Section 16 of the Parliamentary Privileges Act (Grounds 7 - 11)
17 Grounds 7 - 11 are as follows:
7. His Honour erred in law in ruling that s.16 of the Parliamentary Privileges Act 1987 (Cth) (Privileges Act) will not be apposite to the present proceeding unless the evidence at trial proves that words spoken by the respondent during a parliamentary debate in the Australian Senate were as alleged by the applicant.
8. His Honour thereby erred in law in not dismissing the proceeding on the ground that the respondent:
a. by her pleadings seeks to impeach or question the freedom of speech and debates or proceedings in parliament in a court or place out of parliament;
b. is in contempt of the Australian Senate; and
c. is in breach of the Privileges Act.
9. Further and alternatively, his Honour erred in law, or else allowed his discretion to miscarry, in not staying permanently the proceeding on the basis that it is an abuse of process in that the applicant:
a. in order to resist the respondent's claim on the grounds of justification, impermissibly must ask the court to impeach or question the freedom of speech and debates or proceedings in parliament in a court or place out of parliament; and
b. accordingly is denied his capacity to resist the respondent's claim on the grounds of justification.
10. It is desirable for the foregoing matters be addressed by an appellate court immediately, because their determination at the present point in time will (assuming they are determined in the applicant's favour) dispose of the proceeding at an early stage and save the parties considerable expense.
11. Further, if the matters surrounding parliamentary privilege are not addressed on appeal at the present point in time:
a. the applicant will face an invidious choice between:
i. leading evidence and making submissions about comments which he recalls that the respondent made in the Australian Senate, and thereby risk infringing parliamentary privilege and placing himself in contempt of parliament; and
ii. refraining from putting on such evidence and making such submissions, and thereby placing himself, perhaps unnecessarily, at a significant disadvantage in the proceeding by depriving himself of the defence of justification; and
b. the respondent, who maintains that her case will not place her at risk of infringing parliamentary privilege, will infringe (or infringe further) parliamentary privilege and place herself (or place herself further) in contempt of parliament in the event that she is mistaken in this position.
18 Section 49 of the Australian Constitution has the effect that art 9 of the Bill of Rights 1688 applies to the Commonwealth Parliament. Article 9 provides 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". Section 16 of the Parliamentary Privileges Act is declaratory of the effect of art 9 and it provides, relevantly:
16 Parliamentary privilege in court proceedings
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
…
19 As I understood the respondent's argument, he does not submit that merely because evidence is led or is to be led as to what was said in Parliament there is an infringement of s 16 of the Parliamentary Privileges Act. He acknowledged that the Court may receive evidence concerning Parliamentary proceedings for the purposes of determining whether parliamentary privilege applies. His argument is that, in the particular circumstances of this case, parliamentary privilege will be infringed by evidence about what the applicant is alleged to have said in Parliament. The argument was that the primary judge erred in "separating out" the issue of whether something was said in Parliament and the inferences or conclusions that might be drawn from what was said. The two are inextricably linked, according to the respondent, because if the words were said, then necessarily, so it was contended, the imputations were true or substantially true. Put another way, the respondent's submission is as follows: (1) merely giving evidence of what was said in Parliament is not a breach of s 16 of the Parliamentary Privileges Act if the alleged statement is innocuous; and (2) the alleged statement here is not innocuous and a mere finding that the statement was made "besmirches" the applicant's reputation because of its nature and because it besmirches the applicant's character it infringes s 16 of the Parliamentary Privileges Act. The difficulty is compounded, so the respondent contends, by the applicant's plea of malice in the Reply alleging that the respondent knew that his assertion that the applicant said that all men are rapists was false.
20 The primary judge referred to his decision in Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 and, in particular, his observations about the effect of s 16 of the Parliament Privileges Act as follows (at [10]-[13]):
As can be seen, s 16(1) is declaratory as to the effect of Art 9 of the Bill of Rights in relation to the Australian Parliament but specifies that, in addition to any other operation which Art 9 may have, it includes those in the following subsections in s 16. The consequence is that s 16 is not to be regarded as limited in its scope to the operation of Art 9. On the contrary, s 16(1) is an express indication that the Parliament contemplated that s 16 may have an operation which is additional to that of Art 9: Rann v Olsen [2000] SASC 83, (2000) 76 SASR 450 at [53], [100] (Doyle CJ, with whom Mullighan J agreed), [236]-[245] (Perry J), [393] (Lander J); R v Theophanous [2003] VSCA 78, (2003) 141 A Crim R 216 at [66].
Section 16(3) has the effect of making it unlawful for evidence to be tendered or received in a Court or for questions to be asked, or statements, submissions or comments made, concerning "proceedings in Parliament" for specified purposes. Subsection (2) defines in an inclusive manner the term "proceedings in Parliament". At its base, the term 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" of the Parliament. However, "proceedings in Parliament" also include "the presentation or submission of a document to a House", and the "preparation of a document for purposes of or incidental to the transacting of any … business" of a House of Parliament.
Counsel for the Respondents emphasised the principle of "non-intervention" which underpins s 16. The privilege is not concerned simply with protecting parliamentarians from legal action but is intended to ensure that parliamentarians and others can engage in the parliamentary process without concern that those actions may be subject to later scrutiny by the courts: Prebble v Television New Zealand Limited [1995] 1 AC 321 at 334B. The privilege also operates to avoid conflicts between Parliament and the courts: Halden v Marks (1995) 17 WAR 447 at 463. It has been said that provisions such as Art 9 and s 16 reflect a broader principle pursuant to which courts and the Parliament are "astute to recognise their respective constitutional roles": Prebble at 332D, 335G; Rann v Olsen at [116]-[122], [171]-[172], [242]-[244]; Theophanous at [66]; Halden v Marks at 462.
The Respondents acknowledged that the privilege may produce consequences which are regarded as unfair in court proceedings. So much has been recognised in a number of the authorities: Prebble at 336G; Rann v Olsen at [125], [190]. The responsibility for addressing such circumstances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething [2000] FCA 45, (2000) 97 FCR 9 at [49].
21 The primary judge said that the Full Court did not suggest that any of those observations were incorrect (Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86) and nor did the parties before him suggest that the observations were incorrect.
22 The respondent submitted to the primary judge that in the Court's consideration of whether the matters complained of are defamatory of the applicant, the Court will be required to hear submissions and make a decision about how ordinary reasonable readers would respond to a statement spoken in Parliament, that all men are rapists. The respondent further submitted that he will not be able to pursue his defence of justification because that would infringe s 16(3) of the Parliamentary Privileges Act. The inability to pursue an otherwise available defence is an abuse of process which warrants a stay or summary dismissal of the applicant's proceeding.
23 The primary judge said that s 16(3) of the Parliamentary Privileges Act did not warrant the summary dismissal or stay of the proceedings, "at least at this stage" (emphasis added).
24 The primary judge then identified two matters: there is an issue as to whether the particular words on which the respondent relies were said in the Senate; and that it was common ground that the Court may receive and consider evidence concerning what was said in the Senate for the purposes of determining whether a matter did form part of "proceedings in Parliament" within s 16(2) of the Parliamentary Privileges Act (Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 (Egan v Willis) at [27]; Halden v Marks (1995) 17 WAR 447 at 463; Amann Aviation Pty Ltd v Commonwealth of Australia [1998] FCA 24; (1988) 19 FCR 223 at 231).
25 The primary judge then said (at [56]-[58]):
For this reason alone, it would be inappropriate to dismiss or stay the proceedings. If the factual issue as to what was said in the Senate on 28 June 2018 is resolved adversely to the Respondent, s 16 will have no application. That is because s 16(3) protects "proceedings in Parliament", as defined in s 16(2). It does not protect words not spoken and nor acts not done in the course of, or for the purposes of or incidental to, the transacting of the business of the Senate. That is so even when a person genuinely, but erroneously, thinks that the words were spoken or the acts were done in the course of the business of the Senate.
It may be necessary at some stage in these proceedings to consider the application of the PP Act in the event it be found that the Applicant did make the statement in the Senate which the Respondent attributes to her. This may involve consideration of some of the difficult issues addressed in Rann v Olsen [2000] SASC 83; (2000) 76 SASR 480.
In my opinion, it is unnecessary and inappropriate to do so at this stage. First, for the reasons already given, the determination of the issue cannot lead to the stay or striking out of the proceedings now. Secondly, it may turn out to be hypothetical. Thirdly, it would in any event be preferable for the parties to file and serve their affidavit evidence so that the Court may have a more detailed appreciation of the evidence each wishes to lead at trial.
26 In my opinion, leave to appeal with respect to Grounds 7 - 11 should be refused. It seems to me that insufficient doubt attends the primary judge's conclusion that it is part of the Court's jurisdiction to determine if parliamentary privilege is engaged and to do that the Court must determine whether the words were said in proceedings in Parliament. It would seem clear from the authorities that it is for the Court to judge of the existence of the privilege (Egan v Willis at [27]). I recognise that this is a complex and difficult area, but it would be surprising if the proceeding was dismissed without any determination of whether the words were said. Even if that be wrong, there is an even more compelling reason to refuse leave and that is that the primary judge said, as I read his reasons, that at the very least, all the evidence should be filed before the point is considered. That was not the case at the time of the primary judge's decision. If I may say, the primary judge's approach seems an entirely reasonable and sensible course to adopt and does not involve a point suitable for leave. There is no substantial injustice to the respondent if leave is refused, assuming the decision to be wrong. In the circumstances, the fact that he must be ready for trial is not substantial injustice.