Stephens and Others v. West Australian Newspapers Limited (1994) 182 CLR 211: freedom of communication about political matters implied in the Commonwealth Constitution extends to the public discussion of the performance, conduct and fitness for office of members

Facts: Six members of the Western Australian Legislative Council sued the publisher of a newspaper for damages for defamation. In defense the newspaper argued that the articles related to matters relevant to an elector in deciding how to vote in Western Australia Parliamentary elections and that the articles were published pursuant to the freedom guaranteed by the Commonwealth Constitution and the Constitution Act 1889 (WA) and were therefore not actionable. The defense also pleaded that the articles were published on occasions of qualified privilege. The substance of the first defense was repeated as particulars of the second defense.

Held (per Mason CJ, Deane, Toohey and Gaudron JJ): That the first defense was bad in law on the ground that although the freedom of communication as to political matters implied in the Commonwealth Constitution would afford a defense if the defendant was unaware of the falsity of the material published, did not publish the material recklessly and if the publication was reasonable in the circumstances, the defense did not allege fulfilment of the first and second of those conditions. The second defense of qualified privilege was good in law. The freedom of communication about political matters implied in the Commonwealth Constitution extends to the public discussion of the performance, conduct and fitness for office of members of a State legislature. Furthermore, a freedom of communication about political matters was implied in the Western Australian Constitution and extended to criticism of the performance, conduct and fitness for office of a member of parliament.

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