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.