The interplay between parliamentary privilege and defamation in Western Australia

Parliamentary privilege and defamation, how far does the privilege extend?

Members of the Western Australian Parliament enjoy certain rights, powers and immunities known as parliamentary privilege. The Parliamentary Privileges Act 1891 (WA) (Privileges Act) affords Western Australian Members of Parliament with several rights and immunities, including the ability to speak freely in parliament without fear of consequence other than the sanctions available to Parliament itself.¹ This protection ensures Parliament can function independently, enabling scrutiny of government, and legislative review without fear of external interference.

Whilst these privileges support the effective operation of Parliament, recent defamation actions involving current and former parliamentarians has renewed interest in the use of parliamentary privilege.

What are the boundaries of parliamentary privilege in Western Australia?

The case of Attorney-General of Western Australia v President of Legislative Council of Western Australia sets out that when considering the privileges, immunities and powers of a House of Parliament, it is necessary to have regard also to Article 9 of the Bill of Rights 1689 (UK), which provides:

“That 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.”²

Justice Hall in the case of The President of the Legislative Council of Western Australia v Corruption and Crime Commission explained that:

“these consequences provide good policy reasons for giving article 9 a narrow ambit that restricts it to the purpose for which it was enacted, namely the freedom of Parliament to conduct its legislative and deliberative business without interference from the courts.”

Parliamentary privilege is absolute and protects a member’s speech, regardless of whether those remarks may be offensive or harmful to the reputation of individuals.

Further, the effect of parliamentary privilege results in those injured by defamatory comments made in parliamentary proceedings being unable to obtain redress through the courts.

Parliamentary proceedings include the conduct of the business of Parliament by actions, decisions and the holding of debates. An individual member takes part in a proceeding usually by speech, but also by various forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee.

The Court has found that currently in Western Australia whether actions outside of the Houses and committees fall within the scope of parliamentary proceedings depends on the nature of their connection to proceedings in Parliament.

The relevant test is whether, if such actions did not enjoy privilege, this would be likely to impact adversely on the core or essential business of Parliament.

In the case of Leyonhjelm v Hanson-Young [2021] FCAFC 22 the Court found that former Senator David Leyonhjelm had published defamatory content and “embarked on a course of responding to Senator Hanson-Young outside the Chamber and its protection of absolute privilege. Like many a politician before him, he discovered that this was not a wise thing to do when speaking ill of the living”.³

Parliamentary recourse

Although the courts cannot intervene when defamatory statements are made during parliamentary proceedings, Parliament itself has established mechanisms to address the misuse of parliamentary privilege. Each House possesses disciplinary powers enabling it to investigate and respond to conduct that may constitute an abuse of the freedom of speech afforded to members.

In 2003, the WA Legislative Assembly adopted a Code of Conduct for Members. Rule 9 provides  that Members “must be mindful of the privileges conferred when speaking in the Legislative Assembly and should consciously avoid causing undeserved harm to any individual who does not enjoy the same privileges.” Rule 10 further requires that Members “must not knowingly mislead the Parliament or the public in statements they make and are obliged to correct the Parliamentary record as soon as possible when incorrect statements are made unintentionally.”⁴

The Procedure and Privileges Committee of each House have noted that while Article 9 of the Bill of Rights 1689 immunises members against any legal action for their parliamentary speech, it does not preclude a House from investigating and, where necessary, disciplining conduct that involves an abuse of that privilege.⁵ The powers available to each House include reprimand, fines, suspension, expulsion, and, in very exceptional cases even imprisonment.⁶

Both Houses also have formal procedures for persons who believe they have been adversely affected by references made in parliamentary proceedings. Under Standing Order 114 of the Legislative Assembly and Standing Order 113 of the Legislative Council, an affected person or corporation may submit a written response for consideration by the Speaker or President, who then can refer the matter to the respective Procedure and Privileges Committee to determine whether the response should be incorporated into Hansard.

The Procedure and Privileges Committee is also currently undertaking a review of the Standing Orders of the Legislative Assembly to ensure they continue to support the orderly, effective operation of the House and its Committees, including consideration of the alignment of the Standing Orders with principles of parliamentary privilege and procedural fairness in Western Australia.

Lavan comment

Parliamentary privilege remains a cornerstone of democratic debate, safeguarding the independence of Parliament and enabling members to speak without fear of legal action. However, while the freedom of speech, debates or proceedings in Parliament are protected from redress formally in Court, the House retains the power to review and discipline the misuse of such privilege which can result in sanctions being rendered (as set out above).

For advice in respect of parliamentary privilege and defamation, please contact Cinzia Donald and Kristy Yeoh.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

[1] Parliamentary Privileges Act 1891 (WA), s 1.

[2] Attorney-General of Western Australia v President of Legislative Council of Western Australia [2020] WASC 399,

[3] Leyonhjelm v Hanson-Young [2021] FCAFC 22.

[4] The Code of Conduct for Members of the Legislative Assembly.

[5] Legislative Assembly Procedure and Privileges Committee, Misleading the House: Statements Made by the Member for Darling Range (Report No 2, [2018]).

[6] Legislative Assembly Procedure and Privileges Committee, Misleading the House: Statements Made by the Member for Darling Range (Report No 2, [2018]).