From : http://www.findlaw.com.au/articles/4529/do-we-have-the-right-to-freedom-of-speech-in-austr.aspx
Is there a constitutional defence to actions of defamation?
The decision of Theophanous may have seem to have heralded a new personal right to free speech, but it was short lived, with the judgment of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 categorically providing certainty to the position of the right in Australia.
The matter of Lange involved the former Prime Minister of New Zealand initiating action against the ABC for defamatory imputations during an episode of Four Corners. In response, the ABC relied on the Theophanous‘constitutional defence’, however, the High Court unanimously held that Theophanous was no longer good law, and instead extended the notion of qualified privilege. The Justices in Lange placed a particular focus on ss 7 and 24 of the Constitution which provide:
Section 7: “The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.”
Section 24: “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.”
The High Court in Lange noted that ss 7 and 24, as well as the other related sections of the Constitution, protect the freedom of communication allowing people to exercise a free and informed choice as electors. However, “[t]hose sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.”
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