Leyonhjelm v Hanson-Young

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FEDERAL COURT OF AUSTRALIA

Leyonhjelm v Hanson-Young [2021] FCAFC 22  

Appeal from: Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981
File number(s): NSD 3 of 2020
Judgment of: RARES, WIGNEY AND ABRAHAM JJ
Date of judgment: 3 March 2021
Catchwords:

CONSTITUTIONAL LAW – whether s 16 Parliamentary Privileges Act 1987 (Cth) or Art 9 Bill of Rights 1688 (UK) precludes court hearing evidence or determining whether particular words were spoken in proceedings in Parliament – where dispute about words said by member in Chamber in course of proceedings in Parliament – whether lawful for court to take evidence of member of Parliament for purpose of deciding whether or what words were spoken in proceedings in Parliament – whether s 16 or Art 9 precludes court determining as a fact whether and what words spoken in proceedings in Parliament

DEFAMATION – qualified privilege – whether statement outside Parliament relating to words spoken in proceedings in Parliament made on occasion of qualified privilege pursuant to s 30 Defamation Act 2005 (NSW) or the implied constitutional freedom of communication on government political matters – whether reasonable for publisher not to check own recollection of words spoken in debate before publishing matter complained of – where publisher politician and not professional journalist or commercial news media publisher

DEFAMATION – malice – whether publisher actuated by malice in publishing matters complained of pursuant to s 30(4) Defamation Act 2005 (NSW) – whether publisher intended to shame political opponent by gratuitous attack going beyond what reasonably necessary to express publisher’s views

Legislation:

Defamation Act 1974 (Cth) s 22
Parliamentary Privileges Act 1987 (Cth) s 16

Defamation Act 2005 (NSW) ss 25, 30

Bill of Rights 1688 (UK) Art 9

Claim of Rights Act 1689 (Sc)

Law Reform Commission of New South Wales, Report on Defamation (Report 11, 1971)

Cases cited:

Adam v Ward [1917] AC 309

Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223

Austin v Mirror Newspapers Ltd [1986] AC 299

Bailey v WIN Television NSW Pty Ltd [2020] NSWCA 352

Baird v Wallace-James (1916) 85 LJ PC 193

Banditt v The Queen (2005) 224 CLR 262

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366

Braddock v Bevins [1948] 1 KB 580

Buchanan v Jennings (Attorney General of New Zealand intervening) [2005]1 AC 115

Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466

1           Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

Chubb v Salomons (1852) 3 Car & K 75; 175 ER 469

Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449

Cook v Alexander [1974] QB 279

Edgington v Fitzmaurice (1885) 29 Ch D 459

Egan v Willis (1998) 195 CLR 424

Guise v Kouvelis (1947) 74 CLR 102

Hanson-Young v Leyonhjelm (2018) 364 ALR 624

Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981

Harbour Radio Pty Ltd v Trad (2012) 247 CLR…

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Details
Case
[2021] FCAFC 22
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in Leyonhjelm v Hanson-Young, where Senator Leyonhjelm, a member of the Australian Parliament, sued Senator Hanson-Young for defamation. The dispute centred on statements made by Senator Hanson-Young during a Senate debate, which Senator Leyonhjelm later published, leading to the defamation claim. The legal issues involved the application of parliamentary privilege under section 16 of the Parliamentary Privileges Act 1987 (Cth) and Article 9 of the Bill of Rights 1688 (UK) to court proceedings, particularly whether the court could determine if certain words were spoken in Parliament. Additionally, the case examined whether the published statements were protected by qualified privilege under the Defamation Act 2005 (NSW) or the implied constitutional freedom of communication on government and political matters. The court also needed to decide if Senator Hanson-Young acted with malice in publishing the statements.

The Court held that parliamentary privilege, as codified in section 16 of the Parliamentary Privileges Act and Article 9 of the Bill of Rights, did not preclude the court from receiving evidence to determine what, if anything, Senator Hanson-Young said during the Senate debate. The court clarified that the privilege was intended to protect the integrity of parliamentary proceedings and not to prevent the establishment of historical facts. The Court emphasised that the privilege did not extend to questioning the propriety of a member's conduct or their state of mind when speaking in Parliament. The Court also noted that the Parliament enacted the Parliamentary Privileges Act in response to broader interpretations of parliamentary privilege in past cases, aiming to reinforce the separation of powers between Parliament and the judiciary.

The Court found that the primary judge was correct in proceeding with the trial, as the privilege did not bar the court from determining the facts of the matter. The Court dismissed Senator Leyonhjelm's appeal, holding that the operation of parliamentary privilege did not prevent the court from conducting the necessary inquiry. The Court's ruling maintained the principle that while courts must respect parliamentary privilege, they could still ascertain historical facts without infringing on the legislative powers reserved to Parliament.

ORDERS:
1. The appeal be dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Explanatory Memorandum stated (at pp 12–14) of what became each paragraph in s 16(3):The following is a further exposition of those paragraphs:(a) calling into question parliamentary proceedingsThis is the most obvious and clear prohibition contained in article 9. It prevents, for example, a statement in debate by a member of Parliament or the evidence of a parliamentary witness being directly attacked for the purpose of court proceedings, or the motives of the member or the witness in speaking in Parliament or giving evidence being attacked. Thus, it cannot be submitted that a member's statements in Parliament were not true, or reckless, to support a submission that the member is an untruthful, or reckless, person.(b) attacking the credibility, motives, etc. of a person on the basis of proceedings in ParliamentThis would prevent, for example, a member's speech in debate or a parliamentary witness's evidence being used to establish their motives or intention for the purpose of supporting a criminal or civil action against them, or against another person. Thus a member's statements outside Parliament cannot be shown to be motivated by malice by reference to alleged malice in the member's statements in Parliament.(c) drawing inferences or conclusions to support a criminal or civil actionThis would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member's speech in Parliament cannot be used to support an inference that the member's conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day. These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier court judgments. Basically, what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.(bold emphasis added, underscore emphasis in original) In The Queen v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 (and see at 164–165), Dixon CJ, giving the judgment of the Court, said that under s 49 of the Constitution “it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”. This view is also consistent with recent decisions of the Supreme Court of the United Kingdom and the New Zealand Court of Appeal.

Ratio Decidendi

Legal Principle Established

Mr Leyonhjelm argued that, instead of conducting the trial, the primary judge should have granted a permanent stay of the proceeding in the interests of justice, because the operation of Art 9 and s 16(3) of the Parliamentary Privileges Act would prevent any forensic investigation of what happened during the proceedings in the Senate in the debate on 28 June 2018. He contended that it was not open to his Honour to take evidence in order to determine whether or not Senator Hanson-Young had actually said the words in the debate that Senator Leyonhjelm later attributed to her as the foundation of his publications of the matters complained of. He submitted that proof of the matters on which his defence of justification of the imputations of hypocrisy, misandry and absurdity, necessarily, would involve impeaching or questioning what was said in the debate and, so, contravene Art 9 and s 16(3).Consideration In my opinion, the primary judge was correct in ruling that Parliamentary privilege did not prevent the Court receiving evidence on the question of what, if anything, as a matter of historical fact, Senator Hanson-Young had said in interjecting during the debate in the Senate on 28 June 2018. The Parliamentary Privileges Act and Art 9 give effect to the constitutional separation of powers between the Parliament and the courts. As Lord Bingham of Cornhill, giving the advice of the Judicial Committee in Buchanan v Jennings (Attorney General of New Zealand intervening) [2005]1 AC 115 at 132 [18], put it: “It is, again, an important principle that the legislature and the courts should not intrude into the spheres reserved to the other.” As their Lordships acknowledged, reference to the Parliamentary record only to prove the historical fact that certain “words were uttered” does not put in issue the propriety of a member’s behaviour as a parliamentarian, or his or her state of mind, motive or intention when saying those words in Parliament. It is important to appreciate that the Parliament enacted the Parliamentary Privileges Act as a response to decisions of the Supreme Court of New South Wales in relation to the two criminal trials of Justice Murphy who, before his appointment to the High Court, had been a Senator and Minister. Those decisions took a more expansive view of what was admissible in evidence under Art 9 and the common law than the President of the Senate had argued in the two trials. In particular, Hunt J ruled in the second trial, R v Murphy (1986) 5 NSWLR 18 (which followed an earlier similar ruling by Cantor J in the first trial), that witnesses in Justice Murphy’s criminal trial could be cross-examined for the purpose of discrediting them, without breach of the privilege the subject of Art 9, in relation to the evidence that they had given to a Select Committee of the Senate. In Sankey v Whitlam (1978) 142 CLR 1 at 36–37, Gibbs ACJ noted that a member of Parliament is not compellable to give evidence about what occurred in the member’s House. He said that Plunkett v Cobbett (1804) 5 Esp 136; 170 ER 763 and Chubb v Salomons (1852) 3 Car & K 75; 175 ER 469 were authority for the proposition that the member had to object to giving evidence before the Court would grant the privilege.