George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I present the 134th report of the Committee of Privileges, entitled Effective repetition.

Ordered that the report be printed.

I move:

That the Senate endorse the principles outlined in paragraph 1.18 of the report to guide any amendment to the Parliamentary Privileges Act 1987 to address the issue of effective repetition.

This advisory report relates to a matter outstanding from the previous parliament, when former President Calvert asked the committee to consider undertaking an inquiry into the subject of effective repetition. The committee has maintained a watching brief on this issue for some time in the wake of several court decisions which appeared to read down the previously accepted scope of parliamentary privilege as it relates to the freedom of speech in parliament as expressed in article 9 of the Bill of Rights of 1688, incorporated into Australian law by section 49 of the Constitution and section 16 of the Parliamentary Privileges Act 1987.

The concern was particularly provoked by a decision of the Privy Council in July 2004 in the case of Buchanan v Jennings. In that case Mr Jennings, a member of the New Zealand House of Representatives, in the course of a parliamentary debate made observations which, had they been made outside the chamber, would have been defamatory of the plaintiff, who was a senior official of the New Zealand Wool Board. The report of an interview with Mr Jennings published in a newspaper some two months later included the statement that what he had said in the House of Representatives he did not resile from. Mr Buchanan issued proceedings for defamation, pleading Mr Jennings’s words used in the House of Representatives. He also pleaded that Mr Jennings, by saying what he had said to the newspaper reporter, had adopted, repeated and confirmed as true the words said in the House outside the House.

The Privy Council, on appeal from the New Zealand Court of Appeal, held that a member of parliament could be liable in defamation if the member made a defamatory statement in parliament which was protected by absolute privilege under article 9 of the Bill of Rights and later affirmed the statement without repeating it on an occasion which was not protected by privilege. The Privy Council went on to hold that the right of members of parliament to speak their minds in parliament without any risk of incurring liability as a result was absolute but that that right was not infringed if a member, having spoken his mind and in so doing defamed another person, thereafter chose to repeat his statement outside the parliament; and merely to refer to and affirm without repetition the statement outside parliament was effectively to repeat it and therefore to deprive the member of the protection of parliamentary privilege.

Several decisions of Australian superior courts also suggest the trend evident in the decision of the Privy Council to narrowly confine the scope of parliamentary privilege in cases of effective repetition. I refer, in particular, to the 1992 decision of the Supreme Court of Victoria in Beitzel v Crabb and the 1996 decision of the Queensland Court of Appeal in Laurance v Katter. Although, in both of those cases, settlements were reached before the matters came to trial, it is clear from the reasons for judgement in the interlocutory appeals that the courts favoured a narrow reading of section 16 of the Parliamentary Privileges Act. A subsequent decision of the Queensland Court of Appeal, Erglis v Buckley in 2004, although raising a somewhat different point in the context of the equivalent Queensland provision, section 8 of the Parliament of Queensland Act, is consistent with that trend of judicial authority to narrow the scope of the operation of parliamentary privilege.

In an earlier decision of the Privy Council in 1994, Prebble v Television New Zealand Limited, Lord Browne-Wilkinson, when considering the factors at play in arriving at the right balance between parliamentary privilege and the right to be protected from defamatory speech, said:

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 ensuring 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.

That has always been the understanding of this parliament, but it is a position from which the subsequent decision of the Privy Council in Buchanan v Jennings and the decisions of the Australian courts to which I have referred suggest that there has now been a degree of retreat.

Privileges committees in Australia and across the Tasman have recorded their concern at these developments and, at the urging of the Western Australian Legislative Assembly’s Procedure and Privileges Committee, the Western Australian Attorney-General has raised the question of a uniform Australian legislative response to the issue at the Standing Committee of Attorneys-General. The Western Australian Speaker also wrote to fellow presiding officers to encourage consideration of the issue, presented most recently by Buchanan v Jennings, by their houses.

Rather than undertake a further inquiry with no new material to draw upon, the Privileges Committee believed that it was important to record for the Senate its views on where the legislative line might appropriately be drawn and where the balance of the factors adumbrated by Lord Browne-Wilkinson in Prebble v Television New Zealand Limited ought to be struck. Consequently, this report contains analysis of the cases and of the scope of section 16 of the Parliamentary Privileges Act 1987. As I said earlier, it derives from article 9 of the Bill of Rights, which it expressly incorporates into Australian law via section 16(1).

It is the committee’s view that section 16 of the act, on a proper reading, should preclude a conclusion of the kind reached in Buchanan v Jennings. The committee as a whole did not go so far as to recommend that section 16 be amended now, but it did agree on a set of principles to inform any amendment of section 16 should it be considered necessary or desirable in the future to do so to protect parliamentary privilege against further judicial incursion or erosion. These principles are articulated, in particular, in paragraph 1.18 of the report and I urge honourable senators to study them. They are summarised by the fifth dot point in that paragraph, which reads:

• The purpose of the amendment—

if one is thought to be necessary—

would be to declare (for the avoidance of doubt) that subsection 16(3)—

of the Parliamentary Privileges Act 1987—

applies to any reference outside parliament by a person to (or affirmation or adoption of) words spoken or written, or actions taken, in the course of proceedings in parliament by that person, provided that the reference, affirmation or adoption is made without elaboration.

In other words, the committee believes that a person should be able to refer to or affirm something they said or did in the course of proceedings in parliament without incurring liability for an action in defamation—provided they do not elaborate upon those words outside the chamber. Should such an amendment to the act be considered desirable by the Standing Committee of Attorneys-General, the committee has come up with what it considers to be, in effect, the appropriate drafting instructions.

Parliamentary privilege is an ancient institution. It is embodied, as I said earlier on, ultimately in article 9 of the Bill of Rights of 1688, which reflected the triumph of parliamentary government over executive power at the time of the Glorious Revolution. It was introduced into Australian law by section 49 of the Constitution and codified by the Parliamentary Privileges Act 1987. It is only very recently that there has been this clear trend of judicial authority, culminating now in this unanimous decision of the Privy Council in Buchanan v Jennings, which potentially renders at nought the protection of freedom of speech in parliament by exposing members of parliament to action for defamation if they merely refer, outside the chamber, to remarks made inside the chamber without elaboration. The Privileges Committee considers that is wrong. It considers that that trend of judicial authority violates the principles of parliamentary privilege—an ancient and important right—and, for that reason, the report declares the Senate’s position in relation to this matter and, in doing so, adds to the opinio juris on the point.

Question agreed to.