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‘The Stuff of Which Political Debate is Made’: Roberts V Bass 1

In Lange v Australian Broadcasting Corporation2 the High Court, in a single unanimous judgment, clarified the nature of the implied freedom of political communication and reformulated its effect on the law of defamation. Five years on, the Court has given a judgment displaying considerable uncertainty as to the impact of the Lange decision on the common law defence of qualified privilege. In Roberts v Bass,3 the High Court by majority allowed an appeal brought by two political campaigners who had published defamatory material in the lead-up to a South Australian election. The majority judgments of the Court mark an important clarification of what is required to establish malice, particularly in the electoral context. There was disagreement among the members of the Court as to the extent to which their conclusions were affected by the implied constitutional freedom of political communication. More fundamentally, there were different views as to the state of the common law of qualified privilege after its development in Lange, and ongoing uncertainties were revealed as to the nature of common law development of the kind that occurred in Lange.