Parliamentary privilege is under threat

In the English-speaking world, members of parliament have the right to speak freely in parliament without risking arrest or being sued. The Queen, ministers, governments and officials can all be criticised and corruption exposed. Known as parliamentary privilege, it is a vital aspect of parliamentary democracy.

It was not always so. Until the latter part of the seventeenth century the king of England believed his authority was derived from God. Opponents and critics (including members of parliament) could be imprisoned, property seized, wars declared and taxes imposed whenever he chose. Parliament was seen as little more than a rambunctious hindrance.

This led to significant conflict, including the English Civil War (1642 to 1651) between King Charles I and Parliament. The stakes were high - Charles lost and was executed, and England became a republic for 19 years. When the monarchy was restored, Charles II promised to rule in cooperation with Parliament.

However, he failed to do so, and Parliament grew increasingly unhappy with his wars and religious policies. In 1681 he dissolved Parliament and ruled alone until his death in 1685. Things got even worse when his brother, James II, succeeded him. That prompted the so-called Glorious Revolution of 1688, when James was forced into exile and replaced by his nephew William of Orange, and Mary, Charles' daughter.

The invitation to William and Mary to take the crown was conditional on them agreeing to the Declaration of Rights, which became the 1688 Bill of Rights.

The Bill of Rights is now regarded as one of the fundamental pillars of English law. It has also had a considerable impact elsewhere – it was used as a model for the US Bill of Rights in 1789, for example, and its influence can be seen in other rights-based documents such as the United Nations Declaration of Human Rights and the European Convention on Human Rights.

The Bill firmly established the principles of frequent parliaments, free elections, no right of taxation without Parliament's agreement, freedom from government interference, the right of petition, and just treatment of people by courts. It also established parliamentary privilege: Article 9 states: "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."

The main principles of the Bill of Rights remain in force today, although most have long been incorporated into legislation. They are also periodically cited in legal cases, both in England and the countries that inherited English law. The chief exception is parliamentary privilege, which in many jurisdictions continues to rely on the Bill of Rights.

This is true of Australian state parliaments. However, the Commonwealth parliament has gone further and incorporated the parliamentary privilege provisions of the Bill of Rights into legislation - the Parliamentary Privileges Act 1987. Section 16 of this states:

Parliamentary privilege in court proceedings

(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(3) 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.

Entrenching an article of the Bill of Rights in specific legislation is often intended to protect it from judicial amendment. Courts are notorious for interpreting legislation to limit its application or find meanings that were never intended, then using those interpretations as precedents in subsequent cases. Over more than three hundred years, this has occurred many times to the Bill of Rights.

Despite both parliament and the courts being adversarial, judges can sometimes conclude that the rowdy and undignified nature of parliament makes it less competent to decide what the law should be. That is what King Charles I thought in the 17^th century.

When it comes to parliamentary privilege legislation this can be quite important, as my personal experience demonstrates.

As some will be aware, I was sued for defamation by Sarah Hanson-Young. I lost in the original case, lost in a 2 to 1 decision in the Federal Appeal Court, and an application for leave to appeal to the High Court was rejected. I profoundly disagree with the decisions of the courts, but my legal options are exhausted. However, the impact on parliamentary privilege is only beginning.

My case revolved around whether certain words were spoken in parliament. If they were spoken, I had no case to answer for what was said about them outside parliament. If they were not spoken, I could be held liable.

This was acknowledged by Hanson-Young's lawyers, who stated in their submission:

no issue of parliamentary privilege presently arises as the relevant issue is a factual one, namely, whether particular words were said in Parliament.

And:

If the respondent cannot prove paragraph 23 of his Defence (ie that Hanson-Young said words to the effect that all men are rapists), none of the evidence he would rely upon in these proceedings could give rise to a claim for parliamentary privilege, and he therefore could not be unfairly prejudiced in any relevant sense in defending these proceedings.

The problem for the court was that the exchange occurred as an interjection in the Senate chamber and was not recorded in Hansard. My lawyers argued the court was prevented from considering it, as it involved drawing, or inviting the drawing of, inferences or conclusions wholly or partly from proceedings in Parliament contrary to the Parliamentary Privileges Act.

The court nonetheless proceeded to hear evidence as to what had been said in parliament. A number of senators who were present gave evidence.

Two Greens senators (Siewart and Whish-Wilson) claimed the interjection by Hanson-Young was about guns on the streets, despite the motion which prompted the exchange containing no mention of guns and Hanson-Young herself saying her interjection did not refer to guns. Two other Greens senators (Rice and Steele-John) said there was no mention of guns but were vague as to what was said.

Two non-Greens senators (Griff and Hinch) agreed that her interjection made no mention of guns. One said the interjection was words to the effect that "men should stop raping women, or men shouldn't rape women", while the other said it was something along the lines of "that protection for women wouldn't be necessary if men stopped raping women or attacking women".

Having heard this evidence, Justice Richard White decided "positively" that Hanson-Young did not say words to the effect that all men are rapists.

Having regard to this assessment of the evidence, I find that the words spoken by the applicant in her interjection were to the effect to which Senator Siewert testified, namely, that "more guns on the streets won't protect women from men". I reject the respondent's account. I find positively that the applicant did not, in the course of the Senate debate on 28 June 2018, make a claim that all men are rapists. Nor did she say anything which was tantamount to such a claim. The applicant did not make the claims in the Senate which the respondent attributed to her in the impugned matters.

With that interpretation, he concluded that parliamentary privilege did not apply and I could be found liable for defamation. Furthermore, because I had not asked Hanson-Young or the other Greens senators to confirm what I believed I had heard (although I had asked non-Greens senators), he also decided I had acted unreasonably and with malice.

The appeal to the Full Court of the Federal Court was heard by three judges. The appeal grounds were whether parliamentary privilege applied, and whether my statements outside parliament were subject to the defence of qualified privilege by being reasonable in the circumstances.

Appeal courts do not hear evidence. However, they can consider whether the law was appropriately applied. In this case, none of the three disagreed with the decision of the primary case with respect to parliamentary privilege. In their view, the Act did not prevent a court inquiring as to whether something had been said in parliament. Justice Steven Rares wrote:

The section does not proscribe the use of what occurred in Parliament to prove the fact of that very occurrence. The making of a statement or the doing of an act in Parliament are facts in themselves.

The problem is that the court came to its conclusion based on the conflicting evidence of eight senators and by interpreting what was said in parliament. The three judges struggled to explain how this was permitted.

It was not about determining the truth of what had been said in parliament, according to Justice Rares:

This is distinct from the situation in cases like Rann 76 SASR 450 where the defendant pleaded justification by asserting that the plaintiff had lied in giving evidence to a Committee of the Parliament. There, the majority of the Full Court (Doyle CJ, Mullighan and Lander JJ) held that s 16(3) prevented the defendant from proving the truth of his publication complained of "by tendering evidence and asking questions to establish" what the plaintiff had said in his evidence to the Committee and that it was a lie, because to do so would impugn the truth of what he had said in the Parliamentary proceeding (see at 456 [30] and the majority's answer to question (i) at 490).

Nor was it in conflict with the intent of the Act, Justice Rares said, noting that the Explanatory Memorandum said the Act's intent is to prevent "drawing inferences or conclusions to support a criminal or civil action." (Defamation is a civil action.)

Justice Wigney similarly concluded that interpreting what was said in parliament, to determine whether something had been said in parliament, was allowed.

First, as the primary judge found (Judgment at [387]), the claim that Mr Leyonhjelm alleged Senator Hanson-Young made to the effect that all men are responsible for sexual assault or that all men are rapists could not, on any view, have formed part of the "proceedings in Parliament" because no such claim was made in Parliament.

He nonetheless recognised the significance of knowing what Hanson-Young had actually said.

If he was able to prove that Senator Hanson-Young had made a claim tantamount to a claim that all men are responsible for sexual assault, or that all men are rapists, that may in turn have enabled him to submit that the claim was absurd and that Senator Hanson-Young was a hypocrite and a misandrist. As the primary judge plainly recognised, that further step may have amounted to an infringement of s 16(3) of the Privileges Act. Such a submission may, for example, have amounted to "questioning" a statement made in Parliamentary proceedings contrary to s 16(3)(a), or questioning the "credibility" or "good faith" of Senator Hanson-Young contrary to s 16(3)(b), or drawing or inviting the drawing of inferences or conclusions from a statement made in Parliamentary proceedings contrary to s 16(3)(c) of the Privileges Act.

Justice Abraham came to the same conclusion.

The primary judge concluded that the statement "all men are rapists" or a statement tantamount to such a claim, was not said and therefore did not form part of the proceedings of Parliament.

Not one of them could explain how interpreting what was said in parliament was consistent with the law prohibiting the interpretation of what was said in parliament. Their judgements required, to say the least, remarkable mental gymnastics.

An obvious question is, why did they feel it was necessary to apply such tortured logic rather than give the legislation its plain, common-sense meaning.

I suspect distaste for the rough and tumble of politics was a factor. However, in that context, remarks by Justices Wigney and Abrahams about me also offer a clue. While I have never met either of them, and it is unlikely they know anything about me other than in a political context, they nonetheless felt the need to comment.

Justice Wigney described my parliamentary career as "relatively brief and at times controversial". (In fact, my term of five years was just two years shorter than he had been a judge of the Federal Court at the time of the case.) One wonders if he knows as much about the careers of other senators.

Justices Wigney and Abrahams both expressed firm views as to what they considered to be appropriate behaviour by a politician in my situation in parliament. Wigney said:

He made no attempt whatsoever to ascertain from Senator Hanson-Young that his belief was accurate or soundly based, even when Senator Hanson-Young approached him shortly after the exchange to ascertain whether she had heard his words correctly. As the primary judge found, Mr Leyonhjelm's explanation that he did not ask Senator Hanson-Young if he had heard her correctly at that point because he believed that she was ill-disposed towards him is hardly a reasonable explanation.

Nor does the fact that Mr Leyonhjelm was a politician excuse him from his failure to take any steps to check or verify the accuracy or otherwise of his belief as to the effect of Senator Hanson-Young's interjection. There may, of course, be some circumstances where it would not be reasonable to expect a politician to check or verify exactly what his or her opponent had said before criticising them outside Parliament. This, however, was plainly not such a case.

Moreover, Justice Abrahams made the strange assumption that I was familiar with Hanson-Young's family situation, and with such knowledge I should to have modified what I said.

...the appellant published the allegations to a mass audience, which the appellant knew included the respondent's child and family, in order to hold her up to public shame and disgrace, and that publication of the impugned matters was part of a campaign to ensure harm to the respondent.

If a member of parliament was to criticise a judge for his or her conduct in court, particularly if based on a false assumption, he would be severely criticised. Even when a senior judge is accused of sexual harassment, it is generally regarded as inappropriate for politicians to comment.

My interpretation is that the two judges took the opportunity to make known their personal views of a parliamentarian for whom they had low regard, based on impressions gained in the media, against a background of low regard for parliament and politicians generally. In apparent defiance of the legislation, both the Bill of Rights and the Parliamentary Privileges Act, they then concluded they were entitled to draw inferences and conclusions from speech and behaviour in parliament.

The concern now is where this leaves parliamentary privilege. If the appeal decision is used as a precedent in future cases, as it probably will be, parliamentary privilege will be substantially diminished.

Parliaments need to be alert to encroachments on their activities by the judiciary. Although there are differences, similar concerns have been raised in relation to the NSW Independent Commission Against Corruption, which has destroyed political careers by using its authority to investigate breaches of the Ministerial Code of Conduct, a wholly parliamentary document with no legal standing.

Such encroachments violate the separation of powers, or the notion that the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid any group having excessive authority. Parliamentary privilege is supposed to bar the judiciary from passing judgement on the speech or actions of politicians in parliament, just as politicians are unable to intervene when there are poor decisions by the judiciary.

This chipping away at parliamentary privilege can only be remedied by parliament amending the Parliamentary Privileges Act to make the type of encroachments that occurred in my case impossible. What occurs in parliament should be a no-go zone for the courts – as the Bill of Rights intended.