Principles of Parliamentary privilege
21 In Prebble [1995] 1 AC 321, Lord Browne-Wilkinson gave the advice of Lords Keith of Kinkel, Goff of Chieveley, Mustill, Nolan and himself. Their Lordships encapsulated the following principle of the operation of Art 9 of the Bill of Rights, namely (at 337A-B):
… parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception …
(emphasis added)
22 For centuries, the courts have recognised that Art 9 reflects a fundamental principle of the system of government in a representative democracy that separates and demarks the exclusive jurisdiction of Parliament over its own processes from the jurisdiction that the judiciary might otherwise have had. As I noted in Leyonhjelm 387 ALR at 402 [40]:
In The Queen v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 (and see at 164-165), Dixon CJ, giving the judgment of the Court, said that under s 49 of the Constitution "it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise". This view is also consistent with recent decisions of the Supreme Court of the United Kingdom and the New Zealand Court of Appeal.
(emphasis added)
23 The line of authorities that I discuss below illustrates that the courts have recognised the need to balance this principle with the public interest of ensuring that proceedings in Parliament can be discussed in public and that freedom of speech, expression of opinion and the ability of persons affected by what is said under the absolute privilege conferred in Art 9 to clear their reputation.
24 In Stockdale v Hansard (No 1) (1839) 9 Ad & El 1; 112 ER 1112, the Court of Queen's Bench held that one House of Parliament could not, by its own authorisation, confer immunity from suit on the publisher (Hansard) of its debates or papers based on Art 9 of the Bill of Rights. Immediately after that decision, the United Kingdom Parliament enacted the Parliamentary Papers Act 1840 (UK: 3 & 4 Vict c 9). In New South Wales, this protection is now provided by the Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW).
25 In Wason v Walter (1868) LR 4 QB 73, the plaintiff had caused a petition to be presented to the House of Lords that alleged that about 30 years earlier, when a barrister, the recently appointed Kelly CB, had knowingly deceived an election committee of the House of Commons. The petition sought an enquiry into the now Lord Chief Baron's conduct and, if the allegation were substantiated, his removal from office. The Times published an editorial and a report of the debate in the House of Lords when the petition was presented, during which Earl Russell, who presented Mr Wason's petition, decried it as a fabrication, as did other members of the House including Lord Chelmsford LC. Mr Wason sued the editor of The Times, Mr Walter, as its publisher, for libel. Cockburn CJ, giving the reasons of himself, Lush, Hannen and Hayes JJ, held that a fair and accurate report of a debate in either House of Parliament containing disparaging matter about the conduct or character of an individual was not actionable by him or her (LR 4 QB at 82-83). As the Lord Chief Justice explained, following the decision in Stockdale 9 Ad & El 1; 112 ER 1112, the enactment of the Parliamentary Papers Act 1840 ensured that the publication of what was said in debates, as well as all papers, votes or proceedings, that had been authorised for publication by order of either House of Parliament, was immune from suit (LR 4 QB at 91-92).
26 Cockburn CJ said that before Stockdale 9 Ad & El 1; 112 ER 1112, no previous action had been brought in respect of the publication of a parliamentary debate. In discussing the purpose of the enactment of the Parliamentary Papers Act, he said (LR 4 QB at 93):
We cannot but think that, - had the noble and learned persons referred to foreseen that such an action as the present would be brought, in which a party, having by his own attack upon a public man given rise to a debate in one of the houses of parliament which he knew would, in the ordinary course of things, be reported, charges as a libel the publication of the discussion which he himself has provoked, and which publication he would have hailed with satisfaction if the result of it had been favourable to himself and damaging to the object of his attack, - they would have paused before they assumed that by law such an action could be maintained, or at all events would have seen the necessity for an immediate amendment of a law so defective.
…To us it seems clear that the principles on which the publication of reports of the proceedings of courts of justice have been held to be privileged apply to the reports of parliamentary proceedings. The analogy between the two cases is in every respect complete. If the rule has never been applied to the reports of parliamentary proceedings till now, we must assume that it is only because the occasion has never before arisen.
(emphasis added)
27 Finally, Cockburn CJ concluded (LR 4 QB at 96):
… We pass on to the second branch of this rule, which has reference to alleged misdirection in respect of the second count of the declaration, which is founded on the article in the Times commenting on the debate in the House of Lords, and the conduct of the plaintiff in preferring the petition which gave rise to it. We are of opinion that the direction given to the jury was perfectly correct. The publication of the debate having been justifiable, the jury were properly told the subject was, for the reasons we have already adverted to, pre-eminently one of public interest, and therefore one on which public comment and observation might properly be made, and that consequently the occasion was privileged in the absence of malice.
(emphasis added)
28 Importantly, in Pervan v The North Queensland Newspapers Company Ltd (1993) 178 CLR 309 at 319, Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ said that Cockburn CJ's reasons in Wason LR 4 QB 73 reflected the common law, together with Mangena v Wright [1909] 2 KB 958 (see too Gately on Libel & Slander (12th ed online, Sweet & Maxwell, 2017)) at [12.21]).
29 Mr Wason next sought to lay on information before a magistrate that Earl Russell, Lord Chelmsford LC and Kelly CB had conspired to deceive the House of Lords. The magistrate refused to let Mr Wason do so. He applied to the Court of Queen's Bench for a rule that the magistrate show cause why he should not be compelled to permit Mr Wason to lay an information which would commence a private prosecution. The Court of Queen's Bench rejected that application: Ex parte Wason (1869) LR 4 QB 573 per Cockburn CJ at 574-576, Blackburn J at 576, Lush J at 576-577 and Hayes J at 577. As Lush J said, obviously with reference to Art 9 (at 577):
… we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.
(emphasis added)
30 In Adam v Ward [1917] AC 309, Major Adam MP made a speech in the House of Commons that conveyed the meaning that Major-General Scobell had made a confidential report to his superiors that contained wilful and deliberate misstatements of fact as to officers under his command with the result that injustice had been caused to one of the regiments under his command and that he had engaged in "conduct unworthy of an officer and a gentlemen within the meaning of the King's Regulations" (at 312 per Lord Finlay LC). Major Adam referred to the case of one named officer but did not say in his speech that he, too, was a subject of Major-General Scobell's report. Because the King's Regulations prevented Major-General Scobell responding directly, he had to bring the matter before the Army Council which investigated the charge that Major Adam had made in the House of Commons. The Army Council prepared a report that completely exonerated the Major-General, finding that Major Adam's charge was "without foundation".
31 The defendant, Sir Edward Ward, the secretary of the Army Council, published its report widely, including to the press, which reported it fulsomely. Major Adam sued Sir Edward for libel and recovered £2,000 damages at the trial. The Court of Appeal held that the publication of the report occurred on an occasion of qualified privilege, there was no evidence that its publication was actuated by malice, and so entered a verdict for the defendant (Adam v Ward (1915) 31 TLR 299).
32 The House of Lords upheld the Court of Appeal. Their Lordships' decision established that where a person whose reputation had been damaged by a speech under absolute (or Parliamentary) privilege, he, she, or others, such as the Army Council who could inquire into the subject matter of the speech, had a qualified privilege to respond to as wide an audience as the maker of the speech actually or notionally had. Lord Finlay LC said ([1917] AC at 319):
… It is said that there was unnecessary publicity given to their findings, but it must be remembered that Major Adam's speech in the House of Commons had been extensively reported, as he obviously intended it should be when he made his attack upon Major-General Scobell, and the Army Council did no more than their duty in giving a wide publicity to their finding that the charge was unfounded.
It has been said that their observations as to the plaintiff, Major Adam, were not relevant to their vindication of Major-General Scobell, and that privilege does not extend to this portion of the letter. These observations appear to me to be directly relevant. The plaintiff did not mention in his speech in the House of Commons that he was himself interested in the matter, and any one who heard or read his speech would have been left under the impression that he was a perfectly disinterested person who had taken up the case of a brother officer. The vindication by the Army Council of Major-General Scobell would have been incomplete if the true relation of Major Adam to these proceedings had been left out.
(emphasis added)
33 Lord Dunedin explained that the purpose of extending the occasion of qualified privilege to publications to a mass audience was to enable a person traduced in proceedings in Parliament to respond to, or to publish another body's refutation of, the attack. He said, conscious of the Parliamentary privilege under which Major Adam had spoken ([1917] AC at 324 and see too per Lord Atkinson at 341-342):
… can it for a moment be supposed that this publication is not a performance of a moral if not even of a legal duty and as such privileged? Let us look at the situation. General Scobell is grossly attacked in a speech in the House of Commons - a speech which in that place, from motives of high public policy, is protected by absolute privilege. Under the King's Regulations he may not take up the matter himself and defend himself in the public Press. He is bound to refer the matter to the Army Council and await their verdict. The verdict is in his favour. What would that avail him unless there was a right in the Army Council to publish the result at which they had arrived? If it were not so, then the absolute privilege of the House of Commons, intended to safeguard the liberty of discussion, would be really turned into an abominable instrument of oppression.
… My Lords, I think that a man who makes a statement on the floor of the House of Commons makes it to the world. True it never reaches every person in the world. In some cases, if the orator is unknown to fame and the statement intrinsically unexciting, it may not reach very many. But no one knows whom it may reach, and it was only, I think, plain justice to General Scobell that the ambit of the contradiction should be spread so wide as if possible to meet the false accusation wherever it went. Do what you will, the stern chase after a lie that has got the start is apt to be a long one.
(emphasis added)
34 Lord Atkinson said (at 343):
… where a man, through the medium of Hansard's reports of the proceedings in Parliament, publishes to the world vile slanders of a civil, naval, or military servant of the Crown in relation to the discharge by that servant of the duties of his office he selects the world as his audience, and that it is the duty of the heads of the service to which the servant belongs, if on investigation they find the imputation against him groundless, to publish his vindication to the same audience to which his traducer has addressed himself.
(emphasis added)
35 Lord Shaw of Dunfermline said that Major Adam made his charge against Major-General Scobell deliberately "under the shelter of the absolute privilege which covers proceedings in Parliament, and it was directed against a man whose mouth was closed by the King's Regulations applicable to the Army" (at 345).
36 Because what is said in Parliament necessarily is, or relates to, a matter of public interest, there is, in addition to such occasions of qualified privilege, a common law right to express one's honest opinion or make a fair comment on or about such a statement or proceeding in Parliament: Wason LR 4 QB at 96; Cook v Alexander [1974] QB 279 at 288A-D per Lord Denning MR, 290D-E per Buckley LJ and 290F, 291B-E per Lawton LJ. And, of course, there is also a common law right to make a fair report of proceedings in Parliament: Wason LR 4 QB 573; Cook [1974] QB 279.
37 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ held that in the Constitution there is an implied freedom of communication on government and political matter (the constitutional freedom). They said that:
… each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter.
(emphasis added)
38 The Defamation Act and its analogues equally reflect these fundamental values that underpin the free flow of information, comments, opinions and arguments that are necessary to the effective functioning of a Parliamentary democracy. Thus, a publisher can avail himself, herself or itself of the statutory defences that the Act provides, including of:
fair report of proceedings of public concern (including any proceedings in public of a parliamentary body) (s 29(1) and (4)(a)),
qualified privilege where the publisher proves that recipient has an actual or apparent interest in receiving information on some subject, the matter is published to the recipient in the course of giving him, her or it information on that subject and the publisher's conduct in publishing that matter is reasonable in the circumstances (s 30(1)), and
honest opinion that relates to a matter of public interest and is based on proper material (s 31(1)).
39 The public interest, reflected in Art 9, ensures that proceedings in Parliament are not actionable outside the House in which they occur. This protection exists so that persons, including witnesses before committees, can speak freely in Parliament (or its committees). Nonetheless, the common law, statutes including the Defamation Act, and the constitutional freedom recognise a concomitant duty or interest in every member of the community to be able to report on or about those proceedings, express opinions, provide further information or arguments in respect of them that, although apparently defamatory of a person who made a statement in or was the subject of a proceeding in Parliament, will not be actionable if made without malice or if not unreasonable.
40 The significance of the common law rights and defences established by the authorities, the constitutional freedom and the additional statutory defences is that the law has evolved balancing mechanisms that respect the strictures of Art 9, yet allow the victim of a public attack on him or her made under absolute privilege in proceedings in Parliament to respond to the attack without being liable for defamation. Others who have an interest in, or duty to, discuss the subject matter can publish to the public at large matter relating to or refuting the attack and can also disseminate information, opinions and arguments about what is said or done in proceedings in Parliament. And, as Adam [1917] AC 309 and Lange 189 CLR 520 show, a publisher has a qualified privilege to denounce a statement made in Parliament as a falsehood in a manner that does not infringe Art 9 and does not attract liability for defamation.