famous analysis of New York Times v Sullivan suggests this point. Kalven powerfully argued that an important virtue of New York Times v Sullivan is that the Supreme Court looked beyond the narrowest possible formulation of the issue and took the opportunity to address the important values underlying the First Amendment.[153] Kalven pointed out that the Supreme Court could have decided the case solely on the basis that there was insufficient evidence to connect the plaintiff to the statements made in the advertisements in question.[154] Instead, with a “hitherto rarely displayed . . . taste for common sense”,[155] the Court proceeded to address the long unsettled issue of seditious libel. It declared as the “central meaning of the Amendment” that seditious libel cannot be made the subject of government sanction. This was then applied to defamation[156] but the importance of the decision lies in “the generous sweep of the major premise and not the application of it to the point of defamation law involved in the Times case.”[157]
Kalven’s point is that the Supreme Court’s role may require it to do more than decide a case. As the final expositor of the Constitution, it ought to articulate important standards.[158] Part of the importance of such a role is the guidance that such decisions give to lower courts, legislators and litigants.[159] A further argument might place particular emphasis on the nature of freedom of speech. The argument might be that where very important values like freedom of speech are concerned, there is a need for clear statements of those values. One argument about First Amendment doctrine is that it ought to be developed so that it will withstand pressure during periods of strong intolerance for unorthodox ideas.[160] A doctrine formed by the drawing of analogies based on an unarticulated and partly formed theory might lack the intuitive appeal to command popular support and give judges, who are themselves susceptible to the intolerance of the times, too much discretion.
There are several responses to these criticisms. First, these arguments do not apply with such great force where the method of constitutional avoidance is common law decision making. The common law is somewhat better equipped to fulfil the need for statements of important principle than other methods of constitutional avoidance. Kalven pointed out that if New York Times v Sullivan had been decided on the narrow basis that there was insufficient evidence connecting the defendants to the publication in question, it would still have had some value in elucidating free speech principles. It would have indicated that “[i]f such connection is too easily made, all criticism of government policy, however impersonal will carry implicit defamation of whatever officials were in charge of the policy attacked.”[161] But as Kalven clearly appreciated, this value is not comparable with the broad and important discussion in New York Times. Like most alternative grounds of decision it would carry its message by implication rather than direct enunciation of principle. Consider by contrast Justice McHugh’s decision in Stephens expanding the common law concept of “public interest”. Although building on the common law of qualified privilege, he is able to make quite clear the importance of open discussion of public issues:

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[162]

Of course, I have argued that one of the virtues of this decision is that it is expressed rather vaguely and its limits are determined principally by reference to specific factual circumstances.[163] Nevertheless, it must be seen that this passage is closer to New York Times, than a judgement which avoided an issue by reference to a concept such as standing or by the narrow interpretation of a statute. So, a decision on the common law is rather more like the kind of enunciation of principle than some other methods of constitutional avoidance. At the same time, it leaves some important decision making until later, a feature which I have argued is desirable.
Second, in so far as the argument against my position is based on the need to create stable constitutional norms about freedom of speech, it is not clear that the argument would counsel against an initial period of common law preference. The argument for the formulation of rules that are resistant to the pressure of intolerant times, was made in the context of the comparatively well developed law of the First Amendment.[164] In the context of a developing law of freedom of speech, it may be that the need for stable constitutional rules protecting freedom of speech is best served by a slow evolution of standards which then have the capacity to endure. The fate of the Theophanous rule perhaps supports this view. The adventurousness of Theophanous made it fragile and the radical reformulation of the doctrine three years later in Lange hardly contributed to stable constitutional norms governing speech protection.
Finally, there is a more general point which applies to each of these arguments. The avoidance of statement of important principle with its consequent risk is sometimes more important than the enunciation of principle. I think that this is particularly likely to be the case where, as in Theophanous and Stephens, an important doctrine is in its early stages of development. Theophanous and Stephens, should be contrasted in this regard to New York Times v Sullivan. At the time of New York Times, the First Amendment had been the subject of far greater development by the courts than the freedom of political communication has yet received in Australia. What is more, there had been a long running controversy over the constitutionality of seditious libel which the Supreme Court put to rest in New York Times. The case therefore occurred in the context of a relatively mature body of law and in the face of an enduring controversy. This was far from the position in Australia when Theophanous and Stephens were decided. So, while there might be cases in which even the principled development of the common law seems insufficient, having regard to the important role of the High Court, I venture to suggest that Theophanous and Stephens were not such cases.
Failure to avoid the Constitutional Issue and Loss of Candour in Constitutional Decision Making

A further argument against my position might be drawn from arguments made against advocacy of constitutional avoidance through statutory interpretation. That argument is that expedient avoidance of constitutional decision making obscures the real ground of decision.[165] This has two results. First, there is a lack of candour in judicial decision making. Moreover, it means that constitutional avoidance does not achieve what it claims: it does not really allow a court to avoid a constitutional decision because embedded in a decision to prefer a common law solution, is a preliminary judgment about the constitutional issue. Professor Schauer made this argument in the course of his critique of the rule, enunciated in Ashwander,[166] that where fairly possible, a court should interpret a statute to be consistent with the Constitution. As Schauer points out, this rule is only important where a court perceives that the statute could be read as unconstitutional. If there is no potential for conflict, then the court can simply interpret the statute without the need to call on the Ashwander rule.[167] Consequently, resort to statutory interpretation to avoid constitutional decision making carries with it the message that the court has real constitutional doubts.
The same could be said of constitutional avoidance through use of the common law. The argument would be that there will only be a need to resort to the common law when judges conclude that there is a possible constitutional argument, but one which requires an ambitious level of justification. If a judge is convinced that no possible constitutional argument existed, as were Justices Brennan and McHugh in Theophanous, then the common law is not an avoidance technique. So if the majority in Theophanous had employed the approach I am suggesting, we would still have some idea about their constitutional views. It would be a safe assumption that they disagreed with Justices Brennan and McHugh that the implied freedom of political communication had no operation in relation to defamation actions by public officials. On the contrary, it would appear that they considered it possible that the freedom of political communication had such an effect but were not prepared to engage in the kind of decision making that would explain its basis.
There is some undeniable force to this argument. The prudential use of the common law to avoid constitutional decision making inevitably involves leaving constitutional concerns unarticulated. Indeed, that is part of its virtue. Rather than undermining my argument that constitutional avoidance brings with it some benefits, however, this argument merely points to a cost it incurs. The question therefore remains whether the benefits I have identified outweigh these costs. This point can be answered by repeating my argument that the costs of avoidance are worth it. At least in the kinds of circumstances I have described, avoidance even with its costs is preferable to the formulation of rules whose ultimate operation is uncertain and potentially self-defeating.
Corruption of the Common Law
The final counter-argument I will address is also drawn from arguments made against constitutional avoidance through statutory interpretation. However, it is rather easier to dismiss.
One point made about constitutional avoidance through statutory interpretation is that it distorts principles that have their own value and hence undermines their capacity to achieve those aims. Gunther makes the point in relation to the avoidance of constitutional decision making through statutory interpretation, arguing that “[a] vital Court task, after all, is the interpretation of legislation in contexts free from ulterior purposes of avoidance.”[168] Schauer makes the argument slightly more forcefully. His point is that the avoidance principle tends to lead courts away from an interpretation they would otherwise prefer. There will rarely, if ever, be a case in which a constitutional interpretation and a non-constitutional interpretation of a statute will be equally plausible since the process of interpretation is likely to produce a preferred result. If that result is unconstitutional, then preferring a constitutional reading in order to avoid constitutional decision making draws the Court away from the more natural reading of the legislation. So, the result is a distortion of statutory interpretation and the loss of the value we place on courts giving their preferred interpretation.[169]
It is tempting to make the same argument about the common law. In the same manner, it might be said that the principle of constitutional avoidance through interpretation of the common law only comes into play when the interpretation which the courts might otherwise give the common law raises some constitutional doubt. The principle therefore has the potential to lead courts to develop the common law in a particular manner precisely to avoid conflict with the Constitution, perhaps leading to a strained reading of the common law.
However, unlike the arguments with which I have just dealt, this point has less relevance where constitutional issues are avoided through common law decision making than where statutory interpretation is the alternative basis of decision. Even if the technique leads courts to prefer readings of the common law that are consistent with constitutional principle, it is not clear that this is a bad thing. One argument that could be made about the common law is that it ought to respond to developments in constitutional principle. Indeed, this would be consistent with Ronald Dworkin’s requirement of “integrity in law”, a principle which “instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author - the community personified - expressing a coherent conception of justice and fairness.”[170] If laws are to express a coherent system of values, cross-fertilisation between the constitutional doctrine and the common law is desirable.
V LANGE V THE AUSTRALIAN BROADCASTING CORPORATION

The decisions in Theophanous and Stephens were short lived. Shortly afterwards, two members of the majority retired and some resistance to the decisions was evident in the High Court.[171] The opportunity to reconsider them arose when David Lange, the former Prime Minister of New Zealand, sued the Australian Broadcasting Corporation in defamation[172] and challenged the correctness of Theophanous and Stephens.[173] The High Court abandoned both the adoption of United States free speech jurisprudence and the particular test that I have criticised. However, as I will show, its response is only partially consistent with the approach I have recommended.

The Decision
The High Court responded to the challenge to Theophanous and Stephens with a rare unanimous decision. It upheld the position that the freedom of political communication operated to limit defamation actions brought in relation to political discussion. However, it abandoned the constitutional standard enunciated in Theophanous and replaced it with an approach which shows greater deference to the common law. Three features of the decision are significant for my argument.
The Basis of the Freedom of Political Communication
First, Lange contains an important restatement of the constitutional basis and nature of the freedom of political communication. Since the High Court first recognised the implied freedom of political communication, there had been divisions within the Court over its nature. In particular, some members of the Court had interpreted the implication of representative democracy narrowly, stressing that the content of the implication is to be construed principally by reference to the text. In McGinty v Western Australian Newspapers, Chief Justice Brennan explained this approach:[174]

Although the term “representative democracy” is useful to explain the text on which the implied freedom depends . . . [i]t is logically impermissible to treat “representative democracy” as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed. The text of the Constitution can be illuminated by reference to representative democracy but the concept neither alters nor adds to the text.

Much of the criticism of Theophanous and Stephens was based on a perceived departure from this method of constitutional interpretation.[175] Justice McHugh explained his concern that the majority had proceeded “just as if the Constitution contained a Ch IX with a s 129 which read ‘Subject to this Constitution, representative democracy is the law of Australia, notwithstanding any law to the contrary’”.[176]
Whatever the merits of the criticism, the narrower, more textually based approach prevails in Lange. The Court stated:

Since McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of “representative government” only to the extent that the text and structure of the Constitution establish it . . . the relevant question is not, “What is required by representative and responsible government?” It is, “What do the terms and structure of the Constitution prohibit, authorise or require?”[177]

The Court therefore began its consideration of the implied freedom of political communication with the text and structure of the Constitution. At the heart of the Court’s analysis are ss. 7 and 24[178] which “read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the states and the Commonwealth respectively.”[179] Other elements of representative government are found in the provisions that set out the relationship between the Executive and the Parliament, in particular those which provide for a system of responsible ministerial government[180] and also in s. 128, the provision for amendment by popular referendum.[181]
The Court’s approach to the freedom of political communication is that it limits interference with aspects of representative government that can be identified in the text. Sections 7 and 24 and related sections give rise to an implication protecting the representative nature of the Parliament. Thus communication “which enables the people to exercise a free and informed choice as electors” cannot be restricted.[182] The sections which give rise to a system of responsible government “necessarily imply a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal Parliament”[183] and s. 128 requires the protection of information “that might be relevant to the vote [electors] cast in a referendum to amend the Constitution.”[184]
The Common Law and the Constitution – The Relationship Reconsidered
The second significant feature of Lange is that the High Court gave more detailed consideration to the relationship between the common law and the Constitution. As shown above, in Theophanous, the majority held that the constitutional requirement of free political communication affected the common law.[185] The explanation in the principal majority judgment was rather brief. Rejecting the argument that the common law was unchanged by the Constitution because it was a pre-existing system, the majority stated:

It is . . . clear that the implied freedom is one that shapes and controls the common law. At the very least, development in the common law must accord with its content. And though it may not have been apparent . . . prior to the decisions in Nationwide News and Australian Capital Television, if the content of the freedom so required, the common law must be taken to have adapted to it.[186]

Deane J considered the matter in more detail. He argued that state laws were subject to the Constitution, relying on covering clause V which provides that the Constitution “shall be binding on the courts, judges and people of every State” and on ss 106 and 108 which provide for the continuation of State laws “subject to this Constitution”.[187] He concluded that the implication of freedom of political communication applied to state laws “statutory or inherited”, thus apparently including the common law.
In Lange, however, a different explanation emerged. First, the High Court took the view, as Brennan J had in his Theophanous dissent, that the Constitution was primarily addressed to legislative and executive action.[188] This would appear to preclude a rule of the kind enunciated in Theophanous which provided a constitutional defence to a common law claim. But despite this, the common law does not escape constitutional scrutiny. The High Court held that “the Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form ‘one system of jurisprudence’”.[189] Further, it held that “[w]ithin that single system, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.”[190] Thus, despite their analysis that the Constitution was addressed to legislative and executive action, the Court held that the common law must conform to the Constitution. Consequently, although they departed from the “constitutional defence” enunciated in Theophanous, as we shall see, the Court altered the common law to conform to constitutional requirements.
The New Test in Lange
Having clarified the basis of the freedom of political communication and its operation on the common law, the Court then outlined a new test which determines whether regulation of political communication is constitutionally permissible. In this respect, the decision marks a dramatic shift. Suddenly, the more deferential approach to review expounded by Justice Brennan[191] appears to gain general acceptance. Far from requiring a “compelling justification” or “pressing social need”, at least where regulation targets the content of communication, the Court sets a single standard according to which a law that burdens the freedom of communication must be “reasonably appropriate and adapted to serve a legitimate end”.[192]
The High Court then applied this test to the law in question, the defamation law of New South Wales. The High Court held that the law of New South Wales did burden the freedom of communication but that this was appropriately adapted to a legitimate purpose and therefore valid. Relevant for my argument is the Court’s approach to the common law of defamation.[193] As a first step, the High Court extended the common law of qualified privilege to conform to the constitutional requirement. In a manner similar to that of Justice McHugh in Stephens, it held that the common law should recognise that each Australian has an interest in disseminating and receiving information “concerning government and political matters that affect the people of Australia” and a duty to disseminate it as a corollary.[194] The High Court then restricted this extension of the privilege by requiring that the defendant must show that the publication was reasonable in the circumstances and allowing for defeat of the defence if the plaintiff could demonstrate that the publication was actuated by malice or improper motive.[195] The High Court held that the common law of qualified privilege when reformulated in this way, did not unduly burden the freedom of political communication.
Significance for Common Law Preference
For those who advocate the avoidance of constitutional decision making in review of the common law, Lange is in one respect disappointing. In reassessing Theophanous and Stephens, the High Court did not avoid the constitutional issue. It is true that the Court proceeded by developing the common law, but by indicating that the development of the common law was required by the freedom of political communication, the Court gave a clear indication of its constitutional views. It held:

Because the Constitution requires ‘the people’ to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of ministers of State and the conduct of the executive branch of government, the common law rules concerning privileged communications, as understood before the decision in Theophanous . . . failed to meet that requirement.[196]

Because the constitutional requirement drove the reformulation of the common law, the new common law test reveals something of the content of that requirement.
Nevertheless, other aspects of the decision are generally sympathetic to my arguments. First, the High Court’s preference for the formulation of a common law standard over the enunciation of a new constitutional standard preserves the understanding of the practical effects of the rule and the benefits of greater interpretative resources that, I have argued, attend common law reasoning. Consequently, though the Court preserves the “reasonableness” standard that I have suggested was a troublingly open ended feature of the constitutional standard, the future development of the standard will be guided by existing law. The High Court’s own analysis shows this. The High Court included the reasonableness requirement as a special additional requirement of the extended form of the common law privilege because the traditional law of qualified privilege “devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers”. Because of the greater damage such publication can do to reputation, it held “a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.”[197] Lower courts therefore know that the requirement exists to give reputation a higher level of protection than is traditionally provided by the common law, in response to the special dangers of mass publication. The level of protection afforded to reputation by the common law as it stood before Lange will provide a starting point from which the new test is to be distinguished in accordance with the High Court’s rationale for the extension.
A second feature sympathetic to my argument is that the precise nature of the constitutional standard is not highly developed by the Court. There is no ambitious or wide ranging justification of the Court’s view that a particular extension of the common law is required by the freedom of political communication. The statement simply is that the privilege must be extended to meet the Constitution’s requirement that “‘the people’ . . . be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of ministers of State and the conduct of the executive branch of government”.[198] Thus particular circumstances, rather than underlying or overarching theory, are the focus. This is to be contrasted with the adoption of the American emphasis on unregulated debate in Theophanous, which, as I have shown, brings with it a particular, and contestable, understanding of freedom of communication.
A Final Objection
Although broadly sympathetic to my argument, this last feature of Lange raises a final possible objection to my argument. It must be admitted that Lange avoids the enunciation of a philosophy of freedom of speech in a different manner from that I have suggested. By tying the freedom of political communication closely to specific provisions of the Constitution, the Justices have rejected the notion that the Constitution can be interpreted according to a general notion of “representative democracy’. This is what the Court means by its statement “the relevant question is not, ‘What is required by representative and responsible government?’ It is, ‘What do the terms and structure of the Constitution prohibit, authorise or require?’”[199] Lange might therefore suggest that the appropriate response to the “top-down” nature of Theophanous and Stephens is not a preference for the common law, but a return to “bottom up” constitutional reasoning. This appears to be the approach advocated by Justice McHugh who, in McGinty, specifically rejected the notion of “top-down” constitutional reasoning.[200]
As I have already explained, constitutional reasoning can proceed in a manner which avoids the statement of important underlying principle and, where the Court does this, the case for common law preference is much weakened. However, I do not accept that the possibility of textually based constitutional reasoning makes the case for common law preference superfluous. Even if the High Court were entirely to abandon argument which takes underlying principle as its starting point, this view would be problematic. It involves adopting a theory about constitutional interpretation that is itself ambitious.[201] There are arguments, some of which I have outlined above,[202] that counsel the exposition of important underlying principle, in some circumstances. Therefore, for the kinds of reasons that I have advocated caution in adopting a particular understanding of freedom of speech, I would advocate caution in adopting a theory of constitutional interpretation. The enterprise is ambitious and consequently risky. So while the adoption of this more cautious incremental style of constitutional interpretation has manifest advantages, the complete preclusion of other styles of constitutional interpretation seems premature.
To conclude, the approach I have advocated has one advantage even over the use of less ambitious styles of constitutional reasoning. It allows for risky, ambitious decision making to be avoided at some points without requiring the Court to determine the important question of the place of “top down” argument in constitutional analysis.
VI CONCLUSION: THE COMMON LAW THE CONSTITUTION AND THE FUTURE

The problem I have considered here will be of continuing significance as the High Court moves the Constitution into the traditional domain of the common law. On the horizon may be an overlap between the constitutional requirements of fairness of process and traditional common law concepts. The High Court’s vigorous interpretation of provisions conferring the judicial power of the Commonwealth exclusively on courts designated by Chapter III, has raised the notion of constitutionally required fairness of process.[203] Further, some Justices have indicated their view that constitutionally required fairness of process includes the concept of a fair trial traditionally defined by the common law.[204] The consequence may be that the High Court is faced with an appeal arguing that an accused was denied both the common law right to a fair trial and the requirements of Chapter III. It could therefore proceed by elaborating the content of a constitutional “fairness of process” requirement or by considering the common law concept. Although I will not here suggest a substantive solution, the matter should be analysed in the terms I have outlined. A part of the Court’s inquiry should be to consider what commitments a decision on the constitutional notion of fairness of process would require and how a common law solution might avoid this.

This article was published in the Federal Law Review, Volume 26, Number 2, 1998

*BA (UNSW); LLB (UNSW); LLM (Columbia), Faculty of Law, Australian National University. This article forms part of the author’s JSD dissertation at Columbia University School of Law. The author wishes to thank Adelle Blackett, Vincent Blasi, Michael Dorf, Kent Greenawalt, Christine Haight Farley, Peter Lindseth, William Ryan , Peter Strauss and George Williams for their comments on earlier drafts and other contributions to the development of this article. Theo Varvaressos provided excellent editorial assistance.
[1] The High Court first recognised a constitutional freedom of political communication in Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 and Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1 in which the High Court held that the system of representative and responsible government established by the Australian Constitution, impliedly prohibits legislative action that interferes with the political expression necessary for the proper operation of this system of government. Therefore, legislation prohibiting some forms of political advertising (in Australian Capital Television) and legislation creating an offence for speech bringing a particular administrative tribunal into disrepute (in Nationwide News), were declared invalid.

[2] JA La Nauze, The Making of the Australian Constitution (1972); AI Clark, Studies in Australian Constitutional Law (1901) at 358. Consequently, the constitutions of the two countries share many basic features. The two constitutions share a popularly elected House of Representatives, an upper house which represents (at least in theory) the interests of the states, division of powers between the arms of government, the enumeration of federal powers and similar provisions relating to the judiciary and the exercise of judicial power. Sir Anthony Mason, “The Role of a Constitutional Court in a Federation: a Comparison of the Australian and United States Experience” (1986) 16 Fed L Rev 1.

[3] It has assisted in justifying judicial review (Australian Communist Party v Commonwealth (Communist Party Case)) [1951] HCA 5; (1951) 83 CLR 1 at 262, citing Marbury v Madison 5 US [1803] USSC 16; (1 Cranch) 137 (1803)); influenced approaches to interpretation (D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 at 111; O’Sullivan v Noarlunga Meat Ltd [1954] HCA 29; (1954) 92 CLR 565 at 597; Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7 citing McCulloch v Maryland 17 US [1819] USSC 5; (4 Wheat) 316 (1819)) and influenced the development of relationships between the federal government and the states. (Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 61, 81 , 83; citing New York v United States [1946] USSC 13; 326 US 572 (1946)). See generally, JA Thomson, "American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law" (1997) 30 J Marshall L Rev 627.

[4] It is well documented that the framers chose not to include a US style Bill of Rights because of their confidence that the common law and the democratic process would be sufficient. Official Record of the Debates of the Australasian Federal Convention (Melbourne, 8 February 1898), pp 688-90; see also, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) [1920] HCA 54; (1920) 28 CLR 129 at 151-152.

[5] [1994] HCA 46; (1994) 182 CLR 104.

[6] [1994] HCA 45; (1994) 182 CLR 211.

[7] [1964] USSC 40; 376 US 254 (1964), see below, n 28 and accompanying text.

[8] [1997] HCA 25; (1997) 145 ALR 96.

[9] Eric Barendt, “Free Speech in Australia: a Comparative Perspective” [1994] SydLawRw 13; (1995) 16 Syd L Rev 149 at 165; Gerald Rosenberg and John M Williams, “Do not Go Gently into that Good Right: The First Amendment in the High Court of Australia” (1997) Sup Ct Rev 439.

[10] See, below n 28 and accompanying text. The Court was divided and among the three dissenters who found no constitutional rule akin to New York Times v Sullivan, two justices addressed the protection of freedom of speech through the development of the common law. See below n 37.
[11] The provision also allows for the review by the High Court of the decision of “any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council”.

[12] As is well known to American lawyers, in Erie RR v Tompkins [1938] USSC 94; 304 US 64 (1938), the Supreme Court reversed Swift v Tyson 41 US [1817] USSC 12; (16 Peters) 1 (1842) which for almost a hundred years had allowed the development of a “general common law” by the federal courts.

[13] [1938] USSC 94; 304 US 64, 78 (1938) (“Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.”)

[14] Michael C Dorf, “Prediction and the Rule of Law” (1995) 42 UCLA L Rev 651 at 695.

[15] There is, however, some federal common law based on grants of jurisdiction contained in Article III §2 or in statutes. For example, the grant of jurisdiction in Article III § 2 over cases “to which the United States shall be a party” has provided the basis for the development of federal law concerning some obligations of the United States. For a detailed discussion see, Henry J Friendly, “In Praise of Erie - And of the New Federal Common Law” (1964) 39 NYU L Rev 383 at 405 - 22.

[16] K.C Wheare, Federal Government (3rd ed 1953) at 68-69. He goes on to note that “the United States alone of the four federations we are discussing [Australia, Canada, Switzerland and the United States] comes near to applying this principle”.

[17] Official Record of the Debates of the Australasian Federal Convention (Sydney, 4 March 1891) at 23.

[18] Andrew Inglis Clark explicitly noted that to confer a general appellate jurisdiction on the High Court would impose aspects of the British court structure on a federal system. He said of the proposal to give the High Court a general appellate jurisdiction, “I hope that in addition to a separate federal system of courts we shall have a court of appeal as the resolution contemplates. That will be an innovation . . . upon the American system. The American Supreme Court cannot hear appeals from the supreme courts of the various states except in matters of federal law.” Official Record of the Debates of the Australasian Federal Convention (Sydney, 11 March 1891) at 253.

[19] Ibid.

[20] For an account of the controversy surrounding the preservation of the Privy Council’s role, see, Jack Goldring, The Privy Council and the Australian Constitution (1996) at 19-33, 44-48.

[21] Sir John Quick and Sir Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 725 § 288. In Erie, the Supreme Court recognised that such uniformity would not be achieved under Swift because of the persistence of state courts in their own opinions on questions of common law. [1938] USSC 94; 304 US 64, 74 (1938). The power of the High Court to review the decision of all state courts avoids the proliferation of various interpretations of the common law.

[22] Ibid. See also, Official Record of the Debates of the Australasian Federal Convention (Melbourne, 28 January 1898) at 273, 283.

[23] Quick and Garran, above n 21. Quick and Garran advanced the same rationale in support of s 77 of the Australian Constitution, which allows the Parliament to make laws investing any state court with federal jurisdiction. Although this was primarily motivated by a wish to avoid the
“unduly cumbersome judicial machinery in the early years of the Commonwealth, and only develop and extend the national judicial system to meet the gradually increasing requirements of the people”. Ibid at 803-4, § 337. Quick and Garran noted that it is consistent with the “more national and less distinctively federal” character of the Australian judiciary. They reiterated the rationale they advanced for the High Court’s jurisdiction: “[c]onfidence in the integrity and impartiality of the Bench prevents any jealously or distrust of this wide federal jurisdiction; and the same confidence makes it possible to contemplate without misgiving the exercise of federal jurisdiction by State courts”. Ibid.

[24] [1994] HCA 46; (1994) 182 CLR 104.

[25] [1994] HCA 45; (1994) 182 CLR 211.

[26] [1964] USSC 40; 376 US 254 (1964).

[27] In Stephens, the High Court addressed the additional question of how the freedom of political communication affected discussion of the political matters of a state, and whether a similar implication could be found in the Constitution of the state of Western Australia. [1994] HCA 45; (1994) 182 CLR 211 at 232-34 per Mason CJ, Toohey and Gaudron JJ, at 257 per Deane J.

[28] The rule in New York Times v Sullivan “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’ . . . or with reckless disregard of whether it was false or not.” [1964] USSC 40; 376 US 254, 279-80 (1964). The Australian rule was formulated slightly differently. First, Theophanous provides that an action cannot be brought for publication of false material if (i) the defendant is unaware of the falsity and not reckless with regard to its truth and (ii) the publication was reasonable in all the circumstances. (1994)182 CLR 104 at 140-141. Second, the onus of proof is reversed: the defendant must establish, “that it was unaware of the falsity, that it did not publish recklessly (i.e., not caring whether the matter was true or false), and that the publication was reasonable”. Ibid at 137. Further the rule only applies to public officials and candidates for public office.

[29] Such as s 41 (a person who acquires the right to vote in a State shall have the right to vote in the Commonwealth); s 80 (a trial on indictment shall be by jury); s 116 (Commonwealth shall not make any law "for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ..."); s 117 (States not to discriminate against the residents of any other states); s 51(xxxi) (acquisition of property to be on just terms).

[30] See generally, Tony Blackshield and George Williams, Australian Constitutional Law and Theory (2nd ed 1998) at 987-1054. To give an example of this restrictive reading, the High Court has interpreted the guarantee that a trial on indictment shall be by jury, to allow Parliament total freedom in determining whether the trial shall be by indictment and thus incur the jury requirement. R v Bernascone [1915] HCA 13; (1915) 19 CLR 629; R v Archdall & Roskruge; Ex parte Carrigan & Brown [1928] HCA 18; (1928) 41 CLR 128.

[31] [1994] HCA 46; 182 CLR 104 at 126 per Mason CJ, Toohey and Gaudron JJ, at 164-165 per Deane J.

[32] The High Court’s analysis changed in Lange v The Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96. See below nn 171 - 204 and accompanying text.

[33] Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd 33 DLR (4th) 174 (1986). See also, McKinney v University of Guelph 76 DLR (4th) 545 (1990) per La Forest J; K Swinton, “Applications of the Canadian Charter of Rights and Freedoms”, in Walter S Tarnopolsky and Gerald A Beaudoin, The Canadian Charter of Rights and Freedoms - Commentary (1982) at 42. A similar position was taken by Justice Brennan, a dissentient in Theophanous, with regard to the implied freedom of political communication. (1994)182 CLR 104 at 153.

[34] Although in the United States the common law is considered, for the most part, to be state law, state laws are subject to the provision of the Bill of Rights, through the interpretation of the Fourteenth Amendment: Palko v Connecticut [1937] USSC 174; 302 US 319, 325 (1937). Secondly, although most constitutional provisions apply to government not private action, judicial enforcement of the common law constitutes state action: New York Times v Sullivan 3[1869] USSC 146; 76 US 254, 265 (1964). Although, the High Court has reached the same result as the United States Supreme Court, the precise explanation that has emerged is different. It was most clearly expressed in Lange v Australian Broadcasting Commission where the Court held that “[t]he Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form ‘one system of jurisprudence’ . . . Within that single system of jurisprudence, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.” (1997) 145 ALJR 96 at 109-10.

[35] Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 111, 116; Stephens [1994] HCA 45; (1994) 182 CLR 211 at 214, 217.
[36] (1994)182 CLR 104 at 140 per Mason, Toohey and Gaudron JJ, at 187 - 88 per Deane J.

[37] There were three dissentients. Justice Brennan dissented on the basis that the implied freedom operated only to limit the legislative powers of the Parliament. [1994] HCA 46; (1994) 182 CLR 104 at 149 Justice Dawson dissented, taking the view he first expressed in Australian Capital Television and Nationwide News, that there is no constitutional freedom of political discussion flowing from the establishment of representative government. Ibid at 191. Justice McHugh’s dissent also followed from his decision in Australian Capital Television and Nationwide News. Although he had joined the majority in striking down the legislation in those cases, the basis of his decision was considerably narrower. He recognised a freedom of political communication only existed to protect a narrow concept of representative government, the direct election of the federal parliament by the people. Consequently, the implied freedom had no effect on defamation laws. Ibid at 203- 05.

[38] These cases came to the High Court as cases stated under s 40 of the Judiciary Act 1903 (Cth) which allows for a case raising a constitutional question pending in a lower court to be removed into the High Court by its own order. Section 18 then provides for a case to be stated for the Court’s consideration. In Theophanous and Stephens, the cases were removed to the High Court under s 40 before their respective trials. Theophanous (1994)182 CLR 104 at 119, Stephens (1994)182 CLR 211 at 235, 258. The Chief Justice stated a case for the High Court to consider. In Theophanous, the case consisted of four questions. The first two questions addressed the constitutional issue. The third question was as follows: “If yes to any part or parts of question 1, is any such publication a publication on an occasion of qualified privilege . . . ?” (1994)182 CLR 104 at 120. Strictly, therefore, the question only arose upon a finding that the Constitutional protection extended to the publication of material described in question 1. As they had dissented on this question, Justices Brennan, Dawson and McHugh took the view that the common law question did not arise. Ibid at 163, 194, 207.

[39] The classic statement of the defence of qualified privilege is that of Parke B In Toogood v Spyring (1834)1 C M R 181 at 189: [1834] EngR 363; 149 ER 1044.

[40] Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 at 513.

[41] Morosi v Mirror Newspapers [1977] 2 NSWLR 749.

[42] Justice Brennan and Justice McHugh both extended the traditional category of “public interest” to include matters relating to government and the conduct of public affairs. (1994)182 CLR 211 at 251 per Brennan J, at 265 per McHugh J. Further, both Justices placed emphasis on the status of the maker of the communication. For Justice Brennan, the privilege will only be available where the maker of the communication has “particular knowledge” of the subject matter, though it will be sufficient if the publisher had a reasonable belief that person has such knowledge. Ibid at 252. For Justice McHugh, the maker of the communication must have “special knowledge”. Ibid at 265. The principal differences are that Justice McHugh extends the privilege to false statements of fact and comment based on them, though not to bare defamatory comment whereas Justice Brennan would require the statement to be “fair and accurate” and that the subject of the communication have a reasonable opportunity for response. Ibid at 252, 267.

[43] See, below nn 109-18 and accompanying text.

[44] Anthony Lewis, Make No Law at 21-22 (1991).

[45] Ibid at 24-27.

[46] Ibid at 28-31.

[47] Ibid at 35.

[48] See, above n 38.

[49] See, the questions stated in Theophanous, above n 38. As the questions reserved in Theophanous dealt with the possible constitutional and common law bases for protection of the speech in question, the questions in Stephens simply asked whether the two defences pleaded, a defence relying on the implied freedom of communication and one relying on qualified privilege, were bad in law. Stephens (1994)182 CLR 211 at 231. No doubt also influenced by the form of the case stated, counsel appear to have put argument to the High Court on the basis that the common law of qualified privilege was a secondary defence, which was to be considered after the constitutional question had been decided. Theophanous (1994)182 CLR 104 at 111, Stephens (1994)182 CLR 211 at 214.

[50] Many of these rules are set out by Justice Brandeis in his famous concurring opinion in Ashwander v TVA [1960] USSC 29; 297 US 288, 345-49 (1936) (Brandeis J with whom Stone, Roberts and Cardozo JJ agreed) See generally, Lisa A Kloppenberg, “Avoiding Constitutional Questions” (1994) 35 BC L Rev 1003 at 1018 - 1027.

[51] Ashwander v TVA [1960] USSC 29; 297 US 288, 348 (1936). For instances of the Australian doctrine of “reading down” statutes and the related technique of “severance” whereby the Court may declare parts of a statute as invalid but allow the rest to stand, see D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 and R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (Bootmaker’s Case No 2)(1910)1 CLR 1.

[52] Alexander Bickel, The Least Dangerous Branch (2nd ed 1986).

[53] The Australian Constitution, for example, can only be amended according to the referendum procedure prescribed by s 128.

[54] The concern over vulnerability of the United States Supreme Court to political attack was acute in the aftermath of the Court’s ultimately futile resistance to the New Deal. Bickel above n 52, at 45-47, 240. See generally, Kloppenberg, above n 50 at 1042-1043.

[55] Kloppenberg, above n 50 1042. On the limited institutional capacity of courts, see generally, Gerald N Rosenberg, The Hollow Hope (1991).

[56] Kloppenberg, above n 50 at 1047.

[57] Ibid at 1055.

[58] Ibid at 1040.

[59] This argument has something in common with and has been influenced by Cass Sunstein’s recent argument for a strategy of judicial “minimalism”. That is, a strategy of leaving as much as possible undecided in cases in which the Court is dealing with “an issue of high complexity about which many people feel deeply and on which the nation is in flux (moral or otherwise).” Cass R Sunstein, “Foreword: Leaving Things Undecided” (1996) 110 Harv L Rev 4 at 8. Part of his argument for minimalism is that it reduces “error costs”, the costs of a wrong decision.

[60] Under this standard regulation directed to the content of speech will generally only be permissible if the government can show that “its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Widmar v Vincent [1981] USSC 227; 454 US 263, 270 (1981). There are some categories of speech, including obscenity and face to face insults (often referred to as “fighting words”) and, subject to New York Times v Sullivan and related rules, libel which have traditionally been regarded as subject to a lower standard of review. However, recently the Supreme Court has found even regulation of previously “unprotected categories” of speech will be subject to strict scrutiny unless it can be shown to be “content neutral.” RAV v City of St Paul [1992] USSC 99; 505 US 377 (1992).

[61] Buckley v Valeo [1976] USSC 24; 424 US 1, 48-49 (1976) (“[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources, and to assure unfettered interchange of ideas.” (citations omitted)).

[62] [1992] HCA 45; (1992) 177 CLR 106 at 143 per Mason CJ, at 234-35 per McHugh J.

[63] Ibid at 143 per Mason CJ, at 234-35 per McHugh J. In the case of regulation directed only at the activity of communication, however, a less restrictive proportionality requirement was imposed. That is, the test of constitutionality depends on whether “the burden on free communication . . . is disproportionate to the attainment of the competing public interest”. Ibid 143 per Mason CJ. See also, ibid at 235 per McHugh J.

[64] Like Chief Justice Mason and Justice McHugh, they set a standard of review which varies with the nature of the regulation. A law which aims to control communication will be more difficult to justify than a law “with respect to some other subject and whose effect on such communications is unrelated to their nature as communications”. Such laws can only be justified if either they “do not go beyond what is reasonably necessary for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity”; or “are conducive to the overall availability of the effective means of such communication in a democratic society.” Nationwide News (1992)177 CLR 1 at 76-77. See also, Australian Capital Television (1992)177 CLR 106 at 174. Although this standard of review might appear less stringent than the “compelling justification” test advanced by Justices Mason and McHugh, as elaborated by Justice Deane in Cunliffe v The Commonwealth, the standard is closer to a strict scrutiny requirement. The requirement that a law must “not go beyond what is necessary” means that it must be viewed by a “pressing social need”. (1993)182 CLR 272 at 339-40 (quoting Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd [No.2] [1990] 1 AC 109 at 283-84.)

[65] Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106 at 157-58. The remaining member of the majority, Justice Gaudron, took an approach like Justice Brennan’s. Regulation of speech is permissible only if it is directed to the achievement of a legitimate end and “is reasonably and appropriately adapted to that end.” Nationwide News [1992] HCA 46; (1992) 177 CLR 1 at 95. See also, Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106 at 218. However, she was also troubled by the provisions allocating free use of electronic media to some political actors, finding that the restrictions placed on political discourse “cannot be viewed as reasonable and appropriate regulation in a context where candidates and political parties are allocated free time for their political advertisements.” Ibid at 221. The seventh member of the Court, Justice Dawson, dissented on the basis that the Constitution included no limitation on legislative power to protect freedom of political discourse. Ibid at 184.

[66] Nationwide News [1992] HCA 46; (1992) 177 CLR 1 at 52

[67] Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106 at 159 citing The Observer and the Guardian v The United Kingdom ([1991] ECHR 49; 1991) 14 EHRR 153 at 178.

[68] Buckley v Valeo [1976] USSC 24; 424 US 1, 48-49 (1976); see above n 61.

[69] The legislation restricting political advertising challenged in Australian Capital Television was designed to improve the political process by reducing the possibility of corruption and equalising access to the use of electronic media for political purposes. [1992] HCA 45; (1991) 177 CLR 106 at 130.

[70] Ibid at 145 per Mason CJ, at 169 per Deane and Toohey JJ.

[71] Ibid.

[72] They were particularly troubled by the provisions for the allocation of free time which served to mitigate the effect of the regime in relation to established political parties, but not in relation to other participants in the political process. Australian Capital Television (1992)177 CLR 106 at 146, 175, 237.

[73] Justice Brennan recognised that s 95B (restricting advertising by means of the electronic media during election periods) was directed at minimising corruption and reducing the political advantage which wealth could bring. Ibid at 154-156. He then held that “[t]he restrictions imposed by s 95B are comfortably proportionate to the important objects which it seeks to obtain. The obtaining of those objects would go far to ensuring an open and equal democracy. The openness of political discussion and the equality of the participants in the democratic process makes governments responsive to the popular will. The restrictions on advertising do little to inhibit the democratic process.”) Ibid at 161.

[74] Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 131 per Mason CJ, Toohey and Gaudron JJ, at 182-83 per Deane J.

[75] Alexander Meiklejohn was perhaps the principal exponent of this theory of free speech. Alexander Meiklejohn, Free Speech and its Relation to Self Government (1948). See also, Mills v Alabama [1966] USSC 96; 384 US 214, 218 (1966) (“there is practically universal agreement that a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs.”); Buckley v Valeo [1976] USSC 24; 424 US 1, 14 (1976) (discussion on public issues and debate on the qualifications of candidates is “an area of the most fundamental First Amendment activities . . . integral to the operation of the system of government established by our Constitution.”). See generally, Frederick Schauer, Free Speech: A Philosophical Enquiry (1981) at 35-46; Kent Greenawalt, “Free Speech Justifications” (1989) 89 Colum L Rev 119 at 145 - 146.

[76] Stromberg v California, [1931] USSC 132; 283 US 359, 369 (1931) (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”) See also, Roth v United States [1957] USSC 100; 354 US 476, 484 (1957); Archibald Cox, The Court and the Constitution (1987) at 212. (“Only by uninhibited publication can the flow of information be secured and the people informed concerning men, measures, and the conduct of government . . . Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them.”)

[77] [1964] USSC 40; 376 US 254, 269 (1964) citing Roth v United States [1957] USSC 100; 354 US 476, 484 (1957).

[78] The High Court uses the term “representative democracy” as well as “representative government”. Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 130, 163. Although some distinction has been drawn between these concepts, ibid at 199, I use them interchangeably.

[79] [1964] USSC 40; 376 US 254, 279 (1964).

[80] Ibid at 271-72.

[81] Ibid at 272-73.

[82] Coleman v MacLennan 78 Kan 711 at 724; 98 P 281 at 286 (1908).

[83] Vincent Blasi, “Learned Hand and the Self Government Theory of the First Amendment” (1990) 61 U Colo L Rev 1.

[84] Ibid at 15. Professor Blasi excepts “any increased likelihood that incumbents will be rejected at the polls.” Under a self-government theory, this cannot be counted as a harm against which freedom of speech is weighed since it is exactly this, the choice of who governs, that free speech is designed to foster.

[85] Abrams v United States, [1919] USSC 206; 250 US 616, 630 (1919) (Holmes J dissenting). See generally, Greenawalt, above n 75 at 130-41; Schauer, above n 75 at 15 - 34.

[86] For criticisms of this notion see Greenawalt, above n 75 at 131-141; Schauer above n 75 at 28-33.

[87] J.S. Mill, On Liberty (Elizabeth Rapaport ed 1978)(1st ed 1859) at 15 - 52.

[88]See Schauer, above n 75 at 33-34.

[89] Vincent Blasi, “Reading Abrams through the Lens of Schauer” (1997) 72 Notre Dame L Rev 1343 at 1349.

[90] [1964] USSC 40; 376 US 254, 270, 279 (1964).

[91] [1964] USSC 40; 376 US 254, 270 (1964).

[92] See Owen Fiss, “Free Speech and Social Structure” (1986) 71 Iowa L Rev 1405 at 1410. Fiss attacks the traditional protection of free speech in the United States, pointing to the capacity of major broadcasters (like the American CBS network) to determine the content of public debate:

The Tradition assumes that by leaving individuals alone, free from the menacing arm of the policeman, a full and fair consideration of all the issues will emerge. The premise is that autonomy will lead to rich public debate . . . when our perspective shifts, as I insist it must, from the street corner to, say, CBS, this assumption becomes highly problematic . . .autonomy . . . might even become destructive of that goal.

He concludes that regulation can correct this distortion that flows from social structure. “[I]n the modern world the state can enrich as much as it constricts public debate”. Ibid at 1415. See also, Cass R Sunstein, The Partial Constitution (1993) at 203 - 13.

[93] One criticism of the New York Times rule is that “it encourages sloppy journalism because the lower the standard of care that is seen as ‘normal’ for journalists, the harder it will be for public figure plaintiffs to prove the greater dereliction of ‘recklessness’ required under the Sullivan rule.” Michael Chesterman, “The Money or the Truth” [1995] UNSWLawJl 16; (1995) 18 UNSWLJ 300 at 307-08.

[94] Anthony Lewis, “New York Times v Sullivan Reconsidered: Time to Return to ‘The Central Meaning of the First Amendment’” (1983) 83 Colum L Rev 603; Nadine Strossen, “A Defence of the Aspirations - But not the Achievements - of the US Rules Limiting Defamation Actions By Public Officials or Public Figures” [1986] MelbULawRw 1; (1986) 15 Melb U L Rev 419.

[95] Although the Supreme Court has limited the category of public figures to those who have ‘thrust’ themselves into controversy or voluntarily attracted fame (see Gertz v Robert Welch Inc [1974] USSC 144; 418 US 323, 352 (1974); Time Inc v Firestone [1976] USSC 27; 424 US 448 (1976); Hutchinson v Proxmire [1979] USSC 139; 443 US 111 (1979); Wolston v Reader’s Digest Assn Inc [1979] USSC 141; 443 US 157 (1979)), the category of defendants to whom it applies extends beyond public officials and those involved in public affairs to figures who have no relation to the political affairs, criticism of whom bears little relation to the speech about public affairs which New York Times was aimed to protect. Lewis, above n 94 at 622-24 (arguing that individuals should only come within the New York Times philosophy “when they meet two tests: prominence in the community and relevance to public affairs”.) David A Anderson, “Is Libel Law Worth Reforming?” in John Soloski and Randall P Bezanson (eds), Reforming Libel Law (1992) at 8. See generally, Gerald Gunther, Constitutional Law 1094 (12th ed 1991) at 1094.

[96] Lewis, above n 94 at 609 - 11. In Herbert v Lando [1979] USSC 71; 441 US 153 (1979) the Supreme Court rejected a claim for a First Amendment privilege in relation to pre-trial discovery proceedings; Anderson, above n 95 at 18-21.

[97] Anderson, above n 95 at 18.

[98] Lewis, above n 94 at 614.

[99] Theophanous (1994)182 CLR 104 at 134 (“[W]e should indicate our preliminary view that these extensions, other than the extension to cover candidates for public office, should not form part of our law.”).

[100] (1994)182 CLR 104 at 135.

[101] Under the Australian rule, the defendant must establish, “that it was unaware of the falsity, that it did not publish recklessly (i.e., not caring whether the matter was true or false), and that the publication was reasonable”. [1994] HCA 46; (1994) 182 CLR 104 at 137. See above n 28.

[102] (1994)182 CLR 104 at 140-41. See also, above n 28 and accompanying text.

[103] This is a requirement under s 22 of the Defamation Act 1974 (NSW). Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374. New South Wales Law Reform Commission, Defamation (Report No 75, 1995) at 32.

[104] (1994)182 CLR 104 at 137.

[105] Peterson v Advertiser Newspapers Ltd [1995] SASC 5018; (1995) 64 SASR 152. See below nn 141-44 and accompanying text.

[106] Hartley v Nationwide New Pty Ltd (1995) 119 FLR 124 at 129 Allen J held that it is for the judge to determine whether the constitutional defence arises on the evidence, but that the “reasonableness” requirement is one for the jury.

[107] Richard A Posner, “Legal Reasoning From the Top Down and From the Bottom Up” (1992) 59 U Chic L Rev 433.

[108] Posner notes that John Hart Ely advanced a similar “top down” theory about constitutional law in general in Democracy and Distrust: A Theory of Judicial Review (1980). Ibid at 434.

[109] Justice Brennan approved the High Court’s statement in Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 that “[t]here is . . . no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because the statement is made in the course of dealing with a matter of public interest”. See [1994] HCA 45; (1994) 182 CLR 211 at 244. Justice Brennan considered that departure from this position “would be a charter for scandal mongering.” Ibid at 245.

[110] [1994] HCA 45; (1994) 182 CLR 211 at 247-49.

[111] Ibid at 251.

[112] Ibid.

[113] Justice Brennan placed four limits on the operation of the privilege: the subject matter of the defamatory statement must be a matter of relevant public interest; the report must be fair and accurate; the maker of the statement must have or be reasonably believed by the publisher to have “particular knowledge of the defamatory matter contained in the statement” and “[t]he party defamed must have an opportunity to make a reasonable response to the defamatory matter”. Ibid at 251-253.

[114] The principal basis of Justice McHugh’s decision was that on the facts of the case, the appropriate defence was fair comment, not qualified privilege. Ibid at 260. Nevertheless he went on to consider, and extend, the common law of qualified privilege.

[115] Adam v Ward [1917] AC 309 in which a claim of qualified privilege was upheld in respect of a letter published widely by an Army Council in defence of an officer who had been the subject of false defamatory comment in the House of Commons; Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 in which the High Court upheld a claim of qualified privilege in respect of an newspaper article containing a reply to an attack on a municipal council made in the same article. These cases are discussed by McHugh J. [1994] HCA 45; (1994) 182 CLR 211 at 262.

[116] In Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 a claim of qualified privilege was upheld by the English Court of Appeal in relation to a report to the public removing the name of a medical practitioner from the register of practitioners. Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961, upheld a defence of qualified privilege in respect of defamatory comments made by a Minister of the Crown who had been misled into commending a road safety campaign, on discovering the truth. These are discussed by McHugh J. [1994] HCA 45; (1994) 182 CLR 211 at 263.

[117] [1994] HCA 45; (1994) 182 CLR 211 at 263-64.

[118] (1994)182 CLR 211 at 265.

[119] Posner, above n 107 at 435; see also, Larry Alexander, “Bad Beginnings”, 145 U Pa L Rev 57 (1996); Frederick Schauer, Playing by the Rules (1991) at 183-87.

[120] Melvin Aron Eisenberg, The Nature of the Common Law (1988) at 76 - 83.

[121] Ibid at 77; Ronald Dworkin, Law’s Empire (1986) at 312 (arguing that common law judges ought to decide hard cases by determining the basic principle underlying decided cases and determining the principled extension of that those cases).

[122] Eisenberg, above note 120 at 83-87.

[123] Gerhold v Baker [1918] WN 369. See also Toogood v Spyring [1834] EngR 363; (1834) 1 CM & R 181 at 193; [1834] EngR 363; 149 ER 1044 (qualified privilege protects “the common convenience and welfare of society.”); Huntley v Ward (1859) 6 CB(NS) 517 (“[T]he law declares [a publication] privileged because the amount of public inconvenience from the restriction of freedom of speech or writing would far out-balance that arising from the infliction of a private injury.”). See generally, Phillip Lewis, Gatley on Libel and Slander (1981) at 186.

[124] Henwood v Harrison (1872) LR 7 CP at 606 at 622. (“The principle on which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice notwithstanding that they involve relevant comments condemnatory of individuals.”) See also, Justin v Associated Newspapers [1967] 1 NSWLR 63 at 75. See generally, Gatley On Libel and Slander, above n 123 at 187 - 88.

[125] Baird v Wallace-James (1916) 85 LJPC 193 at 198, cited with approval by Dixon J, in Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 at 117. See also, Gatley on Libel and Slander, above n 123 at 192 (“Whether there is a duty to communicate which the law will recognise as creating a privileged occasion depends on all the circumstances and no previous decisions can be conclusive.”)

[126][1994] HCA 45; (1994) 182 CLR 211 at 240.

[127] Guise v Kouvelis, [1947] HCA 13; (1947) 74 CLR 102 at 116.

[128] [1994] HCA 45; (1994) 182 CLR 211 at 249. After reviewing the cases Justice Brennan concludes “[t]he availability of privilege depends on the evaluation of factors that fall roughly, but not exclusively, into two groups: those affecting the public interest in the function of the body (its status, constitution and functions and the circumstances in which the defamatory statement was made) and those affecting the public interest in the subject matter of the report (the source of the defamatory statement, the opportunity for response and any making of a finding after an inquiry).” See also, above n 109.

[129] Stephens [1994] HCA 45; (1994) 182 CLR 211 at 264-65.

[130] Ibid.

[131] Cass R Sunstein, Legal Reasoning and Political Conflict (1996) at 35-38.

[132] See generally, Gatley on Libel and Slander, above n 123 at 186.

[133] (1994)182 CLR 211 at 265.

[134] See text accompanying n 118, above.

[135] [1994] HCA 45; (1994) 182 CLR 211 at 267.

[136] Ibid at 267.

[137] Ibid

[138] [1994] HCA 45; (1994) 182 CLR 211 at 267 (“[A]lthough 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 ... attract the defence of qualified privilege.”)

[139] For a helpful analysis of various views of common law decision making, see Eisenberg, above n 120 at 2.

[140] [1995] SASC 5018; (1995) 64 SASR 152.

[141] Ibid at 180-81 per Olsson J, at 195-96 per Mullighan J.

[142] Ibid at 180.

[143] Ibid at 196.

[144] Ibid at 187, 198. Section 22(1) provides for a defence of qualified privilege where in respect of a publication:

“(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances”.

[145] They relied upon Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354; Morosi v Mirror Newspapers, [1977] 2 NSWLR 749; Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697.

[146] (1985) 3 NSWLR 354 at 360.

[147] Peterson [1995] SASC 5018; (1995) 64 SASR 152 at 187, 198.

[148] [1994] HCA 46; (1994) 182 CLR 104 at 122.

[149] Posner, above n 107 at 433.

[150] David Strauss, “Common Law Constitutional Interpretation” (1996) 63 U Chic L Rev 877.

[151] See above nn 1, 28.

[152] But see, below 179 and accompanying text.

[153] Harry Kalven Jr., “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment’” 1964 Sup Ct Rev 191.

[154] Ibid at 204.

[155] Ibid.

[156] As Kalven explains, New York Times v Sullivan represents a judgment by the Supreme Court that the Alabama rule on fair comment “is closely akin to making seditious libel an offense. The Alabama rule therefore violated the central meaning of the Amendment.” Ibid at 209.

[157] Ibid

[158] In his view, the repudiation of seditious libel is one such standard because “the presence or absence in the law of the concept of seditious libel defines the society. . . [if] it makes seditious libel an offense, it is not a free society no matter what its other characteristics.” Ibid at 205.

[159] Gerald Gunther made a similar argument in a different context. In criticising “case-by-case” or “ad hoc” balancing in First Amendment decision making, he argued:

A Supreme Court opinion should strive for more than a ‘fair balancing’ in the individual case before the Court. It should also provide the maximum possible guidance for lower courts and litigants. An excessively particularized opinion lacks that quality. There must at least be an articulation of the criteria that guide the resolution of the value conflicts in a particular case . . . Moreover, especially when sensitive First Amendment values are involved, the risks of case-by-case adjudication may be too great and broader prophylactic rules may be appropriate.

Gerald Gunther, “The Case of Justice Powell” (1972) 24 Stan L Rev 1001 at 1026-7.
.
[160] Vincent Blasi, “The Pathological Perspective and the First Amendment” (1985) 85 Colum L Rev 449. See also, Gunther above n 159.

[161] Kalven, above n 153 at 209 - 210.

[162] Stephens [1994] HCA 45; (1994) 182 CLR 211 at 264.

[163] See, text accompanying above nn 123-31.

[164] Blasi, above n 160.

[165] Gerald Gunther makes this point in his critique of Alexander Bickel. See Bickel above n 52; Gerald Gunther, “The Subtle Vices of the ‘Passive Virtues’” (1964) 64 Colum L Rev 1. To make his point, Gunther takes Bickel’s suggestion that there exists a discretion to refuse to hear a case for “lack of ripeness”. That is, the case is not before the Court in the most advantageous posture for decision. Gunther says “the lack of ‘ripeness’ he mentions does not seem to be of constitutional dimensions. He does not have the article III requirement of concreteness in mind; this appears to be a use of ‘ripeness’ as ‘merely a conclusionary label,’ as merely a formula to obscure the ground of ‘jurisdictional’ dismissal.” Ibid at 15.

[166] Ashwander v TVA [1960] USSC 29; 297 US 288 (1936), see above n 50 and accompanying text.

[167] Frederick Schauer, “Ashwander Revisited” 1995 Sup Ct Rev 71.

[168] Gunther, above n 165 at 21.

[169] Schauer, above n 167 at 81-86.

[170] Ronald Dworkin, Law's Empire, at 225 (1986).

[171] McGinty v Western Australia (1996)186 CLR 140 at 235-36 per McHugh J. (“I regard the reasoning in Nationwide News, Australian Capital Television, Theophanous and Stephens in so far as it invokes an implied principle of representative democracy as fundamentally wrong and as an alteration of the Constitution without the authority of the people under s 128 of the Constitution.”); at 291 per Gummow J (“[T]he process of constitutional interpretation by which this principle was derived . . . and the nature of the implication . . . departed from previously accepted methods of constitutional interpretation. If it now were sought to apply the principle then the need for further examination of it would arise.”) See also, the comments of Dawson J during the hearings in Levy v Victoria. Transcript, 6 August 1996, p 40.

[172] [1997] HCA 25; (1997) 145 ALR 96 at 99.

[173] Ibid at 100.

[174] [1996] HCA 48; (1996) 186 CLR 140 at 169.

[175] This was the basis of Justice McHugh’s dissent in Theophanous. He held that there is “no support in the Constitution for an implication that the institution of representative government or representative democracy is part of the Constitution independently of ss 1, 7, 24, 30 and 41” and consequently that there is “nothing - in the text of the Constitution, in the Convention Debates or in principles of constitutional interpretation hitherto accepted - that suggests that State legislation or common law principles are liable to be overturned by a principle of representative government or representative democracy that is implied in the Constitution.” [1994] HCA 46; (1994) 182 CLR 104 at 199, 205. See also, McGinty [1996] HCA 48; (1996) 186 CLR 140 at 232 - 35 per McHugh J, at 291 per Gummow J.

[176] [1996] HCA 48; (1994) 186 CLR 140 at 234.

[177] [1997] HCA 25; (1997) 145 ALR 96 at 112.

[178] These require that the members of the Senate and the House of Representatives be “directly chosen by the people” of each State and of the Commonwealth, respectively.

[179] [1997] HCA 25; (1997) 145 ALR 96 at 104. According to the High Court, the relevant context is provided by s 1 (vesting the power of the Commonwealth in the Parliament); s 8 and s 30 (electors for the Senate and the House of Representatives to vote only once); s 25 persons of any race disqualified from voting at elections not be counted in determining electorates under s 24); s 13 (six years to be the longest term served by a Senator) and s 28 (the House of Representatives to continue for no longer than three years).

[180] Ibid at 825. The High Court relied on s 6 (requiring a session of Parliament at least once a year); s 83 (requiring that money to be appropriated from the treasury by law); s 62 (executive power of the Queen exercised on the initiative and advice of ministers); s 64 (Ministers required to sit in Parliament); s 49 (adopting the “powers privileges and immunities” of the House of the Parliament of the United Kingdom).

[181] Ibid at 106

[182] Ibid at 107.

[183] Ibid.

[184] Ibid.

[185] Above nn 31-34 and accompanying text.

[186][1994] HCA 46; (1994) 182 CLR 104 at 126.

[187]Ibid at 164 - 165. He notes also that to exclude the common law and from constitutional scrutiny would allow courts to undermine the freedom of political communication through development of the common law. For example, it is conceivable that the common law could make actionable a statement which relates to the core of the constitutional freedom, such as a comment about the suitability for office of the Prime Minister. Kent Greenawalt, Fighting Words (1995) at 15. As Professor Greenawalt notes, however, this problem is mitigated if the common law is developed in accordance with constitutional values. Ibid.
[188][1997] HCA 25; (1997) 145 ALR 96 at 107.

[189]Ibid at 109.

[190]Ibid at 109-10.
[191] See above nn 65-67 and accompanying text.

[192] [1997] HCA 25; (1997) 145 ALR 96 at 112.

[193] The High Court also held that, even without the common law extension of qualified privilege, s 22 of the Defamation Act of NSW “ensures that the New South Wales law of defamation does not place an undue burden on communications falling within the protection of the Constitution.” Ibid at 118.

[194] [1997] HCA 25; (1997) 145 ALR 96 at 115.

[195] Ibid at 116.

[196] Ibid at 115.

[197] [1997] HCA 25; (1997) 145 ALR 96 at 116.

[198] [1997] HCA 25; (1997) 145 ALR 96 at 115.

[199] Ibid at 112.

[200] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 231-32 per McHugh J. (“Underlying or overarching doctrines may explain or illuminate the meaning of the text or structure of the Constitution but such doctrines are not independent sources of the powers, authorities, immunities and obligations conferred by the Constitution. Top-down reasoning is not a legitimate method of interpreting the Constitution . . . it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or necessary implications from its structure.”)(footnote omitted).

[201] Justice McHugh acknowledges in McGinty, that “[a]ny theory of constitutional interpretation must be a matter of conviction based on some theory external to the Constitution.” He goes on to justify his theory: “But since the people have agreed to be governed by a constitution enacted by a British statute, it is surely right to conclude that its meaning must be determined by the ordinary techniques of statutory interpretation and by no other means. It must therefore be interpreted . . . according to the ordinary and natural meaning of its text, read in the light of its history, with such necessary implications as derive from its structure.” [1996] HCA 48; (1996) 186 CLR 140 at 230 (footnote omitted).

[202] See, above text accompanying nn 153-160.

[203] Geoffrey Kennett, “Individual Rights, the High Court and the Constitution” [1994] MelbULawRw 4; (1994) 19 Melb U L Rev 581 at 589-96.

[204] Dietrich [1992] HCA 57; (1992) 177 CLR 292 at 326 per Deane J, at 362 per Gaudron J. This has become all the more significant since the High Court’s decision in Kable v DPP (1996)189 CLR 5 which applies Chapter III limitations to state courts. For a discussion of a constitutional right to a fair trial, prior to Kable, see Janet Hope, “A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 Fed L Rev 173 at 179-189.