University of Technology, Sydney Law Review
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Hearn Professor of Law, University of Melbourne, Law School
It is widely known that parliamentarians are immune from liability in respect of anything said by them forming part of the proceedings of the House. What is not so widely understood is that the scope of this privilege of freedom of speech may have an impact on the media. This article concerns two ways in which the ambit of the parliamentarians' privilege of freedom of speech may affect the media. First, in relation to the protection from liability for defamation in respect of fair and accurate reports of parliamentary proceedings and, secondly, in relation to defamation proceedings instituted by a Member of Parliament against a media organization. In both cases, the way that the courts define the limits of parliamentary privilege, or interpret legislation dealing with it, may affect what media organizations can publish without fear of liability for defamation.
Before investigating the two issues mentioned in the previous paragraph, it is necessary to outline the parliamentarians' privilege of freedom of speech.
Article 9 of the Bill of Rights (1688) provides that:
the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
This privilege of freedom of speech is enjoyed by Members of all Australian Houses of Parliament pursuant to legislation which adopts the privileges of the House of Commons,[1] pursuant to legislation which provides that the Bill of Rights is part of the law[2] or, at common law, on the basis of necessity.[3] It is interesting to note that Houses of Parliament see the privilege of freedom of speech as an aspect of their right to control their own proceedings.[4]
One consequence of the privilege of freedom of speech is that no civil or criminal proceedings may be instituted against a Member of Parliament in respect of anything said or done by the member in the House in her or his capacity as a Member of Parliament. Most significantly, no action for defamation brought against a Member of Parliament can be founded on anything said by the Member in a speech or on anything said or done by the Member in any other part of the proceedings in Parliament.[5] The absolute privilege from liability for defamation in respect of statements made in parliamentary proceedings enables Members of Parliament to speak freely, making assertions and allegations which they could not otherwise have made without the risk of liability for defamation. The relationship between this parliamentary privilege and the publication of material by the media will now be considered.
Legislation in each Australian jurisdiction accords qualified privilege to fair and accurate reports of parliamentary proceedings.[6] Thus, a media organization is protected from liability for defamation in respect of the publication of a fair and accurate report of parliamentary proceedings unless the plaintiff can establish that, in publishing the report, the media organization was actuated by malice.[7] In Wason v Walter it was explained that the protection reflects the paramount public importance attached to the communication of proceedings of Houses of Parliament to the public.[8] In 1987 the Commonwealth Parliament enacted legislation giving the protection of what appears to be absolute privilege to reports of proceedings of the Senate, the House of Representatives or a committee or sub-committee of either or both of those Houses.[9] Similar legislation operates in relation to reports of the Northern Territory Legislative Assembly and its committees.[10]
In all cases, this legislation is directed at reports of proceedings in Parliament. In this respect it mirrors the parliamentarians' privilege of freedom of speech based on Article 9 of the Bill of Rights, set out in section 1 above, which also applies to proceedings in Parliament. What falls within the ambit of "proceedings in Parliament" is, however, unclear.[11] This issue is of significance to the media because, the wider the ambit of "proceedings in Parliament" for the purpose of the privilege of Members of Parliament, the wider the operation of the protection accorded to media reports.
The courts' interpretation of the scope of "proceedings in Parliament" will now be examined.
It has generally been accepted that the Member's absolute privilege does not protect her or him from liability in respect of the publication by the Member outside the House of a speech made in the House.[12] In the Full Court of the South Australian Supreme Court in Australian Broadcasting Corporation v Chatterton, Zelling ACJ did, however, hold that a Member who simply repeated outside the House what he or she said in the House was protected by absolute privilege.[13] This was rejected by Prior J.[14] The other member of the Court, Jacobs J, did not deal with this question. In the same case Zelling ACJ suggested, without deciding, that it is possible that it is part of the proceedings of Parliament to answer questions in a television interview;[15] again, this was rejected by Prior J[16] and was not mentioned in Jacob J's judgment.
Support for extending the meaning of "proceedings in Parliament" can be found in two Canadian cases. In Roman Corp Ltd v Hudson's Bay Oil and Gas Co Ltd it was held that the sending of a telegram by the Prime Minister and the issuing of a press release by a Member of Parliament were part of parliamentary proceedings; both the telegram and the press release set out statements previously made in the House.[17] In Re Clark and Attorney-General of Canada it was held that the protection extends to a Member releasing information to the media.[18] Furthermore, in the English case of Rost v Edwards it was held that letters written by an Opposition Member to two Members of Parliament in relation to questions which he subsequently raised in the House were protected by parliamentary privilege;[19] note, however, it was held that a Register of Members' Interests did not form part of the proceedings of Parliament.[20]
So far as the Senate and the House of Representatives are concerned, s 16(2) of the Parliamentary Privileges Act 1987 (Cth) defines "proceedings in Parliament". It provides:
For the purposes of the provisions of Article 9 of the Bill of Rights (1688) as applying in relation to the Parliament, and for the purposes of this section, "proceedings in Parliament" means all words and spoken acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.[21]
The fact that this legislation defines "proceedings in Parliament" so as to include words spoken, not only "in the course of", but also "for purposes of or incidental to" the transacting of the business of a House or of a committee may be interpreted as extending the protection accorded to statements made by federal Members of Parliament beyond statements made in the House or in committee proceedings. In O'Chee v Rowley[22] a Member of Parliament was able to rely on this expanded definition of "proceedings in Parliament". The case concerned defamation proceedings brought against a Senator in relation to statements made by the Senator in a radio broadcast. In his defence, the Senator disclosed that he had various documents in his possession which were relevant to whether his statements were published in good faith. Some of the documents ante-dated and others post-dated speeches in the Senate made by the Senator on the topic discussed in the radio broadcast; none of the documents had been tabled in either federal House of Parliament or had been submitted to a committee of either House. The Senator claimed privilege from disclosure of the documents. He asserted that the documents "were created, prepared, brought into existence or came into ... [his] possession for the purposes of or incidental to the transacting of the business of the Senate".
A majority of members of the Full Court of the Supreme Court of Queensland held that s 16(2)(c) of the Parliamentary Privileges Act 1987 (Cth), taken together with Article 9 of the Bill of Rights, operated so that the Senator could not be required to produce the documents.[23] Fitzgerald P dissented, holding that the Senator's claim "would expand the boundaries of parliamentary privilege to limits which are...unnecessary, excessive and unsupported by authority and not within the statutory language."[24]
The pressure for the courts to extend the ambit of "proceedings in Parliament" will come from an argument that the law should recognize that the work of a Member of Parliament is not confined to activities which take place as part of the debates in the House. The judge in Roman Corp Ltd v Hudson's Bay Oil and Gas Co Ltd was influenced by "the complexities of modern government" and the development and employment in government business of greatly extended means of communication; it was held that the object of the privilege of freedom of speech is to protect members from harassment in carrying on the business of the House which must encompass sending a telegram and issuing a press release where the telegram and the press release contained information about decisions made in the House.[25]
Until what falls within the ambit of "proceedings in Parliament" is resolved in Australia, reliance should not be placed on these extended interpretations. Indeed, it is suggested that a narrow approach should be taken to what is encompassed by "proceedings in Parliament". It is suggested that "proceedings in Parliament" should be confined to statements and action which form part of the formal transacting of the business of the House or in a properly constituted committee. There are two reasons for this. First, it provides certainty regarding what is encompassed by "proceedings in Parliament" for the purpose of the absolute privilege enjoyed by Members of Parliament and the qualified, and perhaps sometimes absolute, privilege accorded to fair and accurate reports of parliamentary proceedings.
Secondly, the making of an allegation by a Member of Parliament, while protected by parliamentary privilege and the reporting of the allegation by the media, has the potential to cause great damage to an individual who is the subject of the allegation. It is in the public interest that Members of Parliament and media organizations should have freedom to discuss political and government matters. Nonetheless, it is suggested that an appropriate balance is struck between public interest and the private interests of individuals whose reputations are affected by such publications, if, in cases falling outside the narrow definition of "proceedings in Parliament" suggested above, Members of Parliament and media organizations are protected only by the Lange form of qualified privilege. The qualified privilege established by the High Court in Lange v Australian Broadcasting Corporation,[26] which applies in relation to the publication of material "concerning government and political matters that affect the people of Australia",[27] requires that the publisher establishes that it was "reasonable" to publish the material.[28]
This section examines the courts' approach to the application of parliamentary privilege when defamation proceedings have been commenced against a media organization by a Member of Parliament. The scope of parliamentary privilege may arise as an issue for the courts in the following circumstances: a media organization publishes material which criticizes the actions of a Member of Parliament (often the criticism may allege that the Member misled the House); the Member of Parliament institutes defamation proceedings against the media organization; the media organization relies on certain defences which require it to produce evidence of the actions or statements of the Member in parliamentary proceedings; the Member of Parliament objects to the admission of the evidence on the ground that this would infringe parliamentary privilege. Prebble v Television New Zealand Ltd[29] referred to later in this section, Allason v Haines[30] and, in broad terms, Hamilton v Guardian Newspapers[31] mentioned in section 3.2 below, fall within this category.
A more particular example would occur in the following circumstances: statements are made by a Member of Parliament in the House which are critical of a person who is named in the parliamentary proceedings; the statements are reported in the media; the media also interviews or publishes a statement made by the person who was the subject of the statements made in the House; the person's reply asserts that the Member of Parliament's allegations are untrue, that is, that the Member has lied; the Member of Parliament then institutes proceedings for defamation against the media organization. In these circumstances, the media organization may seek to rely on the defences of truth or, as it is more properly known, justification, fair comment and qualified privilege. In order to rely on these defences, the media organization will want to adduce evidence of what the Member of Parliament said in the parliamentary proceedings. The issue then arises, will the court permit the evidence of what was said in Parliament to be put into evidence or will it refuse to do so on the ground that to admit the evidence into the court proceedings in these circumstances would infringe parliamentary privilege? Broadly, Wright and Advertiser Newspapers Limited v Lewis,[32] which is examined later in this section, falls into this category.
It has been noted that the question of whether the courts should admit evidence of parliamentary proceedings in the circumstances referred to in the previous paragraph involves a conflict between three public interests: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts.[33] The courts' approach to the conflict to which these interests give rise may have a profound impact on the outcome of defamation proceedings and, ultimately, on what the media can publish without fear of liability for defamation. As Article 9 of the Bill of Rights, which is the basis of the parliamentarians' privilege of freedom of speech, is part of Australian law, it follows that the courts will uphold the privilege. Nonetheless, the interpretation of Article 9 has been a matter of dispute between the Houses of Parliament and the courts; the outcome of this dispute will affect the media.
In Australia, the question of the proper interpretation of Article 9 of the Bill of Rights came to a head in litigation involving Mr Justice Lionel Murphy. In R v Murphy[34], acting on instructions from the President of the Senate, counsel argued that Hunt J should disallow certain questions which might be asked of witnesses who had given evidence before, and made statements to, Senate Select Committees.[35] Hunt J held that it would not be a breach of privilege to ask a witness in court proceedings whether he or she made a statement to a parliamentary committee even where the purpose was to invite the court to disbelieve the witness's evidence given in the court proceedings by reason of inconsistency between the statement to the committee and the witness's later evidence to the court. His Honour reasoned that, in these circumstances, there is no attack on what was said before the Committee, but the attack is on the honesty of what was subsequently said by the witness in the court proceedings.[36] Hunt J held that parliamentary privilege operates only to prevent the questioning of statements made in Parliament in proceedings which seek to assert legal consequences against the maker of the statement for making that statement; according to Hunt J, what is meant by Article 9 of the Bill of Rights is:
that no court proceedings ... having legal consequences against a Member of Parliament (or a witness before a parliamentary committee) are permitted which by those legal consequences have the effect of preventing the Member (or committee witness) exercising his freedom of speech in Parliament (or before a committee) or of punishing him for having done so).[37]
In its application to defamation proceedings brought by a Member of Parliament against a publisher in respect of material which alleges that the actions or words of the Member of Parliament in the House were inspired by improper motives or were untrue or misleading, this interpretation of Article 9 would permit the media to produce evidence of parliamentary proceedings:
In none of these cases does this use of the proceedings assert legal consequences against the maker of the statement for making the statement. This is illustrated by Wright and Advertiser Newspapers Limited v Lewis.[38] The plaintiff was a Member of the South Australian House of Assembly. He instituted defamation proceedings against the defendants in respect of a letter written by the first defendant and published by the second defendant. The letter accused the plaintiff of making unfounded and defamatory statements in Parliament about the first defendant and, in effect, abusing his position as a parliamentarian. The defendants filed a joint defence which raised the defences of justification, qualified privilege and fair comment. The plaintiff sought to strike out particulars in relation to those defences on the ground that they infringed parliamentary privilege. The Full Court of the Supreme Court of South Australia held that the parliamentary privilege did not operate so as to prevent a defendant who wishes to rely on these defences from referring to statements made by the plaintiff in Parliament. Adopting an approach similar to that of Hunt J in R v Murphy,[39] in Wright and Advertiser Newspapers Limited v Lewis King CJ said:
Freedom of speech and deliberation in the Parliament is the primary value sought to be protected by Parliamentary privilege. To accord to a defendant the right to defend himself against an action for defamation by proving truth, would not impinge upon such freedom. A Member would not be inhibited in the exercise of free speech or of his parliamentary duties by fear of legal consequences, because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary. Only the Member's action in launching proceedings alleging a false imputation could lead to an examination in court of the issue of the falsity of the imputation, and therefore of the Member's statements and conduct. I cannot think of any other public or parliamentary interest which could be impaired by such an examination in such circumstances.
I do not think that a defendant, so defending himself, can be regarded in any real sense as impeaching or questioning the freedom of speech, debates or proceedings in Parliament as forbidden by Article 9; nor can the courts be fairly regarded as doing so if they permit a defendant to so defend himself. It would not be sought to visit any legal consequences on the Member, nor to examine his actions or motives except so far that examination might be rendered necessary by the Member's own action.[40]
Similar reasoning was adopted by White J[41] and Olsson J.[42] Chief Justice King made the point that, if the view argued for by the plaintiff were correct, the result would be remarkable:
A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation ... If the defendant were precluded from proving the truth of what was alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which was perfectly true. Moreover as the defence of fair comment would often be unavailable, as in the present case, because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving facts as known to him. If this is the true legal position, it is difficult to envisage how a court could apply the law of defamation in a rational way to an action by a Member of Parliament in respect of an imputation relating to his statements or conduct in the House, or could try such an action fairly or adjudicate upon it justly.[43]
The approach of the courts to this matter is, however, uncertain. Both R v Murphy[44] and Wright and Advertiser Newspapers Limited v Lewis[45] were criticized by the Privy Council, on appeal from a New Zealand decision, in Prebble v Television New Zealand Ltd.[46] This case also concerned defamation proceedings brought by a Member of Parliament against a media organization, this time in respect of a television programme. The plaintiff asserted that the programme carried a number of defamatory imputations, including an imputation that he conspired to sell state-owned assets on favourable terms in return for donations in his political party from business leaders. One defence relied on by the media organization was justification. It sought to demonstrate the truth of what it had published by reference to statements and actions, some of which took place in Parliament. It was common ground that Article 9 of the Bill of Rights was in force in New Zealand.[47]
There were two types of allegations in the particulars of the defence which the Privy Council identified as having the potential to infringe parliamentary privilege. First, allegations that the plaintiff and other ministers made statements in the House which were misleading in that they suggested that the government did not intend to sell off state-owned assets when, in fact, the spokesperson was, it was alleged, conspiring to do so. The second type of allegation said to infringe parliamentary privilege was that the conspiracy was implemented by introducing and passing legislation in the House.[48] The New Zealand Court of Appeal upheld a lower court's decision, striking out those particulars of the defence which infringed parliamentary privilege.[49] Nonetheless, by a majority, the New Zealand Court of Appeal held that, in view of the inability of the defendant to deploy all the relevant evidence in support of the plea of justification, it would be unjust to allow the plaintiff to continue with his action; a stay of the plaintiff's action was ordered unless and until the parliamentary privilege was waived.[50] The case went on appeal to the Privy Council. The Privy Council's attitude to the staying of proceedings will be examined in section 3.2 below. At this point, the decision of the Privy Council regarding the scope of parliamentary privilege will be analysed.
As previously noted, in Prebble v Television New Zealand Ltd the Privy Council criticised both R v Murphy[51] and Wright and Advertiser Newspapers Limited v Lewis.[52] So far as the approach to Article 9 taken by Hunt J in R v Murphy[53] is concerned, the Privy Council's main criticism was that Hunt J based his analysis on a narrow construction of Article 9 derived from the fact that the object of Article 9 was to ensure that a member of Parliament could not be liable for what he or she said in Parliament. According to the Privy Council:
This view discounts the basic concept underlying Article 9, viz the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts.[54]
So far as Wright and Advertiser Newspapers Ltd v Lewis[55] is concerned, the Privy Council could not accept that the fact that the maker of the statement is the initiator of the court proceedings can affect the question whether Article 9 is infringed. It was said:
The privilege protected by Article 9 is the privilege of Parliament itself. The actions of any individual Member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply.[56]
It is the Privy Council's attitude to R v Murphy[57] which reveals a major difference of approach regarding the scope of parliamentary privilege. It is, however, suggested that regardless of whether Hunt J is right that the object of Article 9 is to ensure that a Member of Parliament cannot be liable for what he or she said in Parliament, or the Privy Council is right that the aim is to ensure that members can speak freely without fear that what they said will later be held against them, the test established by Hunt J in R v Murphy[58] is correct. That is, that parliamentary privilege operates to prevent the questioning of statements made in Parliament only where it can be said that the court proceedings seek to assert legal consequences against the maker of the statement for making that statement. It is only where this test is satisfied that it can be said that the Member would have any fear that what he or she has said will be held against the member.
There is a qualitative difference between, on the one hand, a case in which what was said in parliamentary proceedings is the subject of litigation and, on the other, a case in which a statement made in Parliament is put into evidence in proceedings which are directed at material which is not part of proceedings in Parliament. If a Member of Parliament thought that defamation proceedings could be brought against them in respect of what they said in Parliament, of course this might affect their willingness to speak freely in the House.
This should, however, be contrasted with the position where all that happens is that evidence of parliamentary proceedings is put into evidence in the course of defamation proceedings brought by the Member of Parliament. The decision to commence proceedings lies in the hands of the Member of Parliament. The Member of Parliament knows that no consequences will follow so far as he or she is concerned from anything said in the House unless he or she chooses to institute proceedings.
Indeed, the same could be said of those cases where a Member of Parliament reaffirms, outside the House, usually in a media interview, what he or she has said inside the House and someone sues the Member of Parliament in respect of what he or she said outside the House on the basis that the Member has adopted the statements made in the House.[59] Admitting evidence of what was said in the House in these circumstances could not be said to detract from the Member's capacity to speak freely in the House. Evidence of what was said in the House would be admitted, in this case, only where the Member of Parliament has taken the step of affirming what he or she said in the House, outside the House.
So far as the criticism of Wright and Advertiser Newspapers Ltd v Lewis[60] by the Privy Council in Prebble v Television New Zealand Ltd is concerned,[61] the suggestion that the actions of any individual Member of Parliament cannot determine whether or not the privilege of Parliament is to apply seems to be contrary to legislation which was subsequently enacted permitting a Member of the United Kingdom Parliament to waive parliamentary privilege. This legislation, which will be referred to in section 3.3 below, assumes that the actions of an individual Member of Parliament can determine whether the privilege of Parliament is to apply, at least when the waiving of her or his privilege is permitted by legislation.
The Commonwealth Parliament reacted to Hunt J's decision in R v Murphy[62] by enacting the Parliamentary Privileges Act 1987 (Cth).[63] Section 16 of the Act declares what is the effect of Article 9 of the Bill of Rights in its application to the Commonwealth Parliament. Section 16(3) states:
In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
The Northern Territory has enacted legislation in the same terms as s 16 of the federal Act.[64]
The validity and effect of this legislation was questioned in Laurance v Katter[65]. In this case, the plaintiff sued a Member of the Commonwealth Parliament in respect of statements made by the Member of Parliament in radio and television interviews which, it was alleged, adopted and reaffirmed statements made in Parliament by the Member imputing impropriety to the plaintiff. The three members of the Court of Appeal of the Supreme Court of Queensland adopted quite different approaches to the question whether s 16 of the Parliamentary Privileges Act 1987 (Cth) operated so that the plaintiff's action must fail. Pincus JA held that s 16(3) was incompatible with the implied freedom of political communication.[66] Following the High Court's decision in R v Richards; Ex part Fitzpatrick and Browne,[67] Fitzpatrick P held that s 16 could not be invalidated or read down to accommodate the implied freedom of political communication.[68] Davies JA read down s 16(3); in his view, the section was enacted merely to make it clear that parliamentary privilege applies not only where a member or witness is sued but also where evidence is sought to be tendered; in both cases, the privilege applies only where the parliamentary proceedings would be impeached or questioned.[69] Davies JA then held that this was not the case in these proceedings.[70]
The High Court granted special leave to appeal from the decision of the Queensland Court of Appeal, but the case was settled before the appeal was heard. It is possible that an appeal to the High Court in O'Chee v Rowley,[71] which is mentioned in section 2.1 above, may resolve one of the questions which arise from Laurance v Katter;[72] that is, are laws dealing with parliamentary privilege amenable to challenge on the ground that they are inconsistent with the implied freedom of political communication? Courts have been reluctant to come into conflict with Houses of Parliament in relation to matters relating directly to the privileges of the Houses and it is not unlikely that the High Court will adopt an approach similar to that of Fitzgerald P in the Court of Appeal of the Supreme Court of Queensland.
When Article 9 is relied on by a plaintiff to preclude a defendant from putting into evidence what was said in Parliament, the court may take the view that the inability of the defendant to deploy all the relevant evidence so prejudices the defence that the proceedings should be stayed. As explained in section 3 above, in the Prebble case, the New Zealand Court of Appeal had stayed the plaintiff's action unless and until the privilege was effectively waived by the House and the individual member concerned. On appeal to the Privy Council, the stay was lifted; it was made clear that a stay could be granted only in extreme circumstances, such as where the whole subject matter of the allegedly defamatory material relates to the plaintiffs conduct in the House so that the effect of parliamentary privilege is to exclude virtually all the evidence necessary to rely on the defence of justification.[73] For this reason, the Privy Council appears to have been of the view that Wright and Advertiser Newspapers Limited v Lewis was a case in which a stay should have been ordered,[74] but the New Zealand case did not fall into this category as much of the material relied on by the defendant to make out the defence of justification related to action outside the House.[75]
In Allason v Haines[76] a defamation action was, in fact, stayed. In 1991 the plaintiff, a Member of Parliament, had tabled a motion naming a journalist who he alleged had betrayed to Israeli authorities an Israeli who had divulged Israeli atomic secrets. The journalist's paper published an article claiming that the plaintiff had hidden behind parliamentary privilege and behaved in a cowardly and dishonourable way. The plaintiff brought a defamation action against the newspaper which was settled.
In 1994 the plaintiff tabled a motion about Members of Parliament who were "agents of influence" of the KGB, but did not name the Members concerned. The defendants published an article commenting on the fact that the plaintiff had been banned from naming the Members of the House of Commons even though he had not been banned "from making similarly unproven allegations against a journalist in a Commons motion in 1991". The plaintiff brought an action for defamation in respect of this publication. Owen J held that to enforce parliamentary privilege in this case but to refuse a stay of proceedings would be unjust to the defendants as it would deprive the defendants of what was probably their only defence "while allowing the plaintiff to continue on an unsatisfactory and unfair basis". Defamation proceedings were also stayed in similar circumstances in another English case, Hamilton v Guardian Newspapers because the media organization's defence rested largely on statements made by the plaintiff in the House of Commons.[77]
While a stay would protect the media organization from defamation proceedings in cases of this kind, this outcome is problematic: whether what has been published was defamatory and, if so, whether a defence operates, is not resolved and there is no public airing of the relevant issues.
It would seem that, in the absence of legislation authorizing it, the parliamentary privilege of freedom of speech cannot be waived by an individual Member of Parliament and perhaps not even by a House of Parliament.[78] Following the staying of the proceedings in Allason v Haines[79] and Hamilton v Guardian Newspapers,[80] s 13 of the Defamation Act 1996 (UK) was enacted.[81] This provides that, where the conduct of a person in, or in relation to, proceedings in Parliament is in issue in defamation proceedings, he or she may waive the protection of parliamentary privilege. The waiver does not affect the protection of parliamentary privilege in relation to any other Member of Parliament who has not waived it. Although this will, in practice, make a difference only in those cases where the Member of Parliament takes the view that he or she is likely to succeed in defamation proceedings instituted by the Member of Parliament, it does not mean that in those cases where the Member does waive his or her privilege, the courts will be able to address the real issues which should arise in defamation actions rather than being concerned with whether there is a breach of parliamentary privilege. Nonetheless, it would be better if the need for a waiver did not arise. It would be better if the courts defined parliamentary privilege in such a way that it was not necessary to stay proceedings. It would be better if the courts defined the limits of parliamentary privilege in the way that they have in R v Murphy[82] and Wright and Advertiser Newspapers Limited v Lewis[83] so that the need to stay proceedings did not arise.
[1] Commonwealth Constitution, s 49; Constitution Act 1867 (Qld), s 40A; Constitution Act 1934 (SA), s 38; Constitution Act 1975 (Vic), s 19; Parliamentary Privileges Act 1891 (WA), s 1; Legislative Assembly (Powers and Privileges) Act 1992 (NT), s 4 (adopting the privileges of the House of Representatives). See also Sankey v Whitlam (1978) 142 CLR 1 at 35 per Gibbs ACJ; Holding v Jennings [1979] VicRp 29; [1979] VR 289 at 290-291; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 17-18 per Zelling ACJ, 30 per Prior J.
[2] Imperial Acts Application Act 1969 (NSW), s 6.
[3] Gipps v McElhone [1881] NSWLawRp 28; (1881) 2 LR (NSW) 18 at 21-22 per Martin CJ, 24 per Manning J, 25-26 per Windeyer J; Chenard and Co v Arissol [1949] AC 127.
[4] Sir Charles Gordon (ed.), Erskine Man's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (1983) at 77.
[5] Gipps v McElhone [1881] NSWLawRp 28; (1881) 2 LR (NSW) 18; Holding v Jennings [1979] VicRp 29; [1979] VR 289; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18 per Zelling ACJ, 36 per Prior J; Beitzel v Crabb [1992] VicRp 57; [1992] 2 VR 121 at 125; Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at 328. In some jurisdictions the Members' immunity for defamation is reinforced by legislation, but this is restricted to defamatory remarks made in speeches: Defamation Act 1889 (Qld.), s 10(1); Defamation Act 1957 (Tas.), s 10(1); Criminal Code (Tas.), s 202(1); Criminal Code (WA), s 351.
[6] In some cases the protection extends to the publication in the jurisdiction of a report of proceedings of the Commonwealth Parliament or other State or Territory Parliaments: Defamation Act 1974 (NSW), s 24, Sch 2 cl 2 (1) and s 26; Wrongs Act 1958 (Vic.), s 3A(1); Criminal Code (WA), s 354(1); Defamation Amendment Act 1909 (ACT), s 5(a). In other jurisdictions it seems that the privilege applies only to reports of proceedings held in the jurisdiction in which the report is published: Defamation Act 1889 (Qld.), s 13(1)(a); Wrongs Act 1936 (SA), s 7(1)(ab); Defamation Act 1957 (Tas.), s 13(1)(a); Defamation Act (NT), s 6(1)(ba). For the purpose of the criminal law see also Criminal Code Act 1924 (Tas.), s 205(1)(a).
[7] Wason v Walter (1868) 4 LR QB 73 at 85, 94.
[8] (1868) 4 LR QB 73 at 89.
[9] Parliamentary Privileges Act 1987 (Cth), s 10.
[10] Legislative Assembly (Powers and Privileges) Act 1992 (NT), s 13.
[11] See Australian Parliament, Joint Committee on Parliamentary Privilege Final Report (October 1984) PP No 219 chapter 5; SA deSmith, "Parliamentary Privilege and the Bill of Rights" (1958) 21 Modern Law Review 465; Sir Charles Gordon (ed.), Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (1983) at 92.
[12] R v Abingdon (1793) 1 Esp 226 [170 ER 337] at 228 [338]; R v Creevey (1813) 1 M and S 273 [1813] EngR 254; [105 ER 102] at 278 [104], 279-280 [104], 280-281 [104-105]; Beitzel v Crabb [1992] VicRp 57; [1992] 2 VR 121 at 126-127.
[13] (1986) 46 SASR 1 at 18-19.
[14] (1986) 46 SASR 1 at 29-36.
[15] (1986) 46 SASR 1 at 19.
[16] (1986) 46 SASR 1 at 34-36.
[17] (1971) 23 DLR (3d) 292 at 298-300 (Ontario Court of Appeal); the Supreme Court of Canada dealt with an appeal on a broader issue "without dissenting from the views expressed in Courts below as to the privilege attached to statements made in Parliament"-- (1973) 36 DLR (3d) 413 at 419.
[18] (1977) 81 DLR (3d) 33 at 56-58 (Ontario High Court of Justice); cf. Stopforth v Goyer (1978) 87 DLR (3rd) 373 at 381-382 (Ontario High Court of Justice; the Court of Appeal did not deal with the question of absolute privilege--(1979) 97 DLR (3d) 369).
[19] [1990] 2 QB 460 at 476.
[20] [1990] 2 QB 460 at 476-478.
[21] Section 6(2) of the Legislative Assembly (Powers and Privileges) Act 1992 (NT) is in similar terms.
[23] (1997) 150 ALR 199 at 207-212, 215 per McPherson JA (with whom Moynihan J agreed).
[24] (1997) 150 ALR 199 at 204.
[25] (1971) 23 DLR (3d) 292 at 299.
[26] [1997] HCA 25; (1997) 145 ALR 96. See Walker, "Lange v ABC: the High Court rethinks the `constitutionalisation' of defamation law" (1998) 6 Torts Law Journal 9.
[27] [1997] HCA 25; (1997) 145 ALR 96 at 115.
[28] [1997] HCA 25; (1997) 145 ALR 96 at 116.
[29] [1994] UKPC 4; [1995] 1 AC 321.
[33] Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at 336.
[35] Submissions had also been made to Cantor J who presided at the first Murphy trial, see R v Murphy (1986) 5 NSWLR 18 at 22.
[36] R v Murphy (1986) 5 NSWLR 18 at 26-27.
[37] R v Murphy (1986) 5 NSWLR 18 at 30; see also at 34.
[40] (1990) 53 SASR 416 at 426.
[41] (1990) 53 SASR 416 at 436.
[42] (1990) 53 SASR 416 at 446.
[43] (1990) 53 SASR 416 at 421-422. See also at 436-437 per White J and 448 per Olsson J.
[46] [1994] UKPC 4; [1995] 1 AC 321.
[47] [1994] UKPC 4; [1995] 1 AC 321 at 332.
[48] [1994] UKPC 4; [1995] 1 AC 321 at 330.
[49] Television New Zealand v Prebble [1993] 3 NZLR 513 at 520 per Cooke P, 534 per Richardson J, 536 per Casey J, 539-540 per Gault J, 545 per McKay J.
[50] [1993] 3 NZLR 513 at 520-522 per Cooke P, 534-535 per Richardson J, 536-537 per Casey J, 540 per Gault J. McKay J dissented in relation to this aspect of the decision (at 545-546).
[54] Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at 334.
[56] [1994] UKPC 4; [1995] 1 AC 321 at 335.
[59] See, for example, Beitzel v Crabb [1992] VicRp 57; [1992] 2 VR 121.
[61] [1994] UKPC 4; [1995] 1 AC 321 at 335.
[63] The background is outlined in Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 81 ALR 710 at 715-717. The Second Reading Speech makes it clear that the purpose of the legislation is to avoid the consequences of Hunt J's approach in R v Murphy (1986) 5 NSWLR 18; see Commonweath, Senate, Parliamentary Debates (Hansard), 7 October 1986 at 892-895.
[64] Legislative Assembly (Powers and Privileges) Act 1992 (NT), s 6.
[65] [1996] QCA 471; (1996) 141 ALR 447.
[66] [1996] QCA 471; (1996) 141 ALR 447 at 486. The implied freedom of political communication, and the cases which established at, are outlined in Walker, "Lange v ABC: the High Court rethinks the `constitutionalisation' of defamation law" (1998) 6 Torts Law Journal 9.
[67] [1955] HCA 36; (1955) 92 CLR 157.
[68] Laurance v Katter [1996] QCA 471; (1996) 141 ALR 447 at 451-453.
[69] [1996] QCA 471; (1996) 141 ALR 447 at 489-490.
[70] [1996] QCA 471; (1996) 141 ALR 447 at 490.
[72] [1996] QCA 471; (1996) 141 ALR 447.
[73] Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at 337-339.
[74] [1994] UKPC 4; [1995] 1 AC 321 at 338.
[75] [1994] UKPC 4; [1995] 1 AC 321 at 338.
[77] (1995) 139 Sol Jo 772. See also Sharland and Loveland, "The Defamation Act 1996 and Political Libels" [1997] Public Law 112.
[78] Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at 335 (on the common law); Hamsher v Swift (1992) 33 FCR 545 at 564 (on s 16 of the Parliamentary Privileges Act 1987 (Cth)); see also, Barlin (ed.), House of Representatives Practice, 3rd edn., (1997) at 688; Limon and McKay (eds.), Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd edn., (1997) at 66-67, 171-172.
[81] It might be argued that s 13 of the United Kingdom Defamation Act 1996 is part of the law in Queensland and Western Australia. This is because the Queensland and Western Australian legislation adopts the powers and privileges of the House of Commons and its Members but does not refer to those powers and privileges as at a certain date but, instead, to those exercisable by the House of Commons and its Members "for the time being" (Constitution Act 1867 (Qld.), s 40A, Parliamentary Privileges Act 1891 (WA), s 1)--see Walker, Contempt of Parliament and the Media, Adelaide Law Review Research Paper No. 4 (1984) at 25 (Queensland), 29-30 (Western Australia).
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