Parliamentary privilege is under threat

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.