Parliamentary privilege is under threat

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.