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.

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.

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.

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.

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.

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.

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.

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.

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.

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] EWCA Civ 1111; [1999] 1 WLR 1569; [1999] 3 All ER 317 at 335 Lord Woolf MR.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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."

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."

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.

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."

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).

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.

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.

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.

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).

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.

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.

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.

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.

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.

For those reasons, I do not accept that aspect of his submissions.

An alternative approach advocated by Mr Heywood-Smith is that which appealed to Davies JA in Laurance v Katter [1996] QCA 471; (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).

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).

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."

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.

In the end, I unable to accommodate the approach taken by Davies JA to the terms used in s 16(3).

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).

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.'"

"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."

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."

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."

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] HCA 43; (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."

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] EWCA Civ 1111; [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] HCA 71; (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."

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.

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.

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.

Likewise, he is not assisted by the common law approach that in the interpretation of legislation the Court will reject the apparent meaning of words if that apparent meaning would result in "some absurdity, or some repugnance or inconsistency with the rest of the instrument": Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106; [1857] EngR 335; 10 ER 1216 at 1234. First of all, it may well be that that principle operates only in relation to an absurdity or inconsistency between different provisions of the relevant legislation. It is doubtful whether that principle ever authorised a court to make an assessment of the policy underlying legislation, and to modify the language of legislation if the language appeared to conflict with that policy. Be it as it may, in my opinion, considering the history behind the Privileges Act, it cannot be said that the interpretation of s 16(3) for which the defendant contends in the present case is productive of absurdity or of inconsistency with the rest of the Privileges Act or with the policy that underlies the Privileges Act. To say this is not to deny the force of the argument advanced by King CJ, in relation to Article 9, in Wright v Lewis. In my respectful opinion it is merely to recognise that legislation that pursues a particular objective, which everyone would acknowledge to be appropriate, may in particular applications produce unwelcome and untoward results.

For all those reasons I conclude that the application of s 16(3) of the Privileges Act cannot be limited, in the manner suggested by Mr Heywood-Smith, to produce the result that it does not make it unlawful for Mr Olsen to support the defence of truth in the manner proposed by him, or for Mr Rann to contest that plea.

In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 the High Court held that a requirement of freedom of communication is an implication to be drawn from certain sections of the Constitution. The High Court said (at 567):

"To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections."

The implication is drawn because freedom of communication is essential to the system of representative and responsible government established by those provisions. As to that, the High Court said (at 559-560):

"Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be 'directly chosen by the people' of the Commonwealth and the States, respectively. ... Communications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation."

The implication from the Constitution gives rise to a restriction on the legislative power of the Commonwealth Parliament. It also affects the content of the common law. The common law cannot conflict with the requirements of the constitution. The High Court said (at 566):

"Of necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives."

If it is suggested that a law infringes the requirement of freedom of communication, a court must consider two questions before determining the validity of the law. The questions were identified by the High Court as follows (at 567):

"First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people..." (Footnotes omitted).

Mr Heywood-Smith attacks the validity of s 16(3) by submitting that it infringes the restriction on the legislative power of the Commonwealth Parliament that flows from the requirement of freedom of communication.

It is as well to begin by identifying the source of power to enact s 16(3) of the Privileges Act. It is s 49 of the Constitution.

There can be no doubt that s 49 empowers the Parliament to declare the powers, privileges and immunities of the Senate and of the House of Representatives to be more or less extensive than those conferred and declared by s 49 as at the establishment of the Commonwealth. In that respect I agree with Fitzgerald P in Laurance v Katter [1996] QCA 471; (1996) 141 ALR 447.

If s 16 merely enacts or declares the effect of Article 9 of the Bill of Rights, there can be no question of s 16 being invalid by reason of an implication to be drawn from the terms of the Constitution. It is generally accepted that s 49 is taken to enact the provisions of Article 9. An implication drawn from other provisions of the Constitution must give way before an express provision of the Constitution.

The Solicitor General for the Commonwealth, the Solicitor General for the State of South Australia, and Mr Whitington, submit that s 16 of the Privileges Act is declaratory of the effect of Article 9, and that there is no need to enquire further as to the validity of s 16. That view finds support in Amann Aviation Pty Ltd v Commonwealth [1988] FCA 24; (1988) 81 ALR 710 and in the reasons of Fitzgerald P in Laurance v Katter. It is also supported by the views expressed by the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333.

I have already concluded that there are indications in the Privileges Act that Parliament contemplated that it might extend the previously existing powers, privileges and immunities. There is no warrant for reading it on the assumption that it does not. As well, it is significant that s 16 was enacted "For the avoidance of doubt" as to the operation of Article 9. The safer course is to assume that s 16(3) does extend the protection given by Article 9, and to consider the question of validity on that footing.

Does Section 16(3) Effectively Burden Freedom of Communication?

I turn now to the first of the two questions that Lange requires this Court to consider.

Section 16(3) applies only to "proceedings in any court or tribunal." It does not affect freedom of speech generally. By that I mean that it does not purport directly to prohibit or to impede freedom of speech outside a court or tribunal.

In some respects s 16(3) will enhance freedom of communication. It protects a person who makes a statement in the course of proceedings in Parliament (hereafter I will refer to such a statement as protected speech) from a range of detriments (I use this term for convenience despite its generality) which might be visited upon the person who spoke the protected speech as a result of the person speaking those words. Freeing the speaker of protected speech from those detriments enhances freedom of communication. It encourages freedom of speech. In particular, protected speech cannot be the subject of an action for libel or slander. That is a significant enhancement of freedom of communication.

It is clear that the existence of a legal remedy for publishing defamatory matter is capable of being seen as a burden on freedom of communication. Lange so decides. The High Court said (at 562):

"A person who is defamed must find a legal remedy against those responsible for publishing defamatory matter either in the common law or in a statute which confers a right of action. The right to a remedy cannot be admitted, however, if its exercise would infringe upon the freedom to discuss government and political matters which the Constitution impliedly requires."

A little later in its reasons the Court said (at 568):

"The law of defamation does not contain any rule that prohibits an elector from communicating with other electors concerning government or political matters relating to the Commonwealth. Nevertheless, in so far as the law of defamation requires electors and others to pay damages for the publication of communications concerning those matters or leads to the grant of injunctions against such publications, it effectively burdens the freedom of communication about those matters."

To the extent that s 16(3) renders protected speech immune from action under the law of defamation, it removes any potential for the common law in that respect to impose a restriction on freedom of communication, which restriction might conflict with the constitutional implication.

On the other hand, I have concluded that s 16(3) will prevent Mr Olsen from supporting his plea of truth in answer to the claim against him. He will not be able to seek a finding that Mr Rann lied to the Committee. The section will prevent Mr Rann from contesting that plea.

As I understand the decision in Lange, the High Court has held that the common law, as modified by the decision in Lange in relation to qualified privilege, does not (at 575):

"... place an undue burden on those communications that are necessary to give effect to the choice in federal elections given by ss 7 and 24 and the freedom of communication implied by those sections and ss 64 and 128 of the Constitution."

But the effect of s 16(3) is to deny Mr Olsen an important defence at common law to a claim under the law of defamation. In that respect it does burden freedom of speech. It leaves Mr Olsen unable to resist a claim, on the grounds of truth, in respect of words spoken by him being words constituting part of communication on matters of government and politics. I reject the submission that the section does not burden freedom of communication at all.

If the provision has any impact on Mr Rann, it is to make it more difficult for him to succeed in a claim under the law of defamation. It prevents him from relying on the truth of his evidence to the Committee, in the sense of seeking a specific finding that it was true. In this respect the provision does not interfere with freedom of communication. If anything, it enhances it, by limiting the availability of a common law remedy otherwise available to Mr Rann for use against Mr Olsen for what he said in the course of communication on matters of government and politics.

What this highlights is that often s 16 will enhance freedom of communication, by limiting or removing the availability of a legal remedy or the ability to impose a detriment in respect of things said in the course of protected speech. It may be that the only burden imposed on freedom of communication by the provision is the burden identified in this case. On the other hand, there may well be other situations in which a person, sued for a defamatory statement referrable to something said in the course of protected speech, will be disadvantaged in legal proceedings. For present purposes I will assume that s 16 will burden freedom of communication in other ways.

The burden is a significant one. It is a burden on conduct or speech critical of those involved in the processes of Parliament. Comment on things said and done in Parliament is at the very heart of the constitutionally protected freedom of communication.

The burden could have a significant chilling effect upon communication relating to parliamentary matters. Persons speaking about or commenting upon such matters run the risk, in some circumstances, of being unable to defend an action for libel or slander based upon what they have said.

Just as the protection of those who speak in the course of proceedings in Parliament is important, so is the freedom of speech of those who speak about or comment on what happens in Parliament. In our society, each freedom seems equally important to me. The effect of my construction of s 16(3) is to render vulnerable to legal action, by the very persons upon whose conduct it is important that they be free to comment, persons who choose to comment upon proceedings in Parliament. It is easy to envisage that the prospect of legal action, which can only be defended on limited grounds, could well restrain journalists and others from commenting freely about what is said in the course of proceedings in Parliament. There is an undeniable risk that free and lively debate about what happens in Parliament will be impeded.

On the other hand, the burden should not be overstated. It is difficult to say how often it will arise. And it needs to be remembered that a burden is imposed only when the defence to an action for libel or slander involves directly challenging or relying on the truth of something said in the course of proceedings in Parliament.

Is Section 16(3) "Reasonably Appropriate and Adapted"?

I now turn to the second of the two questions identified by the High Court.

When the High Court in Lange posed the second question, it made the point, in a footnote omitted from my citation above, that in the context of the second question "there is little difference between the test of 'reasonably appropriate and adapted' and the test of proportionality": see Lange at 567 (fn 272). In this footnote the Court refers with apparent approval to a number of passages in the reasons of members of the Court in Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272.

Before turning to the issues that arise under the second question, it is helpful to consider what members of the High Court have said about the content of the test of "reasonably appropriate and adapted". It is not surprising that some slightly differing approaches emerge. After all, the test involves matters of judgment and of degree.

I begin with a consideration of Cunliffe. It is important to bear in mind in considering that case that in Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579 some differences of opinion emerged between members of the Court in relation to the role of the test of proportionality. Those differences were in relation to the role of that test when considering the issue of the characterisation of a law. As I understand their Honours' reasons, there were no significant disagreements of principle in relation to the approach to be taken when a law is supported by a head of power, but the further issue arises of whether the law infringes an implied limitation on the head of power. My references to Cunliffe, and subsequently to Leask, will be references to passages and the reasons of members of the High Court dealing with that issue only.

"In determining whether a particular burden or restriction is reasonably appropriate and adapted, it is relevant to ascertain whether the burden or restriction is disproportionate to the attainment of that objective."

158. The objective to which he refers is the objective which would support the validity of the law, subject to issues arising as a result of it infringing an implied limit on the power. In relation to cases that involve an implied limit on a power, he went on to say (at 300):

"In the case of the implication, as with a constitutional guarantee, this question is simply whether the burden or restriction is reasonably appropriate and adapted, in the court's judgment, to the legitimate end in view."

159. Brennan J put the matter a little differently, but to the same effect. He said (at 324):

"A law will not be supported by a power if it infringes the limitation on the power unless the infringement is merely incidental to the achievement of a legitimate (that is, non-infringing) purpose or object and the provisions of the law are reasonably appropriate and adapted (proportionate) to that end."

160. He went on to say that in that context the Court could consider "the proportionality of the means adopted by the law to achieve the postulated purpose or object". He then said (at 324):

"If the means adopted by a law are disproportionate to a purpose or object which is within power, those means are not 'appropriate and adapted' to achieving that purpose or object. If the means are excessive, the purpose or object which the law in fact achieves does not 'pervade and explain the operation of the law to an extent that warrants the overall characterization of the law as one with respect to' the subject matter of the power. ... If the means are inadequate to achieve a legitimate purpose or object, the law fails to escape invalidation by reason of its infringement of the limitation on the relevant head of power."

161. Dawson J considered the effect of s 92 of the Constitution upon a law, apparently supported by a head of power, but which incidentally impeded the protected freedom of communication. He said that such a law could be valid if the law incidentally restricted the protected freedom, provided the means adopted are neither inappropriate nor disproportionate (at 366). His approach appears from the following passage in which he expressed his conclusion that the law in question was valid (at 367):

"But it is clearly not the purpose of the law to impede interstate communication and the extent to which it does so is no more, in my view, than is reasonably required to achieve the purpose of the legislation."

162. Toohey J concluded that the law in question was not invalid because of the manner in which it infringed upon the implied freedom of communication to be found in the Constitution. That was because (at 383) "... the scheme adopted is not disproportionate to the legitimate aim to be achieved."

163. I refer also to the reasons of Deane J at 339, Gaudron J at 387 and 389 and McHugh J at 396 and 397.

164. The issues involved in considering the second question were also canvassed by members of the High Court in Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579. There, dealing with a situation in which a law is challenged on the ground that it infringes a constitutional limitation, express or implied, which restricts a head of power, Brennan CJ said that in such a case the constitutional limitation must be treated as a qualification on the power in question. He went on to say (at 593):

"The qualification leaves within the power the capacity to support a law that affects an immunity if an exercise of the power to achieve the legitimate effect of the law necessitates an affection of the immunity and the affection of the immunity is merely incidental to the achievement of the legitimate effect. That criterion involves matters of judgment and degree."

"... it may be within power to legislate in a way that affects an immunity conferred by a limitation on power where to do so is merely incidental to the achievement of a legitimate end. In such a situation one is concerned with the resolution of a tension between two principals and notions of proportionality may be relevant."

See also Toohey J at 614, Gaudron J at 616, McHugh J at 616-617, Gummow J at 624 and cf Kirby J at 635.

The question of whether the law in question was reasonably appropriate and adapted was, of course, posed and answered by the High Court in Lange. In Lange the Court did not find it necessary to expand upon the content of the question. But it is clear from the manner in which the Court dealt with the question that it requires a careful consideration of the nature and of the extent of the burden placed by the law upon the freedom that arises because of the relevant constitutional implication.

What is involved in considering this second question is not just a balancing of two competing interests. It is a consideration of whether a law, enacted in pursuit of a legitimate interest, and infringing a limitation upon the relevant power, does so by means and to an extent that are incidental to the achievement of the end in view, and that are reasonably appropriate and adapted to the achievement of that end, or, are not disproportionate to the achievement of that end. The extent of the burden or restriction on the freedom protected by the Constitution upon power also requires consideration.

In the light of all that, it seems to me convenient to break this question up into two parts.

First, to consider whether the exercise of the head of power to achieve an end within power, a legitimate end, involves or necessitates an impact upon the freedom protected by the limitation upon the power. In other words, is the impact on the freedom incidental to the achievement of the legitimate end?

Second, is the particular provision that results in a burden on the freedom protected by the implied limitation reasonably and appropriately adapted to serve the legitimate end? Is the burden on the freedom disproportionate to the achievement of the legitimate end? These two questions are not precisely the same, but it appears to me that each of them requires consideration.

The Privileges Act is enacted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of Government.

That much is beyond argument. Freedom of speech in Parliament, in the broadest sense, is the object of s 16(3). Freedom of speech in Parliament is at the heart of the system of Government established by our Constitution, and at the heart of the constitutionally protected freedom. The point needs no elaboration. Section 49 of the Constitution makes this clear. So is the broader but equally important principle that the courts and Parliament are, in the words of the Privy Council in Prebble (at 332) "astute to recognise their respective constitutional roles." This is a principle under which, subject to certain limits, the courts respect the independence of Parliament, just as Parliament respects the independence of the courts. The principle is one pursuant to which the courts accept that Parliament has exclusive control over certain matters.

There is no doubt that in its application to Mr Olsen's Defence, s 16(3) continues to serve the relevant end. Its effect is to remove protected speech from judicial scrutiny. It also advances the principle of non-intervention. Section 16(3) does not, in its direct application, go beyond the legitimate end, or fail to achieve it.

I therefore answer the first of the questions posed by me in the affirmative.

I turn to the second of the questions posed by me.

In considering that question it is helpful to consider whether there is any need for the law to go as far as it does. The reasoning of King CJ in Wright v Lewis suggests not. His view was that in a case like the present, allowing Mr Olsen to pursue his defence of truth would involve no interference with freedom of speech in Parliament. The occasion to scrutinise the protected speech arises only because the person whose speech is protected chooses to sue, and the only legal consequence visited on that person is the potential loss of that person's cause of action. There is force in what King CJ says.

However, in my respectful opinion the observations of King CJ do not acknowledge the significance of the principle of non-intervention. There is more at stake than protecting the person who utters protected speech, and protecting the institution of Parliament by protecting that person. The principle that in certain respects the courts regard Parliament as the exclusive judge of what transpires in the course of its proceedings, is equally involved. An undeniable consequence of the approach of King CJ is to allow the courts to intrude into an area from which, but for the action of the plaintiff, the courts would otherwise be excluded.

Parliament could have provided that s 16 does not apply if the person who utters protected speech brings an action that gives rise to an occasion to question or rely on the truth of the protected speech. Such a proviso would probably achieve the desired limitation, in the sense of excluding the present case from s 16(3). But there are arguments against such a proviso. First of all, that is tantamount to enabling the individual who utters the protected speech to waive or lift an immunity that is conferred on the institution of Parliament as well as on the individual. In my view the Privileges Act is more concerned with the institution of Parliament than with the rights of the individual. Such a proviso would also mean that the price of suing to protect reputation is the loss of the immunity that Parliament has conferred on the relevant protected speech. It seems to me, with all respect to King CJ, that it cannot be said that the powerful considerations of justice to which he averted were so compelling that one could say that a law enacted on the contrary hypothesis is not reasonably appropriate and adapted to serve the end of protecting the freedom speech of Parliament and of observing the principle of non-intervention. Nor, to my mind, is the approach taken by Davies JA in Laurance v Katter (which approach I have referred to earlier in my reasons) one that is obviously appropriate in framing a law reasonably appropriate and adapted to serve the legitimate end. I consider that there are powerful arguments against conditioning the operation of such a law upon a judicial assessment, case by case, of the impact of the application of the law upon freedom of speech.

I am also conscious of the fact that even in the present case the application of s16(3) is consistent with the general purpose of s 16, which is to remove protected speech from judicial scrutiny. Even in its application to communication about parliamentary matters, communication which would fall within the constitutionally protected area, the Privileges Act pursues a legitimate and important object. It enhances the freedom of speech in Parliament, and advances the principle of non-intervention. If these objects are to be pursued, a burden on freedom of communication is unavoidable. That burden can be avoided only by allowing a court to question or challenge the truth of what is said in Parliament in certain circumstances, such as in a case in which the plaintiff is the person who uttered the protected speech. In other words, the burden upon freedom of communication is a necessary result of the extent to which freedom of speech and non-intervention are pursued. To say this is not to answer the question now being addressed. It is merely to make the point that the burden upon freedom of communication is not an unnecessary or avoidable one. The fact that in the present case this produces an unexpected and untoward result, and a burden on freedom of communication, is an important matter for consideration, but in the end does not cause me to answer the second question in the negative.

It is appropriate to repeat here that I do not regard the burden that s 16(3) imposes upon freedom of speech as in any way insignificant. It is a significant burden. It is significant qualitatively, if I might use that term, because it burdens freedom of speech in relation to the functioning of Parliament. It is significant more generally because the risk of being unable adequately to defend a claim for libel or slander, relating to a statement about things happening in Parliament, is likely to have a real effect on free speech about parliamentary matters. It is relevant that the burden is imposed in pursuit of the objective of enhancing freedom of speech in Parliament, and excluding judicial review of events in Parliament. It might be said that the benefits from s 16(3) are not great, bearing in mind that if a statement made in Parliament is repeated outside Parliament, the statement outside the Parliament can be the subject of legal proceedings and the subject of review by the courts, even though that process would imply a conclusion about the truth of what was originally said in Parliament. In other words, s 16(3) prevents a court doing something which, with a slight change in the facts, the Court could do. It might also be said, as King CJ clearly considered, that there is no need to provide the relevant protection to a person speaking in the course of parliamentary proceedings. On the other hand, one must bear in mind that, as I have already concluded, defences of qualified privilege and fair comment are unlikely to be affected by the provisions of s 16(3). One might also ask how often the restriction that arises in this case is likely to arise. There is also the importance of the principle of non-intervention. Finally, and most importantly, it is necessary for the Court to bear in mind that important as its role is in relation to an implied limit on power, the Court must nevertheless accept that at a certain point it is for Parliament to judge how far it will go in pursuit of a power vested in it.

The difficult nature of the issue posed for the Court is illustrated by a decision of the Court of Appeal of the Supreme Court of Queensland in Laurance v Katter [1996] QCA 471; (1996) 141 ALR 447. There, Fitzgerald P was satisfied that s 16(3) of the Privileges Act was valid. Like me, he took the view (at 480) that:

"... any law which accords absolute privilege to statements made by a particular group in specified circumstances must necessarily be capable of injustice if abused ..."

Pincus J concluded that s 16(3) was invalid. He did so on the basis of the manner in which it interfered with freedom of speech, saying (at 486):

"This can interfere with freedom to attack or analyse what happens in parliament by distorting, to the point of absurdity, the way in which defamation suits relating to that subject must be conducted."

Davies JA upheld the validity of the law, but only upon the basis that s 16(3) was to be read as applying only when the Court concluded that freedom of proceedings in Parliament would in fact be impaired: at 489-490.

In answering the question now being addressed by me, it is not for the Court to substitute its judgment for that of Parliament as to the best or most appropriate means of achieving the legitimate end. The question for the Court is whether the law is "reasonably appropriate and adapted to serve a legitimate end." In doing so the Court must give due weight to the judgment of Parliament, while acknowledging its own ultimate responsibility to determine whether the law infringes the Constitution: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 144 Mason CJ; Cunliffe at 324 Brennan J; Leask at 595 Brennan CJ, at 636 Kirby J. The extent to which the Court must defer to the judgment of Parliament in such a case has been the subject of conflicting opinions in the High Court, but at a certain point the Court must do so.

It is tempting to search for other words in which one might express the question posed for this Court, but in the end one must return to the words chosen by the High Court in Lange. The question for the Court is not a question of whether there are other and better ways of achieving the legitimate end. It involves considering whether the impediment to freedom of speech generally is a result of a measure that is reasonably appropriate and adapted to achieving a legitimate end.

After much consideration, my conclusion is that the second question posed by the High Court in Lange should be answered in the affirmative. I am conscious of the unattractive and potentially unjust nature of the result that s 16(3) produces in the present case. I have already identified the potential burden upon freedom of communication. But I accept the high importance of freedom of speech in Parliament, meaning that the truth of what is said in the course of protected speech should not be subjected to legal challenge. I also accept the high importance of the principle of non-intervention. I am conscious of the need to pay appropriate deference to the judgment of Parliament as to the extent to which it should go in protecting its powers, privileges and immunities.

The provisions of s 16(3) are not valid simply because the burden on freedom of speech generally is incidental to the pursuit of freedom of speech in Parliament. Incidental that burden may be, but it remains a significant one, for the reasons that I have indicated. There is no need to repeat what I have said earlier in my reasons. My conclusion that s 16(3) is valid rests also on the fact that in this respect Parliament has pursued a legitimate objective, has chosen means in pursuit of that objective that are appropriate, and have produced a burden on freedom of communication generally that is unavoidable if the desired level of protection is to be given to communications made in the course of proceedings in Parliament. Of course, it was not necessary to go so far, in the sense that one can envisage a law that does not go so far. But that is not a judgment to be made by the Court. The Court must allow Parliament to make the decision about the extent to which it should exclude the Courts from considering and passing judgment upon matters that occur in proceedings in Parliament. The question for the Court is only whether what Parliament has chosen to do is reasonably appropriate and adapted, in the sense already explained, to serve a legitimate end.

Finally, in relation to the question of validity counsel supporting the validity of the Privileges Act urged the Court to rely, if necessary, upon the availability of a stay as remedying or ameliorating the interference with freedom of communication. I will return to the Court's power to grant a stay in a moment. But, in relation to validity, my view is that the power to grant a stay cannot be a matter that would save an otherwise invalid law. The remedy is necessarily discretionary. It might or might not be granted in a particular case. In any event, I consider that the validity of the law must be tested without reference to the fact that, if the Court finds that its operation produces an unacceptable burden, the Court has other means of avoiding that consequence.

Does Section 16(3) Impermissibly Interfere with the Functioning of the Court?

A further submission advanced by Mr Heywood-Smith was that s 16(3) is invalid because it constitutes an impermissible interference with the functioning of the courts. The principle which is invoked is a principle which, expressed rather generally, is that Parliament may not make a law that requires or authorises a court, exercising the judicial power of the Commonwealth, to exercise that power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power. This principle was extensively discussed by the High Court in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173. The principle is to be applied with some care. If one thing is clear, it is that Parliament is at liberty, as it frequently does, to make laws that affect the manner in which the courts conduct cases, the evidence that they are permitted to receive, and subject to certain limitations the effect that may or must be given to particular evidence.

I propose to deal with this submission quite shortly. In my view it lacks substance. Relevantly, s 16(3) of the Privileges Act is no different from any other rule of law that operates to exclude certain evidence from consideration by the Court. Plenty of examples come to mind, and they are examples which involve the application of the law in a manner that may have a telling or even decisive effect on the outcome of a case. The law relating to legal professional privilege and public interest immunity is a good example. These rules of law may result in the Court not receiving evidence which could have a decisive effect on a case.

In my opinion s 16(3) does no more than exclude certain evidence from consideration by a court. To so provide is not to cause the Court to exercise its judicial power in a manner inconsistent with the essential character of the Court or with the nature of judicial power. I reject this submission.

Mr Whitington and the Solicitors General submitted that Wright v Lewis was wrongly decided. It was because of that submission that five Judges sat on the case. In my opinion it is unnecessary to deal with that submission.

Wright v Lewis dealt with Article 9. It was not concerned with the Privileges Act. For that reason, the correctness of Wright v Lewis does not necessarily fall for consideration.

If s 16 of the Privileges Act does no more than declare the effect of Article 9, then, on my approach to s 16, Wright v Lewis was wrongly decided. But I have been at pains to point out that I have approached the validity of s 16 on the hypothesis that it extends the reach of Article 9. I did so because it seemed to me simpler to approach s 16 on its terms, rather than through the somewhat clouded lens of the history of Article 9.

I return to the question of the power of the Court to grant a stay of proceedings. In Walton v Gardiner [1993] HCA 77; (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."

They went on to give a number of illustrations of the exercise of that power. In the course of doing so they made the point (at 393) that a court:

"... possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness."

They approved of an earlier statement by Gaudron J that the power of the Court was not restricted to defined or closed categories, and they further approved of a statement by Her Honour that the power does not depend upon "nice distinctions" between notions of unfairness or injustice on the one hand and abuse of process on the other hand.

As I said earlier, a stay cannot be granted on the basis that the outcome of the proceedings will be unfair or unjust in the popular sense of that term. Although Brennan J was in dissent in Walton, I consider that there is force in what he said (at 407):

"When judicial notions of justice or fairness are offended, there is a tendency, perhaps unconscious, for a court to see its jurisdiction as wide enough to authorize the granting of a remedy. But where a perceived unfairness results from a lawful exercise of power conferred by statute, the mere unfairness does not empower the Court to set aside the exercise of the power."

For example, the Court could not hold that because a member of parliament cannot be sued for what the member says in Parliament, but the member of parliament is free to sue a non-member for what the non-member says about the member of parliament, that that is unfair and an action by the member of parliament should be stayed. Thus, in the present case the Court could not say that because Mr Olsen cannot sue Mr Rann for saying in proceedings in Parliament that he leaked confidential information, but Mr Rann can sue Mr Olsen for saying that Mr Rann lied, the position is unfair and the Court should stay the action. That would be to convert the power to grant a stay into a general power to control court proceedings by reference to the perceived fairness of the outcome.

Earlier in my reasons I alluded to a hypothetical situation in which Parliament enacts a law creating a presumption that operates adversely to a defendant in proceedings, preventing that defendant from proving something important for the defendant's case. Sometimes presumptions may have this effect. I consider that the present case is distinguishable from that situation. In that situation Parliament has, by law, determined either what is taken to be the fact, or how proof of the fact can be achieved. Obedience to the law requires the Court to accept Parliament's determination of that matter.

But, in the present case, the Privileges Act does not do that. It does not purport to require the Court to make a particular finding about the truth of what Mr Rann said. It does not even create a presumption about the truth of what he said.

Nor does the operation of s 16(3) equate to the operation of common law principles such as those relating to legal professional privilege and public interest immunity. Principles or rules of common law like those principles or rules operate to deny the Court access to a particular means of proof of a fact. Neither principle prevents the proof, by what is sometimes called secondary evidence, of an issue. The principles operate to exclude from consideration by the Court a particular item of evidence that might be a means of proof of the relevant matter.

Section 16(3) of the Privileges Act does not operate in that manner either. It does not deny to the Court the right to consider particular evidence that bears upon a relevant proposition.

The manner in which s 16(3) operates is to preclude the Court from considering a matter or issue at all. What the Court cannot consider or entertain is evidence (broadly) or submissions (broadly) directed to the matters set out in s 16(3). In this respect the operation of the Privileges Act is unusual, for the reason that I have indicated. Parliament has not created a presumption, rebuttable or conclusive, about proceedings in Parliament. It has not purported to prevent the Court from considering just particular evidence about proceedings in Parliament. Parliament has prohibited the Court from considering in any way evidence or submissions about the truth of proceedings in Parliament. In that respect, as it seems to me, the Privileges Act is different from laws of the type to which I have referred.

For the Court to assert a power to stay these proceedings is not to assert a power to act on the basis of fairness at large, nor is it to assert a power to disregard a parliamentary injunction about the finding to be made in relation to certain facts, or the mode of proof. What the Court is asked to do, when it is asked to stay the proceedings, is to grant a stay on the basis that to determine the action between Mr Rann and Mr Olsen, without making any enquiry as to the truth of Mr Rann's statements in proceedings in Parliament, is inconsistent with the administration of justice, and is to allow the Court processes to be converted into instruments of injustice or unfairness. It is asked to stay the present case on the basis that the Court process will be employed in a manner that gives rise to injustice or unfairness, because the Court will be required to determine the case without consideration at all of an issue that is central to the case, and may be decisive to its outcome. I wish to make it clear that this is not a criticism of Mr Rann, it is the result of the terms of the Privileges Act.

Although Prebble is the only precedent of which I am aware for the exercise of the power to grant a stay in circumstances like the present, I have come to the conclusion that it is consistent with the principle identified by the High Court in Walton v Gardiner to hold that the Court does have power to grant a stay in such circumstances.

However, in my opinion, the Court should go no further than that. The grant of a stay involves the exercise of a discretion, and it is to be exercised with considerable care and by reference to all aspects of the case. In some respects the impact of the Privileges Act upon the trial is uncertain, because of the pleadings, and because this Court cannot predict with any precision the course of the trial. As well, the impact of the Privileges Act upon the case is not a simple one. The plea of truth cannot be pursued, but the pleas of qualified privilege at common law and under Lange can be. So can the countering plea of malice.

When I say that the pleas of qualified privilege at common law and under Lange can be pursued, I mean that s 16(3) of the Privileges Act does not present a complete obstacle to the Court determining those pleas. I recognise that, at the trial, in relation to those pleas, one of the parties might seek to follow a course that is prohibited by s 16(3). My earlier consideration of the application of the Privileges Act to those pleas dealt with what I might call the heart or essence of the pleas, and was not an attempt to predict everything that counsel might seek to do in the course of the trial. If, in relation to those pleas, a party follows a course that is prohibited by s 16(3), the Court will have to deal with the matter and then to consider the impact of its decision upon the fairness of the trial.

Subject to that, I do not agree that a trial conducted within the constraints of s 16(3) will inevitably not be a fair trial, or will amount to such a distortion of the judicial process that the Court should not permit it to proceed.

In particular, the parties can lead evidence about whether or not documents were leaked by Mr Olsen, or with his involvement, to the extent that that bears upon Mr Olsen's belief in the truth of the what he said. They can ask questions and make submissions directed to that issue. They can do that even though the same material concerns the subject matter about which Mr Rann gave evidence. They can ask the Court to make the findings that they seek in relation to Mr Olsen's state of mind.

The Judge will be able, I consider, to decide satisfactorily whether documents were leaked, and by whom, and whether Mr Olsen genuinely believed that what he said was true.

To some that may seem an unduly confident conclusion. Difficulties that I have not foreseen might arise at trial. If they do, I consider that they should be dealt with at trial in the light of an understanding of the state of the trial as it then is. I consider that there are too many uncertainties to make it appropriate to exercise the Court's discretion to grant a stay at this stage.

There is another reason for not granting a stay at this stage. In submissions the parties agreed that all matters relevant to the grant of a stay were before the Court. They were not identified with any precision. If the Court were to grant a stay, that should be done on the basis of a finding as to any relevant facts, and a clear statement of the aspects of the anticipated trial that make it appropriate to grant a stay. If that is not done, two problems would arise. First, should the High Court entertain an appeal from this Court's decision, the High Court would find it difficult to identify the precise basis upon which the stay was granted. Secondly, an application can always be made to discharge a stay on the basis of a change of circumstances. If the basis of a stay is not identified clearly and with reasonable precision, one would never know whether there was a basis to approach the Court to discharge the stay.

For those reasons I consider that this Court should not answer question (iii). That question should be answered by the Judge before whom the case comes for trial, assuming it does come on for trial.

The questions posed by the Case Stated are expressed somewhat generally. In my opinion it is appropriate to answer two of them, but to answer them in a restricted fashion.

In Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 161 ALR 399 the High Court warned the courts of Australia against answering a question of law, in particular a preliminary question, when the question is one of mixed fact and law. The Court emphasised that judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process: at 417. The Court went on to say:

"It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case."

In the present case, I have some concern that the questions contained in the Case Stated do invite this Court to apply the law to facts that are not agreed or found. The Court is asked to express a view as to the application of s 16 of the Privileges Act to evidence which it is anticipated will be adduced in the presentation of Mr Olsen's defence, and also as part of Mr Rann's case. Granted, the relevance of that evidence will be controlled by the pleadings, and its nature can be identified in a general way. One can also say with some confidence that one purpose of adducing the evidence, and asking the relevant questions, will be a purpose that attracts the operation of s 16(3). As well, as the Case Stated indicates, the parties agree that the truth of Mr Rann's evidence to the Parliamentary Committee will be put in issue as between the parties.

On the other hand, as Lander J has demonstrated, there is considerable uncertainty about just what will happen at trial. The Court cannot give general guidance about the application of s 16(3) to events that cannot be identified with reasonable precision. I am satisfied that the defence of truth cannot be maintained, and that the defence of qualified privilege can be, at least to some extent. Lander J correctly points out that there may be things that Mr Olsen will want to do that s 16(3) will prohibit, but, with respect to Lander J, I consider that the central issue, the belief of Mr Olsen, can be addressed.

I consider that that provides a sufficient basis for a limited answer to question (i) and an answer to question (ii). The Court answers the questions on the agreed basis that each party will tender evidence and ask questions for the purpose of questioning or relying on the truth of the statements made by Mr Rann, pleaded as Particulars in par 16 of Mr Olsen's Defence.

It may be that it would have been better if the issues now before the Court had come before the Court in the context of an application by Mr Rann to strike out parts of Mr Olsen's Defence, and in the context of an application by Mr Olsen to strike out parts of Mr Rann's Reply. It certainly would have been better if the pleadings were in a better state. In the light of what the High Court said in Bass v Permanent Trustee I have reservations about answering the questions in the form posed, simply because that answer involves an attempt to identify the circumstances to which the answer applies, and to do so with sufficient precision. However, as I have indicated I have decided that the first two questions should be answered.

I have come to a different conclusion in relation to question (iii). First of all, as I have already said, this Court should not decide whether a stay is to be granted. Secondly, the Court is asked to answer the question on no more definite ground than that Mr Olsen will be unable to challenge the truth of Mr Rann's evidence, and Mr Rann will be unable to rely on the truth of what he said to the Committee. It is unlikely that other facts relevant to the exercise of the discretion to grant a stay will be identified, but that cannot be excluded. Nothing has been agreed between the parties. I consider it inappropriate and unwise, in the circumstances, to answer question (iii).

Accordingly, I would answer the questions as follows:

(i) Section 16(3) of the Parliamentary Privileges Act will prevent the defendant in the proceedings from proving that the statements admitted by the defendant in his Defence, with the meanings alleged by the plaintiff or admitted by the defendant in the Defence, are true in substance and fact, by tendering evidence and asking questions to establish the "Particulars of Truth" set out in par 16 of the Defence in these proceedings. This question should not be answered beyond that.

(ii) Section 16(3) of the Parliamentary Privileges Act is a valid law of the Commonwealth in its application to the present case.

(iii) It is not appropriate to answer this question at this stage of the proceedings.

Bearing in mind the differences between the reasons prepared by each member of the Court, and in some instances, in the answers which each proposes, it has been agreed that the following order should be pronounced, as representing the majority view:

"That the questions be answered as follows: (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. Answer: Section 16(3) of the Parliamentary Privileges Act will prevent the defendant in the proceedings from proving that the statements admitted by the defendant in his Defence, with the meanings alleged by the plaintiff or admitted by the defendant in the Defence, are true in substance and fact, by tendering evidence and asking questions to establish the "Particulars of Truth" set out in par 16 of the Defence in these proceedings. This question should not be answered beyond that. (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. Answer: Yes. (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. Answer: It is not appropriate to answer this question at this stage of the proceedings.

PRIOR J. I think that s 16(3) of the Parliamentary Privileges Act is declaratory of the privilege or immunity conferred in 1901 by Article 9 of the Bill of Rights 1688 (UK) on the Commons House of Parliament of the United Kingdom. The sub-section is therefore necessarily supported by the specific and express terms of s 49 of the Commonwealth Constitution. Article 9 of the Bill of Rights includes an absolute assertion that proceedings in Parliament are not to be questioned in any court or place out of Parliament[1]

226 The principle is that courts 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[2]. It therefore extends to things said by witnesses before its committees. It is not capable of waiver or exception in favour of the maker of the statement, nor can it be confined to proceedings seeking to assert legal consequences against the maker of the statement for making that statement.[3] I think that both Wright v Lewis[4] and R v Murphy[5] were wrongly decided.

227 On the view I take, s 16(3) is not invalid for inconsistency with the constitutional implication relating to freedom of communication or for interference with the judicial power conferred by Chapter 3 of the Constitution. As for the freedom of communication on matters of Commonwealth Government and politics the subject of decision by the High Court in Lange v ABC[6] that freedom was acknowledged by the court not to be absolute[7]. Plainly an implication of representative government cannot be inconsistent with express terms of the Constitution. If s 49 expressly acknowledges the privileges of the Commonwealth Parliament, the implications of representative government cannot be inconsistent with the express terms of that section.

228 Again, with respect to the Chapter 3 arguments, I identify s 49 as an express source of power and authority which limits the jurisdiction of courts.

229 If s 16(3) of the Parliamentary Privileges Act is declaratory of the operation of Article 9 of the Bill of Rights, no issue of legislative power arises either, because s 49 expressly confers the relevant privilege or immunity. No implied constitutional limitation can override what s 49 expressly requires or authorises[8].

230 If I am incorrect in the view that s 16(3) is merely declaratory of the privilege or immunity conferred by Article 9 of the Bill of Rights, I would agree with what the Chief Justice has written on the assumption that the sub-section extended the privilege referred to in s 49.

231 As the approach in Wright v Lewis made plain, a court can be properly troubled by the injustice of allowing a defamation action to be brought against a defendant deprived of a defence by the ordinary operation of parliamentary privilege. However, the proper means of resolving the dilemma is not a qualification of the operation of the parliamentary privilege but to stay the proceedings where, because of the application of that privilege, a fair determination of the matters in dispute cannot occur.

232 In my view, whilst what the Chief Justice has said with respect to the issue of qualified privilege is correct, the essence of the defamation dispute is taken from the courts in virtue of the privilege applying. In that situation, it seems to me that it is proper for this Court to say, immediately, that the circumstances of this case are such that the proceedings should be stayed because exclusion of relevant material to which the parliamentary privilege attaches makes it impossible to fairly determine the issues between the parties however much more they may be refined or particularised at trial after further amendments to pleadings.

233 This is a case where the interests of justice do demand a stay of proceedings for the reasons identified in Prebble's case[9]. The exclusion of the material on the grounds of parliamentary privilege makes it quite impossible fairly to determine the issue between the parties. I think that much can and should be said now notwithstanding all the particular circumstances and unresolved issues mentioned by the Chief Justice and Justice Lander in their reasons. To impose the stay is to prevent the plaintiff having his case heard but the defendant is not able to put forward, in his answer to that case, "the overwhelming majority of the matters upon which (he) relies"[10]. Not only is the defendant's plea of justification denied him but the plaintiff is also restrained by the privilege applying in the manner referred to by Justice Lander.

234 As Justice Perry has put it, the defendant is unable to pursue the most substantial of the defences which might otherwise have been available to him. To allow a trial to proceed would be unsatisfactory in that it could not address the central question, whether or not the plaintiff was lying in his evidence before the committee of the Commonwealth Parliament. On balance, the stay should go now.

235 I would answer all three questions in the affirmative.

236. PERRY J. The circumstances giving rise to the case stated are set out in the judgment of the Chief Justice. Before dealing with the questions posed, I will address certain matters of principle.

237. In my opinion, the Parliamentary Privileges Act 1987 (Cth) has the effect of extending the operation of article 9 of the Bill of Rights 1688.

238. Article 9 of the Bill of Rights provides that the proceedings in Parliament which it protects are not to be "impeached or questioned in any court or place out of Parliament". It is not couched in terms which address the purpose for which any "impeaching" or "questioning" might be directed. Furthermore, to "impeach" or to "question" is, on the face of it, different from relying affirmatively upon things said or done in Parliament.

239. Section 16(3) of the Parliamentary Privileges Act provides:

"(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." (emphasis added)

240. The words which I have italicised seem to me to go beyond the more limited formulation which finds expression in article 9. I do not overlook that the words "in any court or tribunal" may be more restrictive than the words "in any court or place out of Parliament" in article 9, but my observations are confined to the substantive operation of the two provisions with respect to proceedings in a court.

241. Although in s 16(1) of the Act, the meanings set out in sub-s (3) are said to apply "in addition to any other operation" article 9 might have, the ambit of sub-s (3) is so wide that it is unlikely that the scope of any residual operation of article 9, apart from the matters covered in sub-s (3), could amount to much. For this reason, since its enactment, it is the provisions of s 16(3) which will ordinarily be determinative of any question as to the possible infringement of parliamentary privilege which might arise during the course of court proceedings.

242. Section 16 is couched in terms which declare that the operation of article 9 of the Bill of Rights is to take effect according to the subsequent provisions of s 16 which are, relevantly for present purposes, s 16(3). Despite that somewhat roundabout drafting technique, s 16(3) falls to be construed in accordance with ordinary principles of statutory construction. The words are to be given their ordinary and natural meanings, although the fact that the provisions of s 16(3) are intended to declare the effect of article 9 is a matter which is to be taken into account in construing the sub-section.

243. Furthermore, a consideration to be borne in mind is, as has been observed by the Judicial Committee of the Privy Council,[11]

article 9 is a "manifestation" of the "wider principle"

"... that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as 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 ..."

244. In the same case, their Lordships went on to say:

"According to conventional wisdom, the combined operation of Article 9 and that wider principle would undoubtedly prohibit any suggestion in the present action (whether by way of direct evidence, cross-examination or submission) that statements were made in the House which were lies or motivated by a desire to mislead."

245. Insofar as s 16 is declaratory of article 9, it too should be construed by reference to the "wider principle" to which their Lordships refer.

246. The two matters to which I have referred as matters to be taken into account in construing s 16, namely, that it is declaratory of article 9, and that it should be construed by reference to what might for convenience be described as the doctrine of non-intervention, could not operate to have any limiting effect on the natural and ordinary meaning of the words to be found in s 16(3). So that, absent other considerations, the sub-section must be taken to operate literally, according to its terms.

247. The next question is whether, notwithstanding those observations as to the approach to the construction of s 16(3), in construing the sub-section it would be proper to apply the reasoning which finds expression in R v Murphy,[12]

in the decision of the Full Court of this Court in Wright and Advertiser Newspapers Ltd v Lewis,[13] or in the judgment of Davies JA in Laurance v Katter and Anor.[14]

248 Murphy stands for the proposition that article 9 should be read down to apply only to court proceedings having legal consequences against a member of Parliament or other person entitled to the protection of its provisions, more particularly when those legal consequences have a tendency to prevent the member or other person exercising his or her freedom of speech in Parliament. By reading down article 9 in that way, Hunt J in that case was led to the conclusion that cross-examination in the course of a criminal trial, of a witness who had previously given evidence before a Select Committee of Parliament as to that evidence, was permissible, at least when the purpose of the cross-examination was confined to the issue of credit.

249 In Wright and Anor v Lewis, King CJ, with whom in relevant respects White J (and semble Olsson J) agreed, held that the protection afforded by article 9 did not extend to prevent a challenge to the truth or bona fides of a statement made in Parliament when the maker of the statement initiates the proceedings in which the challenge is mounted.

250 King CJ justified that view in this way:[15]

"A member would not be inhibited in the exercise of free speech or of his Parliamentary duties by fear of legal consequences, because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary. Only the member's action in launching proceedings alleging a false imputation could lead to an examination in court of the issue of the falsity of the imputation, and therefore of the member's statements and conduct. I cannot think of any other public or Parliamentary interest which could be impaired by such an examination in such circumstances."

251. Insofar as it may be suggested that s 16(3) should be read down in either of the ways suggested on the one hand by Hunt J in Murphy and on the other by King CJ in the passage which I have just quoted from Wright and Anor v Lewis, the present case affords an opportunity for this Court to review those decisions.

252. In my opinion, for the reasons given by the Judicial Committee of the Privy Council in Prebble (supra), this Court should not regard either decision as good law.

253. With respect to Murphy, as the Judicial Committee of the Privy Council pointed out, the views of Hunt J "were in conflict with the long line of dicta that the courts will not allow any challenge as to what is said or done in Parliament".[16]

Furthermore, as they go on to observe:[17]

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

Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid."

254. As for Wright and Anor v Lewis, as the Judicial Committee of the Privy Council pointed out, the actions of an individual member of Parliament (or, as in this case, of the witness before a committee) cannot determine whether or not the privilege, which is a privilege which belongs to Parliament as a whole, is to apply:

"The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters."[18]

255 Those observations of the Privy Council, with which respectfully I agree, were, of course, directed to cases governed by article 9 construed without reference to s 16 of the Parliamentary Privileges Act 1987. However, it seems to me that there is nothing in s 16 which would render the observations any less appropriate when construing article 9 in the light of s 16. On the contrary, s 16(3) is an emphatic re-affirmation of the immunity from scrutiny in courts or tribunals, of proceedings in Parliament, as to which what fell from the Judicial Committee of the Privy Council in Prebble applies a fortiori.

256 As for the judgment of Davies JA in Laurance v Katter and Anor (supra), I agree with the Chief Justice that, with respect to Davies JA, it would not be right to regard the section as being of application only where, in the particular case, the court is of the view that the freedom of speech of the member of Parliament or other person to whom the section applies, is in fact impaired.

257 These considerations lead me to reject the contention of Mr Heywood-Smith, who appeared for Mr Rann, that s 16(3) should be read down in any of the respects which would follow from an acceptance of the judgments to which I have referred.

258 As for the question of the constitutional validity of s 16, in my opinion, for the reasons given by the Chief Justice, the attack on the validity of the section fails.

259 The conclusions that the section is valid and that it has the wide operation which I have postulated, mean that Mr Olsen is unable to raise, by his pleading or otherwise, the defence of justification.

260 I put the matter in that way as it seems to me that s 16(3) not only strikes at evidence which might be tendered at the trial, but the expression "statements, submissions or comments made" are apt to apply as well to the contents of pleadings. Mr Olsen's plea of justification is, therefore, bad, and it should be struck out, not only on the basis that it raises a matter which could not be pursued at the trial, but also because it directly infringes the Parliamentary Privileges Act.

261 I am indebted to Lander J for his analysis of the other pleas in the defence, and indeed for his analysis of the pleadings as a whole. But whether or not Mr Rann advances a claim in libel or in slander, the question whether the claim survives the application of s 16(3) will be answered in the same way. It follows that the fact that the pleadings are, to say the least, couched in terms which are less than clear should not divert the Court from giving appropriate answers to the questions posed in the case stated if it should otherwise appear proper to do so.

262 The defence of qualified privilege in this case arises not only with respect to the well-accepted right of an individual whose character or conduct has been attacked publicly to respond to the attack, but also to the more extended category of common law qualified privilege which attaches to statements made in the course of political discussion.[19] In either case, the defence is available only if the statements said to be protected by qualified privilege are made bona fide and without malice.

263 Mr Rann in his reply contends that the words were spoken with actual malice on the part of Mr Olsen. Examination at the trial of the issues of Mr Olsen's bona fides and the question whether he was actuated by malice will inevitably result in an examination of Mr Olsen's state of mind, more particularly his belief in the alleged falsity of the assertions made by Mr Rann. A finding that Mr Olsen acted bona fide and without malice would come so close to giving rise to an inference within the meaning of s 16(3)(c) adverse to the truth of Mr Rann's statements before the committee, that very likely the distinction would be lost on ordinary members of the public. That consideration, together with the fact that the trial judge would have to steer such a finely balanced course in conducting the trial as to that aspect of the case, is a matter which it is proper to take into account in considering the question of a stay, which I come to in due course.

264 As for the defence of fair comment, it is difficult to treat Mr Olsen's statements as comment. However, in an attempt to sustain the plea of fair comment, in his defence Mr Olsen pleads the following particulars:

"PARTICULARS OF FACTUAL BASIS FOR COMMENT

19.3 On 10 June 1997 the Plaintiff gave evidence to a Federal Parliamentary Committee, namely the Joint Committee on the National Crime Authority. 19.4 During the course of his evidence the Plaintiff alleged that the Defendant had given Cabinet documents to the Plaintiff. 19.5 The Defendant did not give Cabinet documents to the Plaintiff. 19.6 The Plaintiff's assertions as to the Defendant's involvement was without substance."

265. To succeed in his plea of fair comment, Mr Olsen will have to establish the truth of the matters which he alleges in those particulars. In attempting to do so, he would infringe s 16(3), in that he would be questioning the truth of what Mr Rann said to the Parliamentary Committee, and Mr Rann's credibility.

266. For that reason, Mr Olsen cannot maintain the plea of fair comment.

267. The remaining question to be addressed is the question of a stay of proceedings.

268. During the course of argument, counsel intimated to this Court that all material which they considered relevant to the question of a stay was before the Court. Although the Judicial Committee of the Privy Council in Prebble (supra) did not consider that it was appropriate in that case to do so, it is clear from the judgment in that case that their Lordships considered that there was undoubted jurisdiction in circumstances such as this to order a stay:[20]

"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,[21] 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."

269. It seems to me that the circumstances most relevant to the exercise of the discretion to stay the proceedings are already clearly established and are not matters which will be affected by the course of the trial.

270. This is an unusual case in that although the statements said to be defamatory were made by Mr Olsen in response to statements made by Mr Rann in the course of his evidence before a Commonwealth Parliamentary Committee, Mr Rann's statements relate to the conduct of Mr Olsen while the latter was a Minister of the Crown in the Government of South Australia, of which Mr Dean Brown was at the time Premier. The gist of Mr Rann's evidence was that Mr Olsen had deliberately undermined Mr Brown's position as Premier, with the motive of succeeding Mr Brown as Premier, by leaking confidential Cabinet documents.

271. The outstanding consideration in that respect, in my view, is the fact that if the matter proceeds to trial, the trial judge will be unable to examine the truth of the comments made by Mr Rann, being comments which unquestionably were highly defamatory of Mr Olsen. In the result, Mr Olsen's defence of the proceedings will be hamstrung, in the sense that he will be unable to pursue the most substantial of the defences which might otherwise have been available to him, namely, that the words given in evidence before the committee by Mr Rann were untrue. For the same reasons, he will not be able to pursue the defence of fair comment. Mr Olsen would be left to run only one of the three defences he pleads, namely, the defence of qualified privilege. That is not only a defence which should be regarded as very much secondary to the primary defence of justification, but it would involve in its presentation a number of practical difficulties to which I have referred.

272. A trial conducted in those circumstances would be regarded by most people as completely unsatisfactory, in that it would not address the central question whether or not Mr Rann was lying in his evidence before the committee.

273. Given that Mr Olsen would be so hamstrung in the presentation of his defence, it could not be said that such a trial would be fair.

274. Other factors may properly be taken into account in determining whether in the exercise of the discretion the trial should be stayed. One such factor is the principle of non-intervention. While that principle, standing alone and apart from s 16(3), could not operate as a defence in law to the proceedings, it is, in my view, a matter which might properly be taken into account when the Court comes to consider the exercise of its discretionary power to grant a stay.

275. Mr Rann and Mr Olsen are both members of State Parliament, which some might think is the appropriate place at which the propriety of Mr Olsen's conduct as Minister should be examined. On the other hand, an examination by a court of the propriety of his conduct as a Minister in Parliament, which would be the inevitable result of a trial of this action, would infringe the principle of non-intervention.

276. True it is that this is an action by Mr Rann to defend his reputation. But if the central core of his case is a matter which lies fairly and squarely within the rubric of Parliamentary privilege, then that is where it must rest.

277. The decision of the Judicial Committee of the Privy Council in Prebble (supra) makes it plain that the privilege attaching to Parliamentary proceedings must ordinarily prevail over "... the need to protect freedom of speech generally ... [and] ... the interests of justice in ensuring that all relevant evidence is available to the courts".[22]

278 The most striking consequence of the supremacy of the absolute privilege attaching to the proceedings of Parliament is that no matter how seriously a member of the public may be defamed by a member of Parliament speaking in Parliament, the person defamed has no recourse to the courts to vindicate his or her reputation.

279 One way of looking at the matter is that by becoming a member of Parliament or, as is the case here, by giving evidence before a Parliamentary Committee, the member or witness obtains the benefit of the absolute protection of Parliamentary privilege. But in circumstances where the courts will consider it proper to stay proceedings of this kind, the member or witness will suffer the detriment of the loss of the right to defend their personal reputation if members of the public comment on Parliamentary proceedings in a manner which is defamatory of the member or witness.

280 While that may appear to operate unfairly in the case of a witness, who may be compelled to give evidence, that is a consequence of the absolute nature of Parliamentary privilege, which must be regarded as the dominant consideration.

281 For the reasons which I have given, I think it proper that the Court should grant a stay of these proceedings.

282 In the result, I would answer the questions in the case stated as follows:

(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 16 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) or 19(d) hereof.

Section 16(3) of the Parliamentary Privileges Act 1987 (Cth) has the effect of prohibiting the parties from leading evidence, cross-examining witnesses and making submissions of the kind referred to in this question.

(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.

283. Since writing the above reasons, I have had the benefit of perusing the reasons of the other members of the Court. While my view remains as stated above, in view of the differences between the members of the Court, I do not oppose the making of the order which Doyle CJ proposes as the order of the Court.

284. MULLIGHAN J. The questions should be answered as proposed by the Chief Justice. I agree with his reasons for his decisions.

285. There is nothing which I can usefully add except that I make an observation about whether the action should be permanently stayed. As was observed by the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 338:

"... 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."

I do not think this action has yet reached the stage where it can be said that there would be an injustice to the defendant unless there is a stay. The analysis of the issues between the parties and the pleadings undertaken by the Chief Justice and Lander J make it plain that consideration of a stay at this stage is premature.

286. The true nature and extent of the issues between the parties and the evidence to be adduced relevant to those issues will probably not be known until the trial. It is then, if asked, that the trial Judge will have to consider whether justice demands a stay of the action. I do not think it appropriate at this stage to assume that the issues as presently raised in the pleadings will be precisely the same issues at trial or to make assumptions about the nature of the evidence which will be given.

287. LANDER J. I have had the advantage of reading in draft the reasons for the decision of the Chief Justice.

(i) Do either or both s49 of the Constitution of the Commonwealth of Australia or s16(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 what was the truth asserted by the plaintiff in his evidence to the Parliamentary Committee and particularised in par 6 hereof ("the evidence");

(b) address the issue of the honest belief of the plaintiff and 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 s16(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 s49 of the Constitution of the Commonwealth of Australia or s16(3) of the Parliamentary Privileges Act 1987 (Cth) prohibits the parties from leading evidence, cross examining witnesses or making submissions on the evidence identified in question (i) whether the action should be permanently stayed.

It can be seen from the questions posed that this Court is not asked to determine whether there is any other statutory provision which would otherwise preclude either party from addressing the matters referred to in (i) or which should give rise to a permanent stay.

This Court is specifically asked to determine the effect of s 49 of the Constitution and s 16(3) of the Parliamentary Privileges Act upon evidence led in this action. It has not been asked to pass any opinion upon the effect of the Bill of Rights 1689 (UK) or the correctness or otherwise of the decision of this Court in Wright v Lewis (1990) 53 SASR 416.

It can be supposed that the questions were kept within a narrow compass because this case concern statements made by one of the parties to a committee of the Parliament of the Commonwealth.

It does not concern, at least directly, anything said by either party in the South Australian Parliament. The Parliamentary Privileges Act does not, of course, purport to apply to any proceedings in the South Australian Parliament.

In my respectful opinion it would be better to answer those questions and only the questions posed rather than for this Court to embark upon wider questions relating to the privileges of proceedings in the South Australian Parliament.

In those circumstances it is not necessary for this Court to determine whether the Parliamentary Privileges Act is declaratory of the Bill Of Rights, 1688 or whether the decision in Wright v Lewis (supra) was correct.

Whilst I appreciate the limitations imposed upon a Court in a consideration of a case stated (Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373; R v Rigby [1956] HCA 38; (1956) 100 CLR 146) it is useful, in my opinion, to have some regard to circumstances giving rise to this case stated.

This case stated arose in a rather unusual way. After the pleadings in this matter had been completed and apparently, at least as far as I can ascertain, after the interlocutory processes had been completed the defendant applied by interlocutory application for an order that these proceedings be stayed.

The defendant's interlocutory application was supported by his solicitor's affidavit who claimed that the provisions of the Parliamentary Privileges Act would interfere with the defendant's presentation of his defence. In particular she said, after referring to the defendant's pleas of justification, qualified privilege and fair comment, that the defendant has in his defence, called in to question the truth or good faith of the evidence given by the plaintiff to the Parliamentary Committee so as to establish these defences.

She further deposed that the plaintiff has pleaded malice and an issue will be "whether the defendant held an honest belief in what he said and whether he believed the evidence of the plaintiff to the Parliamentary Committee to be untrue. The truth or good faith of the plaintiff's evidence to the Parliamentary Committee will be in issue." She exhibited a letter which had been written by her to the plaintiff's solicitor claiming that these proceedings would inhibit the defendant in the presentation of his defence. That affidavit drew a response from the plaintiff's solicitor who filed an affidavit exhibiting further correspondence between the parties which showed that the effect of the provisions of the Parliamentary Privileges Act had been a live issue between the parties since late 1998. The parties, at least the correspondence indicates, were unable to agree upon the effect of the legislation in these proceedings.

I should add that the defendant's solicitor's affidavit also claims that the plaintiff has, in the interlocutory processes, relied upon statements made by the defendant in the House of Assembly "and it appears likely he will do so at trial". She says, in her affidavit, that this would appear to infringe the provisions of Article 9 of the Bill Of Rights, which she says applies in South Australia by virtue of s 38 of the Constitution Act 1934. I am not persuaded by reason of her comments in that affidavit that the question of the effect of the Bill Of Rights upon proceedings in the South Australian Parliament should be addressed in the determination of this case stated. I think, as I have already indicated, this Court is bound by the questions posed in the case stated and those questions do not include matters relevant to anything said by either of the parties in the South Australian Parliament. Indeed nor could they. It seems to me that the questions in the case stated must be limited at this stage to issues raised on the pleadings. The questions could not, at this stage at least, pose for this Court, considerations of evidence which may or may not be led in these proceedings.

Notwithstanding the evidence filed in support of the stay application in which it appears clear that the parties solicitors have believed for a long time that the Parliamentary Privileges Act is relevant in relation to the trial of this action neither party has raised that issue in their pleadings. Neither party has claimed that the other party is precluded from advancing an issue or a defence by reason of that statute.

The stay application has never been determined. I think that the present procedure was adopted instead.

I do not think that the stay application could have been determined as an interlocutory process. In the absence of any pleading raising the provisions of the Parliamentary Privileges Act there is no sub stratum upon which to address the question. For the reasons which will follow I do not believe that this Court is in any better position to answer that question on a case stated.

The first question asks this Court whether s 49 of the Constitution or s 16(3) of the Parliamentary Privileges Act would prohibit either of the parties from leading evidence by way of evidence in chief or by way of cross examination of a witness or from making submissions concerning the truth of what was asserted by the plaintiff in his evidence to the Parliamentary Committee and concerning his motive, intention or good faith or credibility on giving that evidence. The question then particularises the evidence or submissions which might be made.

The first question must depend upon the pleadings. There is no other way in which this Court can determine what evidence might be called by the parties to the action.

It is unusual for a case stated to seek an opinion of a court of appeal on the admissibility of evidence before the trial has commenced. This Court in a sense has been asked to assume that the evidence referred to in the question will be led by one party or the other. For reasons which I will come to that is an assumption which I do not think can be readily made.

The first and second questions are in a sense interdependent. The case stated asks the second question in the light of the answers to the first question. The first question assumes the validity of s 16(3) of the Parliamentary Privileges Act. The second question assumes that s 16(3) of the Parliamentary Privileges Act will prohibit the parties from tendering evidence, cross examining witnesses or making submissions and asks this Court whether s 16(3) of that statute is a valid law of the Parliament of the Commonwealth having regard to the extent of the prohibition which arises.

It seems to me that an answer has to be given to the second question even if an answer cannot be given to the other questions and in particular the first question. If the provision of the Parliamentary Privileges Act was invalid then the first question would only involve a consideration of s 49 of the Constitution.

Whilst, for reasons which I will give, I do not think any answer can be given to the first question because there is presently no concrete or established fact situation (Bass v Permanent Trustee Co Ltd & Ors [1999] HCA 9; (1999) 161 ALR 399) I think it is appropriate to answer the second question. That is so even though, as my reasons will show, neither party has relied upon the provisions, the subject of the questions.

The third question, in my opinion, can only be answered if the first question can be answered with any precision and the second question is answered in the affirmative. Whether or not a stay application should be granted must depend upon the effect of s 16(3) upon the proceedings as a whole and in particular upon the evidence which may be led by either party.

It follows therefore that because the first question cannot be answered nor can the third.

Although the facts are fully stated in the reasons of the Chief Justice they bear repeating in a consideration of these reasons.

The plaintiff is the Leader of the Opposition in the South Australian Parliament. The defendant is the Premier of this State. The Premier was commissioned to form a Government after the resignation of Mr Dean Brown in whose Government the Premier had been a Minister.

Hereafter I shall refer to Mr Olsen and Mr Rann by reference to their status in these proceedings.

On 10 June 1997 the plaintiff gave evidence to a joint committee of the Federal Parliament (the Parliamentary Committee) being the Joint Committee on the National Crime Authority.

During his evidence he claimed that the defendant, whilst he was a Minister in Mr Brown's Government, had leaked confidential information to him. The allegation was a serious one and, it may be assumed, potentially politically damaging.

On the same day the defendant was asked at a media conference to comment upon the plaintiff's evidence to the Parliamentary Committee (the first publication).

He said that the plaintiff's claim that he was the leaker of confidential information to do with EDS was a lie. He denied that he had ever leaked confidential documents to the plaintiff or that he had leaked any confidential material.

On 11 June 1997 the defendant gave a further media conference (the second publication). He said that his integrity was intact. He said that the plaintiff had refused to put his position down in the public arena.

On 20 June 1997 the defendant was further interviewed by a journalist on radio 5AA and the interview was broadcast (the third publication). During that interview he said that the allegations made by the plaintiff amounted to "character assassination under Parliamentary privilege".

The plaintiff complains in these proceedings of the defendant's responses to his allegations. He says that the defendant's responses amount to a claim that he is a liar and that he lied to a Federal Parliamentary Committee.

He claims that the words used by the defendant on the three separate occasions give rise to the following imputations:

(ii) The plaintiff lied to a Federal Parliamentary Committee.

(iii) The plaintiff lied in giving evidence to a Select Committee of the Federal Parliament to the effect that the defendant had given confidential information to the plaintiff to a member or members of the opposition;

(iv) The plaintiff is unscrupulous and prepared to say anything for political gain.

(i) The plaintiff has engaged in character assassination under Parliamentary privilege.

The defendant does not accept that the first publication means that the plaintiff is a liar but he does accept that the imputation arising out of his comments is that the plaintiff lied to the Parliamentary Committee.

He does not accept that the imputation pleaded by the plaintiff arises from the second publication.

He does accept that the natural and ordinary meaning of the words published in the third publication give rise to the imputation that the plaintiff has engaged in character assassination under Parliamentary privilege.

The defendant says that the two pleaded imputations which he accepts arise are true. In the alternative he says that the words were published on occasions of qualified privilege. The occasions arose in two ways. One occasion was because the defendant was responding to the plaintiff's allegations of and concerning him in the course of the plaintiff's evidence to the Parliamentary Committee. In the alternative the publications occurred in the course of political discussion and were protected by qualified privilege of the kind identified in the decision of the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. (During the course of these reasons I will refer to a claim that an occasion of qualified privilege which does not depend upon a communication of political discussion as common law qualified privilege and an occasion which depends upon communication of political discussion as Lange qualified privilege).

The defendant pleads that the words complained of were fair comment on a matter of public interest. The matter of public interest is said to be:

"1. The conduct and statements of the Defendant as Premier of the State of South Australia and the Plaintiff as Leader of the Opposition". 2 The Plaintiff's evidence to the Joint Committee on the National Crime Authority and the Defendant's response thereto."

I must say that I do not understand the matter of public interest identified in those particulars. The particulars seem to suggest at least in part that the defendants own statements, the subject of the claims for defamation, give rise to the matter of public interest. That could not be so. The matter of public interest must have existed before the defendant made his statements. In the alternative it is suggested that the plaintiff's conduct to the Parliamentary Committee is the matter of public interest. The particular does not make clear whether it was the giving of the evidence or the subject matter of the evidence which gave rise to the matter of public interest. However the pleading has been allowed to stand.

Of course the defendant's defences of qualified privilege and fair comment do not come to be considered unless he fails to establish that the imputations which he agrees arose from the words published were true, and if other imputations are found to arise that they are also true.

In response to that last mentioned matter the defendant has pleaded that if the plaintiff's further pleaded imputations arise, those imputations are also true and again, in the alternative were published on the same occasions of qualified privilege to which I have referred or in the further alternative were fair comment on a matter of public interest.

The plaintiff has pleaded that "by reason of the premises" he "has been injured in his character credit and reputation and has been brought into public scandal odium and contempt". That is, of course, a long standing plea in claims of defamation and it may be taken that the plaintiff thereby claims that the words published by the defendant are defamatory of him. However he has not indicated whether his claim is in slander in respect of the words uttered by the defendant at the press conferences on 10 June 1997 and 11 June 1997 or in libel upon the basis that the defendant is responsible for the republication or republications by the media of those words, or both slander and libel. If the claim is in libel he has not identified the circumstances of the republications, the words published, the medium or media or the audience. More particularly he has not indicated how it is said that the defendant is liable for the republication or republications.

Moreover, he has not claimed that the publication of the words on 20 June 1997 amounts to a libel by reason of s 206 of the Broadcasting Services Act 1992, although the parties have rather assumed that the broadcast is a libel. I think, notwithstanding the absence of a reference to the statutory provision it may be assumed that the third publication is in the permanent form.

None of the inadequacies in the plaintiff's Statement of Claim were adverted to by the parties or the interveners during the hearing of this matter.

I think this Court is asked to assume the following. First that the plaintiff's first cause of action against the defendant is in libel upon the basis that the defendant is responsible for a republication or republications of the words uttered by the defendant to the media on 10 June 1997. Secondly that the plaintiff's second cause of action also arises out of a republication or republications this time or republications of the words spoken on 11 June 1997. Thirdly, that the plaintiff's third cause of action is in libel pursuant to s 120 of the Broadcasting Act for the words spoken by the defendant during the interview on Radio 5AA. It must also be assumed, for no other reason than it is not pleaded and because no special damages are claimed, that the plaintiff does not claim against the defendant in slander for the words published at either press conference. This Court is further asked to assume that the plaintiff alleges that the defendant, because of his willingness to answer questions at that press conference, thereby became responsible for any republication by any of the media through any medium. It would probably be the plaintiff's case, although the pleadings do not say so, that it might be assumed that a press conference of that kind would give rise to republication in the electronic media and the newspapers and therefore the defendant is liable for any republications of that kind.

Whilst those assumptions might be made notwithstanding the absence of any such claims in the Statement of Claim the absence of any proper pleas in libel for any republications arising out of the press conferences presents practical difficulties in a consideration of the questions posed in this case stated.

The pleadings do not allow any assumptions to be made of the medium or media in which any republication took place, the words published, and the audience to whom the publication was made.

If it is to be further assumed that any republication was in the same words used by the defendant in the press conference, then the absence of more particular pleas in the Statement of Claim could not embarrass this Court in a consideration of the defendant's plea of justification. But the same is not so in respect of the plea that any publication was on an occasion of qualified privilege.

Because the defendant has pleaded that the words were published on an occasion of common law qualified privilege it is important, of course, to determine the extent of the publication.

If the Court makes those assumptions which, I think, must be made otherwise the case stated must be returned unanswered at this point, it would appear that justification, common law qualified privilege and Lange qualified privilege will be issues in these proceedings.

The defendant does not give any particulars identifying the facts and circumstances giving rise to the occasion or occasions of qualified privilege. In respect of common law qualified privilege he does not give any particulars identifying how it was that he was under a duty to publish the statements he did on the three occasions and how it was that the audience, which in neither the Statement of Claim nor the defence has been identified, was under a duty to receive the communications. In respect of Lange qualified privilege the defendant has pleaded the political discussion which gives rise to the occasion of qualified privilege but not the reasonableness of his conduct on any of the three occasions of publication. I do not think the defendant can be criticised for failing to particularise the occasion of qualified privilege. Until the plaintiff identifies the particular publication or any republication it is impossible for the defendant to identify the particular occasion.

It would be useful, I think, at this stage to dispose of two matters which are raised on the pleadings but which are not issues affecting these reasons. First it does not matter, in my opinion, whether the imputations contended for by the plaintiff or those contended for by the defendant arise. The acceptance by the defendant that two of the imputations complained of by the plaintiff arise is enough to ensure that the defendant's defences must be addressed.

Secondly having regard to the imputations accepted by the defendant the defence of fair comment could not arise. It could not be said that communication that a person lied in a Parliamentary Committee was a comment. Those words are unquestionably, in my opinion, statements of fact. Whether fair comment could apply to the other admitted imputation does not need to be considered. It is enough to assume having regard to the defendant's acceptance of the imputation complained of that the defence of fair comment will not, in my opinion, be completely successful.

The true issues in this case are first whether the defendant can prove that the imputations arising out of his statements at the press conferences and during the radio broadcast are true and secondly, if he cannot, whether the words were published on occasions of qualified privilege, either common law qualified privilege or Lange qualified privilege.

The failure to deliver a reply by any plaintiff deems the pleadings to be closed and any material facts alleged in a defence shall be deemed to have been denied and put in issue; r 46.21. Ordinarily therefore a plaintiff is not disadvantaged if he or she fails to file and serve a reply.

However in defamation matters if a plaintiff wishes to establish malice in answer to a defendant's plea of qualified privilege or fair comment then a plaintiff must file a reply giving particulars of the facts and matters from which malice is to be inferred; r 46.19(4).

The plaintiff was therefore in these proceedings obliged to file a reply.

If a party files a reply then like a defence that pleading is governed by r 46.12.

"46.12 A party in his or her defence or any subsequent pleading: (1) Shall not plead a mere joinder of issue on any question of facts. (2) Shall specifically admit or deny every allegation of fact (including particulars) in the pleading to which the defence or subsequent pleading relates, and allegations which are not specifically denied shall be deemed to be admitted. (3) May state that the party does not know therefore cannot admit a particular fact alleged, in which case the particular fact shall be deemed to be denied. (4) Shall specifically plead any fact or matter which: (a) Might make any claim or defence of the opposing party not maintainable; (ab) In an action in which s72 of the Development Act 1993 applies but for the operation of s72 make any person who is not a party to the action jointly and severally liable for the amount claimed. (b) If it is not specifically pleaded might take the opposing party by surprise; (c) Raise issues of fact or any mixed question of fact and law not arising out of the proceeding pleading."

348. The plaintiff has filed a reply. However the document does not comply with r 46.12.

349. The defendant has asserted in his defence that his statement that the plaintiff lied to a Federal Parliamentary Committee was true. Moreover he has asserted that his statement that the plaintiff engaged in character assassination under Parliamentary Privilege was true. As I have already mentioned he has further asserted that if any of the other meanings set out in the plaintiff's Statement of Claim are found to arise they are also true.

350. The defendant has given particulars of the allegation of truth.

351. Rule 46.12 obliges the plaintiff to plead to every allegation of fact including any particulars in the defence. In his reply the plaintiff has pleaded to the particulars but not to the allegation of fact. The plaintiff's failure to plead to the defendant's assertion that what he said was true means, in my opinion, as a matter of pleading practice, that the plaintiff has admitted the defendant's assertion in his defence.

352. It is true that the plaintiff has pleaded to the particulars given by the defendant of truth. However a plea to the particulars is not sufficient. The plaintiff was also under an obligation to plead to the allegation of fact. Moreover the plaintiff had the obligation to plead any fact or matter which might make any defence not maintainable, r 46.12(4)(a).

353. It may be that the plaintiff deliberately did not plead to the defendant's assertion that the plaintiff lied to the Parliamentary Committee allowing that fact to be deemed to be admitted. But that would be unlikely and inconsistent with the plea that followed. In that plea the plaintiff does not assert that what he said in the Parliamentary Committee was true but instead asserts that he "had an honest belief that the defendant had given confidential information to both himself and to another Opposition Member of Parliament and that the defendant had given Cabinet documents to the same Opposition Member of Parliament". He then gives particulars of that plea. In those circumstances the plaintiff presumably would be prepared to accept that the defendant could prove the falsity of what he said but he would not be prepared to accept that he knew what he said to be false at the time he said it. In other words he continues to complain of the defendant's assertion that he lied to the Parliamentary Committee.

354. Nowhere in his reply does the plaintiff directly address the defendant's assertion that the plaintiff engaged in character assassination. The failure to address the defendant's plea means that the plea is admitted.

355. Next the plaintiff in his reply denies that the publications occurred on occasions of qualified privilege. In respect of the common law claim of qualified privilege he says that any answer given by him to the Parliamentary Committee could not constitute an attack upon the defendant which would enable any response by the defendant to have the benefit of qualified privilege. In respect of the Lange qualified privilege, whilst he admits that the publication by the defendant was in the course of political discussion, he denies "that such publications were reasonable so as to afford the publication qualified privilege".

"4. The plaintiff further says in the alternative that the defendant cannot have the benefit of the defences of qualified privilege or fair comment for the following reasons: 4.1 the defendant knew for the reasons particularised in paragraph 2 hereof that he, the defendant, had given confidential information to both the plaintiff and Foley and had given Cabinet documents to Foley; 4.2 the defendant was reckless to the possibility that a supporter of himself had given Cabinet documents to a Parliamentary member of the Opposition in circumstances (being the circumstances asserted in 2.1, 2.2, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.13, 2.14 and 2.15 hereof) which may have led the plaintiff to a reasonable belief that he, the defendant, had provided such documentation."

Although that plea does not say so in its terms paragraph 4 is a plea of malice: Horrocks v Lowe [1975] AC 135. If malice was to be asserted it was necessary for the plaintiff to file a reply: r 46.19. The plaintiff is there asserting that the defendant knew that the plaintiff had not lied to the Parliamentary Committee or was reckless to the possibility that the plaintiff honestly believed that the defendant had provided the confidential information and that the defendant was thereby actuated by malice.

In my opinion the plaintiff's pleadings are inadequate. The plaintiff has failed to properly particularise the various causes of action, which no doubt at trial, he will attempt to assert against the defendant. He will at trial most likely attempt to prove republications in the various media arising out of the first and second publications. However as the pleadings presently stand evidence of any republication would probably not be admitted.

I cannot think of a reason why the plaintiff might have left his Statement of Claim in the form he has. I can understand that the plaintiff would not, for practical reasons, have wished to sue the media who might have published the republications arising from the first and second publications or Radio 5AA in relation to the third publication. There is sometimes a reluctance on the part of politicians to bring defamation actions against the media, especially in circumstances where the real argument is between politicians themselves. I can therefore readily understand why the plaintiff has brought his proceedings only against the defendant. I cannot, however, understand why it is that the plaintiff has not pleaded that the defendant is responsible for any republications.

If it is that the plaintiff does not sue in respect of any republications and is content to rely on what was said in the press conference to those present then the plaintiff's claim is simply a claim in slander for each of the first and second publications. If his claims in respect of those publications are in slander he should have pleaded that he had suffered special damage or that the words are otherwise actionable per se. There is no plea of special damage or that the slander is actionable without proof of special damage.

The defendant has addressed the Statement of Claim as it stands. The defendant has not sought to strike out the plaintiff's Statement of Claim for any want of particularity if the plaintiff's causes of action are based upon any republications. Nor has the defendant sought any further particulars.

I can understand why the defendant would not have taken either of those steps. It would suit the defendant for the pleadings to stay in their present form so that at trial the defendant could assert that apart from the third publication the plaintiff was limited to causes of action based upon slander in relation to the first and second publications. The defendant could assert at trial that the defendant was not entitled to lead any evidence of any republications in the absence of any plea that there were republications.

In respect of the reply I cannot understand why the plaintiff has not pleaded to the defendant's assertion that what he said was true or the assertion that the plaintiff was guilty of character assassination. The failure to plead to those assertions means that the plaintiff has admitted that the defendant has made out his claim that the plaintiff has lied and has been guilty of character assassination.

The second of those matters is the only defamatory imputation alleged by the plaintiff to arise out of the third publication. That would in fact be a complete answer to the third publication which is, although it is not properly pleaded, an action in libel.

It would leave the plaintiff with only causes of action in slander in respect of the first and second publications. The most damaging imputation has been admitted as having been made out. In those circumstances there is, on the pleadings as they stand, very little of the plaintiff's action left.

I have anlaysed the pleadings in some detail because of the form which this case stated has taken.

In particular paragraph 1 of the case stated asks this Court to address questions upon assumptions that certain evidence will be led at trial.

I am not sure that evidence of the kind referred to in paragraph 1 will be led. On the pleadings as they presently stand it may be that the defendant will not have to lead any evidence to make out his defences and it may be that the plaintiff, because of the inadequacy of the plaintiff's own pleadings, will not be permitted to lead the evidence to which reference is made.

If that is the case then the question of a stay may not be important. If, in fact because of the state of the pleadings, neither party is entitled to lead any evidence of the kind referred to in paragraph 1 then a question of a stay will never arise.

However I shall address the next matter without reference to the inadequacies of the pleadings.

The plaintiff has no obligation to prove the falsity of the words published. The plaintiff's obligation is simply to prove the words published; the publication and its extent; that the words complained of were defamatory of and concerning him; and that the defendant was responsible for the publications relied upon.

Once the plaintiff has established those matters then the plaintiff will be entitled to a verdict unless the defendant can establish a defence. It is thus for the defendant to establish that the admitted imputations are true. If he cannot establish the truth of all of the pleaded imputations which are found to arise, including those not admitted, the onus is upon the defendant to establish that the publications of those imputations, not found to have been justified, were on occasions of qualified privilege. Apart from the particular occasion referred to in Lange he would, if he was to make out a defence of common law qualified privilege, have to establish that he had a duty to communicate in the terms in which he did to the media and thus the public and the public had a corresponding duty to receive that communication. He would have to prosecute his defence of qualified privilege on the basis that the publication was to the public at least in respect of the third publication. If the first and second publications are only claims in slander then the defendant would not have to address the republications to the public at large. In respect of any Lange qualified privilege he would have to establish that it was a publication in the course of political discussion (which is admitted) and that publication was reasonable (which is denied). I think it can be said that the onus is upon the defendant to establish the reasonableness of conduct: Lange at 574.

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.

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.

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.

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.

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.

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.

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.

At present he could rely on the pleadings for establishing the truth of the admitted imputations.

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.

Because he relies upon Lange qualified privilege he would also have to prove his conduct was reasonable.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

That leaves the question of qualified privilege which is a little more difficult.

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.

Whether there is such a reciprocity of interest requires a consideration of all of the circumstances giving rise to the publication or communication.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

For Lange qualified privilege he would call that evidence for the purpose of showing the reasonableness of his conduct.

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).

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.

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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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

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."

With the greatest respect to the plaintiff such a submission is misconceived.

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.

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.

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] EWCA Civ 1111; (1999) 1 WLR 1569.

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."

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."

In Walton v Gardiner [1993] HCA 77; (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."

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.

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.

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.

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.

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.

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.

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)

However I am not able to say on the material presently before the Court whether this is one of these cases.

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.

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.

In my opinion that assessment cannot be made by this Court at this time on these pleadings.

(ii) Section 16(3) of the Parliamentary Privileges Act is a valid law of the Commonwealth in its application to the present case.

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.

Comalco Ltd v ABC (1985) 64 ACTR 1 at 58

[2] Bradlaugh v Gossett [1884] 12 QBD 271 at 275, 278 - 279; Stockdale v Hansard [1839]

[1839] EngR 139; 9 Ad & E 1 at 209

[3] Prebble v Television New Zealand Limited [1995] 1 AC 321at 332; Church of Scientology of California v Johnson-Smith [1972] 1 QB 522

[4] (1990) 53 SASR 416

[5] (1986) 5 NSWLR 18

[6] [1997] HCA 25; (1997) 189 CLR 520

[8] R v Richards ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157 at 165 - 167

[11] Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332, citing Burdett v Abbot [1811] EngR 83; (1811) 14 East 1; Stockdale v Hansard [1839] EngR 139; (1839) 9 Ad & El 1; Bradlaugh v Gossett (1884) 12 QBD 271; Pickin v British Railways Board [1974] UKHL 1; [1974] AC 765; Pepper v Hart [1992] UKHL 3; [1993] AC 593.

[12] (1986) 5 NSWLR 18.

[13] (1990) 53 SASR 416.

[14] [1996] QCA 471; (1996) 141 ALR 447.

[19] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[20] [1995] 1 AC 338.

[21] 53 SASR 416.