Ground 2: Parliamentary privilege
345 This ground alleges that the primary judge ought to have found that evidence and submissions "as to the effect of the interjection" attributed to the respondent would be (1) for the purpose of "impeaching" or "questioning" the respondent's speech, within the meaning of Article 9 of the Bill of Rights 1688 (UK) (Bill of Rights); and/or (2) for one or more of the prohibited purposes by s 16(3) of the PP Act.
346 Section 16 of the PP Act is relevantly in the following terms:
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.
347 This ground arises in the context where, as referred to above, there was a dispute as to the terms of the interjection made by the respondent and there was no record of the interjection in Hansard.
348 The history of this aspect of the proceedings below, is as follows.
349 An interlocutory application was made by the appellant prior to trial which sought, inter alia, a permanent stay of the proceedings by reference to s 16 of the PP Act.
350 The primary judge dismissed the application: Hanson-Young v Leyonhjelm [2018] FCA 1688; (2018) 264 ALR 624. In particular, the primary judge concluded at [55]-[58]:
[55] 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" as defined in s 16(2) of the PP Act. Again, it is convenient to repeat what I said in Carrigan v Cash on this topic:
[14] It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it: Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at [27]. The Full Court of the Supreme Court of Western Australia explained the position more fully in Halden v Marks at 462 when outlining the first of two situations in which courts do consider parliamentary privilege:
First, there are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in parliament. In the exercise [of] its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered, if the court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceeding in Parliament...
[15] Accordingly, the Court may receive and consider evidence concerning parliamentary proceedings for the purposes of determining whether parliamentary privilege applies: Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223 at 231-2.
See also Carrigan v Cash on appeal at [42].
[56] 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.
[57] 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.
[58] 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.
351 An application for leave to appeal that judgment was refused: Leyonhjelm v Hanson-Young [2019] FCA 156, with the Court concluding at [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.
352 After affidavits of proposed evidence were filed, the appellant did not, prior to the trial, seek to re-agitate this issue. Nor did the appellant's written and oral opening submission refer to the PP Act. The primary judge noted that senior counsel for the appellant informed the Court on the first day of the hearing that his client was proceeding on the basis he was bound by the interlocutory ruling: [359]. The appellant raised the issue of the PP Act in closing submission: [360]. As the primary judge observed at [363] "[t]he effect of the way in which the respondent raised the issue at trial meant that the Court was required to consider the application of s 16(3) at its conclusion. Neither party suggested that this was an inappropriate course".
353 This history provides the relevant context in which the evidence was led in the hearing.
354 In that context, the appellant's submission on this ground was twofold: first, that the evidence and submissions regarding the interjection in the proceeding below were for impermissible purposes, contrary to Art 9 of the Bill of Rights and s 16(3) of the PP Act; and second, as the factual question as to whether the respondent made the interjection was central to the appellant's justification defence the proceedings ought to have been permanently stayed. The appellant's contention was that, consistently with "how [the law] has been applied in all of the other cases", it was impermissible for the Court to even enter into a consideration of what the respondent had said in the interjection. He submitted that a Court is "not allowed to look at what was said in Parliament because that's the entire purpose of s 16(3). You aren't allowed to look at that at all as a matter of historical fact". The contention was also that the purpose of the evidence in this case, inter alia, was "'questioning or establishing the credibility, motive, intention or good faith of any person', specifically the respondent". In oral submissions, the appellant contended that the evidence was adduced in this case for all of the impermissible purposes under s 16(3)(a), (b) and (c).
355 At the outset of his reasons the primary judge recorded his satisfaction that the conduct of the proceedings did not involve an infringement of s 16(3) of the PP Act and that a permanent stay of proceedings on that basis was not appropriate: [15].
356 As a preliminary observation, although the appellant contended that the primary judge was wrong to permit the evidence complained of, and despite the breadth of the submission as to the principles arising from s 16 of the PP Act, the appellant has not pointed to any error in the primary judge's recitation of the relevant principles. In particular, the primary judge at [364]-[371] accurately summarised those principles from the authorities which touch upon the issues in this case. That summary reflects the law as applied in his Honour's interlocutory judgment. As a consequence, although the appellant made a broad submission as to the limits of the law, the primary judge's statements as to the authorities which are to the contrary to those submissions, were not addressed.
357 For the reasons explained below, the authorities relied on by the appellant do not support the limitations he contended for therein. Moreover, the appellant's interpretation of s 16 has the consequence that any person could, outside Parliament, erroneously attribute to a parliamentarian a statement said to have been made in Parliament, and that parliamentarian could not commence proceedings, regardless of how defamatory the statements were, because s 16 prevented them from establishing the fact of what was not said in Parliament (or what was said). To put it another way, the parliamentarian would have no recourse for the statements erroneously attributed to him or her in Parliament because of s 16. That is incorrect. The text of s 16, in its proper context and in light of its purpose, does not support that conclusion: for the approach see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]. Nor does a proper reading of the authorities which address s 16 of the PP Act.
358 Not having challenged the principles applied, the appellant's dispute in reality was with the primary judge's conclusions on his characterisation of the purpose for which the evidence was led. So much is obvious from the appellant's submission that "[t]he issue itself ought not have been the subject of evidence and submissions before the Court, save insofar as to establish whether Parliamentary privilege applied". That submission made reference to [370] of the primary judge's reasons, which is as follows:
Section 16(3) does not preclude the Court from receiving and considering evidence concerning what was said in Parliament for the purposes of determining whether a matter did form part of "proceedings in Parliament" as defined in s 16(2) of the PP Act. The overarching principle is that stated by Dixon CJ in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 that "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". On this topic, I said in Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466:
[14] It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it … The Full Court of the Supreme Court of Western Australia explained the position more fully in Halden v Marks at 462 when outlining the first of two situations in which courts do consider parliamentary privilege:
First, there are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in parliament. In the exercise [of] its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered, if the court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceeding in Parliament …
[15] Accordingly, the Court may receive and consider evidence concerning parliamentary proceedings for the purposes of determining whether parliamentary privilege applies: ...
359 As explained below, the appellant's submission is based on a factual premise which fails to recognise that there is a difference between establishing something was said as a matter of fact, with the truth of the statement made and the other prohibited purposes specified in s 16(3).
360 Section 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 provisions of s 16. It has been said that there is no reason to read the terms of the PP Act narrowly: Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450 (Rann v Olsen) at [53]. It has been accepted that s 16 is not to be limited in its scope to the operation of Art 9: Rann v Olsen at [53]; Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 (Carrigan v Cash) at [10], but rather, 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 at [53] per Doyle CJ, (with whom Mullighan J agreed), [236]-[245] per Perry J, [393] per Lander J; Carrigan v Cash at [10].
361 Section 16 falls to be interpreted by applying ordinary principles of statutory construction.
362 Section 16(3) renders 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 the specified purposes. It necessarily follows that Parliamentary privilege arises only where evidence concerning proceedings in Parliament is tendered for those purposes.
363 It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it: Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 (Egan v Willis) at [27].
364 The Court may receive and consider evidence concerning Parliamentary proceedings for the purposes of determining whether Parliamentary privilege applies: Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 (Amann Aviation) at 231-232; Carrigan v Cash at [14]-[15] per White J, (affirmed in refusing leave: Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86 at [42] per Dowsett, Besanko and Robertson JJ). Parliamentary privilege does not prevent evidence being tendered to prove, as a fact, what was said in the course of Parliament: see Mundey v Askin [1982] 2 NSWLR 369 at 373; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; Egan v Willis at [133] per Kirby J; McCloy v The Honourable Megan Latham [2015] NSWSC 1782 at [20].
365 As the primary judge properly concluded "it is not a breach of Parliamentary privilege for a party to prove, as a fact, that certain things were said in Parliament when proof of that fact is relevant to an issue in the proceedings and that proof is not led for one of the purposes proscribed by s 16(3) or its statutory or common law counterparts" at [369], citing inter alia, Mundey v Askin [1982] 2 NSWLR 369 at 373; Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 453; Buchanan v Jennings [2004] UKPC 36; [2005] 1 AC 115 at [17]-[18]; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337, and Rann v Olsen at [73].
366 Although the authorities do not address the specific factual scenario that occurred in this case where a statement said in Parliament was not recorded in Hansard, the underlying principles are nonetheless applicable. The question to be addressed is the purpose for which the evidence was led.
367 These principles are explained in some detail in Rann v Olsen where the Court considered a case where the plaintiff (then Leader of the opposition in the Parliament of South Australia) issued proceedings against the defendant (the then Premier of South Australia) for slander. The defendant admitted that he had said the plaintiff had lied when he told a Parliamentary committee that the defendant had leaked confidential information, and that there were three occasions of publication of the statement. The matter was considered by the Full Court of the Supreme Court of South Australia, as a case stated with the questions referred to it raising the issue of whether s 16(3) of the PP Act prohibited the parties, inter alia, 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 whether the trial proceedings ought to be stayed as a result of the defendant being prohibited by s 16(3) from proving the statements uttered by him were true.
368 Relevantly, for present purposes, Doyle CJ at [73]-[76] having referred to the relevant authorities, and the factual basis of the claims in the case, explained the application of s 16(3) as follows:
[73] 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.
[74] …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.
[75] 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.
[76] 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.
369 Doyle CJ concluded at [54] that:
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.
370 On the other hand, in relation to the plea of qualified privilege Doyle CJ observed at [62]-[65]:
[62] 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.
[63] 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.
[64] 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.
[65] 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.
371 Those passages helpfully illustrate the importance and consequence of the focus being on the purpose for which the evidence was led. They reflect that, contrary to the appellant's contention, the content of what was said and by whom can be led, for the purpose of establishing the historical fact that it was said. Mullighan J agreed with Doyle CJ, and Lander J was to a similar effect.
372 There was a factual issue to be resolved in this case as to what words were spoken in the interjection. That was a necessary step, because without that conclusion a decision by the Court could not be made as to whether the PP Act applied. If the respondent did not speak the words attributed to her by the appellant, s 16 had no application, as it only protects "proceedings in Parliament". The evidence was led for the purpose of proving whether, as a matter of fact, the alleged statement was said. That consideration of the evidence and determination does not challenge the truth, intention, motive or good faith of anything forming part of the proceedings in Parliament; or otherwise question or establish the credibility, motive, intention or good faith of any person; or draw inferences, or conclusions wholly or partly from anything forming part of those proceedings: s 16(3)(a), (b), (c).
373 There is a tension in the appellant's submission between accepting on the one hand that it is for the judge to determine whether Parliamentary privilege arises and the submission that the primary judge determining the factual question in this case as to what occurred in the Senate "goes well beyond receiving evidence for the limited purpose of determining whether Parliamentary privilege applies".
374 The appellant's submission is based on several misconceptions.
375 First, the submission is based on the proposition that s 16 prohibits "evidence to be received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament" for the proscribed purposes. So much is clear. However, the focus of s 16 is therefore on the purpose for which the evidence is led, not, as the appellant submitted on whether "evidence [was] received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament". That is not what is prohibited per se. This fallacy of the appellant's argument is reflected by the submission that followed, "that by the time the factual finding [as to what was said] was made, the matter will have been the subject of evidence, cross-examination and submissions, which would be contrary to Article 9 and s 16(3) the PP Act". Being the subject of evidence, cross-examination and submissions is not, per se, prohibited. Rather, the evidence, cross-examination or submissions must relate to a prohibited purpose specified in s 16(3). The appellant's ground of appeal itself reflects this misunderstanding, asserting that the primary judge "ought to have found that evidence and submissions as to the effect of the interjection attributed to the respondent" breached the provision. Evidence was not led as to "the effect" of the interjection but rather for the purpose of establishing whether, as a matter of fact, the words attributed to the respondent in her interjection took place.
376 Second, the submission also proceeded on the assumption that leading evidence of what was said necessarily involved "questioning or relying on the truth, motive, intention or good faith" of anything said in Parliament or "questioning or establishing the credibility, motive, intention or good faith" of any person. For example, the appellant submitted that "the entire purpose of having the evidence-in-chief and cross-examination and making submissions is to question the motives of the participant and it's to question their behaviour and whether or not they have been speaking truthfully etcetera". A finding that as a matter of fact something was said, or not said, does not involve any of those concepts. Rather, it involves an assessment of the witnesses in the courtroom who gave evidence in respect to the topic of what was said. The submission reflected a fundamental misunderstanding of the process of determining the factual question based on the evidence the Court had before it. That a number of Senators gave differing evidence of the factual matter of what was said does not alter that. Assessing the evidence of the witnesses to determine what was said, as one would in the ordinary course of events, does not involve questions of motive, intention or credibility of any person in relation to proceedings in Parliament. Rather what is assessed is the witness' evidence in the courtroom about a previous event. The merits, truth or otherwise of the statement alleged to have been made in Parliament was not in issue, rather it was simply whether the words were in fact spoken. Nor were any inferences being drawn from what was said, or not said, in making that finding. It was not therefore admitted for a prohibited purpose. That the evidence might also be capable of being used for a prohibited purpose, does not on that account, alter its admissibility for the non-prohibited purpose: Rann v Olsen at [74], [76]. Rather, the Court will not allow it to be used for the prohibited purpose: Rann v Olsen at [74], [76]. Again, that submission does not address the prohibited purpose.
377 Third, and aligned with that, the appellant's submission that it is what occurs in Parliament that "makes it impermissible to lead this evidence [and] not what we're doing in the trial that makes it impermissible", is contrary to authority. Rather, "[t]he 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…the prohibited purpose must refer to something that the Court is asked to do in deciding the case…The critical thing is whether the question has a purpose that is not a prohibited purpose.": Rann v Olsen at [73]-[74].
378 Fourth, the appellant's submission that the primary judge was incorrect to conclude that what was said in the Senate could be established "as a matter of history", because it was "artificially divorced from the intended use of that material in the appellant's defence of justification" also does not assist him: see [387]-[388]. Again, that does not alter the purpose for which the evidence was led, which was to determine what was said, in order to determine whether Parliamentary privilege arose. Again, even if the evidence might be capable of another, prohibited purpose, that does not alter its admissibility for this purpose: Rann v Olsen at [74], [76].
379 On the appellant's case, as s 16 prevents any determination of what was said in Parliament, he was prejudiced in his defence of justification. That was the basis of his application for a stay of proceedings. However, that presupposes that s 16 applied: see [386]-[388]. As the primary judge explained at [386]-[388] when addressing the defence of justification:
[386] As already noted, the applicant's primary position is that s 16(3) will be infringed because the Court will have to consider whether whatever words it finds were spoken by the applicant in her interjection in the Senate were absurd, exposed the applicant as a misandrist or, when measured against her own conduct, made her hypocrite. The respondent's submissions did not indicate the particular provision in s 16(3) which he contended would be infringed in this way. I have taken it to be subs (3)(c) because it would involve the Court drawing inferences or conclusions from something forming part of the proceedings in the Parliament.
[387] The respondent's submission cannot be accepted. It overlooks that his defence of justification depends on proof of his assertion that the applicant had made the particular claim in the Senate which he alleges, namely, a claim "tantamount to a claim that all men are responsible for sexual assault or that all men are rapists". On my findings, the applicant made no such claim and, hence, the statement which the respondent attributes to the applicant did not form "part of [the] proceedings in Parliament" on which s 16(3) can operate. Section 16(3) is to not to be invoked in respect of a statement which was not made in the Senate.
[388] The particular words pleaded to have been used by the applicant to justify the admitted imputations are important. It is those words, or words which are not substantially different from them, which have to be proved. It is not open to the respondent to contend that, even if the applicant did not speak the words he attributes to her (or words substantially similar to those words), it is still open for the Court to consider whether whatever other words she did speak, may be characterised as absurd, or indicate that she is a misandrist or when measured against her own conduct, indicate that she is a hypocrite.
380 The appellant's submission squarely raised the issue of whether s 16 applied, for if it did not, no such prejudice arose.
381 If attention is focussed on the purpose for which the evidence was led, it is clear from the history of the proceedings that the purpose was for establishing whether something occurred as a matter of fact. It was for the purpose of determining whether Parliamentary privilege applied, by determining what formed part of the proceedings in Parliament. So much was plain from the interlocutory proceedings. That is not a prohibited purpose under the PP Act.
382 The subject matter was visited for a purpose other than a prohibited purpose. The primary judge did not allow the evidence to be "turned to that prohibited purpose": Rann v Olsen at [74]. The appellant does not contend otherwise.
383 If the primary judge had concluded that the words were said, then as he flagged in the interlocutory judgment, issues of s 16(3) may have arisen. That that possibility might follow from the conclusion of this preliminary issue, does not change the purpose for which the evidence was led.
384 The primary judge concluded that the statement "all men are rapists" or a statement tantamount to such a claim, was not said and therefore did not form part of the proceedings of Parliament.
385 This ground has not been established.