Defamation and Parliamentarians

_It is well known that no action for defamation can be founded on a statement made by a member of parliament In a speech made In the House. But should parliamentarians also be protected from defamation proceedings for material ______they publish outside the House?______

la this article Sally Walker explores the Victorian provision, the sections are the extent of the protection given to “ Members of expressed to apply to reports of “proceedings members of parliament as well as media Parliament may be of a House” rather than “parliamentary pro­ organisations olio publish reports of ceedings”6 It follows that, except in Victoria, defamatoiy statements made by protected from liability to obtain qualified privilege for the publica­ parliamentarians. tion of a fair and accurate report of proceed­ when they publish ings which did not take place in the House, a defamatory material media organisation would have torelyonthe he absolute privilege accorded to common law. This would be possible in all Members of Parliament against lia­ outside their Houses of jurisdictions except Queensland, Tasmanian bility for defamation is based on Ar­ and Western Australian where the statutory ticle 9 of the Bill of Rights (1688). Parliament.” provisions are partof acode. In these jurisdic­ Article 9 declares that; tions a media organisation could, however, T“the freedom of speech and debates or rely on the qualified privilege accorded to the proceedings in Parliament ought not to be tion of the material is part of “proceedings in publication of material “for the purpose of impeached or questioned in any court or parliament”. giving information” to protect it from liability place out of Parliament”.1 Before discussing the meaning of for publishing a fair report of parliamentary The privilege of freedom of speech, as “proceedings in Parliament” it is instructive proceedings which were not part a parlia­ confirmed by Article 9, is enjoyed by Mem­ to examine the significance of this issue to mentary debate.7 bers of all Australian Houses of Parliament2 the media and to explain the object of the he object of the absolute privilege It follows from Article 9 that no civil or privilege. from liability for defamation is to criminal proceedings may be instituted enable Members to cany out their against a Member of Parliament for anything Importance to the functions; it enables Members of said or done by the Member in parliamentary Parliament to speak freely in the House, proceedings. For two reasons, it is important media makingT assertions andallegations which they to emphasise that the immunity from liability t common law, a fair and accurate could not otherwise make without the risk of for defamation is an application of the gen­ report of parliamentary proceed­ liability for defamation. eral rule embodied in Article 9. ings in the jurisdiction in which The Australian Law Reform Commission First, if a Member's words cannot be said the reportis published is protected concluded that, because debate should not to be part of “proceedings in parliament” they Aby qualified privilege/ As privilege ishe quali impeded­ by the consequences of plain are not privileged. Thus, May says that: fied, rather than absolute, the defence mil speaking, this absolute privilege should not “it does not follow that everything that is fail if the publisher was actuated by malice. In be abolished or curtailed.* said or done within the Chamber during the 1987 the Commonwealth Parliament enacted Owing to the importance of the commit­ transaction of business forms part of the pro­ legislation protecting fair and accurate re­ tee system in modem parliaments, it has ceedings in Parliament Particular words or ports of proceedings at a meeting of a Federal been recognised by the courts and the legis­ acts may be entirely unrelated to any busi­ House of Parliament5 The legislation pre­ lature that witnesses who give evidence be­ ness which is in the course of transaction, or serves the common law. fore parliamentary committees are to he ac­ is in a more general sense before the House”.3 Thus, a media organisation may rely on corded absolute privilege from liability for A remark made by a Member during a the common law to obtain qualified privilege defamation in respect of statements made by debate in a House, but in the course of a for the publication of a fair and accurate them in the course of the committee's pro­ casual conversation, is not protected by abso­ report of proceedings which were not part of ceedings.9 lute privilege; although the statement is made a meeting of a House, but which were, One area where it is uncertain whether in the House, it is not part of the “proceedings nonetheless, "proceedings in parliament”. the law has taken into account the modem in Parliament”. Thus, the extent to which the publication nature of Parliamentary work concerns the The second reason why it is important to of material outside Houses of Parliament is unresolved question of the protection emphasise that the Members’ absolute privi­ part of “proceedings in parliament” is of sig­ accorded to communications between lege from liability for defamation is based on nificance to the media. Members.10 Such a communication may be Article 9 is that the immunity is expressed to The position regarding the publication of accorded qualified privilege,11 but there is extend to "proceedings in parliament” rather reports of State and Territory parliamentary some doubt whether it would be protected by than simply to parliamentary debates. proceedings is more complicated. In each absolute privilege as part of “proceedings in This indicates that Members of Parlia­ State andTerritoiy the common law qualified ment may be protected from liability when privilege accorded to fair and accurate re­ they publish defamatoiy material outside their ports of parliamentary proceedings is embod­ Houses of Parliament, provided the publica- ied in legislation although, with exception of Continued on pl5 3 Defamation and It was decided that, as proceedings, consisted of segments of parliamentarians question time in the House, segments by the such, they were protected two Members and comments by ABC fromp3 journalists. by the same absolute So fer as the action was based on what was said in the House, it was held that parliament”. It has been suggested that, for privilege as those Chapman was protected by absolute privi­ policy reasons, such acommunication should lege and the ABC by qualified privilege. Zel- be seen as part of parliamentary proceedings: communications made ling ACJ said that it was “arguable” that a “When his House is not sitting, the only Member who repeated outside the House way a Member can make criticisms or seek in the House itself what he or she said in the House was pro­ information on controversial subjects is by tected by absolute privilege.20 Prior J ac­ communication with relevant Ministers, de­ knowledged that the privilege attaching to partments or Government instrumentalities. he Ontario High Court and the proceedings in parliament does extend to ...it would be against the public interest if Ontario Court of Appeal held that some things happening outside the House, Members, because of fear of possible defa­ the telegram and the press release but he rejected the view that Chapman’s mation proceedings, were to be dissuaded were mere “extensions” of state­ repetition outside the House of what he said when their Houses were not sitting from ments made by Trudeau and the Ministerin inthe House attracted absolute privilege in raising urgent and important matters.”12 Tthe House; it was decided that, as such, they this case.21 The other member of the Court, Traditionally, it has been assumed that a were protected by the same absolute privi­ Jacobs J, did not deal with this question. Member is not protected by absolute privi­ lege as those communications made in the It is regrettable that the judgments of lege if he or she re-publishes a speech made House itself,15 The Court of Appeal suggested members of the South Australian Supreme in the House outside the House.13 that, because ofthe “complexities of modem Court do not attempt to extract a principle Recent decisions suggest that the courts government and ... the development and from the Canadian cases regarding the may take a voder view of what is encom­ employment in government business of the meaning of “proceedings in parliament" and passed by “proceedings in parliament” so as greatly extended means of communication”, decide whether that principle should be to accord absolute privilege to the republica­ courts werejustified in broadening the mean­ adopted in Australia. tion of a speech in certain circumstances. ing and application of the phrase “proceed­ ings in parliament”.16 The Supreme Court of Canada dealt with an appeal from this deci­ sion “without dissenting from the views It is suggested that The Privy Council expressed in the Courts below as to the privi­ opened the way lege attached to statements made in Parlia­ a principle can be ment”.17 extracted from the for a broader Following Roman Corp the Ontario High Court has held that is is part of the “proceed­ Canadian cases interpretation ings in parliament” to release to the media in 1963 information used in Parliament18 Nonethe­ less, in the most recent relevant case, the Ontario High Court held that the feet that a t is suggested that a principle can be Member's answer to journalists’ questions extracted from the Canadian cases: he Privy Council opened the way for was in substance the same as a statement absolute privilege protects a Member of Parliament from liability for defamation abroader interpretation in 1963when which the Member has already read to the for publishing a statement outside the House it said that: “it generally recognised House was not in itself sufficient to bring it whichreleasesI information used in theHouse, that is is impossible to regard (a within the Roman Corp principle. The Court but only where the Member’s action outride Member’s) ... only proper functions asdistinguished a Roman Corp: the House in an “extension” of the TMember as being confined to what he does “A bona fide statement of Government proceedings in the House; to amount to an on the floor of the House itself.”14 Subse­ policy concerning proposed legislation as in “extension” of proceedings in the House, the quently, in Roman Corp, Canadian courts Roman is quite a different matter from the action outside the House must be necessary were called upon to decide whether a tele­ facts ... (here) where the defendant, in for the proper discharge of the Member’s gram sent by Prime Minister Trudeau and a response to questions by reporters, made duties. This broadening of the protection press release by a Minister were absolutely allegations of a serious nature against an accorded to Members of Parliament does not privileged. The plaintiffs proposed selling individual."19 take it outside the rationale for granting the their interests in a uranium mine to a com­ In 1986 inChatterton the Full Court of the privilege. pany controlled by non-Canadian interests. South Australian Supreme Court had occa­ Prime Minister Trudeau and the relevant sion to consider the meaning of “proceed­ Minister made statements in the House indi­ ings in parliament”. Chatterton, a Labour It is to be hoped that cating that they intended to prohibit the trans­ Party Member of the South Australian Legis­ action. The telegram, which was sent to the lative Council sued the ABC and a liberal Australian courts will plaintiffs, informed them of this decision; the Party Member, Chapman, for defamation. press release set out the decision announced Chapman had asked questions in the recognise that... the in the House. As a result, the transaction was House regarding an application made by not completed and the plaintiffs sued for Chatterton’s family farming business for meaning of “proceedings damages; their action wasbased on a number droughtrelief, the application was made while in parliament” must be of grounds, including wrongful procurement Chatterton was Minister of Agriculture. The of breach of contract ABC program which was the subject of the broadened 15 Defamation and Notes Wrongs Act 1958 (Vic) s 3A (1) ;The Criminal parliamentarians Code (WA) s 354 (1); ACT Defamation fromplS 1 I Win and Mr Sess 2, c 2 (1688). (Amendment) Act1909 (NSW) s5(a) (applies only to newspaper reports); Defamation Act 2 The privilege applies; (NT) s 6(1) (ba) (applies only to newspaper It is to be hoped that Australian courts, (a) pursuant to legislation which like the Canadian courts, will recognise that reports). In New South Wales, Victoria, adopts the privileges of the House of Com­ the nature of parliamentary' work and devel­ Western Australia and the Australian Capital mons (see, for example, Commonwealth opments in methods of communication are Territory the statutory protection extends to such that the meaning of “proceedings in Constitution s 49 and Constitution Act 1975 the publication in that jurisdiction of a report parliament” must be broadened, at least to (Vic) s 19(1) and Sankey v Whitlam (1978) of other State or Territory Parliaments. this extent 142 CLR1 per Gibbs ACJ 35); 7 The Criminal Code (Qld) s 377; Defama­ The Parliamentary Privileges Act 1987 (b) pursuant to legislation which tion Act 1957 (Tas) s 16; The Criminal Code (Cth) defines “proceedings in Parliament” as provides that the Bill of Rights is part of the (WA) s 357. “all words spoken and acts done in the course law (see, for example, Parliamentary Privi­ of, or for purposes of or incidental to, the 8 Anst,TheLaw Reform Commission, Unfair leges Act 1987 (Cth) sub-sl6(l) and Imperial transacting of the business of a House or of a Acts Application Act, 1969 (NSW) s 6); or Publication; Defamation and privacy ALRC committee”.22 The reference to “incidental" 11 para 135. matters extends the protection accorded to (c) at common law, on the basis of 9 R v Murphy (1986) 5 NSWLR18, 26-27; statements made by Federal Members of necessity (Gipps v McElhone (1881) 2 LR Parliament beyond statements made in the (NSW) 18 per Martin CJ 21-22, Manning J 24 Parliamentary Privileges Act 1987 (Cth) para House or in committee proceedings; it is and Windeyer J 25-26; Chenard and Co v 16(2)(a); Parliamentary Evidence Act 1901 suggested that the courts should not allow Arissol (1949) AC 127,133-134). (NSW) s 12; The Criminal Code (Qld) s 372; the legislation to be used to protect Members Defamation Act 1957 (Tas) s 11(b). In the Northern Territory, freedom of of Parliament in respect of the publication of speech is confirmed by the Legislative As­ 10 See the discussion of the Strauss case in material unless this was necessary for the UK, Pari, Report from the Select Committee proper discharge of the Member's duties. sembly (Powers and Privileges) Act 1977 on Parliamentary Privilege HC Paper34 (1967­ It follows from the common law and leg­ (NT) s 5(1). 8) paras 80-81 and 86. islative developments outlined in this note 3 Gordon C (Ed), Erskine May’s Treatise on that media organisations will have to make a The Law, Privileges, Proceedings and Usage 11 Adam v Ward (1917) AC 309 andHorrocks judgmentregarding the nature of statements of Parliament (20th ed, 1983) 94. vLowe (1975) AC 135. made by Members outside their Houses to 12 Aust, Pari, Joint Select Committee on assess whether they are part of “proceedings 4 Wason v Walter (1868) LR 4 QB 73. Parliamentary Privilege Final Report (Octo­ in parliament”; if the statement is part of 5 Parliamentary Privileges Act 1987 (Cth) s ber 1984) PP no 219,1984 para 5.15. parliamentary proceedings, a fair and accu­ 10. Although the explanatory memorandum rate reportwil! be protected by qualified privi­ describes the defence as one of “qualified 13 R v Abingdon (1793) 1 Esp 226 (170 ER lege. privilege”, in fact, the privilege Is expressed 337), 228 (338) and RvCreevey (1813) 1M & S273 (105 ER 102) per Lord EUenboroughCJ The material in this article forms part ofthe as an absolute privilege. book - The Law of Journalism in Australia - 278 (104), Grose J 27980 (104), BayleyJ 280­ written by Sally Walker and published by The 6 Defamation Act, 1974 (NSW) s 24 Sch 2 cl 281 (104-105) and LeBlanc J 281-282 (105). Law Book Company early next year. Sally 2 (1) and s 26; The Criminal Code (Qld) s 374 The Member might be able to rely on quali­ Walker is a senior lecturer in law at the (1); Wrongs Act 1936 (SA) s 7 (l)(ab); fied privilege, but, where the common law University of Melbourne. Defamation Act 1957 (Tas) s 13 (l)(a); operates, tins would be most unlikely to protect the Member unless the material was The ABC Bill throughout by “employees” and there is published only to a limited audience (Adam v from p!4 nothing about training qualifications, Ward (1917) AC 309 and Homocks v Lowe retirement etc. (1975) AC 135). Also dubious is Section 70D, which gives to the licence. Also the holder of a limited 14 Attorney-General of Ceylon v De Livera the ABC, a publicly owned authority whose (1963) AC 103,121. licence may transfer the licence to another possessions are of public concern, the power person or admit another person to participate to give these as security for moneys bor­ 15 Roman Corp Ltd v Hudson’s Bay Oil and in its benefits or to exercise any of the powers rowed. This is because the legislation per­ Gas Co Ltd (1971) 18 DLR (3d) 134,142; or authorities granted by the licence. mits the ABC to borrow from sources other (1971) 23 DLR (3d) 292,298. The holder of a limited licence shall not than the Commonwealth. However, the ABC 16 Ibid (1971) 23 DLR (3d) 292,299. broadcast an advertisement if (my emphasis) is not a money-making industiy like, for the licensee receives payment or other con­ example, Qantas, so failure to pay back a 17 (1973) 36 DLR (3d) 413,419. sideration for broadcasting it But this does private loan might mean loss of its property to 18 Re Clark and Attorney-General of Canada not apply to a certain kind of licence and any private ownership. (1977) 81 DLR (3d) 33,58. holder of a special limited licence can broad­ These provisions, together with the pro­ 19 Stopfoith v Goyer (1978) 87 DLR (3d) 373, cast details about a sponsor. posed control of the ABC and SBS by the 382. Clause 8 of the Bill repeals the existing 26 Australian Broadcasting Tribunal, spell out page section about staff and service, replac­ the end of ABC independence if they are 20 Australian Broadcasting Corporation v ing it with 28 lines including, “the terms and implemented. Chatterton (1986) 46 SASR 1,18-19. conditions of employment shall be deter­ mined by the Corporation'. Leila Gumming, 21 Ibid 30-36. References to “officers” are replaced Friends ofthe ABC 22 Sub-section 16 (2) 16