The UK, Canada, and New Zealand have developed a broader qualified privilege public interest defence … Australia lags in this development, although there are special local impediments … Durie v Gardiner in NZ holds there is nothing special about government or political speech that should not be applied to the protection of all speech … Waiting for the proper case in Australia … Professor David Rolph comments.

The recent decision of the New Zealand Court of Appeal in Durie v Gardiner [2018] NZCA 278, recognising a public interest defence to defamation, confirms that Australia is increasingly isolated in the common law world.

New Zealand has followed the United Kingdom and Canada in recognising this defence. In doing so, it has reversed a wrong turn taken in the development of the defence of qualified privilege in its formative stage in the mid-nineteenth century.

For over a century, the settled view was that there was no common law defence for publication on a matter of public interest. Common law qualified privilege required a complete reciprocity of duty and interest between publisher and recipients.

Publications to recipients with no relevant interest exceeded the privileged occasion and defeated the defence. Thus, common law qualified privilege was ill-suited as a defence for large-scale publications, except in circumstances where a person was using a privileged occasion to exercise a right of a reply to an attack (and then only if the reply is broadly commensurate in terms and extent to the original attack).

Fair comment might be relied upon if what is published is an expression of opinion on a matter of public interest, based on a substantially true substratum of fact. Failing both of these defences, unless the publisher could prove that what was published was substantially true, there was no defence.

This position evolved over the course of the nineteenth century and crystallised in the twentieth century. It was not the only way in which defences to defamation could have developed. The nineteenth-century case law on qualified privilege and the various defences which derived from it – fair comment and fair and accurate report of judicial proceedings – shows that this position was reached in a rather messy and haphazard way.

There was nothing inevitable about it. Choices were made to narrow, rather than to broaden these defences. What has occurred in the United Kingdom, in Canada and in New Zealand is that appellate courts have returned to that fertile period in the development of defamation defences and to basic principle to fashion a broad-based public interest defence which may have developed, or probably should have developed then.

What prospects then are there for Australian defamation law following the lead of other common law countries in relation to a public interest defence to defamation? At present, the signs are not promising. There are a number of impediments to the recognition of such a defence in Australia. These are existing defences, which are intended in principle to provide broad protection for public interest speech but in application do not.

One of these defences is the statutory defence of qualified privilege. As the New South Wales Court of Appeal pointed out in Morosi v Mirror Newspapers Pty Ltd [1977] 2 NSWLR 749, this defence was introduced precisely to overcome the narrowness of the common law defence of qualified privilege and its inadequacy in providing protection for widely disseminated publications.

The statutory defence of qualified privilege is intended to provide a defence for widely disseminated publications on matters of general interest, so long as the publisher acts reasonably in the circumstances of publication.

Having such a statutory defence, which now operates across Australia as a result of the national, uniform defamation laws, might suggest that a common law public interest defence to defamation is unnecessary. The perceived superfluity of a public interest defence could tell against its recognition by courts in Australia.

However, the experience of the statutory defence of qualified privilege in application has not been a positive one. The Defamation Act 1974 (NSW) s 22 was frequently pleaded but rarely successful. The statutory defence of qualified privilege under the national, uniform defamation laws is comparatively more successful but not strikingly so. There is no point in having a statutory defence which, in theory, provides protection for public interest speech if, in practice, it does not.

The other defence which may act as an impediment to the recognition of a common law public interest defence is the extended form of common law qualified privilege, often known by the shorthand, Lange qualified privilege.

Lange qualified privilege provides particular protection for speech relating to government or political matters. In this way, it resembles the position under New Zealand law, prior to Durie v Gardiner (which also arose out of litigation involving the former New Zealand Prime Minister, David Lange – Lange v Atkinson [2000] 3 NZLR 385).

The New Zealand Court of Appeal in Durie v Gardiner rejected the suggestion that there was anything particularly special about government or political speech, which warranted legal protection over and above other forms of non-political public interest speech. In doing so, the New Zealand Court of Appeal followed the view expressed by the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and the Supreme Court of Canada in Grant v Torstar Corp [2009] 3 SCR 640.

In the Australian context, Lange qualified privilege is based on the implied freedom of political communication, derived from the text and structure of the Commonwealth Constitution, which is premised upon government or political speech being particularly protected.

This is a clear point of difference between Australian law and United Kingdom, Canadian and New Zealand law. Like statutory qualified privilege, Lange qualified privilege has been strikingly unsuccessful in application. In over two decades since the High Court of Australia’s decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Lange qualified privilege has been frequently pleaded but rarely successful, like statutory qualified privilege.

In order for Lange qualified privilege not to be an obstacle to the common law recognition of a public interest defence to defamation, a court will need to be persuaded that there should also be a defence for all of those publications which deal with non-political matters of public interest.

What this requires is the proper case to act as the vehicle and a receptive bench.

David Rolph is a professor at the Sydney Law School

This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.