Free Speech Cases

Lange v Australian Broadcasting Authority (1997) 189 CLR 520

Levy v State of Victoria (1997) 189 CLR 579

Another of PIAC’s successful amicus curiae (‘friend of the court’) interventions involved two cases in which the High Court reconsidered the implied right of free speech in political matters.

The cases, heard together, were a defamation claim by David Lange against the ABC, and the prosecution of anti-duck hunting campaigner, Laurie Levy, who breached a Victorian regulation preventing him from entering designated areas during the duck-hunting season. In defence, both the ABC and Levy relied on the implied right to freedom of speech in the Australian Constitution established in ACTV and Nationwide News, and Theophanous and Stephens.

In both matters PIAC was permitted to make written submissions, which supported the right to free speech, on behalf of the Media Entertainment & Arts Alliance (MEAA) as amicus curiae.

The Chief Justice declined to limit the Court’s discretion or set out criteria upon which amicus interventions would be assessed other than to say they would be heard when the Court was of the opinion interventions would significantly assist. Justice Kirby was more encouraging, stating that he would have allowed oral submissions from the MEAA and acknowledging that finding the law in any case is a far from mechanical task. It involved the elucidation of complex questions of legal principle and policy, a process often aided and ‘enlivened’ by amicus interventions.

In the substantive decision, the High Court maintained the implied right of free speech, contending that freedom of communication on matters of Government and political affairs is an indispensable incident of the system of representative government which the Constitution creates. The Court qualified this right, holding that it is not absolute but limited to what is necessary for the effective operation of the system of representative and responsible government. The Court also held that, of necessity, the common law must conform with the Constitution. Thus, the implied right of free speech may be relied upon as a sound defence to a defamation claim if publication was in relation to government and political matters, provided it was made reasonably and with an absence of malice.

Read the High Court’s decision in Lange v Australian Broadcasting Corporation

Read the High Court’s decision in Levy v State of Victoria

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