Lange v Australian Broadcasting Corporation
High Court of Australia · 1997
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
A former New Zealand Prime Minister sued over a current affairs broadcast. The Court's answer changed what the implied freedom is — and what it is not.
ONE JUSTICE HAS PUT THE IMPLICATION ITSELF IN QUESTION -- not its content, its existence. LibertyWorks Inc v Commonwealth of Australia (2021) 274 CLR 1, STEWARD J at [298]: "[t]he divergence of views in this Court concerning the test for the application of the implied freedom perhaps may illustrate the tenuous nature of that implication. If the content of the implied freedom cannot even now be agreed upon, then, for my part, that may demonstrate that it was never justified." He sets out Dawson J's rejection of the implication in Theophanous v Herald & Weekly Times Ltd, and at [304] goes as far as the case allowed: "[t]he current division of opinion in this Court may, in my view, justify a reconsideration, with leave if necessary, of the existence of the implied freedom."
AND HE STOPPED THERE, which is the part a student must not drop. At [304]: "neither party challenged the existence of the implied freedom in this special case. For the disposition of this proceeding, it is therefore not appropriate to deny its application here. It should, if required, be a matter for full argument to be considered on another occasion." So this is a flag for a future case, not a holding. He is one Justice of a bench of seven, and the other four judgments apply the implied freedom.
WHAT SURVIVES EVEN ON HIS VIEW, at [301]: so concluding "does not deny, for example, the ability of this Court to protect the means by which representatives are 'directly chosen' by the people for the purposes of ss 7 and 24 of the Constitution". That matters for this proposition specifically, because the two doubts are different: Steward J questions whether the implication should have been drawn at all, not whether the freedom -- if drawn -- is a limit on power rather than a personal right. The limit-not-a-right characterisation is untouched.
WHAT TO DO IN AN ANSWER: state the proposition as settled law, because it is -- and if the question invites discussion of the implication's foundations, this is the citation for the view that the continuing disagreement about the test is itself evidence against the implication, together with the reason it has not been acted on.
What happened?
David Lange, a former Prime Minister of New Zealand, sued the ABC over a Four Corners broadcast. The ABC raised the implied freedom of political communication, which earlier decisions had described in terms broad enough to suggest it might operate like a personal right.
What did the Court decide?
The constitutional defence the ABC pleaded was bad in law. Qualified privilege at common law was extended to cover publication to the general public on government and political matters affecting Australians, where the publisher's conduct was reasonable and the defence is not defeated by malice — but the ABC's pleaded particulars did not bring the broadcast within it. The Court, in a single unanimous judgment, remitted the proceeding to the Supreme Court of New South Wales.
Proposition
What is the principle?
The implied freedom of political communication derives from the text and structure of the Constitution and operates as a limit on legislative and executive power, not as a personal right conferred on individuals.
Why does this case matter?
The most common error it prevents is a student arguing that their client's speech was valuable and so protected. That argument has no purchase here, and spotting why is most of the work.
It is also the case to cite for the reach of the freedom beyond statutes. Defamation was not struck down; it was required to conform. A body of common law being reshaped to fit a constitutional implication is a different operation from a statute being held invalid, and students who have only met the second are often surprised by the first.
The test has moved on since — McCloy and the structured proportionality cases refined how justification is assessed — so treat this as the foundation rather than the finished method.
Exam and application relevance
Identify the law or the exercise of power first — a statute, an executive act, or a common law rule, since all three are within reach. State precisely what burden it places on communication about government or political matters, then reach justification. A script that opens with the speaker and their entitlement has started in the wrong place, though the facts of the communication and the law's practical operation are still relevant to the burden, and in a defamation case the conditions of qualified privilege remain live.
Check your understanding
A client says a council by-law has infringed their right to free political speech. What is wrong with the way that claim is framed?