Rann v Olsen
[2000] SASC 83
•12 April 2000
RANN v OLSEN
[2000] SASC 83
Full Court: Doyle CJ, Prior, Perry, Mullighan and Lander JJ
1 DOYLE CJ: A Judge of this Court has stated a case to the Full Court. The case stated raises issues that arise in an action instituted in the Court.
2 The plaintiff in the case, Mr Rann, is the Leader of the Opposition in the Parliament of South Australia. The defendant, Mr Olsen, is the Premier of the State. Mr Rann has sued Mr Olsen for slander. Mr Olsen admits making the statements complained of by Mr Rann, and admits that in some senses at least the words used bore a meaning that is defamatory of Mr Rann.
3 The Case Stated raises questions as to the effect of s 49 of the Constitution of the Commonwealth of Australia and of s 16 of the Parliamentary Privileges Act 1987 (Cth) ("the Privileges Act") upon the ability of Mr Olsen to maintain and support defences that he has pleaded. Mr Olsen claims that these provisions will prevent him from maintaining and supporting his defences, and that accordingly the action should be stayed. Mr Rann denies that these provisions have that effect. He says that if s 16 has the suggested effect, it is invalid.
4 The challenge to the validity raises a matter arising under the Constitution and involving its interpretation. Notices were given to the Attorneys-General of the Commonwealth and of the States pursuant to s 78B of the Judiciary Act. The Solicitor General for the Commonwealth and the Solicitor General for the State of South Australia appeared in the proceedings on behalf of the respective Attorneys-General, who intervened in the proceedings to put submissions in support of the validity of s 16 and on the interpretation of s 16.
The Pleadings
5 In the Statement of Claim Mr Rann pleads that in June 1997 Mr Olsen, in answer to questions addressed to him by journalists, said that Mr Rann had lied when he told a Committee of the Commonwealth Parliament that Mr Olsen had leaked confidential information to the Opposition. The Statement of Claim pleads several statements by Mr Olsen that Mr Rann lied in saying what he said.
6 In his defence, Mr Olsen admits the relevant statements. He admits that what he said meant that Mr Rann had lied to a Commonwealth Parliamentary Committee. He also admits saying that Mr Rann had engaged “in character assassination under parliamentary privilege.” He denies certain other meanings attributed to the words by Mr Rann.
7 Mr Olsen pleads that the meanings that he admits, and the other meanings attributed to the words by Mr Rann, are true in substance and in fact.
8 In support of this plea Mr Olsen pleads that Mr Rann gave evidence to a Commonwealth Parliamentary Committee, and that in the course of that evidence Mr Rann said that Mr Olsen, while a Minister in the Government led by Mr Brown as Premier, had leaked confidential Cabinet information to Mr Rann or to the Labour Party that he led, with a view to damaging the credibility of and “bringing down” the then Premier Mr Brown. Mr Olsen pleads that he “did not leak or give documents from Cabinet to the plaintiff.” He then pleads that Mr Rann’s statements to the Committee were “without substance” and that Mr Rann “could not have had an honest belief in his assertion.” In effect, he pleads that Mr Rann deliberately lied to the Parliamentary Committee.
9 I mention here that in his Reply, Mr Rann admits that he gave the evidence in question to the Committee.
10 Mr Olsen also pleads that the statements that he made were made on an occasion of qualified privilege. He says that they were made in response to the allegations made by Mr Rann in the course of his evidence to the Committee.
11 Mr Olsen further pleads that the statements that he made occurred “in the course of political discussion” and so are protected by qualified privilege. This plea, I assume, is intended to reflect the qualified privilege identified in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
12 Finally, there is a plea of fair comment on a matter of public interest. It is difficult to see how the statements made could be treated as comment.
13 In his Reply, in response to the plea that he had no honest belief in his statement, Mr Rann pleads that he had an honest belief that Mr Olsen had given confidential information to him and to another Opposition Member of Parliament.
14 As to the plea of qualified privilege, Mr Rann in the Reply pleads that the occasion was not an occasion of qualified privilege. He denies that his answer to questions by a member of the Committee (he made the relevant statement in answer to a question) could constitute an attack upon Mr Olsen which would give rise to an occasion of qualified privilege. As to the plea relying on Lange, he denies that the “publications were reasonable so as to afford the publications qualified privilege.” As to the defences of qualified privilege and fair comment, he pleads that Mr Olsen is deprived of the benefit of those defences because the words were spoken with actual malice. He says that Mr Olsen knew that he had given confidential information to Mr Rann and to another Member of Parliament, or that Mr Olsen was reckless as to the possibility that a supporter of Mr Olsen had provided confidential information in circumstances that would lead Mr Rann reasonably to believe that Mr Olsen was the provider of the information.
15 In his reasons, Lander J has analysed the pleadings in greater detail than I have. I agree with his comments on the pleadings generally. In particular, I agree with his comment that Mr Rann’s Statement of Claim does not clearly indicate whether the claim is for slander or for libel. Nor does it clearly indicate whether Mr Olsen is alleged to be liable for the republication by journalists, assuming that happened, of what Mr Olsen said to them. This last point is important in relation to the availability of qualified privilege at common law, and to the need to rely upon qualified privilege as established by the High Court in Lange. The form of the Reply causes problems that Lander J has identified. Having regard to the manner in which the case was argued, I am prepared to assume that Mr Rann will contest the truth of the imputations admitted by Mr Olsen.
16 I am prepared to proceed on the basis that the third publication complained of, a radio interview, is a claim for libel and for publication to the general public of the relevant defamatory imputation. In relation to the first two publications I proceed on the basis that they are publications only to the particular journalists concerned, but that the third publication is a publication to the public at large.
The Issues
17 There is no dispute that Mr Olsen has uttered words defamatory of Mr Rann, at least to the extent of saying that Mr Rann deliberately lied when giving evidence to the Committee of the Commonwealth Parliament, and that on the same occasion Mr Rann had engaged in “character assassination”. Mr Olsen seeks to prove, and Mr Rann will deny, that Mr Rann’s statement to the Committee, that Mr Olsen was the source of confidential leaks, was a lie. There is a dispute as to whether the occasion of Mr Olsen's statement was an occasion of qualified privilege. To the extent that Mr Olsen relies on the decision in Lange, while Mr Rann admits that the statement by Mr Rann was made in the course of political discussion, he disputes that the publication of the statements was reasonable.
18 The issues relevant to the Stated Case that arise on the pleadings are these.
19 First, Mr Olsen’s plea that Mr Rann lied in evidence to the Parliamentary Committee. Making out that plea will require Mr Olsen to prove that Mr Rann did lie when giving evidence to the Committee. He will need a specific finding that the evidence was a lie. It will not suffice to prove as a fact that Mr Rann’s statement was incorrect. Mr Olsen will need a finding in terms that Mr Rann’s evidence about him was a lie.
20 Second, Mr Olsen’s plea that the publication of the words was made on an occasion of common law qualified privilege. (I use this term to refer to the law applicable to a plea of privilege that does not attract the wider privilege stated in Lange.) That plea will require a consideration (I deliberately use that neutral term at this stage) of the matter to which Mr Olsen was responding. Mr Olsen will need to show that what Mr Rann said, and the circumstances in which it was said, gave rise to an interest on the part of Mr Olsen to make the statement that he made, and a reciprocal interest, on the part of those to whom it was made, to receive it: Adam v Ward [1917] AC 309 at 334; Lange at 569-570.
21 Third, the plea that relies upon Lange will require Mr Olsen to prove that the subject matter of his statement concerned political or government matters in the sense identified in Lange. That appears to be admitted in par 3.2 of Mr Rann’s Reply. But Mr Olsen will also have to prove that he had reasonable grounds for believing that the imputation against Mr Rann was true, that he took proper steps to verify the accuracy of the imputation, and that he did not believe the imputation to be untrue: Lange at 574.
22 I will return to this topic, but I indicate now that my view is that the plea of qualified privilege at common law and the plea that relies on Lange do not require the Court to find in terms that Mr Rann lied when giving his evidence to the Committee. To support the plea Mr Olsen will have to prove what Mr Rann said and the circumstances of his statement. That will be proved simply to establish the material which is claimed to entitle Mr Olsen to make the response that he made. Mr Olsen will need to prove what he said, and the circumstances of his statement. Mr Olsen does not require a finding about the truth of what Mr Rann said, or about Mr Rann’s motives or credibility. The plea requires only a finding about Mr Olsen’s belief and state of mind, namely, that he believed what he said was true: Horrocks v Lowe [1975] AC 135 at 149-150 Lord Diplock. It is hardly conceivable that Mr Olsen could have reasonable grounds for believing that the imputation was true, unless what Mr Rann said was false, and probably a lie. But the significant point is that the Court will not be required to make a finding specifically about the truth of Mr Rann’s statement to the Committee. Once the statement and its circumstances are proved as a fact, attention shifts to Mr Olsen’s response and his belief about the truth of his response.
23 Fourth, there is Mr Rann’s plea of malice. In Lange the High Court accepted that the plea of qualified privilege could be challenged by the proof of “common law malice”: at 574. This means:
“... a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.”
24 Once again, it appears to me that this allegation requires the Court to make a finding about Mr Olsen’s state of mind, and not a finding either that Mr Rann lied or spoke the truth. Once again, a finding about Mr Olsen’s state of mind when considering the plea of malice will inevitably imply a finding about the accuracy of what Mr Rann said, and probably imply a finding about whether he spoke the truth. But, once again, the plea does not require a finding in terms as to these matters.
25 To some these distinctions will seem fine, and perhaps pointless. But for reasons that will appear, they are important. It suffices to say that a court is not precluded from making a finding about a matter simply because that finding will imply a conclusion about proceedings in Parliament, or will deal with a matter that has been the subject of proceedings in Parliament.
26 The Case Stated
27 To understand the issues before the Court, it is necessary now to refer to the Case Stated.
28 The Case begins with a summary of the pleadings. It refers to s 16(3) of the Privileges Act. It then continues as follows:
"16.. It is common ground that the pleas in paragraphs 8 and 16 of the amended defence result in the fact that there are issues as to the truth of what the plaintiff said in his evidence to the Parliamentary Committee. There are also issues as to the motive, intention or good faith or credibility of the plaintiff when giving his evidence to the Parliamentary Committee.
17.The defendant asserts, and the plaintiff denies, that by reason of section 16(3) of the Parliamentary Privileges Act 1987 (Cth) the parties will be unable to give evidence, cross-examine witnesses or make submissions as to the truth of the plaintiff's evidence to the Parliamentary Committee or as to the plaintiff's motive, intention, good faith or credibility when giving that evidence.
18.... The defendant asserts that if he cannot lead evidence as to the issues of the truth or good faith of the plaintiff's evidence, then the defences of truth, qualified privilege and fair comment will fail and, in addition, he will be unable properly to challenge the plea of malice.
19.The following questions are stated for the determination of the Full Court:
(i).... Do either or both section 49 of the Constitution of the Commonwealth of Australia or section 16(3) of the Parliamentary Privileges Act, 1987 (Cth) prohibit the parties to this action from leading evidence, cross-examining witnesses, or making submissions concerning the truth of what was asserted by the plaintiff in his evidence to the Parliamentary Committee and concerning the motive, intention or good faith or credibility of the plaintiff when giving evidence to the Parliamentary Committee and, in particular, do either or both of those statutory provisions prohibit the parties from leading evidence, cross-examining witnesses and making submissions which:
(a). address the issue of the truth of what was asserted by the plaintiff in his evidence to the Parliamentary Committee and particularised in paragraph 6 hereof ('the evidence');
(b). address the issue of the honest belief of the plaintiff in the truth of the evidence;
(c). address the plaintiff's credit by reference to the plaintiff's intention or motive in giving the evidence;
(d). address the plaintiff's credit by reference to the plaintiff's intention or motive as disclosed by the terms of the evidence;
(e). address the plaintiff's credit otherwise than by 19(c) and 19(d) hereof.
(ii)If or to the extent that section 16(3) of the Parliamentary Privileges Act, 1987 (Cth) prohibits the parties from tendering evidence, cross-examining witnesses or making submissions on the issues listed in question 19(i), is it a valid law of the Parliament of the Commonwealth.
(iii)If either section 49 of the Constitution of the Commonwealth of Australia or section 16(3) of the Parliamentary Privileges Act, 1987 (Cth) prohibits the parties from leading evidence, cross-examining witnesses or making submissions on the issues identified in question (i), whether the action should be permanently stayed."
29 My summary of the pleadings shows that at the trial of the action Mr Olsen will need to do the following.
30 First, prove what Mr Rann said about Mr Olsen to the Parliamentary Committee, and the extent of its publication.
31 To support his plea of truth, Mr Olsen will need to tender evidence, ask questions, and make submissions, for the purpose of questioning the truth of the statement by Mr Rann to the Committee, that Mr Olsen leaked confidential Cabinet material. Mr Olsen will seek to prove that Mr Rann's statement is wrong and that it was a lie.
32 Mr Olsen will also use Mr Rann’s evidence to the Committee, about the leaking of confidential material, to provide a basis for the plea of qualified privilege and the plea of fair comment, and to prove that the publication of the imputation by Mr Olsen was a reasonable response. But, as I have already indicated, the further evidence that Mr Olsen will adduce, the questions asked, and the submissions made, will be used to lead to a conclusion about his own state of mind, not to obtain a finding that Mr Rann lied.
33 Mr Rann's pleadings indicate that in response to that he will tender evidence, ask questions and make submissions seeking to prove and to rely on the truth and good faith of what he said to the Committee about Mr Olsen, when he said that Mr Olsen had leaked confidential information. Primarily, that will occur in response to Mr Olsen’s attack upon the truth of his evidence to the Committee.
34 Mr Rann will seek to defeat the defence of qualified privilege and of fair comment by proving malice on the part of Mr Olsen. He will seek to do that by proving that Mr Olsen knew that what Mr Rann said to the Committee about Mr Olsen was true, or was at least believed by Mr Rann to be true. Although this evidence deals with the facts the subject of Mr Rann’s evidence, I have already explained that the plea of malice is directed to Mr Olsen’s state of mind, not to the question whether Mr Rann lied.
35 It is possible that at the trial Mr Olsen or Mr Rann will in other ways question or rely on Mr Rann’s evidence to the Committee, or in other ways make use of it. The trial Judge will have to deal with that. This Court can only deal with issues that clearly arise on the pleadings. It cannot give a comprehensive ruling on what can and cannot be done at trial.
36 The question that arises is whether the application of s 16(3) of the Privileges Act (Cth) will prevent Mr Olsen from doing what he apparently proposes to do, and from resisting the plea of malice that Mr Rann advances. There is also a question of whether s 16(3) prevents Mr Rann from supporting the plea of malice.
Power to Stay the Proceedings
37 All of this, then, leads to the question in the Case Stated of whether the action should be stayed as a result of the impact upon the case of s 16(3).
38 The submission that the case should be stayed rests upon the following passage in the advice of the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 338:
"Their Lordships are of the opinion that there may be cases in which the exclusion of material on the grounds of Parliamentary privilege makes it quite impossible fairly to determine the issue between the parties. In such a case the interests of justice may demand a stay of proceedings. But such a stay should only be granted in the most extreme circumstances. The effect of a stay is to deny justice to the plaintiff by preventing him from establishing his good name in the courts. There may be cases, such as Wright's case, 53 S.A.S.R. 416, where the whole subject matter of the alleged libel relates to the plaintiff's conduct in the House so that the effect of Parliamentary privilege is to exclude virtually all the evidence necessary to justify the libel. If such an action were to be allowed to proceed, not only would there be an injustice to the defendant but also there would be a real danger that the media would be forced to abstain from the truthful disclosure of a member's misbehaviour in Parliament, since justification would be impossible. That would constitute a most serious inroad into freedom of speech."
39 In support of the submission that the action should be stayed, Mr Whitington QC, counsel for Mr Olsen, submits that the court is confronted with the same situation as was identified by King CJ in Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 421-422:
"It must be observed at the outset that if the view argued for by counsel for the Attorney-General and the plaintiff is correct, the result is remarkable. A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another: Gatley on Libel and Slander (8th ed, 1981), p 4; J F Clerk and W H B Lindsell, The Law of Torts (14th ed), p 945; J G Fleming, The Law of Torts (7th ed, 1987), p 527. If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which was perfectly true. Moreover the defence of fair comment would often be unavailable, as in the present case, because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving the facts as known to him. If this is the true legal position, it is difficult to envisage how a court could apply the law of defamation in a rational way to an action by a Member of Parliament in respect of an imputation relating to his statements or conduct in the House, or could try such an action fairly or adjudicate upon it justly."
40 In the present case Mr Rann, as a witness, is in the same position as the Member of Parliament referred to by King CJ, and Mr Olsen is in the same position as the defendant.
41 The question of whether the Court can and should grant a stay in the present case, assuming that s 16(3) has the effect contended for Mr Olsen, is an important question. To stay the action is to deny Mr Rann the right to resort to the Court to vindicate his reputation. The inherent jurisdiction of the Court to impose a stay to prevent injustice is a wide power. However, it is one to be exercised with care. There is no suggestion in the cases that it is exercised on the basis of a broad or subjective assessment of whether the outcome of a case will be regarded as fair by most people. The jurisdiction is more confined than that, although the relatively few cases do not enable one to state with any precision the scope of the jurisdiction.
42 A striking feature of the present case is the fact that a stay is sought because, it is said, the application of s 16(3) to the case produces an injustice incapable of remedy by any other means than a stay. In argument, no case except Prebble was identified in which the Court, exercising its civil jurisdiction, has stayed proceedings on the basis that the application of statute law to those proceedings produces an injustice that enlivens the Court's jurisdiction to stay the proceedings. The closest analogy suggested was the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292. There, in relation to criminal proceedings, the High Court held that a superior court has an inherent jurisdiction to stay criminal proceedings in a case in which representation of the accused by counsel is essential to a fair trial, and an accused is unrepresented through no fault of his or her own and is unable to afford representation. In such a case the Court stays proceedings on the basis that the application of the law relating to criminal proceedings, and despite what the trial judge can do to assist an unrepresented accused, will nevertheless result in a trial that will be unfair.
43 However, generally a court will not stay proceedings on the basis that the Court considers that the outcome of those proceedings, if heard according to law, will be unfair or unjust in the popular sense of that term. It is unusual for the application of the law to produce a result that a court recognises as unfair or unjust, but it is conceivable that this could occur. For example, in South Australia the result obtained by analysing a sample of a person's breath on a breath analysing machine gives rise, by force of statute, to a presumption relating to the amount of alcohol in the person's blood at a time preceding the taking of the sample. The ability to rebut this presumption is strictly limited: see Evans v Benson (1986) 46 SASR 317, Police vJervis (1998) 70 SASR 429. The courts have pointed to the fact that, in a particular case, this may result in an unjust conviction, but have not hesitated to apply the law. If the same presumption were to be made applicable in civil proceedings, and to operate so as to deprive a defendant in a negligence case of the opportunity to deny that the defendant was affected by alcohol at a relevant time, it seems unlikely that the Court would stay proceedings against that defendant, even if the point was crucial to the defendant’s denial of negligence. I use this illustration merely to make the point that it is exceptional for the Court to be asked to say that the application of the law to a particular case gives rise to an unjust result, and that to avoid that result the Court should stay the proceedings.
44 There is another point that can be made. If a plaintiff sues a member of parliament for defamation on the basis of a statement made by that member in Parliament, there is no doubt that the claim would be dismissed or struck out. Everyone agrees that Article 9 of the Bill of Rights is a bar to such a claim. The denial of a remedy to the plaintiff could be called unjust, but there is no doubt that the Court must apply the law and dismiss the claim.
45 In the present case, the Court heard only brief submissions on the question of its power to stay proceedings. The correctness of this aspect of Prebble appeared to be assumed by all counsel. I will return to this issue.
The Submissions as to Section 16(3)
46 It is helpful to summarise the submissions that were put on either side. First of all it is necessary to set out the terms of s 16(3). To enable that provision to be considered in context, I will set out the provisions of s 5 and certain other sub-sections of s 16 of the Privileges Act:
"5. Except to the extent that this Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and the committees of each House, as in force under section 49 of the Constitution immediately before the commencement of this Act, continue in force.
...
16. (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.
...
(7)Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.
47 Mr Whitington QC, counsel for Mr Olsen, submits that s 16(3) operates in the present case to prevent Mr Olsen from proving that Mr Rann lied about him in evidence before the Committee, and from proving that his statement that Mr Rann lied was true in substance and in fact. Mr Whitington then submits that that has the consequences already identified. He also submits that this was the effect of Article 9 of the Bill of Rights 1688 (UK) that provides as follows (using contemporary spelling):
"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
48 Mr Heywood-Smith, counsel for Mr Rann, submits that Article 9 never applied to a case such as the present one, and neither does s 16(3). He submits that the purpose of each of those provisions was and is to protect freedom of speech of members of parliament and witnesses before parliamentary committees. He says that it is no part of the purpose of either provision to enable a member of parliament or a witness before a committee to use the privilege that it creates to stifle criticism of their conduct. He adopts the following reasoning of King CJ in Wright v Lewis at 426-427:
"There can be no doubt that some of the more general expressions of the ambit of Parliamentary privilege found in the cases and in learned writings, if understood literally, would have the effect of precluding a defendant from justifying imputations on a Member of Parliament in relation to his statements and conduct in the Parliament.
... I do not think that a defendant, so defending himself, can be regarded in any real sense as impeaching or questioning the freedom of speech, debates or proceedings in Parliament as forbidden by Art 9; nor can the courts be fairly regarded as doing so if they permit a defendant to so defend himself. It would not be sought to visit any legal consequences on the member, nor to examine his actions or motives except so far as that examination might be rendered necessary by the member's own action. The object would be merely to repel the accusation made by the member that a false imputation had been made against him. If Parliamentary privilege operated to prevent a person, exposed to an action by a member for defamation, from defending himself by proving the truth of his criticism of the statements or conduct of the member, it would indeed be `turned into an abominable instrument of oppression'. Adam v Ward (supra)."
49 Applying that reasoning, and bearing in mind that in its application to the present case Mr Rann is in a position equivalent to a member of parliament, and Mr Olsen in a position equivalent to the defendant, he submits that neither provision applies to the present case. Further, or alternatively, he relies upon the approach of Davies JA in Laurance v Katterand Another (1996) 141 ALR 447. Davies JA said that the intention of s 16(3) is to state the circumstances in which the freedom of speech of members of parliament and witnesses before parliamentary committees is not to be "impeached or questioned". Having said that, he identified the application of the provision as follows (at 489-490):
"... It is not just where a member or witness is sued or prosecuted for what that person has said in parliament or before a committee. It is in any proceedings in a court or tribunal in which evidence is sought to be tendered or received, questions asked or statements, submissions or comments made concerning proceedings in parliament by any of the ways or for any of the purposes stated in para (a), (b) or (c). In other words subs (3) makes it unlawful in any such proceedings to tender or receive evidence, ask questions or make statements, submissions or comments concerning proceedings in parliament by way of or for any of these purposes if that would impeach or question the freedom of proceedings in parliament. And it leaves for decision in each case whether that consequence will ensue. This construction would accord with the stated intent of subs (3) of avoiding doubt as to the effect of Art 9 while retaining its essential purpose of preventing impairment of freedom of speech in parliament."
50 He submits that to allow Mr Olsen to follow his proposed course of action at the trial, and to allow Mr Rann to be challenged in relation to the truth of his statements, would not impeach or question the freedom of speech in parliament. His reasoning, as I understood it, was in part that Mr Rann had chosen to institute the proceedings, and it would be his choice to give evidence in support of his claim. His argument was that the approach for which he contended would not deter witnesses from coming forward and giving evidence in parliamentary proceedings, because they would know that what they said could be challenged only if they chose to institute proceedings that raised the truth or correctness of what they said.
51 Mr Heywood-Smith submits that if he is wrong, and s 16(3) has the operation suggested by Mr Whitington, it is invalid. He submits that it infringes the implication to be drawn from the Constitution that limits Commonwealth legislative power, so as to prevent the Commonwealth Parliament from enacting laws that effectively burden freedom of communication about government or political matters: see Lange v The Australian Broadcasting Corporation (1997) 189 CLR 520 at 567. In the alternative he submits that s 16(3) is an impermissible interference with the functioning of the courts, and is invalid for that reason.
The application of section 16(3) - defence of truth
52 I propose to begin in the ordinary fashion, with a consideration of the words of s 16(3).
53 The Privileges Act is intended to exercise the powers conferred by s 49 of the Constitution. Section 49 provides:
“The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.”
54 There is no reason to read the provisions of the Privileges Act narrowly, although of course they are to be read in the light of the relevant history, and especially in light of the operation of Article 9 of the Bill of Rights. The relevance of Article 9 is sufficiently indicated by s 16(1). However, there is no reason evident on the face of the Privileges Act to treat s 16 as limited in its scope to the operation that Article 9 had. Section 16(1) indicates that Parliament contemplated that the subsequent provisions of s 16 might have an operation additional to that of Article 9. Subsection (7) likewise contemplates that s 16 might have an operation different from that of Article 9. That different operation might be a wider one or, in some respects, a narrower one. (In O’Chee v Rowley (1997) 150 ALR 199 at 201 Fitzgerald P makes the point that Article 9 applies in any “place out of Parliament”, and that that expression might be wider than the term “tribunal” used in s 16(3) of the Privileges Act). It is also relevant to bear in mind that s 49 of the Constitution does not limit the power of the Parliament to a declaration that does not extend the previously existing powers, privileges and immunities.
55 Giving the words of s 16(3) their ordinary meaning, they appear to me to prohibit Mr Olsen from tendering evidence, asking questions and making submissions for the purpose of questioning the truth of Mr Rann's statements about Mr Olsen made to the Parliamentary Committee. The provision also appears to prohibit Mr Rann from tendering evidence, asking questions and making submissions for the purpose of proving or relying on the truth of what he said to the Committee about Mr Olsen. I now explain how I reach that conclusion.
56 The proceedings in this Court are clearly proceedings referred to in s 16(3). The evidence that Mr Rann gave was given to a committee, and so that evidence constitutes proceedings in Parliament: s 16(2). It seems to me beyond argument that Mr Olsen proposes, by his plea of truth, to question the truth of what Mr Rann said, and that Mr Rann will rely on the truth of what he said in meeting that attack. Other provisions of s 16(3) would apply as well, but it is sufficient for present purposes to refer to questioning truth or relying on truth: s 16(3)(a).
57 Mr Olsen will need to prove the very evidence that Mr Rann gave to the Committee, and to prove that that evidence was untrue. As I have explained earlier, he will seek a finding that the particular statement made about him to the Committee was a lie. Mr Olsen's statement was that Mr Rann's evidence to the Committee was a lie. This is not a case in which, by establishing that Mr Rann told a lie outside Parliament, Mr Olsen will incidentally prove that a statement to the same effect made by Mr Rann in proceedings in Parliament is also a lie. The evidence tendered by Mr Olsen, and the questions asked, will directly concern (or be about) the evidence of Mr Rann. They must, if the plea of truth is to succeed. The same is true, with appropriate adjustments, of evidence tendered by Mr Rann and questions asked by him with a view to establishing the truth of what he said, in responding to Mr Olsen’s attack.
58 Nor is this a case in which the Court will, under the plea of truth, simply be asked to receive evidence of what Mr Rann said as a matter of fact, relevant in some way simply as a fact. It will not suffice for Mr Olsen simply to prove what Mr Rann said. He will do that, of course, but he will also want to prove that that statement, when made, was a lie. Mr Rann will want to prove that it was true.
59 I consider that s 16(3) makes unlawful the course of action proposed to be followed by Mr Olsen and Mr Rann in dealing with the plea by Mr Olsen of truth. Neither party can waive the operation of s 16(3). The Court is bound to observe the statement by Parliament that the proposed course of action is not lawful.
60 It follows that unless the operation of s 16(3) is to be limited in some way, giving it a meaning narrower than its apparent meaning, it denies Mr Olsen the ability to support his defence of truth, and the ability of Mr Rann to challenge that plea.
The application of section 16(3) - qualified privilege
61 On the other hand, in my opinion s 16(3) will not prevent Mr Olsen from supporting his plea of qualified privilege, either in the sense originally understood by the common law, or in the more extended sense established by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
62 A statement is made on an occasion of qualified privilege if made in the discharge of a public or private duty, whether legal or moral, and provided that it is communicated to someone who has a reciprocal interest in receiving it: Fleming, The Law of Torts (9th ed, 1998) p 623. Qualified privilege may attach to a statement made to protect the maker’s own legitimate interests, and so a response to an attack upon the maker of the statement may be made on an occasion of qualified privilege. The plea of qualified privilege made by Mr Olsen does not require him to attack the truth of what Mr Rann said about him. The starting point for the plea is simply to point to the statement made by Mr Rann as a fact, as something to which Mr Olsen responded.
63 In my view the plea of qualified privilege will involve the following matters. First, proving what Mr Rann said, the circumstances in which he said it, and the extent to which his statement was published. Those matters are proved simply as matters of fact. Next, Mr Olsen will want to prove the significance for him of the reflection upon him, and the need for him to respond. This might involve the calling of some evidence, but might be so obvious as to be able to be dealt with merely by way of submission. In doing this Mr Olsen does not have to challenge the truth of what Mr Rann said, or Mr Rann’s credibility or motive. He need only show that what was said about him, and the circumstances in which it was said, called for a response. Thirdly, Mr Olsen will need to prove what he said, and the extent to which it was published. Finally, because malice has been pleaded, he will need to prove that he believed that what he said was true, and that he was not reckless about its truth. That will permit him to lead evidence and to ask questions about the leaking of documents, about his own involvement in the leaking of documents if that occurred, and about his own knowledge about that.
64 It is true that all or most of this can be said to be “concerning proceedings in parliament”, in the sense that the subject matter dealt with is the subject matter of Mr Rann’s evidence to the Committee.
65 However, in my opinion this is not done “for the purpose of” questioning the truth of what Mr Rann said, or questioning his credibility or motive, or for the purpose of drawing inferences or conclusions from what Mr Rann said.
66 The important point of distinction is that although the subject matter of the evidence, questions and submissions is the same subject matter as that with which Mr Rann dealt, the purpose of visiting that subject matter is to secure a finding about Mr Olsen’s state of mind when he made his own statement about Mr Rann.
67 To deal with the plea the Court does not have to make a finding, in terms, about whether Mr Rann told the truth when he gave evidence to the Committee. The Court has to receive evidence, permit questions and hear submissions dealing with matters that are relevant to the truth of what Mr Rann said, but all of these things are being done for another purpose.
68 In my opinion, the point can be conveniently expressed by asking whether, to make out the plea of qualified privilege, it is necessary for Mr Olsen to ask the Court to make a finding that when Mr Rann gave evidence to the Committee he lied. In my opinion Mr Olsen does not need to secure any such finding. It is not just that he does not need to do so. The fact that he does not need to do so demonstrates that the plea of qualified privilege can be determined by the Court without the Court having to enter the field proscribed by s 16(3).
69 The subject matter into which the Court inquires, whether Mr Olsen was involved in the leaking of documents to Mr Rann, is the subject matter of Mr Rann’s evidence. But the critical point is that that subject matter is visited for a purpose other than a prohibited purpose. The distinction is a narrow one but, in my opinion, a critical one.
70 Another way of making the same point is to say that a plea of qualified privilege will protect an inaccurate or false and defamatory statement. Such a plea protects a statement that cannot be proven to be true. The plea will protect such a statement provided that the statement is made on an occasion of qualified privilege, and provided that the maker of the statement honestly believes in its truth. The issue for the Court is not the truth of the statement the subject of qualified privilege, but the belief in its truth by the maker of the statement. An inquiry into the belief of the maker of the statement could easily involve an inquiry into facts which had been relied on in support of an unsuccessful plea of truth, but the failure of the plea of truth would not in any sense imply that the plea of qualified privilege would fail.
71 In determining the plea of qualified privilege the Court does not have to determine whether Mr Rann lied in his evidence to the Committee. It is concerned with the facts that are relevant to the truth of Mr Rann’s evidence, but only to the extent that they throw light on Mr Olsen’s belief.
72 Another illustration may help to make my point. Assume that the Privileges Act has not been enacted, and that Article 9 does not exist. Having heard the evidence in the case, it is conceivable, although unlikely, that the court would find that Mr Rann believed that Mr Olsen was the source of documents leaked to him, assuming it were proved the leaks happened, but that his belief about the source of the leaks was mistaken, and that Mr Olsen genuinely believed that Mr Rann was lying when he gave his evidence to the Committee. This illustration may help to demonstrate the point that an inquiry into Mr Olsen’s state of mind is not the same thing as an inquiry into Mr Rann’s state of mind, and that a finding about the former is quite distinct from a finding about the latter.
73 In short, to determine the plea of qualified privilege the Court does not have to make a finding whether Mr Rann told the truth or lied about his credibility or motive. This is so even though the Court must investigate the facts relevant to the truth of Mr Rann’s evidence, and even though the finding ultimately made by the Court might, in fact, imply a finding about the truth of Mr Rann’s evidence. Even if the finding actually made about Mr Olsen’s state of mind does imply a finding about the truth about Mr Rann’s evidence, the Court need not make any such finding and, of course, is not permitted to make any such finding.
74 The application of s 16(3) involves a consideration of what is to be done (evidence, questions or submissions), whether that concerns proceedings in Parliament, and, of critical importance, the purpose with which it is done. A thing is done for a purpose prescribed by s 16(3) only if the Court is asked to make a finding or reach a conclusion of the prohibited kind, either as an intermediate step to a finding on a material or ultimate issue, or because the prohibited finding is in fact a material or ultimate issue. While the purpose referred to in s 16(3) is, in one sense, the purpose of the advocate, the prohibited purpose must refer to something that the Court is asked to do in deciding the case.
75 A question about the leaking of documents, for example, may be asked for the purpose of demonstrating that Mr Olsen genuinely believed in the truth of what he said. The fact that the same question might be relevant to the truth of what Mr Rann said is neither here nor there. The critical thing is whether the question has a purpose that is not a prohibited purpose. If, in light of the pleadings and the conduct of the trial, the only purpose that the Court can discern is a prohibited purpose, then the Court must refuse to receive the relevant evidence or to allow the relevant question to be asked or the relevant submission to be made. But if the evidence, question or submission has a purpose that is not a prohibited purpose, then it should be permitted, even though the evidence, question or submission is capable of being turned to a prohibited purpose. The Court will not allow it to be turned to that prohibited purpose, because s 16(3) prohibits that.
76 If the course being followed by an advocate is one that is leading to a prohibited purpose, and that is its only purpose, then the Court will refuse to allow that course to be followed. If, unnecessarily but for some reason, the advocate seeks to use material properly received for a prohibited purpose, the Court will again refuse to allow that to take place.
77 It can be seen that, in a sense, s 16(3) speaks to the advocate and to the Court, but ultimately it is for the Court to determine the purpose for which evidence is tendered, a question is asked or a submission is made. And, as I have sought to emphasise, if the Court is satisfied that the evidence is tendered, the question asked or submission made in support of a conclusion or finding that is not a prohibited conclusion or finding, then the Court may proceed, even though the relevant material is capable of another and prohibited use. This approach should not lead to what might seem an abuse or an evasion of s 16(3), simply because the Court should refuse, at the end of the day, to make any finding that is a prohibited finding. Should it ultimately emerge that material gets before the Court which, in truth, could only have been used for a prohibited purpose, then an error will have occurred but the Court will still refuse to make a prohibited finding.
78 It is because I consider that evidence, questions and submissions directed to Mr Olsen’s belief in the truth of what he said, are not for the purpose of questioning or relying on the truth of what Mr Rann said, or his motive or credibility, that I consider that the plea of qualified privilege can be maintained.
79 If Mr Rann gives evidence at the trial, no doubt his evidence about the leaking of documents will be tested and challenged. But, once again, that is not for the purpose of questioning or relying on the truth of what he said to the Committee. The Court does not need to make a finding about that. Mr Rann’s evidence would be tested and challenged for the light that will throw on Mr Olsen’s belief.
80 Nor, in terms of Article 9, will the Court impeach proceedings in Parliament by making a finding about Mr Olsen’s belief, whatever that finding might imply about Mr Rann’s truthfulness in his evidence to the Committee. In my opinion a Court does not impeach proceedings in Parliament by making a finding on a matter which has been a subject of consideration in Parliament, as long as the finding which it makes does not require it to make a finding about what I might call the Parliamentary treatment of the issue.
81 All this indicates that, at the trial of these proceedings, the Judge will have to attend carefully to the use to which evidence, questions and submissions are to be put. But it is not unusual for the admissibility of evidence, and for the permissibility of questions, to depend upon the purpose for which the evidence is tendered or the question asked. At the end of the day, the Court is simply determining whether a particular course of action is permissible, but instead of doing so by reference to the pleadings, is doing so by reference to the prohibition in the Privileges Act.
82 Most of what I have said has been said by reference to sub-paragraphs (a) and (b) s 16(3). No specific submissions were directed to section 16(3)(c). The language of that sub-section is very wide. My opinion is that maintaining the defence of qualified privilege does not necessarily involve the drawing of inferences or conclusions from what Mr Rann said to the Committee. The focus must be on Mr Olsen’s belief and state of mind.
83 I have said elsewhere in these reasons, and I repeat, that this Court cannot and should not attempt to predict the precise course of the trial, and should not attempt to determine how s 16(3) will affect the course of the trial. To my mind, the most that the Court can do is to determine whether the Privileges Act is an obstacle to the Court determining the issues that arise on the pleadings. That is the approach that I am taking to the matter.
84 The same considerations apply to the plea of qualified privilege in respect of information concerning government and political matters that affect the people of Australia: Lange at 571. That privilege will, even if the older law of qualified privilege would not, permit a dissemination of information to the public at large. To attract that privilege it is necessary only to identify the subject matter of Mr Olsen's statement as matter concerning government and political matters.
85 However, Mr Olsen will have to prove that he acted reasonably if his statement was published to too wide an audience to attract a defence of qualified privilege under the common law: Lange at 573. To prove that his conduct in publishing the defamatory imputation was reasonable, Mr Olsen will have to prove among other things that he had reasonable grounds for believing that the imputation was true: Lange at 574. The focus here is upon Mr Olsen having reasonable grounds to believe the truth of his statement that Mr Rann had lied. This is an enquiry as to Mr Olsen’s belief, and not an enquiry as to the truth of Mr Rann’s statement. Of course, the subject matter of Mr Olsen’s belief and of Mr Rann’s statement to the Committee is one and the same. But the question of whether Mr Olsen had reasonable grounds for believing his statement to be true, and the question of whether Mr Rann told a lie to the Committee, are quite distinct questions, even though they relate to the same events. This aspect of Mr Olsen’s defence does not require the Court to make a finding that Mr Rann lied to the Committee or that he told the truth to the Committee. Of course it implies a conclusion about that matter, and implies a conclusion on Mr Rann’s credibility. But it has never been suggested so far as I am aware, that a court is precluded from enquiring into a matter that occurred outside Parliament simply because that matter has been the subject of statements in the course of proceedings in Parliament, or has independently been the subject of some consideration or conclusion by Parliament, and because an enquiry into the matter may result in a conclusion about the matter that implies a conclusion about the truth of what was said in Parliament or about the credibility of persons who said things in Parliament: see Hamilton v Al Fayed [1999] 1 WLR 1569; [1999] 3 All ER 317 at 335 Lord Woolf MR.
86 Mr Rann’s plea of malice will require him to prove that Mr Olsen spoke not for the purpose of communicating government or political information or ideas, but for some improper purpose: Lange at 574. Once again, the enquiry here is directed to Mr Olsen’s state of mind, and not to the truth of the statement made by Mr Rann to the Committee.
87 Accordingly, I conclude that the plea of qualified privilege can be maintained despite the application of s 16(3). So can the plea of malice. However, the plea of malice will not be able to be supported by asking the Court to find that what Mr Rann said to the Committee was the truth, as a way of proving that Mr Olsen knew that what he said about Mr Rann was not true. But Mr Rann does not have to do that directly to maintain his plea.
88 Mr Heywood-Smith submits that s 16(3) should be given a more limited operation. As I understood his submissions, the arguments that he advanced were as follows.
89 First, Article 9 of the Bill of Rights does not have the suggested operation. He relies in particular upon the decision of Hunt J in R v Murphy (1986) 5 NSWLR 18 and the decision of this Court in Wright v Lewis. He submits that the Privy Council was wrong in Prebble. Drawing on this submission, he submits that s 16 of the Privileges Act should be read as doing no more than implementing and confirming the operation of Article 9.
90 An independent submission is that the effect of the suggested operation of s 16(3) is to impose a limit on the ability to question or challenge proceedings in Parliament that has never previously been contemplated, and that is outside the mischief with which the Privileges Act was intended to deal. The suggestion that this operation is one that was never contemplated tends to take one back to the scope of Article 9. The submission as to the mischief with which the Privileges Act was intended to deal has a number of strands. I am not confident that I have correctly identified them. He submits that the Privileges Act was not intended to deal at all with the situation in which a person whose words constituted proceedings in Parliament brings court proceedings, to repel an attack on that person based upon what the person said in proceedings in Parliament, and when the application of s 16(3) will prevent the person from defending the person's reputation. I mention here that s 16(3) will not prevent Mr Rann from defending his reputation by bringing proceedings for defamation. It is only a stay granted by the Court that will have that effect. Alternatively, Mr Heywood-Smith submits that s 16(3) is not intended to apply in a situation in which its operation would prevent a defendant, sued by a person whose words were part of proceedings in Parliament, from supporting a defence to that action. A further variant of this submission is that the Privileges Act is intended to protect the freedom of speech in Parliament, and that there is no inhibition to freedom of speech in Parliament in allowing a defendant to challenge the truth of things said in proceedings in Parliament when the occasion to do so arises only because the person who said those things has chosen to sue. In that situation the plaintiff will know that it is only if the plaintiff chooses to sue that the occasion to challenge the truth of what was said will arise, and so the mere making of the statements in Parliament cannot expose the maker of the statement to a challenge in court proceedings.
91 It can be seen that in some respects the submission reflects the reasoning of King CJ in Wright v Lewis. It also treats the Privileges Act as concerned only with removing inhibitions to freedom of speech imposed on the person who speaks in the course of proceedings in Parliament.
92 Finally, in what appears to be an alternative submission, Mr Heywood-Smith contends for an application of s 16(3) along the lines that appealed to Davies JA in Laurance v Katter. I have set out above the essence of that reasoning.
93 In my opinion it is not helpful to approach the issue of the meaning of s 16(3) by treating the meaning as controlled by the meaning of Article 9. I have already explained why I do not accept that Parliament is to be taken as having limited the operation of s 16(3) to the extent of the operation of Article 9. That being so, it would not assist the argument were one to conclude that R v Murphy and Wright v Lewis were correctly decided in relation to the operation of Article 9. If there is one thing that is clear, it is that the Privileges Act was intended to reverse the effect of the decision in R v Murphy. The decision in Wright v Lewis came later, but was unaffected by the provisions of the Privileges Act, because it related to the Parliament of South Australia.
94 I therefore do not accept the first submission made by Mr Heywood-Smith. I should add that the authorities to which he referred did not satisfy me, in any event, that the apparent operation of s 16(3) is one that would not have been contemplated for Article 9. The Court was not taken through a detailed history of the operation of Article 9, although it was referred to a number of cases.
95 To assist in arriving at the proper meaning of s 16(3), it is permissible to consider the context in which it was enacted, and the mischief with which it was intended to deal. A court may do that to determine the operation of the Act, and not just to resolve an ambiguity that might arise in relation to it: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. A consideration of that context, and of the intended mischief, invites attention to the Second Reading speech on the Parliamentary Privileges Bill. That speech was made, exceptionally, by the President of the Senate. Section 15AB of the Acts Interpretation Act 1901 (Cth) also permits reference to this material to ascertain the meaning of s 16(3).
96 The Second Reading speech makes it clear that the Privileges Act was enacted to displace the interpretation given to Article 9 by Hunt J in R v Murphy (1986) 5 NSWLR 18. The speech begins as follows (Hansard, 7 October 1986, Senate, p 892):
"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."
97 The interpretation which the Bill sought to reverse was an interpretation that permitted a witness before a parliamentary committee to be cross-examined, in subsequent proceedings in a court, about the truth of that evidence and about the witness's credibility based on that questioning. It is clear that the intention was to reverse the judgment in this respect. The President identified the ruling that was to be reversed as follows (p 893):
"In his judgment, Mr Justice Hunt ruled that this use of parliamentary proceedings is not in breach of article 9 because the latter is restricted to preventing the prosecution or suit of a person for what that person has said or done in the actual course of the parliamentary proceedings. According to this judgment, it is not a breach of article 9 to use parliamentary proceedings as evidence of an offence or of a civil liability, to establish the motive or intention of a person for the purpose of proving an offence or a civil liability, or to attack the credibility of a person."
98 It is quite clear that one of the intended effects of the Bill was to protect a witness before parliament or a committee from cross-examination about the truth of the evidence given by the witness, and from challenges to the credibility of the witness based upon that questioning.
99 It is equally clear, on the basis of the speech, that the intention was to restore a broader meaning to Article 9. The President said (p 893):
"It has long been accepted, virtually since this provision was enacted, that this prevents parliamentary proceedings from being called into question in the broadest sense in proceedings before any court or tribunal."
100 The object of the Bill was said to be to give to Article 9 "the broad and previously established interpretation" (p 894). The President also emphasised that the Bill had been introduced:
"... because of the fundamental importance of freedom of speech to the operations of both Houses, and because of the very serious threat to that freedom of speech posed by the judgments to which I have referred." (page 893).
101 There is nothing in this material to support a restricted approach to the provisions of s 16(3). Granted, the main thrust of the speech is the need to reverse the effect given to Article 9 in R v Murphy. But, equally clearly, the intention stated was to maintain a broad interpretation of Article 9. While the speech is, in a sense, founded upon Article 9, and upon re-establishing its meaning in the broadest sense, this does not support an approach to the interpretation of s 16(3) which limits it to the operation of Article 9. The submission as to the limits of Article 9 in any event was based, in the end, on nothing more than an absence of case law denying those limits.
102 In my opinion the history of the Privileges Act, and an identification of the mischief at which it was aimed, provides no support to Mr Heywood-Smith's submission. It indicates that the intention was to reverse a particular view of the operation of Article 9, and to maintain a broad scope for its operation. In particular, it indicates that questioning a witness about evidence given in Parliament, with a view to doing no more than challenging the credibility of that witness, was seen as offensive to the operation of Article 9. That in itself is a very substantial obstacle to the submission advanced by Mr Heywood-Smith, because that is the very thing that Mr Olsen would seek to do in the present case in support of his plea of truth. Of course, it is a case in which Mr Rann is the plaintiff, and in which Mr Rann has sought to defend his reputation from an attack mounted upon it by reference to what he said in proceedings in Parliament. But it cannot be suggested that a challenge to his credibility is not the sort of thing that is within the mischief at which the Privileges Act is aimed.
103 I do not suggest that this consideration of the parliamentary history adds anything in particular to the apparent meaning of s 16(3), or that it confirms that apparent meaning other than by confirming that a challenge to the credibility of a witness is something with which the Privileges Act was intended to deal. It suffices to say that, in my opinion, the history of the legislation provides no worthwhile support to the submission by Mr Heywood-Smith.
104 I turn now to the further submission to the effect that Parliament could not have intended to deny to a person in Mr Olsen's position the ability to defend a claim in defamation based upon an imputation relating to something that the plaintiff said in the course of proceedings in Parliament. That is an argument that appealed to King CJ in Wright v Lewis. A similar argument, which is really the converse of that just identified, is that Parliament could not have intended to deny a plaintiff such as Mr Rann the ability to vindicate himself against an attack on his reputation based upon an attack on words spoken by him in the course of proceedings in Parliament. However, as I have already pointed out, s 16(3) does not have that effect. Mr Rann will be prevented from vindicating his reputation only if the Court stays the proceedings because of the operation of s 16(3).
105 I acknowledge the force of the reasoning that appealed to King CJ in Wright v Lewis. But that case was not concerned with the interpretation of s 16(3). The difficulty which Mr Heywood-Smith's submission faces is in accommodating it within the terms of s 16(3). The submission can be upheld only if the provisions of s 16(3) can sensibly be interpreted in a fashion that excludes from its operation the situation just identified. It is not a permissible approach to interpretation simply to say that although the words of the provision apply, Parliament could not have intended them to apply to a particular situation. Some means must be found of limiting the operation of the provisions.
106 I consider that there is no proper basis upon which s 16(3) can be given a meaning that embodies the necessary limitation. Section 16(3) operates by reference to the purpose for which evidence is tendered, questions are asked and submissions are made concerning proceedings in Parliament. It purports to operate without reference to the nature of the proceedings, and without reference to the manner in which matters such as the truth of proceedings in Parliament may arise in those proceedings. It is not surprising that this should be so. It is reasonably clear from the history of Article 9, and from other materials, that whatever may be the precise scope of s 16(3), this provision and Article 9 are intended to prevent a particular approach to proceedings in Parliament, or to prevent a court following a particular course in relation to those proceedings. The section is concerned with what is to be done, rather than why it is to be done or the context in which it is to be done. In saying that I realise, of course, that s 16(3) applies only to proceedings in a court or tribunal.
107 In my opinion it is impossible to read s 16(3) as simply not applying to a case in which the person, the truth of whose words is questioned, is a plaintiff. Nor is it possible to read those words as not applying when the effect of their application is to deny a defendant a defence to a claim against the defendant based upon a statement by the defendant about what the plaintiff said in proceedings in Parliament. For the purposes of argument, I am prepared to assume that Parliament did not contemplate the application of s 16(3) to a situation like that now before the Court. But the difficulty in accepting Mr Heywood-Smith's submission is to reflect that assumption in an intelligible approach to the interpretation of the Privileges Act. There is the further difficulty that one cannot be confident that the notional exception to the operation of s 16(3) can be identified with sufficient precision in any event.
108 In Wright v Lewis King CJ was dealing with Article 9, the terms of which are brief and general, and which lend themselves very much to development and application in terms of traditional common law reasoning. Article 9 states a broad principle, and is more readily interpreted by reference to the object of that principle. It is simply not possible to approach the specific terms of s 16(3) in the same fashion.
109 In brief, to read s 16(3) in the manner suggested by Mr Heywood-Smith would be to create a significant and unexpressed exception to its operation, and an exception of uncertain scope. It is unclear whether the exception would operate whenever the person, whose evidence to Parliament was in question, was a plaintiff in the action, or only when the application of the provision would deprive a defendant in such proceedings of a defence, or perhaps only when the provision would prevent the parliamentary witness from protecting himself or herself from an attack upon the witness's reputation the attack being referable to the witness's evidence. None of these matters were satisfactorily resolved by Mr Heywood-Smith in his submissions.
110 For those reasons, I do not accept that aspect of his submissions.
111 An alternative approach advocated by Mr Heywood-Smith is that which appealed to Davies JA in Laurance v Katter (1996) 141 ALR 447. Earlier in these reasons I set out a part of the reasons of Davies JA that encapsulates the approach that he preferred. Davies JA reasoned from the premise that, read literally, s 16(3):
"... would, if valid, have the effect of prohibiting the receipt in a court or tribunal of evidence which would not, in any way, inhibit the freedom of speech in parliament." (at 488).
112 He took the view that read literally s 16(3) would prevent a parliamentarian, who had been defamed by reference to what he or she said in Parliament, from adducing evidence of the statements made in Parliament to prove that he or she had been defamed, or to rebut a defence of truth or fair comment which might otherwise be open to the defendant. With respect to Davies JA, I do not agree that, read literally, s 16(3) would prevent a parliamentarian from suing on a defamatory statement related to what the parliamentarian had said in Parliament. In the present case, it does not prevent Mr Rann, a witness, from suing Mr Olsen. However, as I have demonstrated, there are other difficulties resulting from the literal reading of s 16(3).
113 The conclusion of Davies JA was that s 16(3) makes it unlawful for evidence to be tendered or received, questions to be asked, or for statements, submissions, or comments to be made concerning proceedings in Parliament only if "that would impeach or question the freedom of proceedings in Parliament": (at 489-490). That was a matter to be decided by the Judge in each case. He took the view (at 490) that that construction achieved:
"... a satisfactory balance between the public interest in protecting the freedom of political discussion and the competing public interest in protecting the freedom of speech in parliament which section 49 of the Constitution authorises. It would permit freedom of discussion of proceedings in parliament, including in court proceedings, except where that would impeach or question the freedom of speech or debates in parliamentary proceedings."
114 I am unable to accept that that is a permissible approach to the construction of s 16(3). It is to read into the provision an unexpressed proviso, namely that something apparently made unlawful by the provision is not rendered unlawful unless, in the opinion of the Court in which the matter arises, the apparently prohibited activity in fact impairs the freedom of speech in Parliament of the person whose statements are to be challenged. It is one thing to accept that preserving the freedom of speech in Parliament underpins s 16(3). It is another thing to read into the provision an unexpressed proviso, that makes the operation of the provision dependant upon a judicial determination that freedom of speech is impaired. There is the further difficulty that this approach appears to make the operation of the provision dependant upon a case by case judicial assessment of the impact on freedom of speech of the relevant evidence. There will be clear cases, but there will also be borderline cases, and this is an area in which there is plenty of room for differences of opinion. Parliament could not have intended that such an important provision would depend upon judicial assessment of the impact, in the particular case, of the proposed course of conduct.
115 In the end, I unable to accommodate the approach taken by Davies JA to the terms used in s 16(3).
116 There is, in my opinion, another obstacle to the adoption of that approach. The point with which I now deal is also relevant to other submissions advanced by Mr Heywood-Smith relating to the interpretation of s 16(3).
117 There is no doubt that preserving the freedom of speech in Parliament is what underlies s 16 of the Privileges Act. But there is another fundamental principle embedded in Article 9 and in s 49 of the Constitution, and underlying s 16. This principle was identified by the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332 as follows:
"In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges ... As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol 1, p 163: 'the whole of the law and custom of Parliament has its original from this one maxim,' that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.’"
118 Their Lordships went on to say (at 334):
"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."
119 It is helpful to refer further to what their Lordships said in Prebble, when they identified the interests involved as follows (at 336):
"There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuing that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail."
120 The principle of non-intervention was also considered by the Court of Appeal of New Zealand in Television New Zealand Ltd v Prebble [1993] 3 NZLR 513. In his reasons Cooke P said that the parliamentary privilege relevant in that case, the same privilege as is relevant in this case, could be traced to three sources. One was the recognition of absolute privilege in respect of statements made in a Legislative Assembly by members of that Assembly. The second was Article 9 of the Bill of Rights. As to the third he said (at 517):
“The third source lies in the conventions applying to the relationship between the Courts and Parliament. The legislative, executive and judicial arms of the state do not intrude into the spheres of one another except when that is essential to the proper performance of a constitutional role. There is a principle of mutual restraint.”
121 He went on to explain, by reference to decided cases, the circumstances in which courts can consider and make findings about things said and done in Parliament, and events that have transpired there, but I respectfully adopt his statement of principle as a helpful one. On the question of the ability of the Court to receive evidence about matters done in Parliament, I refer also to the judgment of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 35-38. On the same general topic I refer also to the decision of the Full Court of the Supreme Court of Western Australia in Halden v Marks (1996) 17 WAR 447 at 462, where the Court began its consideration of the topic by saying:
“It is a settled principle that the courts will not intrude on the role of Parliament and will endeavour to regulate their own proceedings so as to avoid doing so.”
122 This principle of non-intervention cannot be pressed too far. Clearly enough, there are circumstances in which a court can enquire into what has transpired in Parliament. The recent English decision of Hamilton v Al Fayed [1999] 1 WLR 1569; [1999] 3 All ER 317 illustrates the care that is needed in applying this principle of non-intervention. In Egan v Willis (1998) 73 ALJR 75 at 108 Kirby J made the important point that:
"... it is important to avoid confusion between the right to prove the occurrence of parliamentary events and the prohibition on questioning their propriety, as for example, suggesting that a member had misled the House or acted wrongly or from improper motives."
123 It is also important to remember, as I have already pointed out, that a court is not precluded from making a finding on a matter simply because Parliament has considered or debated the matter, or by some means made a finding upon it. It is only when the Court is invited to challenge the parliamentary consideration of the matter that the principle of non-intervention operates: see Hamilton v Al Fayed at 1589.
124 Like any principle, this principle of non-intervention, as I am content to call it, must be applied with a mind to its purpose and in a discriminating fashion. Nevertheless, to my mind the submissions by Mr Heywood-Smith pay inadequate attention to the principle of non-intervention. They do so by failing to reflect what I consider to be an evident intention behind s 16 of the Privileges Act. That intention is to foreclose judicial enquiry when the purpose of that enquiry is to question or rely on the truth of what is said in Parliament. (Again, for convenience I omit the other matters identified as attracting the operation of s 16.) I consider that proper attention is not paid to the principle of non-intervention if one takes the approach, for example, that the section will apply only when the Court concludes that its application is required to protect freedom of speech in Parliament for the benefit of a particular person. To my mind, Parliament has made the judgment about when s 16 should apply, and has made that judgment by reference to the purpose of the line of enquiry, rather than by reference to a court’s conclusion as to the likely ultimate effect on freedom of speech in Parliament. As well, Parliament has manifested an intention that the courts are not to enquire into the truth of things said in proceedings in Parliament. It has asserted an exclusive authority over such a matter.
125 Section 15AA of the Acts Interpretation Act (1901) (Cth) provides that the Court must prefer a construction of the Privileges Act that would promote the purpose or object underlying the Act, to a construction that would not promote that purpose or object. I consider that not much help is to be obtained in the present case from the application of this provision. Its application tends to lead to further debate as to the true purpose or object of the Privileges Act. And, in the end, one must pay careful attention to the words of the relevant provision. But I am at least satisfied of this. It would not promote the purpose or object of the Privileges Act, which I take to be to preserve freedom of speech in Parliament and to reflect the principle of non-intervention, to interpret s 16(3) in a manner that made its operation subject to a judicial conclusion, on a case by case basis, that in the particular case the course of action proposed would impinge upon freedom of speech in Parliament. That approach is, if anything, destructive of freedom of speech because it leaves the person speaking uncertain whether what the person says in Parliament can be challenged in a court. The answer will be that the possibility of a challenge will depend upon a judicial assessment of the effect of the challenge in the particular case, and in many cases it will be uncertain what the result of that assessment will be. Of course, I am not so naïve as to suggest that on my approach to s 16(3) its operation is always clear. However, treating the section as subject to a judicial assessment, or as subject to exceptions that depend upon the circumstances in which the matter comes before the Court, as did King CJ in Wright v Lewis, will be productive of considerable uncertainty. As well the approach for which Mr Heywood-Smith contends is destructive of the principle of non-intervention. It allows the Court to challenge the truth of what was said in proceedings in Parliament in a variety of situations. In my opinion s 15AA does not assist Mr Heywood-Smith.
373 It would be hard to think that the defendant would be able to establish an occasion of common law qualified privilege if the defendant is responsible for republications in the media. If his communication does not relate to political matters and/or his conduct was not reasonable then it might be thought that communications to the public at large in response to the plaintiff’s evidence might not be occasions of qualified privilege. However, that is not to be decided on this case stated. For the present purposes it must be assumed that evidence will be led by the defendant to attempt to establish an occasion of common law qualified privilege in respect of the republications.
374 If the defendant can establish that all of the imputations which properly arise from the publication are true then that is the end of the matter and the plaintiff’s claim will fail. If, on the other hand, the defendant fails in his plea of justification but does succeed in establishing that the publication was made on an occasion of qualified privilege (whether common law or Lange) then the plaintiff’s action will still fail unless the plaintiff can establish that the defendant was actuated by malice.
375 I think the plea in paragraph 4 of the plaintiff’s reply is to common law qualified privilege. If the plaintiff was able to establish that the defendant’s communication occurred in circumstances where the defendant knew that he had given confidential information to the plaintiff or that the defendant was reckless in the terms mentioned in paragraph 4.2 then the defendant could not avail himself of a defence of common law privilege and the occasion would be lost.
376 In so far as the defendant relies upon Lange qualified privilege the onus falling upon the plaintiff in respect of malice would be discharged by the plaintiff establishing that the defendant made the communication not for the purpose of communicating political information but for some improper purpose. In this case the plaintiff does not assert any matter that would amount to malice for Lange qualified privilege. Whilst it is claimed that the defendant knew what he said was untrue, for Lange qualified privilege that would be a matter which would be examined on the question of reasonableness of conduct. If the defendant did not believe what he said to be true then his conduct could not be said to be reasonable. In those circumstances the occasion of qualified privilege would not arise and malice would therefore not be an issue.
377 This Court has been asked to assume for this case stated that the defendant will be called upon to advance his defences. For the reasons already given I am not sure that assumption can be made on the pleadings as they stand. It may be assumed that the defendant is responsible for at least one of the publications (the third publication) to the public, or at least to that part of the public which comprises that radio station’s audience. That assumption can only be made if the plaintiff’s failure to plead to the defendant’s defence is ignored.
378 The plaintiff in his case will merely prove the defendant’s three publications. As I have said before he will probably also try to prove republications and the defendant’s responsibility for those republications. Whether he was proving publications or republications he would not seek to tender his own evidence before the Parliamentary Committee.
379 In respect of the plea of justification the defendant would need to prove that the plaintiff lied in his evidence before the Parliamentary Committee. He would also wish to establish that the plaintiff used his opportunity before the Parliamentary Committee to defame the defendant i.e. the defendant would wish to prove his claim that the plaintiff was guilty of character assassination.
380 At present he could rely on the pleadings for establishing the truth of the admitted imputations.
381 If the defendant cannot make out his plea of truth he would want to prosecute his defence of qualified privilege. To do so he would need to prove that he was under a duty to communicate to the persons to whom he communicated, i.e. the public and the public was under a duty to receive that communication.
382 Because he relies upon Lange qualified privilege he would also have to prove his conduct was reasonable.
383 If the defendant raises a case of qualified privilege the plaintiff would wish to respond to establish malice and thereby defeat the plaintiff’s claim that the communications were occasions of qualified privilege.
384 The defendant claims that because of the provisions of the Parliamentary Privileges Act he will not be able to establish his plea of justification, the onus for which lies upon him, because to do so would be to infringe s 16(3) of the Parliamentary Privileges Act. He also complains that he would not be able to adduce evidence in support of his plea of qualified privilege because of the same provisions. His argument assumes that he cannot rely upon the pleadings as they stand.
385 In support of that argument the defendant submits that the Parliamentary Privileges Act is a valid Act of the Commonwealth; that in its terms it applies to evidence given by the plaintiff before the Parliamentary Committee and that it would preclude evidence being called which would question the truth of the proceedings before that Committee. The defendant claims that the provisions of the Act would prevent him leading evidence necessary to support both the defence of justification and qualified privilege.
386 On the other hand the plaintiff claims that the Parliamentary Privileges Act 1987 would not preclude the defendant from establishing that the plaintiff lied to the Parliamentary Committee. If the Act does have that effect the plaintiff says that the Parliamentary Privileges Act is not a valid Act of the Commonwealth.
387 The first thing to notice is that neither party has claimed that the other party cannot question or rely on the truth of what was said by the plaintiff before the Parliamentary Committee. Neither party has relied upon s 16(3) of the Act by way of defence or reply.
388 Neither party has sought to strike out the other party’s plea in so far as neither party has claimed to be entitled to question the truth of what was said before the Parliamentary Committee or claimed to be entitled to rely upon the truth of what was said before the Parliamentary Committee. In other words neither party has sought in their pleadings or by way of application directed to the opponent’s pleadings to raise the issues raised on the case stated.
389 The plaintiff does not object to the defendant leading any evidence to establish that the plaintiff lied before the Parliamentary Committee. To that extent the issues raised by this application are not issues otherwise identified in the proceedings. However the point is not capable of being waived by the parties. The privilege is that of the Parliament. Whether or not the parties rely upon the provisions of the Parliamentary Privileges Act does not matter. It still is not lawful, if the Act is valid, for evidence to be tendered for any of the purposes identified in s 16(3).
Question 2
390 For the reasons already given it is necessary to reach a conclusion in respect of question 2 for the purpose of determining whether any answer could be given to question 1. It is necessary to reach a conclusion on the validity and construction of s 16(3) of the Parliamentary Privileges Act.
391 For the reasons given by the Chief Justice s 16(3) of the Act is a valid law of the Parliament. I agree with the reasons given by the Chief Justice for answering question 2 as he does and I will give my reasons briefly.
392 It is not necessary to finally decide whether s 16 of the Parliamentary Privileges Act 1987 is only declaratory of Article 9 of the Bill Of Rights or whether it extends the provisions of that Article. There are respectable and cogent arguments, in my opinion, to suggest that s 16 of the Parliamentary Privileges Act is wider than the operation of Article 9 of the Bill Of Rights. However it is reasonable to assume that s 16 is wider in its operation than Article 9 for the purpose of considering the validity of the section. At the very least s 16 is different in its operation than Article 9.
393 Section 16(2) of the Parliamentary Privileges Act makes it clear that proceedings in Parliament includes the giving of evidence by any person before a Committee of either House of the Commonwealth Parliament. Therefore s 16 applies to the evidence given by the plaintiff before the Parliamentary Committee.
394 I agree with the Chief Justice that s 16 should not be construed narrowly. I agree with the reasons which he has given for rejecting the Mr Heywood-Smith’s arguments.
The Effect of s 16(3) and Question 1
395 If I am right about the plaintiff’s failure to address the defendant’s plea of justification the defendant will not need to lead any evidence to support his plea.
396 Whether the defendant would lead any evidence to address the imputations that he says do not arise is a moot point. He may prefer to simply argue the imputations do not arise.
397 However it was assumed in argument that the defendant would wish to lead evidence to support his plea on justification. I shall proceed upon that assumption notwithstanding the pleadings.
398 Section 16(3) would prevent the defendant from leading evidence to establish that the plaintiff lied before that Parliamentary Committee. Such evidence would constitute a questioning of the truth of what the plaintiff said of proceedings in Parliament and therefore infringe s 16(3). Section 16(3) would also prevent the defendant from tendering the plaintiff’s evidence before the Parliamentary Committee for the purpose of showing that the plaintiff had used the occasion before the Parliamentary Committee to commit “character assassination” under Parliamentary privilege. On the other hand the plaintiff would not be entitled to lead evidence to prove that his evidence before the select Committee was true or that he honestly believed what he said to be true. He would be precluded from doing so again by s 16(3) because the purpose of the evidence would be to rely upon the truth of proceedings in Parliament and would also infringe s 16(3)(a). His evidence could not be tendered for the purpose of showing a proper motive in giving the evidence before the Parliamentary Committee. To tender the evidence for that purpose would be to infringe s 16(3)(a) and (b). However there would be no need for the plaintiff to seek to tender his evidence before the Parliamentary Committee to answer the defendant’s plea of justification. The defendant simply could not put any evidence before the Court to sustain his plea.
399 The defendant’s plea of justification, if the defendant needed to go to evidence, cannot be addressed in the trial of this action. On the face of it that would be unfair to the defendant. He would not be entitled in his own defence to prove that what he said about the plaintiff was true. In fairness to the plaintiff it is not the plaintiff who would seek to prevent him from proving his defence but it is the operation of s 16(3) itself. Neither party is entitled to waive the operation of the section. The section is not included for the benefit of the parties but for the protection of the privileges of the Parliament. So it follows that even though the plaintiff does not object to the defendant attempting to establish that his evidence before the Parliamentary Committee was a lie or that he was motivated to commit character assassination the law operates to prevent Mr Olsen from doing so.
400 That leaves the question of qualified privilege which is a little more difficult.
401 The common law defence of qualified privilege requires a reciprocity of interest between the person publishing the communication and the person or persons receiving it. The person who publishes the communication must have some form of legal, social or moral interest or duty to make the communication and the person or persons who receive the communication must have a like or corresponding interest or duty to receive it.
402 Whether there is such a reciprocity of interest requires a consideration of all of the circumstances giving rise to the publication or communication.
403 It is necessary, of course, that the publisher has some interest in the publication in that, for example, it relates to the publisher’s own affairs. It is also necessary that the persons to whom the communication is published have a legal, social or moral interest in receiving the communication. It is not sufficient that they may be interested in the communication itself. Thus there is a real difference between receiving communications which are merely gossip and those which the recipient have in law a real interest in receiving.
404 Whether the occasion at common law is one of qualified privilege depends upon the reasons for the communication, the communication itself, the width of the communication and the reasons why the recipients have a duty to receive the communication.
405 Therefore in the defendant’s defence of common law qualified privilege the defendant would need to establish that the plaintiff spoke the words that he complains of in the Parliamentary Committee. The defendant could not make out his defence without first proving that which the plaintiff said in the Parliamentary Committee. Proving the plaintiff’s evidence in the Parliamentary Committee does not necessarily infringe s 16(3) of the Parliamentary Privileges Act. It is only if the proof of the evidence in the Parliamentary Committee is tendered for any of the purposes mentioned in paragraphs (a) to (c) of s 16(3) that there is an infringement of that section. Next he would have to prove his response and that the response was appropriate in the circumstances. Lastly, he would have to establish that it was appropriate to respond to the media at large for the purpose of the media publishing his response to the public at large. That is assuming, although it is not pleaded, that the plaintiff claims that the defendant is responsible for further and wider publications. The defendant would have to establish that he was under a duty of the kind to which I have referred to publish the words and the public were under a duty to receive the words. It is not enough that they would have been interested in receiving his communication and his attack on the plaintiff but that they had a duty legal, social or moral to receive the communication.
406 To establish Lange qualified privilege he would need to establish that the publication concerned political matters, which has been admitted on the pleadings, and that his conduct was reasonable. The second matter would require an inquiry into the circumstances giving rise to the defendant’s publication, the words published and the width of the publication.
407 What would be the purpose of the tender of the plaintiff’s evidence for the defence of qualified privilege? It would not be to prove the truth of the defendant’s communications. The defence of qualified privilege does not require the defendant to establish that what he said was true. Indeed the assumption is that what was said was untrue. If the defendant’s statements were true qualified privilege does not need to be addressed.
408 The purpose of the tender would only be to prove what the plaintiff had said in the Parliamentary Committee. That would not infringe the section.
409 The defendant would then establish that he replied on the three occasions because he believed that the plaintiff had lied and that the plaintiff had been guilty of character assassination. The tender would not be for the purpose of establishing the truth of what the defendant said but only for establishing the matters to which he responded.
410 The Court would not need to determine whether the defendant was correct in his belief but only that he held that belief. For the defence of common law qualified privilege the defendant would not seek to tender the plaintiff’s evidence before the Parliamentary Committee for the purpose of impugning that evidence. It follows that the defendant will be able to tender the plaintiff’s evidence on the defendant’s plea of qualified privilege.
411 The defendant would argue that, he was under a duty to respond to what had been said. Moreover he would argue that because the plaintiff’s evidence before the Parliamentary Committee was not thereby subject to civil suit he had a duty to communicate to the same persons who had received the plaintiff’s communication, namely the general public.
412 Whether the defendant had such a duty and whether the duty extended to communicating to the public at large will be a matter for the Court. In determining those questions the Court will have regard to the plaintiff’s evidence before the Parliamentary Committee and in particular the subject matter of that evidence. For the reasons already given, it will not, in considering that evidence, need to determine the truth of what the plaintiff said.
413 However the defendant has to establish that it was appropriate to respond using the words that he did and to the width of the audience to which he directed his communications.
414 The defendant may wish to establish those matters by leading evidence apart from the plaintiff’s evidence before the Committee to show, for example, that the plaintiff was actuated by ill will towards the defendant. He might wish to show for example that the plaintiff asked for the opportunity to appear before the Parliamentary Committee for the purpose of making the statement about the defendant. This, the defendant would seek to establish, so that he could show that it was appropriate to respond in the terms that he did and to the audience which he did.
415 For Lange qualified privilege he would call that evidence for the purpose of showing the reasonableness of his conduct.
416 That evidence could not be tendered or received, in my opinion, because it would be evidence tendered for the purpose of questioning the credibility, motive, intention or good faith of a witness before the Parliamentary Committee and therefore contrary to the injunctions in s 16(3).
417 Likewise, if the defendant sought to tender evidence of that kind for the purpose of establishing the reasonableness of his conduct for his defence of Lange qualified privilege then, in my opinion, that evidence could not be tendered.
418 The defendant therefore may not be able to present his defences of common law or Lange qualified privilege if he wished to establish by other evidence, apart from the plaintiff’s evidence before the Parliamentary Committee, that the plaintiff was actuated by improper motives in giving evidence before the Parliamentary Committee. I do not know whether the defendant would wish to proceed on that basis. However it is not unlikely that the defendant will attempt to lead such evidence. His solicitor said in her affidavit “that the good faith of the plaintiff’s evidence to the Parliamentary Committee will be in issue.”
419 Those matters highlight the difficulties with which this Court is faced. This Court has been asked to answer questions on a case stated in circumstances where the pleadings on both sides are deficient. Both parties have failed to articulate the issues which they say arise on their respective cases.
420 The plaintiff, for example, has not even been able to identify the causes of action upon which he relies. Any republications of 10 and 11 June 1997 are different causes of action to the publications to the media on each of those days.
421 The defendant has not articulated the facts, matters and circumstances upon which he intends to rely for the purpose of establishing either common law qualified privilege or Lange qualified privilege. Presumably that is because the plaintiff has not identified the causes of action.
422 Moreover, this Court has been asked to determine the questions posed in circumstances where the Court cannot be sure of the evidence which is to be brought before the Trial Judge. I do not know if the defendant will seek to rely upon evidence of the kind to which I have referred for the purpose of making out either common law qualified privilege or Lange qualified privilege.
423 It is not reasonable, it seems to me, for this Court to be called upon to answer all of the questions stated in those circumstances.
424 If the defendant is entitled to tender the plaintiff’s evidence in the Parliamentary Committee for the purpose of his defence of common law qualified privilege (and I think he would be) and succeeded in establishing that his communication was an occasion of qualified privilege then the question of the plaintiff’s complaint of malice would arise. However that assumes the defendant does not wish to introduce any other evidence questioning the motive intention or good faith of the plaintiff in giving his evidence before the Parliamentary Committee.
425 It is difficult to envisage circumstances whereby the plaintiff would be called upon to answer the defendant’s plea of qualified privilege in circumstances where the defendant had not already tendered the plaintiff’s evidence before the Parliamentary Committee.
426 For reasons I have already given if the plaintiff was called upon to prove his plea of malice, the plaintiff would wish to establish that his evidence before the Parliamentary Committee was true, in that the defendant had given confidential information to the plaintiff and Mr Foley and Cabinet documents to Mr Foley, in order to establish that the defendant did not believe in the truth of what he said at the press conferences or at the time of the radio broadcast, and thereby was actuated by malice.
427 If the plaintiff sought to tender his evidence before the Parliamentary Committee and/or give evidence to support it for the purpose of proving that evidence was true and that therefore it may be inferred that the defendant was actuated by malice, that, in my opinion, would infringe the section.
428 If, on the other hand, the defendant had tendered the plaintiff’s evidence without infringing s 16(3), and the plaintiff wished to rely upon the evidence for the purposes I have mentioned the plaintiff would again contravene the section because in doing so he would be making statements, submissions or comment for one of the impermissible purposes in s 16(3).
429 In a sense all of this is, of course, speculation. Upon the pleadings as they presently stand the defendant’s assertion that the plaintiff lied and was guilty of character assassination is deemed to be admitted. The plaintiff would not be entitled to lead any evidence to support his plea of malice because malice would not be an issue in the case. Indeed qualified privilege would not be an issue because the defendant would have made out his defence of justification.
430 It is therefore difficult to identify precisely the circumstances in which the plaintiff would wish to tender or rely on his own evidence for his plea of malice. This Court is being asked to speculate on the evidence which might be called in the trial. However if, as I say, the plaintiff is called upon to prove the plea of malice it seems to me that the plaintiff may need to rely upon his own evidence in circumstances which are unlawful.
431 Therefore in relation to the common law plea of common law privilege the plaintiff could suffer the disadvantage of not being able to tender evidence to support his plea in paragraph 4.1.
432 In relation to the Lange qualified privilege, whilst it is admitted that the communication (communications) involved political matters, it is not admitted that the defendant’s conduct was reasonable. Indeed that is an issue. The defendant therefore would have to establish that his response to the plaintiff’s evidence before the Parliamentary Committee was reasonable. To do so he would have to tender the plaintiff’s evidence which of itself would not, for the reasons already mentioned infringe s 16(3), unless the tender is for one of the impermissible purposes mentioned in paragraphs (a) to (c) of that subsection.
433 In my opinion a tender for that purpose may be. The defendant would not only be tendering the evidence to establish the communication to which he was responding but he would do so for the purpose of establishing the reasonableness of his response. He would, no doubt, tender the evidence for the purpose of showing that Mr Rann had used and abused his appearance before the Parliamentary Committee. The defendant might argue that the plaintiff had abused that appearance by offering his evidence in circumstances where the evidence was not relevant to the inquiry, i.e. for the purpose of attracting absolute privilege.
434 If that was the purpose of the tender it would follow that the defendant might not be permitted to advance his defence of Lange qualified privilege by tendering the plaintiff’s evidence before the Parliamentary Committee.
435 It follows that I am of the view that the Parliamentary Privileges Act would preclude the defendant from tendering the plaintiff’s evidence before the Parliamentary Committee for the purpose of making out his defence of justification. For the reasons previously mentioned I do not believe the defence of fair comment will be addressed. In relation to the pleas of qualified privilege, whilst the Parliamentary Privileges Act would not prevent the defendant from tendering the plaintiff’s evidence before the Parliamentary Committee in order to prove his own belief which brought about the three publications, the subject of the proceedings, the defendant would not be entitled to use that evidence or any other extraneous evidence for the purpose of attacking the motive, intention or good faith of the plaintiff in giving evidence before that Parliamentary Committee.
436 The plaintiff also would not be able to rely upon his evidence before the Parliamentary Committee to prove his own bona fides. Nor would he be entitled, in my opinion, to tender extraneous evidence for a similar purpose.
437 Whatever the case the defendant will not be able to advance his defence of justification. It may be the case that he will not be able to advance all of the evidence upon which he would wish to rely upon for the plea of qualified privilege.
438 It is indeed possible that he will be left without any defence at all. On the face of it that would be unfair and perhaps unjust.
439 However to arrive at those tentative conclusions the Court has had to make a number of assumptions. It has to assume that the plaintiff would wish to advance causes of action which are not presently contained in the Statement of Claim. It has to further assume that the defendant would lead the evidence of the kind which I have mentioned for the purposes for which I have mentioned. The defence in its present form does not help in determining whether that assumption is appropriately made. Moreover it must be assumed that the plaintiff’s failure to plead to the defendant’s plea of justification would not prevent the plaintiff from advancing evidence in support of the plaintiff’s plea of malice. Further an assumption has to be made about the type and kind of evidence which might be called by the parties in advancing and defending their respective cases.
440 This Court is really being asked to take the place of the trial Judge but in circumstances where the pleadings are unclear and the evidence is unknown. In my opinion the Court cannot answer question 1: Bass v Permanent Trustee Co Ltd (supra).
441 For those reasons I would not answer question one. The question will have to be answered by the trial Judge. The trial Judge will hear the evidence and will understand the purpose for which the evidence is being adduced. The trial Judge will then rule upon the effect of the Parliamentary Privileges Act upon that evidence.
Stay
442 The defendant and the Solicitor General for the Commonwealth argued that if s 16 had the effect for which he contended then the plaintiff’s proceedings ought to be stayed. Whilst the Solicitor General for South Australia assisted the Court by reference to authorities he did not advance any argument as to whether or not a stay should be granted
443 The plaintiff argued that even if s 16 had the effect for which the defendant contended a stay was not appropriate. The plaintiff contended:
“The defendant must still address that a defamatory publication is pleaded in paragraph 5 of the Statement of Claim. The defendant has the onus of justifying defamation. In the circumstances of this case if he fails to do so there is little scope of the qualified privilege type defences being considered.”
444 With the greatest respect to the plaintiff such a submission is misconceived.
445 On the defendant’s argument, with which I agree, s 16 would preclude the defendant from justifying the defamation. He cannot therefore discharge the onus which lies upon him. Nor may he be able to prove that the publications were occasions of qualified privilege.
446 The parties and indeed the interveners seemed to assume that this Court has power to grant a stay. I think that assumption was appropriately made. Section 25 of the Supreme Court Act provides that nothing in the Act shall “disable” the Court, if it thinks fit, from directing a stay of proceedings in any cause of matter pending before it. Rule 3.01 specifically provides that nothing in that Rule affects the power of the Court to grant a stay of proceedings when the justice of the case so requires.
447 It was assumed by the New Zealand Court of Appeal in Television New Zealand Ltd v Prebble (1993) 3 NZLR 513 and by the Privy Council, on appeal from that decision (1995) 1 AC 321 at 339, that the New Zealand Court had jurisdiction to stay proceedings in circumstances such as these. A similar assumption was made by the Court of Appeal in England in Hamilton v Al Fayed (1999) 1 WLR 1569.
448 In Ferris v Lambton (1905) 22 WN (NSW) 56 at 57 Pring J took a robust attitude to a submission that he had no jurisdiction to stay proceedings. He said:
“It is said that I have no power to stay proceedings. The case no doubt is a novel one, and no precedence has been cited. But if there is no precedence, I think it is quite time a precedent were created. I think the Court has inherited power and jurisdiction to prevent injustice being done.”
449 In Tringali v Stewardson Stubbs & Collett Ltd (1965) 66 SR (NSW) 335 the Court of Appeal in New South Wales concluded that there could be no doubt that that Court had an inherent jurisdiction [344]:
“... to endeavour to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice and for this purpose to grant in the exercise of its discretion a stay of proceedings, whether permanent or temporary, upon such conditions or terms (if any) as may seem appropriate in the particular circumstances and that this is a jurisdiction which may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case.”
450 In Walton v Gardiner (1993) 177 CLR 378 Mason CJ, Deane and Dawson JJ said at 392/393:
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”
451 The question for this Court is, whether the Court should grant a stay to protect a defendant who may be disadvantaged because Parliament has provided that certain critical evidence may not be led in the defendant’s defence.
452 In this case it cannot be said that the plaintiff is seeking to abuse the Court’s processes. The plaintiff is not using the Court’s processes for a collateral purpose. He is not seeking to prevent the defendant from defending the claim which he has brought. He does not seek to limit the evidence which the defendant might bring before the Court. However I do not think it can be said that the plaintiff’s attitude can be decisive. Unfairness is not necessarily the result of the attitude of one of the parties. Unfairness or injustice can arise quite independently of the actions of either of the parties. That is the case here. The provisions of the Parliamentary Privileges Act themselves prevent the defendant from advancing defences to the plaintiff’s claim, even though the plaintiff would not seek that result.
453 It cannot be that the inability to call some evidence, is of itself, a reason for a court to exercise its inherent jurisdiction to grant a stay. There are a number of circumstances where a party is precluded from calling evidence which would otherwise be admissible in the trial and which might be critical to that party’s case. Evidence which is subject to legal professional privilege or public interest immunity may well be critical in legal proceedings. However it is not available to be called by the parties. The inability of one party to adduce evidence of that kind is not a reason for staying those proceedings.
454 The Parliamentary Privileges Act operates to protect the privileges of Parliament. It prevents a court from adjudicating upon evidence given to a Parliamentary Committee or statements made in a Committee or in either House of the Parliament It also operates to prevent a party tendering any other evidence concerning proceedings in Parliament for any of the purposes mentioned in s 16(3). The purpose of the Act is to protect freedom of speech in the Parliament. The construction of the Act, with which I agree, might leave a person who would wish to complain publicly about the statements made in the Committee unprotected. In some circumstances it might leave those who would wish to defend themselves by responding to something which has been said about them or their affairs in a Committee or in Parliament unprotected.
455 In a sense, therefore, the Parliamentary Privileges Act protects freedom of speech in Parliament but at the same time restricts freedom of speech by inhibiting comment about Parliamentary proceedings.
456 The granting of a stay may be the only way which the freedom of speech outside Parliament can be protected. It is important to protect the right to comment on proceedings in Parliament.
457 I think there are circumstances where it would be appropriate to grant a stay of proceedings where a defendant is precluded from adducing evidence in support of a defence in an action for defamation where that defendant has commented upon something said in Parliament: Lange (562)
458 However I am not able to say on the material presently before the Court whether this is one of these cases.
459 I do not think it would be appropriate for this Court to pass an opinion on whether or not a stay should be granted in circumstances where neither party has been able to put his pleadings in order and where the Court has been called upon to speculate upon the evidence which might be led in the trial.
460 It seems to me that the question of stay is very much one for the Trial Judge who, after being acquainted with the true issues in the case as determined by the pleadings, will be able to make an assessment of the effect of the Act upon the evidence which is sought to be adduced.
461 In my opinion that assessment cannot be made by this Court at this time on these pleadings.
462 I would answer the questions.
(i) Not answered.
(ii)Section 16(3) of the Parliamentary Privileges Act is a valid law of the Commonwealth in its application to the present case.
(iii)Not answered.
463 However I agree for the reasons given by other members of the Court the questions should be answered in the manner proposed by the Chief Justice.
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