Leyonhjelm v Hanson-Young

[2021] FCAFC 22

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 31

Horrocks v Lowe [1975] AC 135

Kiwi Party v Attorney-General [2020] 2 NZLR 224

Lange v Atkinson [2000] 1 NZLR 257

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Lee v Lee (2019) 266 CLR 129

Leyonhjelm v Hanson-Young [2019] FCA 156

Mann v O’Neill (1997) 191 CLR 204

McCloy v The Honourable Megan Latham [2015] NSWSC 1782

Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92

Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374

Mowlds v Fergusson (1940) 64 CLR 206

Mundey v Askin [1982] 2 NSWLR 369

2           Park v Brothers (2005) 222 ALR 421; [2005] HCA 73

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309

Plunkett v Cobbett (1804) 5 Esp 136; 170 ER 763

Prebble v Television New Zealand Ltd [1995] 1 AC 321

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R (Miller) v Prime Minister (Lord Advocate and others intervening) [2020] AC 373

R v Chaytor [2011] 1 AC 684

R v Murphy (1986) 5 NSWLR 18

Rann v Olsen (2000) 76 SASR 450

Roberts v Bass (2002) 212 CLR 1

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

Royal Commission into Certain Crown Leaseholds [1956] St R Qd 225

Sankey v Whitlam (1978) 142 CLR 1

Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211

Stotdenberg v Bolton (2020) 380 ALR 145

Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

The Kiwi Party Incorporated v Attorney-General [2020] NZSC 61

The Queen v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157

Toogood v Spyring (1834) 1 Cr M & R 181

Wason v Walter (1868) LR 4 QB 73

Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

451

Date of hearing:

11 May 2020

Counsel for the Appellant:

Dr G C Dempsey with Dr A J Greinke

Solicitor for the Appellant:

Mark M Stone Solicitor

Counsel for the Respondent:

Mr K Smark SC with Ms S Chrysanthou

Solicitor for the Respondent:

Company Giles

Table of Corrections
19 October 2021	In paragraph 10, delete “Australian Court of Arms” and replace with “Australian Coat of Arms”.
19 October 2021	In paragraph 34, deleting “siting” and replace with “sitting”.
19 October 2021	In paragraph 41, delete “Claim of Rights Act” and replace with “Claim of Right Act”.
19 October 2021	In paragraph 79, delete “Defamation Act 1974 (Cth)” and replace with “Defamation Act 1974 (NSW)”.
19 October 2021	In paragraph 89, delete “all man being rapists” and replace with “all men being rapists”.

ORDERS

NSD 3 of 2020

BETWEEN:

DAVID EAN LEYONHJELM

Appellant

AND:

SARAH HANSON-YOUNG

Respondent

ORDER MADE BY:	RARES, WIGNEY AND ABRAHAM JJ
DATE OF ORDER:	3 MARCH 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

RARES J:

Introduction

1. This appeal raises important questions of principle on the issues of Parliamentary privilege and the defence to an action in defamation that the matter complained of was published under qualified privilege.  The questions arose in the following context, involving two members of the Parliament and a dispute about whether one of them said words in an interjection during a debate in the Senate Chamber that the other attributed to her. 

2. The appellant, David Leyonhjelm, was until 1 March 2019 an elected Senator for New South Wales representing the Liberal Democratic Party (the Liberal Democrats).  The respondent, Senator Sarah Hanson-Young, was an elected Senator for South Australia and a member of the Australian Greens party.  Each of them sat on the crossbenches in the Senate Chamber.

3. Thursday, 28 June 2018 was the last scheduled sitting day of the Senate before the long winter recess.  The Senate began sitting at 9:30am and, just after noon, it began considering motions that individual Senators wished to move.  Relevantly, another crossbencher, Senator Fraser Anning, moved a motion calling on the Government to allow the importation of pepper spray, mace and tasers for individual self-defence, and to encourage State Governments to legalise, and actively promote, women carrying those for their personal protection.  The impetus for the motion was the brutal rape and murder of a young woman, Eurydice Dixon, in the early hours of 13 June 2018 that had received wide public, media and political attention.  The President of the Senate allowed three Senators to speak on the motion for one minute each: one, an Assistant Minister, a second, a member of the Greens, and a third, a member of the Opposition.  Each of them spoke against the motion in a fiery atmosphere during which, it was common ground, each Senator Hanson-Young and Senator Leyonhjelm made an interjection, neither of which was recorded in Hansard. 

4. What Senator Hanson-Young said was the prompt for Senator Leyonhjelm to interject with the statement “you should stop shagging men, Sarah”.  While it was common ground that Senator Leyonhjelm made that interjection, there was a dispute about what Senator Hanson-Young had said in her interjection.  The dispute over those words was the fulcrum of the issues at trial and on appeal, namely, first, as to whether the Court could take evidence and make findings about what Senator Hanson-Young said in the proceedings in Parliament without infringing Parliamentary privilege and, secondly, whether he could maintain a defence of qualified privilege if, as the primary judge found, she did not say what Senator Leyonhjelm later attributed to her in each of the four matters complained of published outside the Senate Chamber. 

5. The primary judge found that Senator Leyonhjelm honestly, but mistakenly, believed that Senator Hanson-Young had interjected that “all men are rapists” or a statement substantially to that effect.

6. At the conclusion of debate, the motion was lost 46 votes to 5, with Senator Leyonhjelm voting in the minority.  Shortly after this, Senator Hanson-Young approached him and asked him to confirm what he had said, which he did.  She called him a “creep”, to which he retorted that she should “fuck off”.  Things then went from bad to worse.

7. Outside the Chamber, Senator Hanson-Young reported Senator Leyonhjelm’s interjection to her Parliamentary Leader who, in turn, reported it to the President of the Senate.  The President spoke to Senator Leyonhjelm, who declined to withdraw, or apologise for, his interjection.

8. Later on 28 June 2018, Senator Hanson-Young was granted leave to make a short statement to the Senate that referred to Senator Leyonhjelm’s interjection and the subsequent events.  She expressed her disappointment that he had refused to apologise, and called on him to do so.

9. Later still on 28 June 2018, Senator Leyonhjelm embarked on a course of responding to Senator Hanson-Young outside the Chamber and its protection of absolute privilege.  Like many a politician before him, he discovered that this was not a wise thing to do when speaking ill of the living.

   The matters complained of 

10. Senator Hanson-Young claimed that Senator Leyonhjelm defamed her by publishing four matters complained of.  The first was a media statement that he published on 28 June 2018 after she had made her statement to the Senate.  He posted it on a blogging website, Medium.com, and on 29 June 2018 republished it by creating a link to that site both on his Facebook page, and the Facebook page of the Liberal Democrats.  It read, under the Australian Coat of Arms:

    SENATOR DAVID LEYONHJELM

    Leader of the Liberal Democrats

    Media Statement on Senator Hanson-Young
    28 June 2018

In the Senate this afternoon my colleague Senator Fraser Anning moved that the Australian Government lift the ban on the importation of non‑lethal methods of self‑defence such as pepper sprays, mace and tasers and for state governments to be encouraged to actively promote such devices to women for their personal protection.

The defeat of the motion 46 votes to 5 was disappointing.  The recent spate of horrific crimes against women has shocked us all.

Greens Senator Janet Rice spoke against this motion.  During her speech fellow Greens Senator Sarah Hanson‑Young interjected, saying something along the lines of all men being rapists.

I responded by suggesting that if this was the case she should stop shagging men.

I did not yell at her.

Following the division, Senator Hanson‑Young approached me and called me a creep.

I told her to fuck off.

Leader of the Greens Senator Richard Di Natale subsequently approached me and said he planned to report my comments to the president.

The president subsequently advised me to withdraw my comments and apologise.

I informed the president I would not be doing this.

I do not agree with Senator Hanson‑Young’s sentiments about all men being rapists and I believe I have the right to voice my opinion accordingly.  That Senator Hanson‑Young took offence from my comments is an issue for her, not me.

However, I am prepared to rephrase my comments.

I strongly urge Senator Hanson‑Young to continue shagging men as she pleases.

Meanwhile, the rest of the Senate will return to the business of voting down all common‑sense proposals that might make society a safer place for women to exercise their right of freedom of movement.

Media: Kelly Burke [phone number provided]

(bold emphasis added)

1. On Sunday 1 July 2018, Senator Leyonhjelm gave two live to air interviews.  The first broadcast was on the Sky News Outsiders program (the Outsiders interview, being the second matter complained of), and the second on the 3AW ‘Sunday Morning’ program (the Radio 3AW interview, being the third matter complained of).

2. The transcript of the relevant part of the Outsiders interview was as follows, the interviewers being Rowan Dean and Ross Cameron:

MR DEAN:	“And welcome back to Outsiders you’re with Ross Cameron and Rowen Dean.  And we’re very excited to have on Outsiders the great Senator David Leyonhjelm who is of course of the Liberal Democrats.  Senator David you have caused, you know you’re in the headlines again you are, you’re worse than Ross.  You grab these headlines, you outrage everybody, this time you made some comments last week about Sarah Hanson‑Young that got her very upset and you suggested that she stop shagging men.”
“Now when I heard this Senator, I immediately thought you were enforcing Malcolm Turnbull’s anti‑bonking ban!  And this is of course we know nowadays in Canberra the Prime Minister has said there will be no no way in which attractive female staffers are allowed to bonk their Ministers even if they think that they are going to do well out of it.  They’re not allowed to do that anymore.”
MR CAMERON:	“… and unattractive as well …”
MR DEAN:	“Yes un-attractive as well.  It’s all banned, bonking is all banned in Canberra that’s the safest thing.  So when Senator David Leyonhjelm said in Parliament in the Senate the other day, Sarah Hanson-Young stop shagging men, I thought well of course!  What else would you tell her to do?  What other advice, but tell us the real story what happened David?”
SENATOR LEYONHJELM:	“It was in a Motion to consider self‑defence.  There was a Motion calling on the Government to make it possible for women to protect themselves, thinking in terms of the Eurydice Dixon case or even the Jill Meagher case, and there was the Green’s Senator Janet Rice was making a one minute statement which suggested that it was all men and that men need to change their behaviour and so forth. Sarah called out, I don’t know the exact words because there was a lot of chatter going on, but it was to the effect of, ‘men should stop raping women’, the implication being all men are rapists.  Now Sarah’s, this is not a criticism, but Sarah is known for liking men.  The rumours about her in Parliament House are well known, so I just said ‘well stop shagging men then Sarah’. I mean it just doesn’t make any sense if you think they’re all rapists why would you shag them?  So she took great offence at that which is her problem not my problem. In retrospect I, you know, um she um, she has a right to shag as many men as she likes I don’t care you know … but she took great offence, she came and called me a creep, I told her to … am I allowed to say the F word on TV?”
MR DEAN:	“We’d prefer not, Sunday morning, I mean we’ve got a religious audience as Ross was explaining earlier.”
SENATOR LEYONHJELM:	“Well you don’t have to be religious to avoid …”
MR DEAN:	“Mind you Ross liberally sprinkles the F word around, but look we’ll pass on the F word but we get it, we get the gist of what you are implying.”
SENATOR LEYONHJELM:	“Well I told her to make love in another place …”
MR DEAN:	“Ok …”
SENATOR LEYONHJELM:	“and so she lodged a complaint.”
MR DEAN:	“OK so the bigger issue here ok, so jokes aside, and personalities and all that aside it’s always very easy for, we had Malcolm Turnbull came out, and obviously we had the Dixon murder is horrific but we had straight after it we had Malcom Turnbull coming out and saying words to the effect of ‘men must change what’s in their hearts’, men, not that man – the accused man/murderer or not some men but MEN.  We had Daniel Andrews made a similar statement ‘men must change their behaviour’ and Adam Bandt also said ‘men must change their behaviour’.”
“So there’s this broad collective idea David that somehow all men are guilty of these crimes unless men as a collective, as a group, change what it is about us these crimes will continue and this is the Prime Minister, the Victoria leader and the Green’s idiot all saying the same thing and so Sarah Hanson‑Young was picking up on the idea that all, or allegedly, that all men are rapists was the sort of thing she was saying.  You objected to that.  Talk us though it.”
SENATOR LEYONHJELM:	“That’s right.  I mean if I had said, or somebody had said all women are sluts the outrage would have been monumental.  It would have been called misogyny and it would have been criticised and called out, and rightly so.  You know you shouldn’t really say that sort of thing.  The male version of that is misandry.  I don’t think it’s any less forgivable.  If you say all men are rapists or all men do anything, that’s misandry.  It’s equally as objectionable as misogyny and yet we have these leading politicians sort of more or less rolling over and saying yes I am a male therefore I am guilty.  You know it is the equivalent of this male privilege, white privilege even straight gender privilege issue that because you are something which you have no control over therefore you have inherited guilt.”
MR DEAN:	“Well, lets just have a quick look at where the whole misogyny caper began.  We will take a quick little look at our former Prime Minister putting misogyny not only onto the national but the global table if you like.”
…
MR DEAN:	“So Julia Gillard went on to make an entire career and a multi‑million dollar salary package out of this misogyny thing and we are still hearing about it from Hilary Clinton and others.  You are saying misandry is the one that you are putting on the table now?”
SENATOR LEYONHJELM:	“Yes it is.”
MR DEAN:	“Will we get the David L.... ‘We will not be lectured on misandry by this woman Senator Hanson Young’.”
SENATOR LEYONHJELM:	“Well yes I mean I think it’s time for at least us alpha males to stand up and say that this is not legitimate, it is not more legitimate than misogyny.  If you want to go apologising for your gender, apologising for your colour, apologising for something you have no control over, then you’re not my kind of a guy and I think the rest of us should stand up for ourselves.  And in any case we are talking about collectivism v individualism.  I am an individualist, libertarians are individualists, we don’t judge people based on the group they belong to.  We are all individuals we don’t see colour we don’t even see gender particularly other than that men are from Mars and women are from Venus argument and we take people as individuals and this idea that because you belong to a certain social grouping or an ethnic grouping or racial grouping that you can be defined by that and that you have inherited guilt as a consequence of that is obnoxious.  Those of us who think for ourselves anyway.”
…
(emphasis added)

1. The transcript of the Radio 3AW interview with Nick McCallum and Rita Panahi was as follows:

MR MCCALLUM:	“Fairly heated discussion during the week, wasn’t it?”
SENATOR  LEYONHJELM:	“Good morning, oh yes, yes, it got a little bit heated, yes.  The, um, offence industry was, er, in full swing.  So, er, feelings, feelings run high.”
MR MCCALLUM:	“But, Senator my argument was, that we’re talking Parliament here, so if, if you come back and I am not a huge fan of Senator Hanson‑Young and I know she is an offender in many things but in this particular case when you are actually having a serious discussion and you were discussing you know violence against women and you were trying to give women the opportunity to have pepper spray and lasers, so it’s a serious topic so when you use language like stop shagging men to the Senator that downgrades Parliament but also downgrades a very serious topic. That was my point.”
SENATOR  LEYONHJELM:	“You, you do know what I was responding to don’t you?”
MR MCCALLUM:	“Yes I do and you claim that she said something like, all men are rapists, but her spokesperson actually says that she said, “putting tasers on the streets is not going to protect women from men”.  So there is a very big difference in what she says she said and what you claim she said.”
SENATOR  DAVID LEYONHJELM:	Yeah, I was there and, er, there was, er, very much a, or well along the lines of what Daniel Andrews and several others have commented said commented (sic)subsequent to the rape and murder of Eurydice Dixon, that it is a, a men’s responsibility, men have to change their behaviour.  Um, I don’t remember the precise words but I, it was near enough to men having to stop raping women, um, implication being all men are rapists or, you know, that was the definite meaning.  Now, um er, that’s misandry.  Um, it’s the male version, or the equivalent of misogyny, it’s, um, not forgivable under any circumstances in my view, now Sarah is a normal healthy woman and, um er, straight as well, um, and um yet I can’t see, I-I-I, the double standards involved in saying on the one hand, all men are rapists, or inferring all men are rapists”
MR MCCALLUM:	“But she didn’t say that Senator, you know she didn’t say that”
SENATOR  LEYONHJELM:	“You, you weren’t there Nick,”
MR MCCALLUM:	“I know I wasn’t but”
SENATOR  LEYONHJELM:	“I was there”
MR MCCALLUM:	“But you know, and you’re not even saying that she said ‘all men are rapists’ say, you are saying something like that,”
SENATOR  LEYONHJELM:	“So, so because I don’t quote the precise words therefore you believe her, is that what you are saying?”
MR MCCALLUM:	“Well, no, well you can’t tell us.  Her spokesperson said,  she said ‘putting tasers on the streets isn’t going to protect’”
MS PANAHI:	“Her spokesperson also put out a”
MR MCCALLUM:	“Women from men”
MS PANAHI:	“You did clarify the statement Senator, you came out and, er, I thought you were going to apologise but”
[SENATOR  LEYONHJELM LAUGHS]
MS PANAHI:	“But um it wasn’t really an apology was it?”
SENATOR  LEYONHJELM:	“Absolutely not, no, no actually what I said, the only thing I said, was that she could shag as many men as she likes”
MS PANAHI:	“as she pleases”
SENATOR  LEYONHJELM:	“if she pleases, yes, so um, I mean, my, my point and I think you are missing that next was that …”
MS PANAHI:	“but you weren’t slut shaming her?  I want to get to that because that’s not on, you can’t be, er, suggesting that someone is a loose women or that she, her personal life is somehow, um, being called, called into question, so I just want to get that, er, clarified because a lot of people when they read that statement and weren’t, er you know, aware of the exchange, whatever it was to the lead up, immediately looked at that and thought this is a Senator slut shaming a woman and that’s just not on”
SENATOR  LEYONHJELM:	“Well that would be misogyny”
MS PANAHI:	“that would be misogyny,”
SENATOR  LEYONHJELM:	“Um, how-, what I was referring to was the double standards on the one hand saying all men are responsible for the violence that occurred to Eurydice Dixon, on the other hand having relationships with men as she does and it is well known for, not that I am critical of that, um so that is the double standards that, er, I was concerned about, I am also concerned about the misandry.  I don’t think it is legitimate, er, any more legitimate to be a misandrist than it is to be a misogynist and, er, I was calling that out as well.  I, I also take exception to this idea that there is some kind of collective responsibility for men, or women for that matter, um it’s er for bad things that happen”
…
MS PANAHI:	“and society looks at those crimes and, ah er, is appalled by them, we do not have a culture that either turns a blind eye or tolerates violence against women, so let’s get that straight.  But I want to go back, I spoke, I asked you before about slut shaming, and whether, the statement you said could be interpreted that way and that not being on and you agreed slut shaming is misogyny but then you did have a bit of a dig there when you said, you know, Sarah Hanson‑Young is known for having lots of relationships with men”
SENATOR  LEYONHJELM:	“No”
MS PANAHI:	“having relationships with lots of men, again, I mean that to me could be seen as”
SENATOR  LEYONHJELM:	“I think you are putting words in my mouth Rita”
MS PANAHI:	“she is known for having relationships with lots of men”
SENATOR  LEYONHJELM:	“She is known for lots of relationships with men, she had a quite famous one with a, with a Liberal member of parliament a few years ago, Barry Haase, now there’s, I am not criticising her for that, she is perfectly entitled to do that, but the double standard”
MS PANAHI:	“but when you mention are you, are you, are you kind of”
SENATOR  LEYONHJELM:	“The double standards are what I am concerned about.  You can’t, you can’t on the one hand say or infer all men are rapists and on the other hand have relationships with men, so my comment was to the stop shagging men then otherwise you are being, er, you are being hypocritical.  That was the point of my comment, that it wasn’t slut shaming, and um …”
MR MCCALLUM:	“Do you regret, do you regret senator that whatever the, the circumstances, this debate has actually detracted from an important debate that you were debating at the time and that is whether women should be allowed to have pepper spray or tasers.”
SENATOR   LEYONHJELM:	“No I don’t think, I don’t agree …”
MR MCCALLUM:	“And it’s totally, totally distracted because that was an important debate and your, you know, stop shagging men and, and and wherever she said, she claims one thing you say another, that it’s the whole important debate has now been hijacked and this is what we’re talking about”
SENATOR   LEYONHJELM:	“No, I don’t agree.  If it hadn’t been for this um, the fact that she, er um um, she went to the President and er made an issue out of this, um unfortunately, regrettably, the issue of self‑defence for women, and indeed for all people, would have er dropped off, off the agenda”
…
SENATOR  LEYONHJELM:	“Sarah is, Sarah is known for, er well outrageous speech in fact some of her stuff goes onto Hansard. One day, in chamber there was a, um, issue about immigration Michaelia Cash, … this was a year or so ago, Michaelia Cash was the um member, ah – the Minister representing the Minister for Immigration and always, and Sarah was representing the Greens on immigration on an issue and Sarah called out to um Michaelia Cash ‘why don’t you just build some gas chambers for them …”
MS PANAHI:	*sigh*
SENATOR  LEYONHJELM:	“referring to the immigrants on Manus Island and er, um, er um Nauru. I mean, you know, Sarah is known for absolutely outrageous stuff and to not believe that she would say words to the effect that all men are rapists is naïve in the extreme ….. she did, I was there and I heard her and now she is entitled to say that but I am entitled to react as well and I am entitled to call out misandry and I am entitled to point out double standards and that’s what I was doing.”
…
SENATOR  LEYONHJELM:	“I replied, I-I-I rejected the double standard, I rejected, I reject the misandry, just as I reject misogyny and there is an issue which um as, er, a consequence of this dispute, is being kept alive and that is our government prevents women and indeed everybody, from carrying any means to protect themselves, any self-defence um device, pepper spray, tasers, pocket knives, anything at all, lethal, non‑lethal, or prohibited, you can be arrested for carrying it, so Eurydice Dixon if she had been carrying anything, a pepper spray, um a taser, mace, um a pocket knife anything like that, er specifically for self‑defence, she would have been committing a very serious offence, they are er, they are regarded as prohibited weapons. Er I think that is outrageous,”
MR MCCALLUM:	“Now we have to move on, Senator David Leyonhjelm thanks for joining us, er enjoy the rest of your Sunday at 12 to 12.”
(emphasis added)

1. On 2 July 2018, Virginia Trioli interviewed Senator Leyonhjelm on the Australian Broadcasting Corporation’s ‘7.30 Report with Leigh Sales’ program (the 7.30 Report interview, being the fourth matter complained of).  The transcript of the 7.30 Report interview was as follows:

MS TRIOLI:

“Now politics is often a grubby business of name‑calling, back-stabbing and buffoonery but even by those standards, Parliament hit a new low last week. You might remember during a Senate debate Senator David Leyonhjelm called out across the chamber to Senator Sarah Hanson‑Young for her to quote “stop shagging men”. That was during a debate about protecting women in the form of pepper spray and tasers. Senator Hanson‑Young later went up to Senator Leyonhjelm and asked him if he said what she thought he had. He confirmed that he had told her to stop shagging men and he also told her to ‘F-off’. Senator Leyonhjelm doesn’t dispute her version of events. But in media interviews afterwards, he didn’t apologise and he went further airing more rumours about the Senator. He’s been roundly condemned for that but he’s not backing down, I spoke to him a short time ago …”

MS TRIOLI:

“Senator David Leyonhjelm, welcome to 7:30.”

SENATOR 
 LEYONHJELM:

“Thank you.”

MS TRIOLI:

“Ahhh, Senator Hanson-Young has engaged lawyers ahead of a potential defamation action for you and others, we understand.  Would you like to take this opportunity to withdraw those comments you made and apologise for them?”

SENATOR
 LEYONHJELM:

“No, no … Bring it on”

MS TRIOLI:

“Why not? Why won’t you withdraw them?”

SENATOR
 LEYONHJELM:

“Because the point I was trying to make is, is valid, I’m on very solid ground, very legitimate. Um I am opposed to misandry just as I am opposed to misogyny and I am also entitled to call out double standards. So, arguing on the one hand that, um er, all men, um are evil, the enemy, um rapists, er sexual er sexual predators and then on the other hand having a normal relationships with men obviously is contradictory and I can call it out.”

MS TRIOLI:

“So, um, give me the quote from Senator Hanson‑Young where she said any of those things that you just mentioned there “all men are rapists” and the like. Where’s the quote?”

SENATOR
 LEYONHJELM:

“I, I was there…It wasn’t caught on Hansard. I was in the Chamber, it was in the context of a great deal of, of backchat going on …”

MS TRIOLI:

“I understand Senator that you actually can’t really recall exactly what it was that she said.”

SENATOR
 LEYONHJELM:

“I can recall the, the context, it was in the context of a self-defence motion, it was in the context of a one-minute statement by Senate Janet Rice to the effect that men are collectively are responsible for the violence and it was, er, Senator Hanson‑Young called out words very similar, or if not identical, to “If only men would stop raping women” or “all men are rapists” or words to that effect …”

MS TRIOLI:

“No they’re, they’re not the same thing but as we’ve established and I think you’ve admitted that you don’t exactly remember and she certainly denies saying those things”

SENATOR
 LEYONHJELM:

“She …”

MS TRIOLI:

*interrupts*
“but in any case, in any case … Do you, do you you see, as it would seem virtually everyone in Australia sees right now, how offensive, how inappropriate and hurtful those remarks are? Or do you, do you simply not see that?”

SENATOR
 LEYONHJELM:

“Um offence is taken personally, misandry is offensive and I take offence at that …”

MS TRIOLI:

“We’ll leave misandry to one side, do you see …”

SENATOR
 LEYONHJELM:

*interrupts*

“No, no let’s not take it, take it to to one side …”

MS TRIOLI:

“No because we’re dealing, we’re dealing with something that actually happened in the, in the Senate. Do you, do you …”

SENATOR
 LEYONHJELM:

*interrupts*

“Yes I was there and it was offensive.”

MS TRIOLI:

*interrupts*

“Do you, do you accept that those comments that you made were inappropriate to be made to a woman and in, in the Senate chamber?”

SENATOR
 LEYONHJELM:

“No.”

MS TRIOLI:

“So, how is it that you can sit here and say that but I imagine if that comment was made to any women in your family, I should imagine that you’d take a very different view, wouldn’t you?”

SENATOR
 LEYONHJELM:

“No, no woman in my family would accuse all men of being sexual predators.”

MS TRIOLI:

“And neither did Sar-, Senator Sarah Hanson‑Young. You certainly can’t produce that quote and she certainly denies it.”

SENATOR
 LEYONHJELM:

“So you believe her and you’re calling me a liar? Thank you very much.”

MS TRIOLI:

“No I’m saying that you actually can’t remember, you’ve, you’ve said that you can’t exactly remember what she said.”

SENATOR
 LEYONHJELM:

“and, and do I have to …”

MS TRIOLI:

*interrupts*

“and, and you give me words to the effect that range across a number of different scenarios …”

SENATOR
 LEYONHJELM:

“Do I have to remember every word precisely for it to be true?”

MS TRIOLI:

“In order to justify a pretty strong comment, yeah I reckon you do …”

SENATOR
 LEYONHJELM:

“No, I don’t reckon I don’t …”

MS TRIOLI:

“Um, I’ve ever wondered if you’ve ever paused to reflect on why you sometimes have such a reflex to get so personal, and frankly bitchy, when women take you on. Have you ever stopped and wondered about that?”

SENATOR
 LEYONHJELM:

“I don’t accept the premise of your question.”

MS TRIOLI:

“Let me say, tell you what its based on … its based on comments that you made to Senator Sarah Hanson‑Young, its made on comments you made to an elderly woman once who criticised you and you told her to quote “Go away and stop proving you’re a bimbo”. I’d say those two examples constitute a reflex to get pretty bitchy with women, why do you think that is?”

SENATOR
 LEYONHJELM:

“Well, er, let me, er, let me put it this way. When I am abused, accused of something such as being a sexual predator, along with all the other, all the other men in Australia …”

MS TRIOLI:

“I’m going to jump in there, I don’t think anyone accused you of that but go on …”

SENATOR
 LEYONHJELM:

“Yes, no, well you weren’t there, I was … um and, er, when, when people irrespective of their age, irrespective of their gender, write obnoxious e-mails to me and the woman who wrote that did, um I feel that I am perfectly entitled to respond …”

MS TRIOLI:

*interrupts*

“I guess Australia will …”

SENATOR
 LEYONHJELM:

“I don’t, I don’t …”

MS TRIOLI:

*interrupts*

“I guess Australia will form its own view on that, time is tight so we’ll have to leave it there.  Senator, thank you.”

SENATOR
 LEYONHJELM:

“Thank you.”

(emphasis added)

The defamatory imputations

1. Senator Hanson-Young pleaded, and his Honour found, that each of the four matters complained of conveyed two imputations, namely that:

   ·she is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them,

   ·she had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists.

2. In addition, she pleaded, and his Honour also found, that Senator Leyonhjelm conveyed the following imputation in each of the three interviews, namely that:

   ·she is a misandrist, in that she publicly claimed that all men are rapists.

3. There is no challenge to his Honour’s findings that those imputations were both conveyed and defamatory.

4. The primary judge found that, during the course of the Senate debate on 28 June 2018, Senator Hanson-Young did not make a claim or say that “all men are rapists” or anything tantamount to such a statement.

   The issues

5. That finding gave rise to the three substantial issues in Mr Leyonhjelm’s appeal (I will refer to him using his title as Senator only in respect of matters that occurred when he held that office), namely, first, whether the question of what was said in the course of the Senate debate was capable of being determined judicially without contravening s 16 of the Parliamentary Privileges Act 1987 (Cth) (the Parliamentary privilege issue), secondly, whether his Honour was correct to reject Mr Leyonhjelm’s defence of qualified privilege under s 30(1) of the Defamation Act 2005 (NSW) (the qualified privilege issue) and, thirdly, whether the primary judge erred in finding that each of the publications complained of was actuated by malice (the malice issue).

6. The primary judge made a pre-trial ruling that a court may receive and consider evidence concerning what was said in the Senate for the purpose of determining whether a matter did form part of “proceedings in Parliament” within the meaning of s 16(2): Hanson-Young v Leyonhjelm (2018) 364 ALR 624 at 632–633 [55].

7. During the trial, the primary judge heard evidence from numerous Senators, including both Senators Hanson-Young and Leyonhjelm, who were present in the Chamber on 28 June 2018 during the debate in which Senator Hanson-Young made her interjection.  His Honour found that all the Senators gave their evidence honestly and in an endeavour to assist the Court, but that Mr Leyonhjelm’s evidence as to Senator Hanson-Young’s interjection was unreliable.  He found:

   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.

   (emphasis added)

8. His Honour rejected the defence of qualified privilege because he found that it was not reasonable for Senator Leyonhjelm to make, and persist in making, the imputations in each of the four publications when, at the times he did so, he could not state with any accuracy the words that Senator Hanson-Young had spoken on which he relied.  When explaining why he would also have decided that Senator Leyonhjelm was actuated by malice in publishing the matters complained of, his Honour found that Senator Leyonhjelm honestly, but mistakenly, believed that Senator Hanson-Young had made a statement in the Senate debate to the effect that “all men are rapists”.  But, the primary judge then held that, after Senator Leyonhjelm had made that ‘assumption’, “he did not seek to verify its accuracy.  If it was necessary to do so, I would describe [Senator Leyonhjelm’s] conduct as reckless”.  His Honour found that Senator Leyonhjelm published each of the matters complained of to a mass audience “with a view to shaming [Senator Hanson-Young] publicly” and that established that he was actuated by malice in so publishing them.

   The Parliamentary privilege issue

   The legislative context

9. Relevantly, s 16 of the Parliamentary Privileges Act provided:

   16       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.

   (2) 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 spoken and 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.

   (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.

10. Article 9 of the Bill of Rights 1688 (Eng) (Art 9) provided:

    Freedom of Speech.

    That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

    Mr Leyonhjelm’s submissions

11. Mr Leyonhjelm contended that there could not be a fair trial of Senator Hanson-Young’s assertions that he had defamed her by falsely attributing to her a statement made during the Senate debate to the effect that she had said “all men are rapists”. This is because, he argued, Art 9 and s 16(2) and (3) of the Parliamentary Privileges Act precluded any judicial consideration of what, in fact, occurred during the debate, and any evidence about that subject matter necessarily would require the Court to inquire into “proceedings in Parliament”, namely “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House”.

12. Mr Leyonhjelm relied on the explanation of s 16(3)(c) in the Explanatory Memorandum for the Bill that became the Parliamentary Privileges Act that the Presiding Officers had circulated to the House of Representatives as supporting the prohibition of any evidence being adduced to prove the objective fact that something was or was not said as part of the proceedings in the Senate on 28 June 2018.

13. Here, the objective fact consisted of whether Senator Hanson-Young made the interjection or said words that conveyed the same meaning as Senator Leyonhjelm asserted, and she denied, namely, that “all men are rapists”.  Clearly enough, the establishment, as a fact, that those words, or words that did not differ in substance, were or were not said during the debate in the Senate would be critical to support the case of one side or the other in the trial below. 

14. 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

15. 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.

16. 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.

17. 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.

18. 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.

19. In Plunkett 5 Esp at 137, Lord Ellenborough CJ held that the Speaker of the Irish House of Commons, who was giving evidence, was warranted in refusing, but had the right, if he chose, to disclose what had occurred in a debate in the House. His Lordship said, however, that the Speaker was bound to answer whether a member had spoken or taken part in the debate because “that was a fact, containing no improper disclosure of any matter then under discussion in Parliament; but he was not bound to relate any thing there spoken by Mr Plunkett, which had been delivered by him, as a member of Parliament”. In Chubb 3 Car & K at 76–77, Pollock CB did not compel a member of the House of Commons to give evidence about what had occurred in proceedings in the House after he objected and the House had not given its permission for the member to give the evidence. The Chief Baron said that he had consulted with the other Barons of the Exchequer, who confirmed his ruling.

20. As Gibbs ACJ noted in Sankey 142 CLR at 36–37, Townley J, sitting as Royal Commissioner, applied the principle and held that a Senator could not be compelled to give evidence to the Commission where he did not wish to do so and the Senate had not given permission for him to give that evidence: Royal Commission into Certain Crown Leaseholds [1956] St R Qd 225 at 230–232.

21. In Mundey v Askin [1982] 2 NSWLR 369 at 373D–F, Moffit P, Reynolds and Samuels JJA held that Art 9 did not prevent the tender of Hansard to prove, as a fact, that certain things had been said in the course of debate in a House of Parliament.

22. Beaumont J summarised the development of the law that led to the enactment of the Parliamentary Privileges Act in Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223. His Honour referred to the second reading speeches of the President of the Senate and the Speaker of the House of Representatives (at 229) and, relevantly, set out the following passage from the President’s speech:

    “The main purpose of this Bill is to avoid the consequences of the very narrow interpretation and reading down of article 9 of the Bill of Rights 1688 in its application to the Australian Parliament in the judgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales in each trial in R v Murphy.”

1. The Presiding Officers said that the intention of the Bill was to restore what had been the Parliament’s previous understanding of the operation of Art 9.

2. The Explanatory Memorandum identified that (at p 1):

   Purpose of the Bill

   This Bill has a two-fold purpose:

   (a) to provide for the principal changes in the law recommended by the Joint Select Committee on Parliamentary Privilege; and

   (b) to avoid the consequences of the interpretation of freedom of speech in Parliament by the judgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales.

   (emphasis added)

3. 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 proceedings

   This 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 Parliament

   This 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 action

   This 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)

4. 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.

5. Baroness Hale of Richmond PSC and Lord Reed DPSC said, in delivering the judgment of the Supreme Court of the United Kingdom in R (Miller) v Prime Minister (Lord Advocate and others intervening) [2020] AC 373 at 410–411 [65]–[66], that the Bill of Rights, and its Scottish analogue (the Claim of Right Act 1689 (Sc)), are Acts of Parliament and ‘[i]t is one of the principal roles of the courts to interpret Acts of Parliament.”  The Supreme Court held, relying on what Lord Phillips of Worth Matravers PSC said in R v Chaytor [2011] 1 AC 684 at 706 [47]:

   (1) that it is for the court and not for Parliament to determine the scope of Parliamentary privilege, whether under article 9 of the Bill of Rights or matters within the ‘exclusive cognisance of Parliament’; (2) that the principal matter to which article 9 is directed is ‘freedom of speech and debate in the Houses of Parliament and in Parliamentary committees. This is where the core or essential business of Parliament takes place’

6. In Kiwi Party v Attorney-General [2020] 2 NZLR 224 at 233–234 [37]–[45], the New Zealand Court of Appeal (Collins, Simon France and Lang JJ) discussed the New Zealand analogue of Art 9 and the Parliamentary Privileges Act. They held that extra-Parliamentary statements by the Chairman of a Select Committee of the New Zealand Parliament about an issue before the Committee could not be made the subject of a cause of action that alleged that the Committee had made material errors of fact in considering a Bill, failed to consult adequately or consider submissions on the Bill, taken into account irrelevant considerations or failed to take into account mandatory relevant considerations. That was because such a litigious proceeding would “question the processes and decisions of the Select Committee” ([2020] 2 NZLR at 234 [44]. Winkelmann CJ, Glazebrook and O’Regan JJ dismissed an application for leave to appeal: The Kiwi Party Incorporated v Attorney-General [2020] NZSC 61).

7. Importantly, s 16(3)(c), in the way in which it is expressed, reflects that the Parliament was concerned to prohibit the use of something that formed part of proceedings in Parliament to draw, or invite the drawing of, inferences or conclusions from that thing.

8. 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, in the same way as Bowen LJ once explained that “the state of a man’s mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483.

9. Lord Dunedin said in Adam v Ward [1917] AC 309 at 324 “a man who makes a statement on the floor of the House of Commons makes it to the world.” Such a statement is made under absolute privilege, just as is a statement in judicial proceedings. The fact that such a statement has been made entitles every member of the public not only to know of its existence, but to discuss and criticise it, attack its truth and the state of mind of its maker in any forum except in judicial proceedings. That is because the nature of the absolute privilege that Art 9 and s 16(3) establish operates in an analogous way to the absolute privilege of those who make statements in the course of judicial proceedings, such as the members of the court, counsel, solicitors and witnesses: Mann v O’Neill (1997) 191 CLR 204 at 211 per Brennan CJ, Dawson, Toohey and Gaudron JJ, 238–239 per Gummow J and 257–258 per Kirby J. Brennan CJ, Dawson, Toohey and Gaudron JJ said (at 213):

   absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from “inherent necessity” (See, eg, Gipps v McElhone (1881) 2 NSWR 18 at 21-22, per Martin CJ; at 25-26, per Windeyer J; but cf at 24, per Manning J; Chenard & Co v Joachim Arissol [1949] AC 127 at 133-134; Australian Broadcasting Corporation v Charrerron (1986) 46 SASR I at 18, per Zelling A-CJ). And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process (See Gibbons v Duffell (1932) 47 CLR 520 at 528, per Gavan Duffy CJ, Rich and Dixon JJ).

   (emphasis added)

10. Thus, Art 9 reflected this principle of necessity, which conferred absolute privilege to protect the freedom of speech in, and the effective functioning of, legislative or Parliamentary proceedings. Not only does Parliamentary privilege prohibit anyone taking legal proceedings directly against a person for saying or doing anything during Parliamentary proceedings, it also prevents (as now reinforced by s 16(3)) the use in proceedings, judicial or extra-Parliamentary, of what the person said or did in a way that is capable of challenging or undermining his or her statement or action in the Parliamentary proceeding.

11. However, the fact that a person said or did something under Parliamentary privilege has a public and freestanding existence: see too Rann v Olsen (2000) 76 SASR 450 at 462 [58], 463 [62], [66] per Doyle CJ. Such a fact can be proved if the purpose of the tender is only to establish the existence of that fact (eg for the purpose of defences of fair report of proceedings in Parliament (see eg Cook v Alexander [1974] QB 279), honest opinion about the conduct of the plaintiff described in a Parliamentary debate (Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 319 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ applying Wason v Walter (1868) LR 4 QB 73 at 96 per Cockburn CJ, Lush, Hannen and Hayes JJ) or qualified privilege). But it cannot be proven if the purpose of the tender is to impugn the truth of the statement made in Parliament or motives of the person when saying it there.

12. In Egan v Willis (1998) 195 CLR 424 at 490, Kirby J explained the importance of the distinction between the right to prove the occurrence of Parliamentary events and the prohibition in Art 9 on questioning their propriety.

13. In Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337C–F, Lord Browne-Wilkinson (for himself and Lords Keith of Kinkel, Goff of Chieveley, Mustill and Nolan) noted that it had come to be accepted in both the United Kingdom and New Zealand that each nation’s Parliaments no longer required leave before Hansard could be tendered in court to use it “to prove what was done and said in Parliament as a matter of history”, and that “there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House”. But, the Judicial Committee cautioned ([1995] 1 AC at 337F):

    It will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose.

14. Their Lordships also explained (at 334B–D) that:

    The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.

    Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.

    (bold emphasis added, italics emphasis in original)

15. The Privy Council also held that the views of Hunt J in R v Murphy 5 NSWLR 18 and King CJ in Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 426 on how Art 9 operated were wrong. Hunt J had held that Art 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he or she said in Parliament. King CJ had held that Art 9 does not extend to prevent challenges to the truth or bona fides of a statement made in Parliament where the maker of the statement initiated the court proceeding.

16. Here, the question of fact that the primary judge had to determine was whether, as a matter of history, Senator Hanson-Young said, or did not say, the words Senator Leyonhjelm attributed to her in the debate in the Senate. Evidence to establish or negate that objective question of fact was admissible. The purpose of the evidence was to determine whether something, in fact, formed part of a proceeding in Parliament. If, in fact, Senator Hanson-Young did not say in the Senate the words on which Senator Leyonhjelm relied, or anything to their effect, then, self-evidently, they could not form part of proceedings in Parliament. It follows that evidence to prove that fact must be admissible, and will not contravene Art 9 or s 16(3).

17. The primary judge was correct to take evidence about the existence or non-existence of the statement that Senator Leyonhjelm attributed to Senator Hanson-Young in the course of the debate.  That evidence could not support Senator Hanson-Young’s claim for defamation if it proved the existence of the statement (or one to its effect) that Senator Leyonhjelm attributed to her; rather, she accepted, if proven, that the statement would have established his defence of justification.  And, if the evidence established (as the primary judge found it did) that she had not made the statement, then that objective fact would establish that no question of Parliamentary privilege arose. 

18. 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).

    Conclusion to the Parliamentary privilege issue

19. Here, the only purpose of the evidence was to establish, first, whether or not Senator Hanson-Young had said something in the Senate that was not recorded in Hansard, and, secondly, if she did, what it was that she said.  There was no breach of Parliamentary privilege in his Honour taking that evidence or making his findings about it.

    The qualified privilege issue

    The legislative context

20. The Defamation Act creates a statutory defence of qualified privilege in s 30, which provides:

    30       Defence of qualified privilege for provision of certain information

    (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

    (a) the recipient has an interest or apparent interest in having information on some subject, and

    (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

    (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

    (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

    (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

    (a)       the extent to which the matter published is of public interest, and

    (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and

    (c) the seriousness of any defamatory imputation carried by the matter published, and

    (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

    (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

    (f)the nature of the business environment in which the defendant operates, and

    (g) the sources of the information in the matter published and the integrity of those sources, and

    (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

    (i)any other steps taken to verify the information in the matter published, and

    (j)        any other circumstances that the court considers relevant.

    (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

    (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

    (emphasis added)

21. The statutory defence of qualified privilege operates as follows.  First, s 30(1) defines when a privileged occasion arises under the Act that supplies a qualified protection to the defendant or respondent (for simplicity, I will just use the statutory term, “defendant”, in what follows) in respect of a publication. The defendant must prove that such an occasion arises by establishing, on the balance of probabilities, each of the three conditions in s 30(1). That involves the defendant proving:

    (a)the recipient is a person or persons who, in fact, has an interest, or whom the defendant, on reasonable grounds, believes at the time of publication has an apparent interest (s 30(2)) in having information on the subject matter of the publication,

    (b)the matter complained of is published to the recipient in the course of giving information on that subject matter, and

    (c)the defendant’s conduct in publishing the matter complained of is reasonable in the circumstances.

22. Secondly, s 30(3) provides a non-exclusive list of factors that the tribunal of fact (judge or jury) may take into account in determining whether the conduct of the defendant in publishing the matter complained of was reasonable in the circumstances. None of those factors expressly involves examination of the state of mind of the defendant. Rather, each factor reflects the concern of s 30(1)(c) which is to evaluate, objectively, whether the conduct of the defendant in giving information on a subject to a recipient with an interest or apparent interest in receiving it was reasonable in the circumstances. 

23. Thirdly, the defendant’s state of mind is relevant, by force of s 30(4), if the plaintiff proves that the publication of the matter complained of was actuated by malice. That reflects the balance the common law developed between the qualified protection of a publication of defamatory matter on an occasion of qualified privilege and the misuse of such an occasion by a defendant publishing when his, her or its dominant purpose is an improper one, namely to injure the plaintiff.

24. Critically, s 30 of the Act maintains the importance, established at common law, of distinguishing between what creates an occasion of qualified privilege (in s 30(1), (2) and (3)) and the existence of an improper purpose or motive that actuates the defendant’s publication (in s 30(4)). Thus, if the defendant proves that the recipient has an interest or apparent interest (as defined in s 30(2)) in having information on the subject matter of the publication that the defendant made to the recipient and the defendant’s conduct in so publishing is reasonable in the circumstances, there will be a privileged occasion.

    The primary judge’s findings

1. As the primary judge noted, it was common ground that the elements in s 30(1)(a) and (b) were established, but the parties were at odds over whether Mr Leyonhjelm could make good that his conduct in publishing each matter complained of was reasonable.

2. In dealing with Senator Hanson-Young’s allegation that Senator Leyonhjelm was actuated by malice in publishing each of the four matters complained of, the primary judge said:

   227I am not satisfied that the applicant has proven that the respondent published each of the impugned matters with knowledge of the falsity of the imputations and knowing that it was false to assert that the applicant had made a statement to the effect that “all men are rapists”. On my findings, the respondent did think, mistakenly, that the applicant had made a statement to that effect. The mistake arose from the respondent having assumed that he had heard that which he was predisposed to hear. Having made the assumption, he did not then seek to verify its accuracy. If it was necessary to do so, I would describe the respondent’s conduct as reckless. The respondent himself acknowledged that a claim that “all men are rapists” is absurd, and yet that is the statement he attributed, without checking, to the applicant.

   228I am, however, satisfied that the applicant has established that the respondent published each of the impugned matters to a mass audience with a view to shaming her publicly.

   (emphasis added)

3. In saying that Senator Leyonhjelm was “reckless” in [227], the primary judge was using that word in the objective sense of careless or negligent: see eg Banditt v The Queen (2005) 224 CLR 262 at 265–266 [2]–[3], 275 [36] per Gummow, Hayne and Heydon JJ. The primary judge used the word “however” in commencing [228] of his reasons to emphasise that he had not found Senator Leyonhjelm to have been actuated by malice in publishing what he honestly, but mistakenly, believed that Senator Hanson-Young had said. He found that Senator Leyonhjelm should have verified the accuracy of what he published, not that he lacked an honest belief in its truth. The reason why his Honour would have found that Senator Leyonhjelm was malicious was because he had misused the privileged occasion for the improper purpose of shaming Senator Hanson-Young publicly.

4. It will be necessary to return, when I deal with the malice issue, to his Honour’s findings about Senator Leyonhjelm’s malice based on his being actuated to shame Senator Hanson-Young publicly, which I consider to be erroneous.

5. The question of whether each of the matters complained of was published on an occasion of qualified privilege requires consideration of how then senior counsel for Mr Leyonhjelm advanced the defence at the trial. His Honour recorded that, in closing submissions, Mr A J H Morris QC conceded that if the defence under s 30 of the Defamation Act failed, he could not advance any basis on which the defences of qualified privilege at common law and under the implied constitutional freedom of communication on government political matter explained in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 could succeed, and it was not necessary for the primary judge to deal with those two defences if the statutory one was not established.

6. Part of the context in which Senator Leyonhjelm published the matters complained of was the heated debate in the Senate on 28 June 2018, and the fact that he and Senator Hanson-Young had very different political views about its subject matter.  Another important part of the context is that the primary judge found that Senator Leyonhjelm had an honest, but mistaken, belief, at all relevant times, that Senator Hanson-Young had interjected during debate as he said:

   ·“something along the lines of all men being rapists” (in the media release),

   ·“I don’t know the exact words because there was a lot of chatter going on, but it was to the effect of, ‘men should stop raping women’, the implication being all men are rapists” (in the Outsiders interview),

   ·“I don’t remember the precise words but I, it was near enough to men having to stop raping women, um, implication being all men are rapists or, you know, that was the definite meaning” (in the Radio 3AW interview),

   ·“Senator Hanson-Young called out words very similar, or if not identical, to ‘if only men would stop raping women’ or ‘all men are rapists’ or words to that effect” (in the 7.30 Report interview).

7. The primary judge found that the evidence of Senators present during the debate (including Senator Leyonhjelm) was that “it had been noisy in the Senate Chamber during discussion of Senator Anning’s motion”, with a number of interjections, yelling, loud speaking across the Chamber about the motion, in an environment that was “somewhat fiery” with a lot of “spirited things being said”.

8. His Honour rejected Mr Leyonhjelm’s submission that this “environment” did not have the capacity to interfere with his ability to hear Senator Hanson-Young’s interjection.  His Honour noted that Senator Leyonhjelm could not attribute any precise words to Senator Hanson-Young.  The primary judge also found that there was no particular reason for any individual Senator to take a note of any particular interjection.

9. The primary judge’s analysis of the defence of qualified privilege focussed on the steps that Senator Leyonhjelm took, or failed to take, to verify the accuracy of what he attributed to Senator Hanson-Young in the context that he could not recall the words that she actually spoke in her injection.  His Honour said:

   184The reasonableness to which s 30(1)(c) speaks is reasonableness as between the publisher and the person defamed. In John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227, the Court of Appeal in the Supreme Court of New South Wales (Spigelman CJ, Handley JA and McColl JA) said, in relation to s 22 of the Defamation Act 1974 (NSW), to which s 30 is the counterpart:

   [30]The question of reasonableness must be tested as between the publisher and the person defamed, not as between the relevant employees and the publisher. The publisher must prove that it acted reasonably in relation to the person defamed despite publishing false and defamatory matter about him. A publisher who publishes serious allegations as fact without having checked with the person concerned is taking the risk that they cannot be justified. In that event, outside the limits of reasonableness, it is the publisher who bears the risk, not the person defamed.

   …

   189In Lange, the High Court said at 574 in relation to the defence of qualified privilege in relation to publication of defamatory imputations relating to matters of governmental and political affairs:

   Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of the response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.

   (Emphasis added and citations omitted)

   190The failure of a respondent to contact the subject of a publication with a view to checking or seeking verification of the accuracy of the content of the publication, in the manner suggested in Lange at 574, has been fatal to a defence of qualified privilege in a number of matters. See, for example, Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [149]-[151]; Bolton v Stoltenberg [2018] NSWSC 1518 at [228]; Hockey v Fairfax Media Publications at [357]-[372].

   (bold emphasis added, italics emphasis in original)

10. The primary judge found that it was reasonable for Senator Leyonhjelm not to check the video footage of the Senate proceedings because he knew from his past experience that the microphones recording sound for the footage did not capture interjections.

11. However, the primary judge held that Senator Leyonhjelm’s conduct in publishing the four matters complained of was not reasonable in the circumstances for the following reasons:

    ·although Senator Leyonhjelm had never been able to state the precise words that Senator Hanson-Young spoke, he had made no attempt to check with her what she had said.  He had had the opportunity to do so when she had approached him in the Chamber soon after the division to check what he had said of her,

    ·the primary judge had some doubt (but does not appear to have rejected) Mr Leyonhjelm’s evidence that he believed, when being cross-examined, that, later on 28 June 2018, he asked Senators Bernardi and Georgiou, but both had said they had not heard Senator Hanson-Young’s interjection.  However, as his Honour observed, both Senators Bernardi and Georgiou were further away from Senator Hanson-Young in the Chamber than Senator Leyonhjelm, 

    ·an obvious alternative was to speak to someone who sat closer to Senator Hanson-Young.  Senator Leyonhjelm had not checked with Senator Hinch or with Senator Hanson-Young’s Greens Senator colleagues “because they were not of his ‘tribe’ and it was rare for him to ask questions of his political opponents”. 

12. His Honour found:

    200It is difficult to see, however, why that should have precluded him from making a relatively simple enquiry of other Senators with a view to checking the accuracy of his own belief as to what the applicant had said. A failure to check does not become reasonable because a publisher fears that the response will be unhelpful or even hostile. In any event, even on his own explanation, the respondent could have made enquiries of Senators Griff and Patrick, as he eventually did some weeks later.

    201To my mind, the respondent’s failure to take reasonably obvious and readily available verification steps points strongly against the reasonableness of his conduct.

    202There was no immediate imperative for the respondent to act with the speed which he did in issuing the first impugned matter. Furthermore, the two days which elapsed before his appearances on the Sky News, Radio 3AW and ABC 7.30 programs meant that he had the time to check with others the reliability of his belief. Yet, he took no such steps.

    203The unreasonableness of the respondent’s conduct is made stark in the third and fourth impugned matters when he was informed that the applicant disputed his account of what she had said. In the 3AW Sunday Morning program, Mr McCallum informed the respondent that the applicant denied having said “all men are rapists”, having said instead “putting tasers on the street is not going to protect women from men”. Ms Trioli also told him on the ABC 7.30 program that the applicant denied saying the words he attributed to her. That should have alerted the respondent to the appropriateness of checking what the applicant had said. However, instead of indicating that he would do so, the respondent maintained the righteousness of his position, by insisting that because he had been there he knew what had been said.

    (emphasis added)

13. Finally, his Honour reasoned that:

    206The respondent’s position as a Senator was undoubtedly different from that of a media entity engaged in publication for the purposes of commercial profit. However, this distinction loses its significance because it is apparent that the respondent was seeking to obtain for himself an advantage, albeit of a non-commercial kind. An article published in The Sydney Morning Herald on 25 July 2018 containing statements of the respondent is pertinent in this respect:

    [O]utside my electorate office and suite in Parliament House, it’s a jungle. I’m surrounded by people who are indifferent, or outright antagonistic, to the Liberal Democrats and our vision of smaller government and more freedom.

    So, when I step out of my suite in Parliament House, it’s game on.

    …

    [L]et me be clear: Senator Sarah Hanson-Young is not my work colleague; she is my opponent. We strive for opposing things. If I can inhibit her from achieving her political goals I will.

    We face off in the Senate Chamber just as bitter enemies face off on opposing sides in a court. And, just like opposing sides in a court, it is my role to ruthlessly tear down the other side’s case using all the tools of argument.

    Where I can point out the other side’s double standards and inconsistency, I do. Where it is effective to argue by example or pose rhetorical questions, I do.

    …

    (Emphasis added)

    207There is no reason to suppose that this article did not report the respondent accurately. In fact the respondent’s counsel cross-examined the applicant by reference to it.

    208Further, although those statements of the respondent were published approximately one month after the publication of the impugned matters, there is no reason to suppose that they were not also his views at the time of publishing the impugned matters. They indicate that the respondent had a personal interest with respect to the applicant which he was pursuing, namely, his desire to achieve his party’s political goals. It would not be realistic to regard him as a detached participant, seeking simply to inform the public in a disinterested manner.

    209For the reasons given earlier, I do not regard the impugned matters as being “mild expressions” of the relevant imputations. Nor do I regard the imputations themselves as “relatively mild”.

    210In my opinion, none of the other matters for which counsel contended serve to indicate that the respondent’s conduct in publishing the impugned matters should be regarded as reasonable. In particular, I am unable to see that the respondent’s acknowledgement that he could not state the words used by the applicant assists him on the topic of reasonableness. It tends to point up the unreasonableness of his conduct. It also undermines the respondent’s claim that he had been entitled not to seek verification from others because he had heard first-hand what the applicant had said.

    Conclusion on reasonableness

    211I conclude that it was not reasonable for the respondent to make, and to persist in making, the admitted imputations when he could not, at the time of doing so, state with any accuracy the words spoken by the applicant on which he relied.

    212For these reasons, I consider that the respondent has not shown that his conduct in publishing the impugned matters was reasonable.

    (bold emphasis added, italics emphasis in original)

    Consideration

14. I am of opinion that the primary judge erred in his analysis of the defence of qualified privilege under s 30. Mr Leyonhjelm’s desire to pursue the goals of his political party in publishing the matters complained of did not require him to be “a detached participant, seeking simply to inform the public in a disinterested manner” (see [208]). Nothing in s 30 prescribed such a criterion or requirement. The purpose of the qualified privilege is to enable a person to communicate, to persons with an actual or apparent interest in receiving it, information that need not necessarily comprise objective, verified or accurate statements or matter. It provides a defence to the publication of false or inaccurate information or matter if the preconditions that s 30(1) prescribes are met. Moreover, the publisher’s state of mind that defeats the existence of the defence is that prescribed in s 30(4), namely a state of mind amounting to malice that actuates the publication.

15. In its 1971 Report on Defamation (LRC11) (at 98 [104]), the Law Reform Commission of New South Wales explained that the purpose of the test of reasonableness in its proposed s 22(1)(c) (now reflected in s 30(1)(c)) was to replace the common law doctrine of the publisher needing to have a reciprocal duty or interest with its audience to publish the defamatory matter.

16. In Lange 189 CLR at 569–570, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ observed that s 22 operated to provide an “appropriate defence for a person who mistakenly but honestly publishes government or political matter to a large audience” (emphasis added).  They said the basis of the common law rule for determining whether a publication is made on an occasion of qualified privilege is the existence of reciprocity of interest or duty, between the audience and the publisher, which was essential, citing Adam [1917] AC at 334 per Lord Atkinson (see too Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at 372–373 [9]–[10] per Gleeson CJ, Hayne and Heydon JJ). They held that this common law doctrine imposed an unreasonable restraint on the exercise of the constitutional freedom. The Court explained (at 572–573) that because the damage that can be done by publication to a large audience “is obviously so much greater than when there are only a few recipients”, a requirement of reasonableness, as contained in s 22, “which goes beyond mere honestly, is properly seen as reasonably appropriate and adapted to the protection of reputation” and so is not inconsistent with the constitutional freedom.

17. The reasonableness of conduct in what is now s 30(1)(c) concerns the defendant’s reasonableness in publishing to a large audience, such as the general public here. Thus, the criterion of the reasonableness of the defendant’s conduct in s 30(1)(c) is relevant to whether the occasion will be privileged, analogously to the common law: cf Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at 47–48 [30]–[32] per Gummow, Hayne and Bell JJ. Although s 30(1) and the constitutional freedom expand the circumstances under which a defamatory publication can be made under qualified privilege, the application of the test of the reasonableness of the conduct of the defendant in publishing is, as this case demonstrates, attended with the same difficulties in its application as the common law test: Mowlds v Fergusson (1940) 64 CLR 206 at 212 per Starke J, 214 per Dixon J and 219–220 per Williams J, see too Guise v Kouvelis (1947) 74 CLR 102 at 116–117, 122 per Dixon J, whose statement of the principles is unaffected by his dissent on the facts. In both cases, Dixon J applied Lord Loreburn’s speech in Baird v Wallace-James (1916) 85 LJ PC 193 at 198 (see Mowlds 64 CLR at 214, 216; Guise 74 CLR at 117) who said that at common law:

    In considering the question whether the occasion was an occasion of privilege, the Court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances in was published, and will see whether these things establish a relation between the parties which gives a social or moral right or duty; and the consideration of these things may involve the consideration of questions of public policy…

    (emphasis added)

18. The criterion of the reasonableness of the conduct of the defendant in publishing the defamatory information to persons with an interest, or apparent interest, in receiving it (under s 30(1) or the constitutional freedom), creates the need for a similar relation to exist if a publication is made under qualified privilege.

19. The considerations relevant to whether the conduct of a defendant in publishing defamatory matter is reasonable in the circumstances will depend on the particular facts of each case: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 339–340 [30]–[32], per Gleeson CJ and Gummow J; Austin v Mirror Newspapers Ltd [1986] AC 299 at 313C–D; (1985) 3 NSWLR 354 at 360B–C, per Lord Griffiths for himself and Lords Hailsham of St Marylebone LC, Keith of Kinkel and Roskill. As Lord Griffiths said in giving the advice of the Judicial Committee on the meaning of s 22(1)(c) of the Defamation Act 1974 (NSW) (the analogue of the present s 30(1)(c)), the circumstances “will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be”. Gleeson CJ and Gummow J said in Rogers 216 CLR at 339 [30] that “reasonableness is not a concept that can be subjected to inflexible categorisation”.

1. As to the conditions in the Chamber during the relevant period the primary judge stated at [114]-[118]:

   [114] However, several of the Senators who gave evidence said that it had been noisy in the Senate Chamber during the discussion on Senator Anning’s motion.  Senator Siewert said that there had been “a number of interjections”, that “a number of Senators on both sides of the Chamber were speaking loudly across the Chamber about the motion”, that “there was a lot of other yelling going on and various weapons’ names being thrown around”, and that “there [were] a lot of people interjecting”. 

   [115] Senator Rice said that she had been concentrating on making her contribution but that “there [were] a lot of interjections that were carrying on around [her]” and that “there was a lot a noise in the Chamber”. 

   [116] Senator Steele‑John said that “there were many interjections during [the] debate”.  Senator Whish‑Wilson said that “there was a lot of noise in the Chamber and … a lot of interjection[s]”.  The applicant said that there was “quite a lot of talking, other people interjecting … general conversations”.

   [117] The respondent said that, on a controversial motion such as Senator Anning’s, “there is invariably a lot of chatter” but that beyond that and the usual noise in the Senate there had been no impediment to him hearing the applicant’s interjection.  Senator Griff described the environment in the Senate during the debate on Senator Anning’s motion as having been “somewhat fiery” with a lot of “spirited things being said”.

   [118] I am satisfied that the circumstances were generally as the Senators described. However, I do not accept the respondent’s submission that the circumstances did not interfere with his ability to hear the applicant’s interjection…

2. That latter conclusion is hardly surprising given the appellant’s published statements in the media to the contrary. 

3. Also significant in this context is the appellant’s evidence of the respondent’s interjection as summarised by the primary judge at [156], and the primary judge’s conclusions in that regard at [155]-[159], recited at [342] above. This included that the appellant in the publications had given three distinct and inconsistent accounts of what the respondent had said: [156]. Further, that the appellant had “heard” what he was pre-disposed to hear, and that he had concluded, well before the speeches on Senator Anning’s motion commenced, that the respondent had a collectivist view about men which he “resented”: [158]. Importantly, the appellant had found himself “locked”, at a relatively early stage, into a position from which, by reason of his pride and obstinacy, he was unable to retreat and that as such he has had to engage in reconstruction: [158]. “That reconstruction was influenced by a degree of stubbornness and self-justification”: [158].

4. I also observe in this context that two of the three distinct accounts referred to at [156] given by the appellant in the publications of what was said by the respondent, self-evidently are not the equivalent of a statement that “all men are rapists”. Moreover, the primary judge rejected the appellant’s account of what the respondent had said, and found “positively that the [respondent] 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”: [174] and see [174]-[176] recited above at [343].

5. The primary judge’s reasoning commencing at [197] which leads to the conclusion at [201] that the appellant’s failure “to take reasonably obvious and readily available verification steps points strongly against the reasonableness of the conduct,” was plainly open. As the primary judge correctly observed, on the appellant’s evidence he “has not been able at any time to state the precise words used” by the respondent: [197]. The appellant had had the opportunity, when the respondent approached him shortly after the division on Senator Anning’s motion, to check whether she had heard his words correctly, which the appellant could have easily reciprocated by making a like enquiry: [197]. The appellant also had opportunities later on 28 June 2018 to check his position: [197]. He could also have got a staff member to do so: [197]. The fact is that, if it is accepted the appellant did make enquiries of two Senators to check the reliability of his own belief, it follows that despite his expressed confidence in what he heard he had doubts on the matter at the time, and he was able to make enquiries: [199]. If the appellant made enquiries of those two Senators “he could, and should, have been able to make enquiries of others and it was more obvious for him to have done so”: [199]. As the primary judge explained, those Senators “sat in the Senate Chamber to the respondent’s left, with the consequence that they were further away from the applicant’s position than the respondent himself. An obvious alternative was to speak to someone who sat closer to the applicant”: [199]. The primary judge accepted that although there “were some who he may have regarded as ‘tribal’ in their opposition to him [i]t is difficult to see, however, why that should have precluded him from making a relatively simple enquiry of other Senators with a view to checking the accuracy of his own belief as to what the applicant had said. A failure to check does not become reasonable because a publisher fears that the response will be unhelpful or even hostile. In any event, even on his own explanation, the respondent could have made enquiries of Senators Griff and Patrick, as he eventually did some weeks later”: [200].

6. As the primary judge concluded, he could have made enquiries of others, and it would have been relatively simple to do: [200]. There was no immediate imperative for the appellant to act with the speed which he did in issuing the first impugned matter: [202]. Days elapsed before his media appearances: [202]. Moreover, in relation to the third and fourth impugned matters, he was informed that the respondent disputed his account of what she had said, which the primary judge observed, made the unreasonableness of his conduct “stark”: [203].

7. Given the nature of the appellant’s argument as to qualified privilege, although he alleged error in the primary judge’s conclusion, he did not advance any submission challenging the particular factual conclusions or bases thereof, made by the primary judge as to reasonableness, including those outlined above at [412]-[413].

8. This factor was not the only referred to or relied on by the primary judge in respect to the defence of qualified privilege.

9. For example, at [205] the primary judge concluded:

   Contrary to the respondent’s submissions, the impugned matters concerned only to a limited extent the subject matter of the motion before the Senate on 28 June 2018, namely, the availability to women of devices by which they might protect themselves from sexual assault and violence.  It is not realistic to consider that this was the principal subject matter of any of the four impugned matters.  The very heading to the respondent’s media statement of 28 June 2018 made plain that its subject matter was the applicant.  Moreover, there is some inconsistency between this submission of the respondent and his submission that the impugned matters concerned the credibility of statements which the applicant may make in the performance of her public functions and activities. 

10. The primary judge addressed the appellant’s submission that the position of the appellant was different to that of the media, with it being accepted that it was “undoubtedly” very different: [206]. In that context the primary judge observed that nonetheless, like the media, the appellant was seeking to obtain an advantage albeit of a non-commercial kind: [206]. In that context the primary judge observed, referring to statements by the appellant published in the Sydney Morning Herald, that he had a personal interest with respect to the respondent he was pursuing: [207]-[208].

11. Contrary to the appellant’s contention, the primary judge did not find that in order to rely on the defence of qualified privilege the appellant was required to be “detached” and “disinterested”. Rather, the appellant mischaracterises the references in [208] and the context in which they were made, being a consideration of the appellant’s submission that his position is different from that of the media.

12. As to the other matters relied on by the appellant to establish reasonableness, the primary judge concluded that none indicate that publishing the impugned matters was reasonable: [210]. For example, the publications did not involve mild expressions of the relevant imputations and the imputations themselves were not relatively mild: [209]. The primary judge also observed that the appellant could not state the words used did not assist on the issue of reasonableness, rather, it points the other way: [210].

13. The appellant has not established that the primary judge erred in concluding that “it was not reasonable for the respondent to make, and to persist in making, the admitted imputations when he could not, at the time of doing so, state with any accuracy the words spoken by the applicant on which he relied” and that the appellant “has not shown that his conduct in publishing the impugned matters was reasonable”: [211]-[212].

14. These grounds are not established.

    Ground 4: Malice

15. Although the appellant listed this as the fourth ground of appeal, and argued it before grounds 5-8 relating to qualified privilege, this ground does not practically arise unless the appellant succeeds in relation to those grounds. The primary judge addressed this issue, although as he recognised, given his findings as to qualified privilege, it was not necessary to decide.

16. The appellant’s submission was the primary judge erred in finding that the appellant was actuated by malice and in making that finding failed to apply the test stated by the High Court in Lange at 574. This submission was put in the context where the primary judge was not satisfied that the appellant published the impugned matters knowing that the respondent did not  say “all men are rapists”. From that he submitted that the primary judge erroneously adopted a broad conception of motive as a “desire to injure the person”, which encompassed an intention to damage the respondent’s reputation. The mere existence of ill will or other improper motive will not itself defeat the privilege. He submitted that the primary judge failed to give primacy to the political context of the statements relying on Lange at 574 and Roberts v Bass at [171] per Kirby J, and that various factual conclusions including at [228] that the respondent was intending, “to expose the applicant as a hypocrite and to do so in a way which would embarrass her”, which is not sufficient for malice. It was submitted that the primary judge was wrong to find that the motive of causing reputational harm to a political opponent constituted malice as often, if not invariably, the purpose of political actors will involve attempts to harm the reputation of an opponent: Roberts v Bass at [171].

17. The appellant further submitted that as the respondent’s case did not rely on any intention by the appellant to shame the respondent sexually or to suggest she was promiscuous, that therefore the matters relied on by the primary judge at [230] were not within the particulars of malice and the primary judge was wrong to rely on them to find malice.

18. The appellant also submitted, although for the first time during the hearing of the appeal, that the primary judge did not make a finding that the dominant purpose of the publications was actuated by malice.

19. The respondent submitted that the findings of the primary judge, which were not challenged, were an entirely proper basis on which to find that the appellant was actuated by malice. The respondent submitted that properly read, the primary judge did make the finding that the dominant purpose of the publications was actuated by malice. She submitted that there was no error in the approach of the primary judge.

20. As will have been seen from the submissions there are primarily two issues in this ground: first, that no finding was made by the primary judge that the dominant purpose of the publications was actuated by malice; and second that the factual matters underlying the conclusion as to malice were not capable of supporting the conclusion in the political context in which the publications were made. Each should be rejected.

21. Dealing with each separately.

22. In relation to the first issue, I note that the submission is not supported by a ground of appeal or referred to in the appellant’s written submission. Indeed, the grounds and supporting submission appear to be based on the premise that such a finding had been made.

23. Leaving aside for the moment the issue of the correctness of the factual basis of the finding, properly read, the primary judge’s reasons reflect that such a finding was made.

24. This aspect of the reasons commenced at [215]-[220] with a recitation of the relevant legal principles as to the concept of malice, and what must be proved to establish it, to which no objection has been taken. It is only necessary to refer to the passages from Roberts v Bass at [75], [76] and [104] recited by the primary judge at [215]:

    [75] An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term “express malice” is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (“malice”) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff...

    [76] Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill‑will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication...

    …

    [104] Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication. In Godfrey [(1944) 44 SR (NSW) 447 at 454], Jordan CJ said:

    “It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla ... Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether.”

    (Citations omitted and emphasis in the original)

25. In relation to the political context, the primary judge noted at [217]:

    In Lange, the High Court said that, “[i]n the context of the extended defence of qualified privilege in its application to communications with respect to political matters, “actuated by malice” is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose” (at 574).

26. The primary judge also observed at [218]:

    A belief in the truth of what was published will not avoid a claim of malice if a respondent misuses the occasion for a purpose other than that for which the privilege was given, for example, if the respondent publishes the matter complained of in order to injure the applicant or some other person, or to vent spite or ill‑will towards the applicant, or to obtain some private advantage unconnected with the privileged occasion upon which the publication is made: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51.

27. The summary of matters of principle concluded with the primary judge making the following statement at [220]:

    In short, a respondent will be held to have been actuated by malice for the purposes of the defence of qualified privilege if the applicant establishes that it published a statement for some dominant purpose or motive other than that for which the privilege is given.  The purpose or motive must be both foreign to the occasion of the privilege and actuate the making of the statement. 

    (emphasis in the original)

28. The primary judge’s consideration of the evidence and any reference to the appellant being actuated by malice must be considered in that context.

29. It follows that the conclusion at [234] that: “[a]ccordingly, had it been necessary to do so, I would have found that the applicant had proved that the publication of each impugned matter was actuated by malice and for that further reason that the defence of qualified privilege fails” is a finding by the primary judge that, on the facts as the primary judge had analysed them, and applying the principles stated earlier, the dominant purpose of the publications was for an improper purpose. In the context in which this conclusion appears, the use of the word “actuated” carries with it the meaning that the publication was for the dominant purpose or motive other than that for which the privilege is given: at [215]-[220]. As such, the appellant’s submission in this regard proceeds on a misconception.

30. As to the second issue, the factual matters underlying the conclusion as to malice were plainly capable of supporting the conclusion in the political context in which the publications were made. The primary judge was correct to so find. The nature and context of the statements made were not directed or related to the respondent’s performance as a politician but were rather calculated to belittle and shame the respondent: [228]-[230]. For example, the repeated gratuitous references to sexual behaviour and the terms used in doing so did not address the respondent’s performance as a politician. The personal nature of the comments “is a strong indication that [the] statements went beyond the purpose of communicating ideas or opinions” as to the difference between individual and collective responsibility: see [228]-[232].

31. The appellant submitted that the primary judge was wrong “to rely on any intention to shame the respondent sexually or to suggest promiscuity” as this did not form part of the particulars for malice, is incorrect. That intention is plainly encompassed by the second particular of malice, that 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. So much is obvious from the judgment, for example at [228]-[230]:

    [228] I am, however, satisfied that the applicant has established that the respondent published each of the impugned matters to a mass audience with a view to shaming her publicly. He set out in each of the four impugned matters to expose the applicant as a hypocrite and to do so in a way which would embarrass her. The respondent’s repeated references to the applicant “shagging” men, his statement that “the rumours about [the applicant] in Parliament House are well known”, his statement that “Sarah is known for liking men”, and his statement that the applicant “is known for having lots of relationships with men” were calculated to embarrass.

    [229] These statements about the applicant were not necessary if the respondent had wished simply to express his opinions about the difference between individual and collective responsibility or about the availability of means by which women could defend themselves against sexual assault and violence. If the respondent had simply wished to point up the inconsistency he perceived between the applicant making the statement he attributed to her and her participation in sexual intercourse with men, he could have done so in a way which was much less crude. Instead, the respondent’s reference to the applicant “shagging” men had a belittling and denigratory connotation.

    [230] In my view, the respondent’s other references to the applicant’s sexual behaviour indicate his malice in the requisite sense. Each of these had a gratuitous quality and seemed calculated to belittle or shame the applicant. In this category are the respondent’s statements “Sarah is known for liking men”; “if you think they’re all rapists why would you shag them?”; the applicant “is known for having lots of relationships with men”; and the statement that the applicant had had a sexual relationship with a particular parliamentarian (which the applicant denies).

1. The appellant’s submission also ignores that these were findings relating to the appellant’s motive.

2. I also cannot agree with the suggestion that in reaching his conclusion the primary judge failed to weigh up or evaluate the finding at [227] that the appellant thought, albeit mistakenly, that the respondent had made the statement to the effect “all men are rapists”, with the other factual matters relied on as to find malice.

3. The appellant’s approach attributes to that finding an effect and conclusion it did not carry. In [227] the primary judge stated:

   I am not satisfied that the applicant has proven that the respondent published each of the impugned matters with knowledge of the falsity of the imputations and knowing that it was false to assert that the applicant had made a statement to the effect that “all men are rapists”.  On my findings, the respondent did think, mistakenly, that the applicant had made a statement to that effect.  The mistake arose from the respondent having assumed that he had heard that which he was predisposed to hear.  Having made the assumption, he did not then seek to verify its accuracy.  If it was necessary to do so, I would describe the respondent’s conduct as reckless.  The respondent himself acknowledged that a claim that “all men are rapists” is absurd, and yet that is the statement he attributed, without checking, to the applicant.

4. The statement at [227] related to the respondent’s allegation that the appellant had published the impugned matters with knowledge of the falsity of the imputations, which she sought to establish as indicative of malice. The statement refers back to the findings at [158] in the context of [155]-[157] (recited at [342] above), and must be read and understood in that light. The paragraph should also be read in light of the primary judge’s findings as to reasonableness, in particular at [197]-[203] referred to above at [413]-[415].

5. It does not follow, in the circumstances of this case, that simply because the appellant thought the respondent had made a statement to the effect attributed to her, that the publications could not be actuated by malice. Nor does that necessarily follow from the fact that the appellant is a politician and is making imputations about another politician. There is no basis to suggest that the primary judge, when assessing the evidence and the conclusions he draws as to the predominant motive of the publications, had failed to consider the finding that the appellant did think, mistakenly, that the respondent had made the statement he attributed to her.

6. As the primary judge’s reasons reflect the question of malice focuses on the motive for the publications at the time of the publications, and in considering that, the context in which they were made is relevant to that assessment. The purpose or motive must be both foreign to the occasion of the privilege and actuate the making of the statement. 

7. The primary judge concluded at [232]-[234]:

   [232] I consider it unnecessary to consider the applicant’s submissions concerning the “campaign”. In my view, the matters to which I have already referred indicate that the respondent’s publications were actuated by malice without having to take account of matters occurring after the publications. The impugned matters went well beyond what was necessary for an appropriate response to the applicant’s statement in the Senate on the afternoon of 28 June 2018 and rested on an attribution to the applicant of a statement she had not made. The personal nature of the respondent’s comments is a strong indication that his statements went beyond the purpose of communicating ideas or opinions concerning the subject matter of Senator Anning’s motion, or views concerning individualism or the “collectivist” notions which he attributed to the applicant. The very nature of his comments and the persistence with which the respondent advanced them indicates his malice. The fact that the respondent did not behave reasonably in making the publications is a matter supporting this conclusion.

   [233] The conclusion that the respondent was actuated by malice can be drawn with greater confidence in the circumstance that, with the exception of his reference to the applicant’s claim of malice in relation to s 16(3), his counsel did not seek in his closing submissions to resist the claim that the respondent had been actuated by malice.

   [234] Accordingly, had it been necessary to do so, I would have found that the applicant had proved that the publication of each impugned matter was actuated by malice and for that further reason that the defence of qualified privilege fails.

8. The primary judge’s reference at [233] that the appellant’s counsel did not seek in closing submissions to resist the claim that the appellant had been actuated by malice, with which issue was taken, says nothing more than that the appellant did not make any closing submission directed separately to this aspect of malice (as opposed to the considerations as to reasonableness in s 30). That statement appears to be correct. As the primary judge noted at [223], the appellant also did not file any responsive pleading to the respondent’s plea of malice which identified the bases of the claim identified in [221]. The three broad particulars were (1) the matters were published with knowledge of the falsity of the imputations because he knew it was false to assert that she had alleged that all men are rapists, (2) 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 (3) that publication of the impugned matters was part of a campaign to ensure harm to the respondent.

9. It was the second of those particulars which the primary judge found established. His Honour’s reasoning, and the evidence, supports that conclusion.

10. Thinking that something was said, in the circumstances of this case, cannot be used as a cover or guise for statements made foreign to the occasion of the privilege and where those statements are actuated by malice.

11. This ground has not been established.

    Conclusion

12. As none of the grounds of appeal have been established, the appeal is dismissed, with costs.

452       I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.

Associate:   

Dated: 3 March 2021