7.1 There are limited circumstances in which public policy recognises that the interest of society in free speech is paramount. In these cases the individual’s right to protect his or her reputation is completely subordinated to the right of unimpeded speech, effectively offering absolute freedom to publish defamatory material. The privilege accorded is absolute because the defence cannot be defeated even if malice on the part of the defendant can be established.
7.2 Absolute privilege denies plaintiffs the opportunity of vindicating their reputation. As a function of this drastic consequence, the circumstances attracting absolute privilege are limited. It is traditionally available only in those situations where the prospect of future proceedings in defamation or any other cause of action would otherwise inhibit the efficient functioning of governmental institutions: the Legislature, the Executive and the Judiciary. The major categories of publication protected at common law by absolute privilege are statements made in the course of judicial proceedings, communications concerning matters of State and statements made in the course of parliamentary proceedings.
7.3 The defence of absolute privilege has a recognised role in defamation law and the Commission does not propose to review the arguments in support of retaining the defence. This chapter restricts itself to an examination of the scope of the defence. The checks against abuse of the privilege are considered below.
STATEMENTS MADE IN THE COURSE OF JUDICIAL OR QUASI-JUDICIAL PROCEEDINGS
7.4 Freedom of speech without fear of consequences is considered indispensable for the proper administration of justice. The protection of absolute privilege extends to all the participants in judicial proceedings: the parties, witnesses, counsel, jury, and judge. Protection is not only for statements in court but for any publication necessary for the conduct of the proceedings such as pleadings in civil litigation.
7.5 The privilege has been extended beyond courts of justice to other tribunals with “similar attributes”. The question of whether absolute privilege is available in respect of a particular tribunal exercising quasi-judicial functions requires in each case a detailed examination of the constitution, functions, and procedures of the tribunal in question. Relevant factors include the object of the tribunal, its constitution, the nature of the question into which it is its duty to inquire, the procedure adopted by it in carrying out the inquiry, and the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.1
Statutory modifications
7.6 Whereas the judiciary has been reluctant to extend the application of absolute privilege the legislature has not demonstrated the same restraint. The Defamation Act 1974 (NSW) extends the defence of absolute privilege to a number of public bodies in respect of publications to or by them. Sections 17A-17N set out the circumstances in which publication to or by these particular bodies is amenable to the defence of absolute privilege.2 There is also a defence of absolute privilege for a publication in the course of an inquiry made under the authority of an Act or Imperial Act or under authority of Her Majesty, of the Governor, or of either House or both Houses of Parliament.3 The official report of the result of such an inquiry is likewise absolutely privileged.4
7.7 At present there are four mechanisms whereby a tribunal or public body may derive immunity from suit: (i) pursuant to s 17A-N of the Defamation Act; (ii) pursuant to s 18 of the Defamation Act; (iii) by specific provision in another Act (often a constituting Act); and (iv) at common law. Those deriving protection from s 17A-N are clearly set out in the Act. Six tribunals which have been conferred s 18 protection by statute have been identified.5 These are: the Community Welfare Appeals Tribunal; the Guardianship Board; the Transport Appeals Board; the Victims Compensation Board; the Government and Related Employees Appeal Tribunal and the Mental Health Review Tribunal. Instances of absolute privilege conferred by statute include s 48(2) of the Judicial Officers Act 1986 (NSW) in respect of publications to or by the Judicial Commission, the Conduct Division or any member or officer of the Commission in relation to a complaint or the hearing of a complaint, and s 16 of the Pure Food Act 1908 (NSW) in respect of the publication by the Director-General of the Department of Health of a report containing the results of an examination upon advertised food and appliances in the Gazette and in any newspaper, journal, magazine, and in respect of the republication by any proprietor or manager of a newspaper, journal or magazine of such a report.6
Shortcomings in the present scheme
7.8 The law on absolute privilege lacks consistency and coherence. This incoherence manifests itself in various ways:
- There is no one central reference point whereby information on a body’s privilege status is readily ascertainable.
- The extension of absolute privilege has occurred in a haphazard manner. This is not surprising considering that most of the bodies given protection under ss 17A-N have been constituted at different points in time subsequent to the passage of the Defamation Act. However, as a consequence of this haphazard development, it is not immediately apparent at present whether certain tribunals and public bodies have been denied specific protection consciously or through inadvertence. For example, there is no specific provision according absolute privilege to the proceedings of local councils. Conversely, it is not evident whether specified tribunals and public bodies have been granted absolute privilege following a detailed consideration of its constitution and procedures or merely by superficial comparison to those already accorded absolute privilege. It is necessary to ensure that there is a consistent policy basis against which all claims to absolute privilege are measured.
- The choice of three different statutory methods of extending absolute privilege begs the question about the respective merits of each of the mechanisms and whether each achieves the same result. The availability of three mechanisms also increases the possibility of duplication. For example, the Royal Commissions Act 1923 (NSW) gives specific protection to inquiries by way of Royal Commission, although it would seem that such inquiries would also be covered by s 18 of the Defamation Act.7 Indeed the precise ambit of s 18 is uncertain. It is unclear whether this protection is available only if specifically conferred or whether the protection is automatic.8
7.9 The submission from the Communications Law Centre to the Legislation Committee on the Defamation Bill suggested the introduction of a provision similar to that found in the Victorian Bill, whereby protection is given for the publication in the course of the proceedings of an inquiry by any tribunal, board, committee or other body established by an Act. The Commission has several reservations about the wording of this clause, which is simultaneously wide-ranging and restrictive.
7.10 The Victorian draft provision is wide-ranging in the sense that it covers any tribunal, board, committee or other body established by an Act. Under this provision the Psychosurgery Review Board and the Police Board9 (to name but two examples) would receive protection apparently unavailable at present, provided that they can establish that the publication in question was in the course of the proceedings of an inquiry. However, under the Victorian clause privilege is only available for “the publication in the course of the proceedings of an inquiry”. At present, the wording used in s 17A-N is more extensive. For example, protection is available for publications for the purpose of the execution and administration of an Act (eg s17B, s17D), or for publications to an officer (of the relevant body or institution), as such an officer (s 17A, s 17K). A general provision is inconsistent with the need for clearer detail in the current provisions recommended elsewhere by this Commission.10
7.11 A provision as general as the Victorian clause is likely to create as many problems as it solves. It is arguable at any rate that s 18 and 19 achieve the same protection as that proposed by the Victorian draft provision (see above). However, the Commission would appreciate submissions on this issue.
COMMUNICATIONS CONCERNING MATTERS OF STATE
7.12 This category covers publications by high officers of State in the course of their duties. The Defamation Act 1974 (NSW) makes no specific provision for executive communications, although the common law would apply. The scope of this category of absolute privilege is very unclear: there is no clear definition of what is meant by an act of State or a State matter, nor is there any description of the classes of officials covered.11
7.13 Courts have demonstrated a clear reluctance to extend this area of absolute privilege. In its 1979 report on defamation and privacy the Australian Law Reform Commission (ALRC) considered that:
The public interest in frankness among government officers does not differ from the public interest in the full and frank exchange of information between say, university officers, officers of a statutory commission, or directors of a public company.
7.14 The ALRC concluded that:
The special position of government officers, where it exists, should be abrogated and their rights and liabilities should be regulated by the law of qualified, or limited, privilege.12
7.15 The Commission welcomes submissions as to whether this area of the law should be left to the common law or whether it is considered desirable to take active steps to either limit or otherwise codify this category of absolute privilege.
STATEMENTS MADE IN THE COURSE OF PARLIAMENTARY PROCEEDINGS
7.16 Statements made in the course of parliamentary proceedings are absolutely privileged. It is not the subject matter of the statements themselves that is privileged but the fact that they are made in the course of parliamentary proceedings.
7.17 A Discussion Paper on parliamentary privilege in New South Wales prepared by the Attorney General’s Department in 199113 identified four sources of parliamentary privilege:
- such privileges as were imported by the adoption of the Bill of Rights (1 William and Mary Sess. 2 c. 2): Imperial Acts Application Act 1969 (NSW);
- such privilege as is conferred by the Defamation Act 1974 (NSW);
- such privilege as is conferred by other legislation eg Parliamentary Evidence Act 1901 (NSW) and the Public Works Act 1912 (NSW);
- such powers and privileges as are implied by reason of necessity: Armstrong v Budd (1969) 71 SR (NSW) 386.
7.18 Article 9 of the Bill of Rights 1688 declares that:
proceedings in Parliament ought not be impeached or questioned in any court or place out of Parliament.
7.19 The extent of the privilege provided by this Article is unclear. As a threshold question the Discussion Paper notes that doubts have been expressed as to the applicability of Article 9 to the New South Wales Parliament.14 The balance of opinion, however, is that Article 9 is in force in New South Wales by operation of the Imperial Acts Application Act 1969. This view is supported by the Solicitor General, the Crown Solicitor and by the Joint Select Committee on Parliamentary Privilege.
7.20 The two main areas of uncertainty in relation to the extent of the privilege provided by Article 9 are the scope and meaning of the terms “proceedings in Parliament” and “ought not be impeached or questioned”.
The scope and meaning of the phrase “proceedings in Parliament”
7.21 The absolute privilege accorded at common law to parliamentary debates extends to statements made by witnesses giving evidence before a committee of Parliament and also to publications incidental to the proceedings, such as the dictation and typing of a speech delivered in Parliament.15 The orthodox view is that the protection does not extend to re-publication by members of their speeches outside the House. In Canada, however, the Court of Appeal of Ontario was prepared to take a broader view of “proceedings in Parliament” by characterising a press release issued by a Minister and the dispatch of a telegram by the Prime Minister as part of proceedings in parliament.16 In Roman Corp Aylesworth JA said:
I venture also to express the view that the modern judicial concept of the meaning and application of the phrase “proceedings in Parliament” is broader than had been the case in some instances in the past. If this be so, certainly there would appear to be ample justification for it in the development of the complexities of modern government and in the development and employment in government business of the greatly extended means of communication.17
7.22 According to Aylesworth JA “all of the actions of the respondents complained about ... were no more and no less than the legitimate and lawful discharge by the respondents of their duties in the course of parliamentary proceedings as Ministers of the Crown and Members of the House.” In arriving at his decision His Honour relied on the Privy Council case of AG Ceylon v de Livera where Viscount Radcliffe said
The most, perhaps, that can be said is that, despite reluctance to treat a member’s privilege as going beyond anything that is essential it is generally recognised that it is impossible to regard his only proper functions as a member as being confined to what he does on the floor of the House itself.18
7.23 Following Roman Corp the Ontario High Court has held that it is part of the “proceedings in Parliament” to release to the media information used in Parliament.19
7.24 It has been suggested that a principle can be extracted from the Canadian cases: absolute privilege protects a member of Parliament from liability for defamation for publishing a statement outside the House which releases information used in the House, but only where the member’s action outside the House is an extension of the proceedings in the House. To amount to an “extension” of proceedings in the House, the action outside the House must be necessary for the proper discharge of the Member’s duties.20
7.25 Australian decisions on the meaning of “proceedings in Parliament” have been more cautious. In ABC v Chatterton21 Prior J found that a media interview in which a member of Parliament spoke on the subject of a question he had asked in the House was not part of proceedings in Parliament. Prior J did contemplate that a statement made outside the House could be absolutely privileged, but only if “it was so related to a proceeding in the House that it was itself a proceeding in the House”. Zelling ACJ was more equivocal. He said that:
it is arguable but not certain that what was said by the appellant outside the House was covered by absolute privilege. Insofar as he simply repeated what he said in the House, in my opinion, it was covered by privilege. The difficult question is whether it is part of the proceedings of Parliament or of a Member to answer questions in this day and age on television.22
7.26 In another case, the endorsement by a minister at a press conference of allegations earlier made by him against the plaintiff in Parliament was held not to be part of “proceedings in Parliament” and consequently not entitled to absolute privilege.23
7.27 Of course, if the statement outside of Parliament amounts only to “reporting” by the member of his or her prior statement in Parliament, this will be protected by qualified privilege. The qualified privilege extends to a fair and accurate repetition of the parliamentary statement, but not “embroidery” of it.
7.28 One further area where it has been suggested that absolute privilege could be extended is in respect of communications between members, especially representations from a member of Parliament to a Minister on behalf of constituents.24 This matter has been considered by both the New South Wales Joint Select Committee on Parliamentary Privilege and the Commonwealth Joint Committee on Parliamentary Privilege. Both the Commonwealth Committee and the New South Wales Attorney General’s Department in its Discussion Paper on the recommendations of the New South Wales Joint Committee concluded that members writing to ministers are adequately protected by the availability of the defence of qualified privilege. It was felt that intemperate or malicious letters from constituents would not be discouraged if protected by absolute privilege. Furthermore there are alternatives to correspondence which are available to members, which do attract absolute privilege.
7.29 The uncertain scope of the term “proceedings in Parliament” has prompted many calls for a clear definition of the term. The Commonwealth Parliamentary Privileges Act 1987 defines the expression to include all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee.25
7.30 The majority of submissions seeking to have the term defined have rejected this provision as a model, arguing that it is itself open to interpretation. The Law Institute of Victoria recommends that the legislation adopt a definition which clearly states exactly what activities are covered by the term “proceedings in Parliament:
Any definition of “proceedings in parliament” to be adopted should clearly state, for instance, whether or not the repetition outside parliament of a statement made inside parliament is covered by the privilege and should do the same for all other activities to which it is unclear whether the privilege applies.26
7.31 The Law Council of Australia is in favour of strictly confining the defence to statements or other matter published during the course of parliamentary proceedings, so that members of Parliament, in referring outside a chamber or committee of the Parliament to matter published in the course of parliamentary proceedings, should be taken to be republishing in circumstances in which absolute privilege is not available. The term should be defined, but the Council agrees with the Law Institute of Victoria that the definition in the Parliamentary Privileges Act 1987 (Cth) should not be adopted as it is itself open to significant interpretation.
7.32 By way of contrast, the Press Council submitted that a broad definition of the term should be adopted, one that includes such matters as press releases and statements made in the precincts of Parliament.
7.33 The Committee on Defamation in England (the “Faulks Committee”) recommended that the definition proposed in the Second Report of the Joint Committee on the Publication of Proceedings in Parliament27 be adopted. The recommended definition is in the following terms:
7.34 The Faulks Committee further recommended that if it was considered desirable to narrow the definition of “officer of either House of Parliament” still further so as to exclude any person who may in a general sense take part in proceedings in Parliament (eg messengers, etc) but where the public interest does not require that they should receive absolute privilege, either of the following additions might be made to the definition, namely:28
7.35 The Commission agrees that if a definition is to be adopted, it is preferable that it be an inclusive and exhaustive definition, in order to ensure certainty. This is important not only for the parliamentarians themselves but also for those persons reporting the proceedings.29 Unfortunately the Commission is not convinced that certainty would in fact be achieved by such a provision.
7.36 The task of identifying each activity which should be covered by absolute privilege is fraught with problems and the Commission is reluctant to recommend that such a course be adopted. Any definition risks being cumbersome and inflexible. A definition which fails to predict all possible contingencies will result in piecemeal amendments each time an activity arises which had not been taken into account, or to accommodate developments designed to assist parliamentary procedures and also to meet the public’s need to be kept informed of government business. These developments may or may not be of a technological nature. For example, the use of parliamentary committees is now considered an integral part of the parliamentary process and their use has increased as the work of the House has grown. However, it has been suggested that the law of absolute privilege has not evolved in line with this development.
7.37 Any definition adopted must be precise in its terms. Litigation to resolve interpretative differences of statutory provisions ostensibly clear on their face is all too familiar. The case of Rajski v Carson30 on the meaning of s 17F of the Defamation Act 1974 (NSW) is a clear example.31 Furthermore, the submissions to the Legislation Committee on the Defamation Bill highlighting uncertainties in relation to the current wording of s 17 of the Defamation Act and consequential calls for clarification clearly demonstrate the sorts of problems that are likely to be experienced by legislative drafters in attempting to define “proceedings in Parliament”.32
7.38 This is the Commission’s tentative view. Submissions as to whether the term should be defined, and if so, the form and content of the definition are welcomed.
Statutory provisions
7.39 Relevant federal legislation includes the Parliamentary Papers Act 1908 (Cth) and the Parliamentary Proceedings Broadcasting Act 1946 (Cth). The latter Act provides that no action or proceedings are to lie against any person for broadcasting or rebroadcasting any part of the proceedings of either house of the Parliament or of a joint sitting.
7.40 In relation to the New South Wales Parliament, the Defamation Act 1974, s 17, accords a defence of absolute privilege in respect of parliamentary papers published by order or under authority of either or both Houses of Parliament and the subsequent publication of such a document by any person. A defence of absolute privilege is also provided for the publication by the government printer of the debates and proceedings of either or both Houses of Parliament and the subsequent publication of such a debate by any person.
7.41 Schedule 1 of the Defamation Bill provides a more comprehensive list of parliamentary papers attracting absolute privilege. The Schedule clarifies that proofs are privileged until such time as the official version becomes available, and provides a defence of absolute privilege for audio recordings, or transcripts of audio recordings, of the debates and proceedings of a house, a committee or a joint sitting or committee, while the official version of those reports has not become available. In addition, absolute privilege is accorded to a report of an individual complete speech of a member, provided the report is printed with the prescribed certificate. These provisions implement certain recommendations of the Joint Select Committee on parliamentary privilege.
7.42 Witnesses called to give evidence before the Legislative Assembly or Council, or committees of either house or a joint committee of both houses are accorded absolute privilege pursuant to s 12 of the Parliamentary Evidence Act 1901 (NSW).
The scope and meaning of “impeached or questioned in any court or place out of Parliament”
7.43 A clear understanding of this expression is of importance in determining the precise use which can be made in defamation proceedings of statements made in Parliament.
7.44 In the strictest interpretation of this expression even the tender of Hansard in court without the consent of the House would be a breach of the privileges of Parliament.
7.45 An intermediate line of authority, characterised by the approach taken by the court in Uren v John Fairfax & Sons33 and also in Comalco v ABC34 says that the phrase means that the words spoken in Parliament can be proved, but that they could not be the subject of any submission or inference. In other words, a court cannot subject a member’s parliamentary speech to scrutiny to see whether inferences can be drawn about the member’s truthfulness, bona fides, intentions or motives.
7.46 The other line of authority which has emerged more recently takes a very narrow view of the words used in Art 9. This approach was adopted in R v Murphy.35 Hunt J held that on their true construction, the words used in Art 9 mean that:
no court proceedings (or proceedings of a similar nature) having legal consequences against a member of parliament (or a witness before a parliamentary committee) are permitted which by those legal consequences have the effect of preventing that member (or committee witness) exercising his freedom of speech in parliament (or before a committee) or of punishing him for having done so. In other words, the phrase “impeached or questioned in any court or place out of parliament” in art 9 should be interpreted in the sense that the exercise of the freedom of speech given members of parliament (and committee witnesses) may not be challenged by way of court (or similar) process having legal consequences for such persons because they had exercised that freedom.36
7.47 The case law makes it quite clear that statements made in Parliament are incapable of founding a cause of action in defamation. However, it remains far from clear whether such statements can nevertheless be used collaterally in defamation proceedings for evidentiary purposes.
7.48 In Church of Scientology of California v Johnson-Smith,37 the plaintiff brought an action for defamation in respect of a statement made by the defendant member of the British Parliament in a television interview. The defendant pleaded fair comment. The plaintiff sought to defeat the defence by alleging malice and citing as evidence a statement made by the defendant in the House of Commons. Browne J excluded the evidence of the proceedings in Parliament on the basis that the scope of parliamentary privilege was not limited to the exclusion of any cause of action in respect of what was said or done in the House itself but extended to the examination of proceedings in the House for the purpose of supporting a cause of action, even though the cause of action itself arose out of something done outside the House.
7.49 By contrast, in Wright & Anor v Lewis38 the Full Court of the Supreme Court of South Australia decided that it was possible to examine the statement of the parliamentarian. The case apparently follows Hunt J in R v Murphy and his formulation of the object of Art 9 is approved (although the case can be distinguished on its own facts). In this case the plaintiff was a parliamentarian who invoked the Article in an effort to strike out the particulars of the defence. The Court was impressed by the manifest injustice to the defendant of the plaintiff succeeding and White J clearly said that the proposition that courts will not subject a member’s parliamentary speech to scrutiny to see whether inferences can be drawn therefrom as to the member’s truthfulness, bona fides, intentions or motives did not apply where the member is a plaintiff (emphasis added)
7.50 The position remains far from clear. As regards the Australian Parliament, the Parliamentary Privileges Act 1987 (Cth) applies. Section 16(3) of this Act provides that 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.
7.51 This provision was enacted primarily to avoid the consequences of the very narrow interpretation and reading down of Art 9 in the judgments of Cantor J and Hunt J in R v Murphy. According to Beaumont J this provision is in substance declaratory of the position in England and Australia before the enactment of the Act.39
7.52 The Commission raises this issue because it does concern defamation law and because it is desirable that the position be clarified. However, the interpretation given to this expression has ramifications beyond the law of defamation and any legislative clarification would need to be incorporated, not in the Defamation Act, but in a broader Act.
A separate Act dealing with parliamentary papers and proceedings?
7.53 One of the recommendations of the Joint Select Committee on parliamentary privilege was that the various provisions of the Defamation Act 1974 (NSW) relating to parliamentary proceedings together with the Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW) and its various amending Acts should be repealed and their provisions, as amplified or modified by the Recommendations of the Committee, be incorporated in a Parliamentary Papers and Proceedings Act.
7.54 The Discussion Paper prepared by the Attorney General’s Department says that the benefits derived from this recommendation must be weighed against the utility of retaining all statutory provisions dealing with defamation within the one Act. It argues that more people would resort to and rely on the Defamation Act than to any proposed Parliamentary Privileges Act, and that the needs of members could potentially be served by preparation of a handbook containing all legislative provisions relevant to their activities as parliamentarians.
7.55 The Commission tends to prefer the view expressed by the Attorney General’s Department, but welcomes submissions in relation to this proposal.
ARGUMENTS AGAINST EXTENDING ABSOLUTE PRIVELEGE
Abuse of absolute privilege
7.56 The principal argument against extending absolute privilege is the possibility that this privilege may be abused. Concerns are most commonly expressed about the abuse of absolute privilege by parliamentarians. Serious and unjustified charges may be levelled by parliamentarians against persons with no right of explanation, correction or reply. Even though the actual attack might not in itself cause much damage, once reported by the media it could cause serious damage to those persons.
7.57 Insofar as statements made in judicial proceedings are concerned there do not appear to be major concerns, referable no doubt to judicial control over the conduct of witnesses and proceedings generally. Additional safeguards against abuse do exist, for example, if the privilege is grossly abused by counsel this may be grounds for disciplinary action against the legal practitioner.40
7.58 In its 1979 report entitled Unfair Publication: Defamation and privacy, the ALRC noted a number of checks against the abuse of privilege. First and foremost the benefit of absolute privilege is reposed in those who can be expected to exhibit a corresponding high sense of responsibility. If the beneficiary fails to exhibit the due level of responsibility the ALRC concluded that this should be dealt with, not by abolishing absolute privilege, but by developing processes within the institutions themselves. For instance abuse of privilege by parliamentarians would be most effectively contained through tighter control by the presiding officer or the influence of the relevant committee of privileges.
7.59 In 1985 the New South Wales Joint Select Committee on Parliamentary Privilege recommended that Standing Committees of Privilege of the Houses of Parliament should be established. In 1989 the Legislative Council did establish, by motion, a Parliamentary Privileges Committee. There is no equivalent committee for the Legislative Assembly.
7.60 A submission to the New South Wales Legislation Committee on the Defamation Bill suggested that a person attacked in Parliament should have a right of reply, that right of reply to be incorporated into Hansard.41 The only legislature in the Westminster system which currently provides such a right is the Australian Senate. This was introduced in 1988. Under this procedure anyone can address his or her grievance about a statement made by a Senator to the President of the Senate. If the President determines that the complaint is not frivolous or vexatious he or she will refer it to the Committee of Privileges for report. The Committee is meant to consider the matter quickly, without any evaluation of the truthfulness of either statement. If the Committee determines that it is an appropriate case, a reply approved by the complainant is formulated. The reply might be tabled or, more commonly, incorporated into Hansard, and is itself protected by absolute privilege. The Secretary of the Committee reports that both the aggrieved party and the Senators are pleased with this procedure. Initial concerns of the Committee that it might be inundated by such requests have proved unfounded. Proceedings in the House are not unduly interrupted as the reply is not read out.
7.61 The Commission welcomes submissions on whether such a procedure should be available in the New South Wales Parliament.
Availability of alternative defences
7.62 At common law there is much reluctance to extend absolute privilege because of its drastic consequences in terms of an individual’s capacity to take action to protect their reputation. The legislature has extended the defence into areas where it has not been available at common law. Submissions from various bodies have been received by the Legislation Committee on the Defamation Bill and by the Attorney General seeking to have absolute privilege accorded to their proceedings and procedures. Examples include the Australian Securities Commission42 and church organisations requesting absolute privilege in respect of church tribunals. Furthermore, it was noted above that suggestions have been made in the past that correspondence between members and ministers should be absolutely privileged.
7.63 It is critical to bear in mind that in each of these instances a defence of qualified privilege will generally be available. The existence of another form of protection which the correspondent can invoke (ie qualified privilege) is an additional reason for confining the very substantial protection of absolute privilege to the narrow class which incontestably falls within the designated purpose.43
Practical considerations
7.64 From an operational point of view it is considerably more convenient for a parliamentarian or body or tribunal to have his, her or its procedures protected by absolute privilege. In this way the likelihood of an action for defamation being instituted is minimised. In the absence of an express entitlement to absolute privilege, a parliamentarian or officer of a tribunal or public body will be required to incur the inconvenience of ensuring that the circumstances of publication would support a defence of qualified privilege in the event of a defamation action being commenced. To achieve the security and peace of mind afforded by the availability of a defence of absolute privilege a parliamentarian or public body will be prepared to go to some lengths.
7.65 So, for example, instead of referring potentially defamatory correspondence from a constituent to the relevant minister, a member of Parliament might raise the issues during question time in Parliament, or in a private member’s statement.
7.66 In a submission to the Legislation Committee on the Defamation Bill the Clerk of the Legislative Assembly indicated that parliamentary committees, in the course of fulfilling their statutory functions, handle a large amount of correspondence. Rather than refer this correspondence (which may or may not be absolutely privileged) to, say, the Ombudsman or the Independent Commission Against Corruption (ICAC), the committees are prepared to hold formal hearings to ensure that the absolute privilege afforded to Hansard transcripts of committee proceedings is obtained, even though they acknowledge that this is an overelaborate, expensive and inefficient means of referring a simple matter, such as a letter received from a member of the public which contains potentially defamatory allegations, to the ICAC or Ombudsman for comment and response.
7.67 The extension of absolute privilege is a more difficult issue in practice than it is in theory, and practical considerations must be kept in mind.
ISSUES RAISED IN CHAPTER SEVEN: ABSOLUTE PRIVILEGE
1. What is the preferred mechanism for rectifying the present ad hoc arrangements for conferring absolute privilege on tribunals and other bodies?
Should there be a consolidation of the provisions extending absolute privilege so that there is one single machinery whereby publications in the course of the proceedings of an inquiry by any body established by an Act are absolutely privileged?
Alternatively, is it desirable to retain specific provisions conferring absolute privilege to nominated tribunals and bodies?
(i) If so, are there any tribunals or bodies that are not currently, but that should be covered by absolute privilege?
(ii) In particular, should the proceedings of local councils be absolutely privileged?
2. Should the law on absolute privilege as regards communications concerning matters of State be left to the common law or should steps be taken to either abrogate, limit or otherwise codify this category of absolute privilege?
3. Should the term “proceedings in Parliament” be defined by statute? If yes:
(i) what matters should be encompassed by the expression?
(ii) should s 16 of the Parliamentary Privileges Act 1987 (Cth) or the definition proposed by the English Joint Committee on the Publication of Proceedings in Parliament be used as a model?
4. Should the provisions in the Defamation Act relating to parliamentary privilege be removed and incorporated into a separate Parliamentary Papers and Proceedings Act?
5. Should a person attacked in Parliament have a right of reply similar to that available in the Australian Senate?
FOOTNOTES
1. See for example Trapp v Mackie [1979] 1 All ER 489.
2. These have been reproduced in Schedule 1 of the Defamation Bill, with minor amendments. For example, reference to the Commissioner of Complaints, the office of which has since been repealed, is omitted. The Schedule refers to the Harness Racing Authority, the body replacing the Trotting Authority. Reference to the Government Pricing Tribunal Act and the Casino Control Act have been dropped.
3. Defamation Act 1974 (NSW) s 18, reproduced as clause 3 of Schedule 1 of the Defamation Bill.
4. s 19.
5. J C Gibson (ed) Aspects of the Law of Defamation in New South Wales (Young Lawyers Section, Law Society of NSW, Sydney, 1990) at 126-127.
6. Young Lawyers (Law Society of NSW) Submission to NSW Legislation Committee on the Defamation Bill 1992 (31 Jan 1992) at 11. This submission gives further examples.
7. T K Tobin and M G Sexton Australian Defamation Law and Practice (looseleaf, Butterworths, Sydney 1991) at para [12,165].
8. Indications that s 18 protection must be specifically conferred include the large proliferation of bodies specifically given protection in s 17A-N. Furthermore, this would appear to be the attitude of the legislature. For example the Mental Health Act 1990 confers s 18 protection for proceedings of the Mental Health Review Tribunal but such protection is not available to the Psychosurgery Review Board constituted under the same Act.
9. The Police Board submitted to the Legislation Committee that the Board be given absolute privilege, but the Legislation Committee expressed its disagreement.
10. New South Wales. Law Reform Commission Scrutiny of the Legal Profession: Complaints Against Lawyers (LRC 70, 1993), Recommendation 14. In this recommendation the Commission stated that s 17J should be made more specific to clarify that complainants and respondent legal practitioners are absolutely immune from civil suit for “all communications made to the officers of the agency responsible for the handling of complaints, for all communications made to the various disciplinary bodies exercising direct or delegated statutory powers, and for all statements made within the disciplinary proceedings”.
11. Starke J in Gibbons v Duffell (1932) 47 CLR 520.
12. Australia. Law Reform Commission Unfair Publication: Defamation and privacy (Report 11, 1979) at 71.
13. New South Wales. Legislation and Policy Division of the Attorney General’s Department Discussion Paper on Parliamentary Privilege in New South Wales (1991).
14. The Discussion Paper refers to the case of Namoi Shire Council v Attorney General (1980) 2 NSWLR 639 at 634.
15. Holding v Jennings [1979] VR 289.
16. Roman Corp Ltd v Hudson’s Bay Oil and Gas Co Ltd (1972) 23 DLR (3d) 292.
17. at 299.
18. [1963] AC 103 at 121.
19. Re Clark and Attorney General of Canada (1977) 81 DLR (3d) 33.
20. S Walker “Defamation and parliamentarians” (1989) 9 Communications Law Bulletin 3, 15-16.
21. (1986) 46 SASR 1.
22. at 18-19.
23. Beitzel v Crabb [1992] 2 VR 121.
24. See for example Recommendation 17 of the NSW Joint Select Committee on Parliamentary Privilege. Also S Walker “Defamation and parliamentarians” at 15.
25. Parliamentary Privileges Act 1987 (Cth), s 16. “Proceedings in Parliament” are defined for the purposes of the section. The section deals with parliamentary privilege in court proceedings.
26. Law Institute of Victoria Submission to NSW Legislation Committee (14 Feb 1992-first drafted March 1991) at 26-27.
27. (1969-70) HL 109; HC 261.
28. Great Britain. Committee on Defamation Report of the Committee on Defamation Cmnd 5909, March 1975 at 6 and Appendix X.
29. The media may rely on the common law to obtain qualified privilege for the publication of a fair and accurate report of parliamentary proceedings.
30. (1988) 15 NSWLR 84.
31. Defamation Act 1974 (NSW) s 17F gives a defence of absolute privilege for publications to or by the Legal Aid Commission if the publication is made for the purpose of the execution or administration of the Legal Aid Commission Act 1979. At first instance Hunt J held that the availability of the defence depends upon the purpose for which the publication was made (in the sense of the result which the publisher sought to achieve) and is unaffected by the motive with which the publication was made (in the sense of the reason why he seeks to achieve that result). By contrast, the Court of Appeal found the distinction made by Hunt J between purpose and motive elusive and unsatisfactory. The Court (Mahoney JA dissenting) held that the defence is available only where the clear and unassailable objective of the correspondent is “the execution or administration” of that Act: where other purposes or objectives are shown to be arguable issues of fact the resolution of those issues must be left to be tried by the jury. An application for special leave to appeal to the High Court was refused in April 1989 on the basis that the matter was not in a proper form for it to be considered. However the High Court indicated that the construction of the provision was of sufficient importance to justify the grant of special leave once the matter was brought before it in a proper way.
32. For example, both the Speaker and the Clerk of the Legislative Assembly have queried whether correspondence handled by Parliamentary Committees in the course of fulfilling their statutory functions is absolutely privileged under either s 17 or s 18 of the Defamation Act. Also the Ombudsman has submitted that s 17A (and the equivalent provision in the Bill) should be clarified to confirm that the protection of absolute privilege extends to a report of non-compliance under s 27 of the Ombudsman Act.
33. [1979] 2 NSWLR 287.
34. (1983) 50 ACTR 1.
35. (1986) 5 NSWLR 18.
36. at 30.
37. [1972] 1 QB 522.
38. (1990) Aust. Torts Reports 67,859.
39. Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 81 ALR 710.
40. Clyne v NSW Bar Association (1960) 104 CLR 186.
41. Law Council of Australia Submission to NSW Legislation Committee (30 Jan 1992-first drafted 27 Feb 1991) at 16.
42. A consideration of the status of the ASC in terms of the law of privilege is beyond the purview of this review. The ASC regulates companies on an Australia-wide basis whereas the Commission’s review is restricted to the operation of defamation law in NSW alone.
43. Rajski v Carson and others (1988) 15 NSWLR 84 at 93 (Ct App).
