Theophanous v Herald & Weekly Times Ltd [1994] HCA 46

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Theophanous v Herald & Weekly Times Ltd [1994] HCA 46

ORDER Answer the questions reserved in the case stated as follows:

1. Is there a freedom guaranteed by the Commonwealth Constitution to publish material:

(a) discussing government and political matters;

(b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees;

(c) in relation to the suitability of persons for office as members of the Parliament?

Answer: There is implied in the Commonwealth Constitution a freedom to publish material:

(a) discussing government and political matters;

(b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees;

(c) in relation to the suitability of persons for office as members of the Parliament.

2. If yes to any part or parts of question 1, is any such freedom subject to a condition that the publication will not be actionable under the law relating to defamation if:

(a) the publication be without malice;

(b) the publication be reasonable in the circumstances;

(c) the publication not be made without any honest belief in the truth of the material published or made with reckless disregard for the truth or untruth of the material published; or

(d) the publication be made at a time when it was publicly anticipated that a federal election was about to be called?

Answer: In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law relating to defamation if the defendant establishes that: