australia journalism parliamentary-law
Does parliamentary privilege have unintended consequences for journalism?
<p>If statements made under parliamentary privilege seem to constitute evidence of impropriety, can journalists report on this without risking defamation penalties?</p>
<p>Hypothetically, if a politician &quot;appeared&quot; to perjure themselves (e.g. by giving inconsistent statements to various public committee hearings) or alternatively made a speech that &quot;appeared&quot; to implicate someone in a crime (which that person had not already been accused of elsewhere), then would journalists be free to report on this? Or would those journalists be exposing themselves to claims of defamation, since they would inherently be imputing someone's character on the basis of <em>no evidence that could be presented in court</em> (even though their source material <em>does exist on the public record</em>)?</p>
<p>For context, I'm trying to understand whether the <a href="https://www.claytonutz.com/knowledge/2021/september/youtubers-proposed-defamation-defences-knocked-down-by-parliamentary-privilege" rel="nofollow noreferrer">recent cases</a> against YouTube &amp; FriendlyJordies have any consequences more broadly for investigative journalism on the topic of potential political corruption (although related legislation seems to let the government imprison their critics even <a href="https://www.aph.gov.au/about_parliament/senate/powers_practice_n_procedures/pops/pop64/c01" rel="nofollow noreferrer">without</a> involving the courts).</p>

<h2>Consequence? Yes. Unintended? Not so much.</h2>
<p><a href="http://classic.austlii.edu.au/au/journals/UTSLawRw/1999/20.html" rel="nofollow noreferrer">Source</a></p>
<p><strong>Sources of Parliamentary Privilege</strong></p>
<p>In <a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a>, Parliamentary Privilege derives from Article 9 of the <em>Bill of Rights 1688</em> (no, 1688 is <em>not</em> a mistake) which provides:</p>
<blockquote>
<p>... the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.</p>
</blockquote>
<p><strong>What are &quot;proceedings in Parliament&quot;?</strong></p>
<p>&quot;[P]roceedings in Parliament&quot; is defined by case law.</p>
<p>In Canadian and English jurisprudence, the definition includes things done outside Parliament in the furtherance of Parliamentary business such as correspondence, and press releases. The leading cases are <em>Roman Corp Ltd v Hudson's Bay Oil and Gas Co Ltd</em> and <em>Re Clark and Attorney-General of Canada</em> for Canada, and <em>Rost v Edwards</em> for England and Wales.</p>
<p>Australian case law is split. The leading case is <em>Australian Broadcasting Corporation v Chatterton</em> in the Full Court of the South Australian Supreme Court where Zelling AJC held that privilege applies to restatements by an MP outside Parliament of things said inside, possibly including answering questions about those things in an interview. Prior J rejected this and Jacob J didn't address it. That's one win, one loss and one DNF for those keeping score.</p>
<p>For the Federal Parliament, the <em>Parliamentary Privileges Act 1987</em> defines &quot;proceedings in Parliament&quot; as:</p>
<blockquote>
<p>... all words and spoken acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:</p>
<p>(a) the giving of evidence before a House or a committee, and evidence so given;</p>
<p>(b) the presentation or submission of a document to a House or a committee;</p>
<p>(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and</p>
<p>(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published</p>
</blockquote>
<p>The <a href="/questions/tagged/northern-territory" class="post-tag" title="show questions tagged &#39;northern-territory&#39;" rel="tag">northern-territory</a> has similar legislation.</p>
<p>In <em>Laurance v Katter</em>, there was a judicial split in the Court of Appeal in the Queensland Supreme Court about whether this definition was unconstitutional.</p>
<blockquote>
<p>Pincus JA held that s 16(3) was incompatible with the implied freedom of political communication. Following the High Court's decision in <em>R v Richards; Ex part Fitzpatrick and Browne</em>, Fitzpatrick P held that s 16 could not be invalidated or read down to accommodate the implied freedom of political communication. Davies JA read down s 16(3); in his view, the section was enacted merely to make it clear that parliamentary privilege applies not only where a member or witness is sued but also where evidence is sought to be tendered; in both cases, the privilege applies only where the parliamentary proceedings would be impeached or questioned. Davies JA then held that this was not the case in these proceedings.</p>
</blockquote>
<p>The High Court gave special leave to appeal this decision but the matter was settled before the appeal was heard.</p>
<p>So, the exact boundaries of Parliamentary privilege in Australia remain uncertain. However, a prudent journalist should assume that it extends not just to statements made in the House or before a Committee but to statements about those statements made outside by the MP or their staff.</p>
<p><strong>Who has the privilege?</strong></p>
<p>The privilege belongs to Parliament, not any individual MP, and can only be waived by Parliament. It cannot be invalidated by the courts due to the doctrine of separation of powers. Australian parliaments take the attitude that the waiver of privilege is a procedural matter about their own internal workings and does not require legislation.</p>
<p>In England and Wales, legislation has been passed that allows an MP to waive privilege over their (and only their) statements but no such law exists in Australia.</p>
<p><strong>Effect of Parliamentary Privilege</strong></p>
<p>There are two limbs to Parliamentary Privilege:</p>
<ol>
<li><p>It provides <strong>absolute immunity</strong> to the MP (and possibly their staff) for statements made under privilege. That is, following <em>Barilaro v Shanks-Markovina (No 2) [2021] FCA 950</em>, anything and everything that is under privilege is completely inadmissible in court.</p>
</li>
<li><p>By legislation in each Australian jurisdiction, <strong>qualified immunity</strong> is provided for the &quot;fair and accurate reports of parliamentary proceedings. Thus, a media organization is protected from liability for defamation in respect of the publication of a fair and accurate report of parliamentary proceedings unless the plaintiff can establish that, in publishing the report, the media organization was actuated by malice.&quot;</p>
<p>The Federal and Northern Territory legislation appears to go further and may provide absolute immunity but that has not been tested.</p>
</li>
</ol>
<p><strong>Actuated by malice</strong></p>
<p>Malice in law does not mean what it means in everyday English. It means, with respect to defamation, that a statement was made either knowing that it was untrue or with reckless disregard for its truthfulness. In other words, you were deliberately lying, or you made no effort to find out if you were lying.</p>
<p>Within the context of Parliamentary Privilege, you cannot rely on the truthfulness of statements made in Parliament to establish that what you reported was the truth. The existence of the statements might be admissible, for example, to establish if privilege attaches to them but the content of the statements themselves has no probative value. In some ways, this is like a hearsay statement: you can testify that the statement was made (if that's relevant) but you cannot testify that there is any truth-value to what was said.</p>
<p>Therefore, if you make a nasty remark (that goes beyond &quot;fair and accurate reports&quot;) and your only reliance on the truthfulness of your statement comes from things under Parliamentary Privilege then you have no defence to a defamation claim. So, accusing someone of perjury for what they said to a parliamentary committee rather than just reporting what they said is clearly actuated by malice: it may be true but you know that you can't prove it's true - that amounts to reckless disregard for the truth.</p>
<p><strong>Consequences</strong></p>
<p>The purpose of Parliamentary Privilege is to allow MPs to vigorously advance the interests of their constituencies (i.e. us) without the fear that they will be called to account for what they say in either a civil or criminal court.</p>
<p>It has been <a href="https://www.theguardian.com/law/2019/apr/09/top-judge-attacks-growing-abuse-of-parliamentary-privilege" rel="nofollow noreferrer">argued</a> that some uses of Parliamentary Privilege are an abuse, particularly where they subvert the operations of the judiciary or law enforcement such as by naming suspects, defendants, and witnesses or where the statements would be defamation but for the privilege. However, if they are, it is for the Parliament to discipline the MP by sanction or expulsion, or for the electorate to do so through the ballot box. Such discipline is rare, partly because no one wants to unleash a weapon that could be turned upon themselves but mostly, because Parliament is loath to interfere in the electorate's right to choose their own representatives even if they are wankers.</p>
<p>This privilege is clearly at odds with the principle of free speech and inhibits the ability of media outlets to editorialise on matters covered by privilege. <strong>This consequence is not unintended</strong>, rather it is a deliberate trade-off of one pillar of democratic life against another.</p>
