Federal Court of Australia

Leyonhjelm v Hanson-Young [2021] FCAFC 22

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

Introduction

1    This appeal raises important questions of principle on the issues of Parliamentary privilege and the defence to an action in defamation that the matter complained of was published under qualified privilege. The questions arose in the following context, involving two members of the Parliament and a dispute about whether one of them said words in an interjection during a debate in the Senate Chamber that the other attributed to her.

2    The appellant, David Leyonhjelm, was until 1 March 2019 an elected Senator for New South Wales representing the Liberal Democratic Party (the Liberal Democrats). The respondent, Senator Sarah Hanson-Young, was an elected Senator for South Australia and a member of the Australian Greens party. Each of them sat on the crossbenches in the Senate Chamber.

3    Thursday, 28 June 2018 was the last scheduled sitting day of the Senate before the long winter recess. The Senate began sitting at 9:30am and, just after noon, it began considering motions that individual Senators wished to move. Relevantly, another crossbencher, Senator Fraser Anning, moved a motion calling on the Government to allow the importation of pepper spray, mace and tasers for individual self-defence, and to encourage State Governments to legalise, and actively promote, women carrying those for their personal protection. The impetus for the motion was the brutal rape and murder of a young woman, Eurydice Dixon, in the early hours of 13 June 2018 that had received wide public, media and political attention. The President of the Senate allowed three Senators to speak on the motion for one minute each: one, an Assistant Minister, a second, a member of the Greens, and a third, a member of the Opposition. Each of them spoke against the motion in a fiery atmosphere during which, it was common ground, each Senator Hanson-Young and Senator Leyonhjelm made an interjection, neither of which was recorded in Hansard.

4    What Senator Hanson-Young said was the prompt for Senator Leyonhjelm to interject with the statement “you should stop shagging men, Sarah”. While it was common ground that Senator Leyonhjelm made that interjection, there was a dispute about what Senator Hanson-Young had said in her interjection. The dispute over those words was the fulcrum of the issues at trial and on appeal, namely, first, as to whether the Court could take evidence and make findings about what Senator Hanson-Young said in the proceedings in Parliament without infringing Parliamentary privilege and, secondly, whether he could maintain a defence of qualified privilege if, as the primary judge found, she did not say what Senator Leyonhjelm later attributed to her in each of the four matters complained of published outside the Senate Chamber.

5    The primary judge found that Senator Leyonhjelm honestly, but mistakenly, believed that Senator Hanson-Young had interjected that “all men are rapists” or a statement substantially to that effect.

6    At the conclusion of debate, the motion was lost 46 votes to 5, with Senator Leyonhjelm voting in the minority. Shortly after this, Senator Hanson-Young approached him and asked him to confirm what he had said, which he did. She called him a “creep”, to which he retorted that she should “fuck off”. Things then went from bad to worse.

7    Outside the Chamber, Senator Hanson-Young reported Senator Leyonhjelm’s interjection to her Parliamentary Leader who, in turn, reported it to the President of the Senate. The President spoke to Senator Leyonhjelm, who declined to withdraw, or apologise for, his interjection.

8    Later on 28 June 2018, Senator Hanson-Young was granted leave to make a short statement to the Senate that referred to Senator Leyonhjelm’s interjection and the subsequent events. She expressed her disappointment that he had refused to apologise, and called on him to do so.

9    Later still on 28 June 2018, Senator Leyonhjelm 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.

The matters complained of

10    Senator Hanson-Young claimed that Senator Leyonhjelm defamed her by publishing four matters complained of. The first was a media statement that he published on 28 June 2018 after she had made her statement to the Senate. He posted it on a blogging website, Medium.com, and on 29 June 2018 republished it by creating a link to that site both on his Facebook page, and the Facebook page of the Liberal Democrats. It read, under the Australian Coat of Arms:

SENATOR DAVID LEYONHJELM

Leader of the Liberal Democrats

Media Statement on Senator Hanson-Young

28 June 2018

11    On Sunday 1 July 2018, Senator Leyonhjelm gave two live to air interviews. The first broadcast was on the Sky News Outsiders program (the Outsiders interview, being the second matter complained of), and the second on the 3AW ‘Sunday Morning’ program (the Radio 3AW interview, being the third matter complained of).

12    The transcript of the relevant part of the Outsiders interview was as follows, the interviewers being Rowan Dean and Ross Cameron:

13    The transcript of the Radio 3AW interview with Nick McCallum and Rita Panahi was as follows:

14    On 2 July 2018, Virginia Trioli interviewed Senator Leyonhjelm on the Australian Broadcasting Corporation’s ‘7.30 Report with Leigh Sales’ program (the 7.30 Report interview, being the fourth matter complained of). The transcript of the 7.30 Report interview was as follows:

The defamatory imputations

15    Senator Hanson-Young pleaded, and his Honour found, that each of the four matters complained of conveyed two imputations, namely that:

    she is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them,

    she had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists.

16    In addition, she pleaded, and his Honour also found, that Senator Leyonhjelm conveyed the following imputation in each of the three interviews, namely that:

    she is a misandrist, in that she publicly claimed that all men are rapists.

17    There is no challenge to his Honour’s findings that those imputations were both conveyed and defamatory.

18    The primary judge found that, during the course of the Senate debate on 28 June 2018, Senator Hanson-Young did not make a claim or say that “all men are rapists” or anything tantamount to such a statement.

The issues

19    That finding gave rise to the three substantial issues in Mr Leyonhjelm’s appeal (I will refer to him using his title as Senator only in respect of matters that occurred when he held that office), namely, first, whether the question of what was said in the course of the Senate debate was capable of being determined judicially without contravening s 16 of the Parliamentary Privileges Act 1987 (Cth) (the Parliamentary privilege issue), secondly, whether his Honour was correct to reject Mr Leyonhjelm’s defence of qualified privilege under s 30(1) of the Defamation Act 2005 (NSW) (the qualified privilege issue) and, thirdly, whether the primary judge erred in finding that each of the publications complained of was actuated by malice (the malice issue).

20    The primary judge made a pre-trial ruling that a court may receive and consider evidence concerning what was said in the Senate for the purpose of determining whether a matter did form part of “proceedings in Parliament” within the meaning of s 16(2): Hanson-Young v Leyonhjelm (2018) 364 ALR 624 at 632–633 [55].

21    During the trial, the primary judge heard evidence from numerous Senators, including both Senators Hanson-Young and Leyonhjelm, who were present in the Chamber on 28 June 2018 during the debate in which Senator Hanson-Young made her interjection. His Honour found that all the Senators gave their evidence honestly and in an endeavour to assist the Court, but that Mr Leyonhjelm’s evidence as to Senator Hanson-Young’s interjection was unreliable. He found:

Having regard to this assessment of the evidence, I find that the words spoken by the applicant in her interjection were to the effect to which Senator Siewert testified, namely, that “more guns on the streets won’t protect women from men”. I reject the respondent’s account. I find positively that the applicant did not, in the course of the Senate debate on 28 June 2018, make a claim that all men are rapists. Nor did she say anything which was tantamount to such a claim. The applicant did not make the claims in the Senate which the respondent attributed to her in the impugned matters.

(emphasis added)

22    His Honour rejected the defence of qualified privilege because he found that it was not reasonable for Senator Leyonhjelm to make, and persist in making, the imputations in each of the four publications when, at the times he did so, he could not state with any accuracy the words that Senator Hanson-Young had spoken on which he relied. When explaining why he would also have decided that Senator Leyonhjelm was actuated by malice in publishing the matters complained of, his Honour found that Senator Leyonhjelm honestly, but mistakenly, believed that Senator Hanson-Young had made a statement in the Senate debate to the effect that “all men are rapists”. But, the primary judge then held that, after Senator Leyonhjelm had made that ‘assumption’, “he did not seek to verify its accuracy. If it was necessary to do so, I would describe [Senator Leyonhjelm’s] conduct as reckless”. His Honour found that Senator Leyonhjelm published each of the matters complained of to a mass audience “with a view to shaming [Senator Hanson-Young] publicly” and that established that he was actuated by malice in so publishing them.

The Parliamentary privilege issue

The legislative context

23    Relevantly, s 16 of the Parliamentary Privileges Act provided:

16    Parliamentary privilege in court proceedings

(1)     For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)     For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and 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:

(a)     the giving of evidence before a House or a committee, and evidence so given;

(b)     the presentation or submission of a document to a House or a committee;

(c)     the preparation of a document for purposes of or incidental to the transacting of any such business; and

(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.

(3)     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.

24    Article 9 of the Bill of Rights 1688 (Eng) (Art 9) provided:

Freedom of Speech.

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

Mr Leyonhjelm’s submissions

25    Mr Leyonhjelm contended that there could not be a fair trial of Senator Hanson-Young’s assertions that he had defamed her by falsely attributing to her a statement made during the Senate debate to the effect that she had said “all men are rapists”. This is because, he argued, Art 9 and s 16(2) and (3) of the Parliamentary Privileges Act precluded any judicial consideration of what, in fact, occurred during the debate, and any evidence about that subject matter necessarily would require the Court to inquire into “proceedings in Parliament”, namely “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House”.

26    Mr Leyonhjelm relied on the explanation of s 16(3)(c) in the Explanatory Memorandum for the Bill that became the Parliamentary Privileges Act that the Presiding Officers had circulated to the House of Representatives as supporting the prohibition of any evidence being adduced to prove the objective fact that something was or was not said as part of the proceedings in the Senate on 28 June 2018.

27    Here, the objective fact consisted of whether Senator Hanson-Young made the interjection or said words that conveyed the same meaning as Senator Leyonhjelm asserted, and she denied, namely, that “all men are rapists”. Clearly enough, the establishment, as a fact, that those words, or words that did not differ in substance, were or were not said during the debate in the Senate would be critical to support the case of one side or the other in the trial below.

28    Mr Leyonhjelm argued that, instead of conducting the trial, the primary judge should have granted a permanent stay of the proceeding in the interests of justice, because the operation of Art 9 and s 16(3) of the Parliamentary Privileges Act would prevent any forensic investigation of what happened during the proceedings in the Senate in the debate on 28 June 2018. He contended that it was not open to his Honour to take evidence in order to determine whether or not Senator Hanson-Young had actually said the words in the debate that Senator Leyonhjelm later attributed to her as the foundation of his publications of the matters complained of. He submitted that proof of the matters on which his defence of justification of the imputations of hypocrisy, misandry and absurdity, necessarily, would involve impeaching or questioning what was said in the debate and, so, contravene Art 9 and s 16(3).

Consideration

29    In my opinion, the primary judge was correct in ruling that Parliamentary privilege did not prevent the Court receiving evidence on the question of what, if anything, as a matter of historical fact, Senator Hanson-Young had said in interjecting during the debate in the Senate on 28 June 2018.

30    The Parliamentary Privileges Act and Art 9 give effect to the constitutional separation of powers between the Parliament and the courts. As Lord Bingham of Cornhill, giving the advice of the Judicial Committee in Buchanan v Jennings (Attorney General of New Zealand intervening) [2005] 1 AC 115 at 132 [18], put it: “It is, again, an important principle that the legislature and the courts should not intrude into the spheres reserved to the other.” As their Lordships acknowledged, reference to the Parliamentary record only to prove the historical fact that certain “words were uttered” does not put in issue the propriety of a member’s behaviour as a parliamentarian, or his or her state of mind, motive or intention when saying those words in Parliament.

31    It is important to appreciate that the Parliament enacted the Parliamentary Privileges Act as a response to decisions of the Supreme Court of New South Wales in relation to the two criminal trials of Justice Murphy who, before his appointment to the High Court, had been a Senator and Minister. Those decisions took a more expansive view of what was admissible in evidence under Art 9 and the common law than the President of the Senate had argued in the two trials. In particular, Hunt J ruled in the second trial, R v Murphy (1986) 5 NSWLR 18 (which followed an earlier similar ruling by Cantor J in the first trial), that witnesses in Justice Murphy’s criminal trial could be cross-examined for the purpose of discrediting them, without breach of the privilege the subject of Art 9, in relation to the evidence that they had given to a Select Committee of the Senate.

32    In Sankey v Whitlam (1978) 142 CLR 1 at 36–37, Gibbs ACJ noted that a member of Parliament is not compellable to give evidence about what occurred in the member’s House. He said that Plunkett v Cobbett (1804) 5 Esp 136; 170 ER 763 and Chubb v Salomons (1852) 3 Car & K 75; 175 ER 469 were authority for the proposition that the member had to object to giving evidence before the Court would grant the privilege.

33    In Plunkett 5 Esp at 137, Lord Ellenborough CJ held that the Speaker of the Irish House of Commons, who was giving evidence, was warranted in refusing, but had the right, if he chose, to disclose what had occurred in a debate in the House. His Lordship said, however, that the Speaker was bound to answer whether a member had spoken or taken part in the debate because “that was a fact, containing no improper disclosure of any matter then under discussion in Parliament; but he was not bound to relate any thing there spoken by Mr Plunkett, which had been delivered by him, as a member of Parliament”. In Chubb 3 Car & K at 76–77, Pollock CB did not compel a member of the House of Commons to give evidence about what had occurred in proceedings in the House after he objected and the House had not given its permission for the member to give the evidence. The Chief Baron said that he had consulted with the other Barons of the Exchequer, who confirmed his ruling.

34    As Gibbs ACJ noted in Sankey 142 CLR at 36–37, Townley J, sitting as Royal Commissioner, applied the principle and held that a Senator could not be compelled to give evidence to the Commission where he did not wish to do so and the Senate had not given permission for him to give that evidence: Royal Commission into Certain Crown Leaseholds [1956] St R Qd 225 at 230–232.

35    In Mundey v Askin [1982] 2 NSWLR 369 at 373D–F, Moffit P, Reynolds and Samuels JJA held that Art 9 did not prevent the tender of Hansard to prove, as a fact, that certain things had been said in the course of debate in a House of Parliament.

36    Beaumont J summarised the development of the law that led to the enactment of the Parliamentary Privileges Act in Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223. His Honour referred to the second reading speeches of the President of the Senate and the Speaker of the House of Representatives (at 229) and, relevantly, set out the following passage from the President’s speech:

“The main purpose of this Bill is to avoid the consequences of the very narrow interpretation and reading down of article 9 of the Bill of Rights 1688 in its application to the Australian Parliament in the judgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales in each trial in R v Murphy.”

37    The Presiding Officers said that the intention of the Bill was to restore what had been the Parliament’s previous understanding of the operation of Art 9.

38    The Explanatory Memorandum identified that (at p 1):

Purpose of the Bill

This Bill has a two-fold purpose:

(a)     to provide for the principal changes in the law recommended by the Joint Select Committee on Parliamentary Privilege; and

(b)     to avoid the consequences of the interpretation of freedom of speech in Parliament by the judgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales.

(emphasis added)

39    The Explanatory Memorandum stated (at pp 12–14) of what became each paragraph in s 16(3):

The following is a further exposition of those paragraphs:

(a)     calling into question parliamentary proceedings

This is the most obvious and clear prohibition contained in article 9. It prevents, for example, a statement in debate by a member of Parliament or the evidence of a parliamentary witness being directly attacked for the purpose of court proceedings, or the motives of the member or the witness in speaking in Parliament or giving evidence being attacked. Thus, it cannot be submitted that a member's statements in Parliament were not true, or reckless, to support a submission that the member is an untruthful, or reckless, person.

(b)     attacking the credibility, motives, etc. of a person on the basis of proceedings in Parliament

This would prevent, for example, a member's speech in debate or a parliamentary witness's evidence being used to establish their motives or intention for the purpose of supporting a criminal or civil action against them, or against another person. Thus a member's statements outside Parliament cannot be shown to be motivated by malice by reference to alleged malice in the member's statements in Parliament.

(c)     drawing inferences or conclusions to support a criminal or civil action

This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member's speech in Parliament cannot be used to support an inference that the member's conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day.

These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier court judgments. Basically, what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.

(bold emphasis added, underscore emphasis in original)

40    In The Queen v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 (and see at 164–165), Dixon CJ, giving the judgment of the Court, said that under s 49 of the Constitution “it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”. This view is also consistent with recent decisions of the Supreme Court of the United Kingdom and the New Zealand Court of Appeal.

41    Baroness Hale of Richmond PSC and Lord Reed DPSC said, in delivering the judgment of the Supreme Court of the United Kingdom in R (Miller) v Prime Minister (Lord Advocate and others intervening) [2020] AC 373 at 410–411 [65]–[66], that the Bill of Rights, and its Scottish analogue (the Claim of Right Act 1689 (Sc)), are Acts of Parliament and ‘[i]t is one of the principal roles of the courts to interpret Acts of Parliament.” The Supreme Court held, relying on what Lord Phillips of Worth Matravers PSC said in R v Chaytor [2011] 1 AC 684 at 706 [47]:

(1) that it is for the court and not for Parliament to determine the scope of Parliamentary privilege, whether under article 9 of the Bill of Rights or matters within the ‘exclusive cognisance of Parliament’; (2) that the principal matter to which article 9 is directed is ‘freedom of speech and debate in the Houses of Parliament and in Parliamentary committees. This is where the core or essential business of Parliament takes place’

42    In Kiwi Party v Attorney-General [2020] 2 NZLR 224 at 233–234 [37]–[45], the New Zealand Court of Appeal (Collins, Simon France and Lang JJ) discussed the New Zealand analogue of Art 9 and the Parliamentary Privileges Act. They held that extra-Parliamentary statements by the Chairman of a Select Committee of the New Zealand Parliament about an issue before the Committee could not be made the subject of a cause of action that alleged that the Committee had made material errors of fact in considering a Bill, failed to consult adequately or consider submissions on the Bill, taken into account irrelevant considerations or failed to take into account mandatory relevant considerations. That was because such a litigious proceeding would “question the processes and decisions of the Select Committee” ([2020] 2 NZLR at 234 [44]. Winkelmann CJ, Glazebrook and O’Regan JJ dismissed an application for leave to appeal: The Kiwi Party Incorporated v Attorney-General [2020] NZSC 61).

43    Importantly, s 16(3)(c), in the way in which it is expressed, reflects that the Parliament was concerned to prohibit the use of something that formed part of proceedings in Parliament to draw, or invite the drawing of, inferences or conclusions from that thing.

44    The section does not proscribe the use of what occurred in Parliament to prove the fact of that very occurrence. The making of a statement or the doing of an act in Parliament are facts in themselves, in the same way as Bowen LJ once explained that “the state of a man’s mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483.

45    Lord Dunedin said in Adam v Ward [1917] AC 309 at 324 “a man who makes a statement on the floor of the House of Commons makes it to the world.” Such a statement is made under absolute privilege, just as is a statement in judicial proceedings. The fact that such a statement has been made entitles every member of the public not only to know of its existence, but to discuss and criticise it, attack its truth and the state of mind of its maker in any forum except in judicial proceedings. That is because the nature of the absolute privilege that Art 9 and s 16(3) establish operates in an analogous way to the absolute privilege of those who make statements in the course of judicial proceedings, such as the members of the court, counsel, solicitors and witnesses: Mann v O’Neill (1997) 191 CLR 204 at 211 per Brennan CJ, Dawson, Toohey and Gaudron JJ, 238–239 per Gummow J and 257–258 per Kirby J. Brennan CJ, Dawson, Toohey and Gaudron JJ said (at 213):

absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from “inherent necessity” (See, eg, Gipps v McElhone (1881) 2 NSWR 18 at 21-22, per Martin CJ; at 25-26, per Windeyer J; but cf at 24, per Manning J; Chenard & Co v Joachim Arissol [1949] AC 127 at 133-134; Australian Broadcasting Corporation v Charrerron (1986) 46 SASR I at 18, per Zelling A-CJ). And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process (See Gibbons v Duffell (1932) 47 CLR 520 at 528, per Gavan Duffy CJ, Rich and Dixon JJ).

(emphasis added)

46    Thus, Art 9 reflected this principle of necessity, which conferred absolute privilege to protect the freedom of speech in, and the effective functioning of, legislative or Parliamentary proceedings. Not only does Parliamentary privilege prohibit anyone taking legal proceedings directly against a person for saying or doing anything during Parliamentary proceedings, it also prevents (as now reinforced by s 16(3)) the use in proceedings, judicial or extra-Parliamentary, of what the person said or did in a way that is capable of challenging or undermining his or her statement or action in the Parliamentary proceeding.

47    However, the fact that a person said or did something under Parliamentary privilege has a public and freestanding existence: see too Rann v Olsen (2000) 76 SASR 450 at 462 [58], 463 [62], [66] per Doyle CJ. Such a fact can be proved if the purpose of the tender is only to establish the existence of that fact (eg for the purpose of defences of fair report of proceedings in Parliament (see eg Cook v Alexander [1974] QB 279), honest opinion about the conduct of the plaintiff described in a Parliamentary debate (Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 319 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ applying Wason v Walter (1868) LR 4 QB 73 at 96 per Cockburn CJ, Lush, Hannen and Hayes JJ) or qualified privilege). But it cannot be proven if the purpose of the tender is to impugn the truth of the statement made in Parliament or motives of the person when saying it there.

48    In Egan v Willis (1998) 195 CLR 424 at 490, Kirby J explained the importance of the distinction between the right to prove the occurrence of Parliamentary events and the prohibition in Art 9 on questioning their propriety.

49    In Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337C–F, Lord Browne-Wilkinson (for himself and Lords Keith of Kinkel, Goff of Chieveley, Mustill and Nolan) noted that it had come to be accepted in both the United Kingdom and New Zealand that each nation’s Parliaments no longer required leave before Hansard could be tendered in court to use it “to prove what was done and said in Parliament as a matter of history”, and that “there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House”. But, the Judicial Committee cautioned ([1995] 1 AC at 337F):

It will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose.

50    Their Lordships also explained (at 334B–D) that:

The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.

Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.

(bold emphasis added, italics emphasis in original)

51    The Privy Council also held that the views of Hunt J in R v Murphy 5 NSWLR 18 and King CJ in Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 426 on how Art 9 operated were wrong. Hunt J had held that Art 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he or she said in Parliament. King CJ had held that Art 9 does not extend to prevent challenges to the truth or bona fides of a statement made in Parliament where the maker of the statement initiated the court proceeding.

52    Here, the question of fact that the primary judge had to determine was whether, as a matter of history, Senator Hanson-Young said, or did not say, the words Senator Leyonhjelm attributed to her in the debate in the Senate. Evidence to establish or negate that objective question of fact was admissible. The purpose of the evidence was to determine whether something, in fact, formed part of a proceeding in Parliament. If, in fact, Senator Hanson-Young did not say in the Senate the words on which Senator Leyonhjelm relied, or anything to their effect, then, self-evidently, they could not form part of proceedings in Parliament. It follows that evidence to prove that fact must be admissible, and will not contravene Art 9 or s 16(3).

53    The primary judge was correct to take evidence about the existence or non-existence of the statement that Senator Leyonhjelm attributed to Senator Hanson-Young in the course of the debate. That evidence could not support Senator Hanson-Young’s claim for defamation if it proved the existence of the statement (or one to its effect) that Senator Leyonhjelm attributed to her; rather, she accepted, if proven, that the statement would have established his defence of justification. And, if the evidence established (as the primary judge found it did) that she had not made the statement, then that objective fact would establish that no question of Parliamentary privilege arose.

54    This is distinct from the situation in cases like Rann 76 SASR 450 where the defendant pleaded justification by asserting that the plaintiff had lied in giving evidence to a Committee of the Parliament. There, the majority of the Full Court (Doyle CJ, Mullighan and Lander JJ) held that s 16(3) prevented the defendant from proving the truth of his publication complained of “by tendering evidence and asking questions to establish” what the plaintiff had said in his evidence to the Committee and that it was a lie, because to do so would impugn the truth of what he had said in the Parliamentary proceeding (see at 456 [30] and the majority’s answer to question (i) at 490).

Conclusion to the Parliamentary privilege issue

55    Here, the only purpose of the evidence was to establish, first, whether or not Senator Hanson-Young had said something in the Senate that was not recorded in Hansard, and, secondly, if she did, what it was that she said. There was no breach of Parliamentary privilege in his Honour taking that evidence or making his findings about it.

The qualified privilege issue

The legislative context

56    The Defamation Act creates a statutory defence of qualified privilege in s 30, which provides:

30     Defence of qualified privilege for provision of certain information

(1)     There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a)     the recipient has an interest or apparent interest in having information on some subject, and

(b)     the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c)     the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2)     For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3)     In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

(a)     the extent to which the matter published is of public interest, and

(b)     the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c)     the seriousness of any defamatory imputation carried by the matter published, and

(d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e)     whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f)    the nature of the business environment in which the defendant operates, and

(g)     the sources of the information in the matter published and the integrity of those sources, and

(h)     whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i)    any other steps taken to verify the information in the matter published, and

(j)     any other circumstances that the court considers relevant.

(4)     For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5)     However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

(emphasis added)

57    The statutory defence of qualified privilege operates as follows. First, s 30(1) defines when a privileged occasion arises under the Act that supplies a qualified protection to the defendant or respondent (for simplicity, I will just use the statutory term, “defendant”, in what follows) in respect of a publication. The defendant must prove that such an occasion arises by establishing, on the balance of probabilities, each of the three conditions in s 30(1). That involves the defendant proving:

(a)    the recipient is a person or persons who, in fact, has an interest, or whom the defendant, on reasonable grounds, believes at the time of publication has an apparent interest (s 30(2)) in having information on the subject matter of the publication,

(b)    the matter complained of is published to the recipient in the course of giving information on that subject matter, and

(c)    the defendant’s conduct in publishing the matter complained of is reasonable in the circumstances.

58    Secondly, s 30(3) provides a non-exclusive list of factors that the tribunal of fact (judge or jury) may take into account in determining whether the conduct of the defendant in publishing the matter complained of was reasonable in the circumstances. None of those factors expressly involves examination of the state of mind of the defendant. Rather, each factor reflects the concern of s 30(1)(c) which is to evaluate, objectively, whether the conduct of the defendant in giving information on a subject to a recipient with an interest or apparent interest in receiving it was reasonable in the circumstances.

59    Thirdly, the defendant’s state of mind is relevant, by force of s 30(4), if the plaintiff proves that the publication of the matter complained of was actuated by malice. That reflects the balance the common law developed between the qualified protection of a publication of defamatory matter on an occasion of qualified privilege and the misuse of such an occasion by a defendant publishing when his, her or its dominant purpose is an improper one, namely to injure the plaintiff.

60    Critically, s 30 of the Act maintains the importance, established at common law, of distinguishing between what creates an occasion of qualified privilege (in s 30(1), (2) and (3)) and the existence of an improper purpose or motive that actuates the defendant’s publication (in s 30(4)). Thus, if the defendant proves that the recipient has an interest or apparent interest (as defined in s 30(2)) in having information on the subject matter of the publication that the defendant made to the recipient and the defendant’s conduct in so publishing is reasonable in the circumstances, there will be a privileged occasion.

The primary judge’s findings

61    As the primary judge noted, it was common ground that the elements in s 30(1)(a) and (b) were established, but the parties were at odds over whether Mr Leyonhjelm could make good that his conduct in publishing each matter complained of was reasonable.

62    In dealing with Senator Hanson-Young’s allegation that Senator Leyonhjelm was actuated by malice in publishing each of the four matters complained of, the primary judge said:

227    I am not satisfied that the applicant has proven that the respondent published each of the impugned matters with knowledge of the falsity of the imputations and knowing that it was false to assert that the applicant had made a statement to the effect that “all men are rapists”. On my findings, the respondent did think, mistakenly, that the applicant had made a statement to that effect. The mistake arose from the respondent having assumed that he had heard that which he was predisposed to hear. Having made the assumption, he did not then seek to verify its accuracy. If it was necessary to do so, I would describe the respondent’s conduct as reckless. The respondent himself acknowledged that a claim that “all men are rapists” is absurd, and yet that is the statement he attributed, without checking, to the applicant.

228    I am, however, satisfied that the applicant has established that the respondent published each of the impugned matters to a mass audience with a view to shaming her publicly.

(emphasis added)

63    In saying that Senator Leyonhjelm was “reckless” in [227], the primary judge was using that word in the objective sense of careless or negligent: see eg Banditt v The Queen (2005) 224 CLR 262 at 265–266 [2]–[3], 275 [36] per Gummow, Hayne and Heydon JJ. The primary judge used the word “however” in commencing [228] of his reasons to emphasise that he had not found Senator Leyonhjelm to have been actuated by malice in publishing what he honestly, but mistakenly, believed that Senator Hanson-Young had said. He found that Senator Leyonhjelm should have verified the accuracy of what he published, not that he lacked an honest belief in its truth. The reason why his Honour would have found that Senator Leyonhjelm was malicious was because he had misused the privileged occasion for the improper purpose of shaming Senator Hanson-Young publicly.

64    It will be necessary to return, when I deal with the malice issue, to his Honour’s findings about Senator Leyonhjelm’s malice based on his being actuated to shame Senator Hanson-Young publicly, which I consider to be erroneous.

65    The question of whether each of the matters complained of was published on an occasion of qualified privilege requires consideration of how then senior counsel for Mr Leyonhjelm advanced the defence at the trial. His Honour recorded that, in closing submissions, Mr A J H Morris QC conceded that if the defence under s 30 of the Defamation Act failed, he could not advance any basis on which the defences of qualified privilege at common law and under the implied constitutional freedom of communication on government political matter explained in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 could succeed, and it was not necessary for the primary judge to deal with those two defences if the statutory one was not established.

66    Part of the context in which Senator Leyonhjelm published the matters complained of was the heated debate in the Senate on 28 June 2018, and the fact that he and Senator Hanson-Young had very different political views about its subject matter. Another important part of the context is that the primary judge found that Senator Leyonhjelm had an honest, but mistaken, belief, at all relevant times, that Senator Hanson-Young had interjected during debate as he said:

    “something along the lines of all men being rapists” (in the media release),

    “I don’t know the exact words because there was a lot of chatter going on, but it was to the effect of, ‘men should stop raping women’, the implication being all men are rapists” (in the Outsiders interview),

    “I don’t remember the precise words but I, it was near enough to men having to stop raping women, um, implication being all men are rapists or, you know, that was the definite meaning” (in the Radio 3AW interview),

    “Senator Hanson-Young called out words very similar, or if not identical, to ‘if only men would stop raping women’ or ‘all men are rapists’ or words to that effect” (in the 7.30 Report interview).

67    The primary judge found that the evidence of Senators present during the debate (including Senator Leyonhjelm) was that “it had been noisy in the Senate Chamber during discussion of Senator Anning’s motion”, with a number of interjections, yelling, loud speaking across the Chamber about the motion, in an environment that was “somewhat fiery” with a lot of “spirited things being said”.

68    His Honour rejected Mr Leyonhjelm’s submission that this “environment” did not have the capacity to interfere with his ability to hear Senator Hanson-Young’s interjection. His Honour noted that Senator Leyonhjelm could not attribute any precise words to Senator Hanson-Young. The primary judge also found that there was no particular reason for any individual Senator to take a note of any particular interjection.

69    The primary judge’s analysis of the defence of qualified privilege focussed on the steps that Senator Leyonhjelm took, or failed to take, to verify the accuracy of what he attributed to Senator Hanson-Young in the context that he could not recall the words that she actually spoke in her injection. His Honour said:

184    The reasonableness to which s 30(1)(c) speaks is reasonableness as between the publisher and the person defamed. In John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227, the Court of Appeal in the Supreme Court of New South Wales (Spigelman CJ, Handley JA and McColl JA) said, in relation to s 22 of the Defamation Act 1974 (NSW), to which s 30 is the counterpart:

[30]    The question of reasonableness must be tested as between the publisher and the person defamed, not as between the relevant employees and the publisher. The publisher must prove that it acted reasonably in relation to the person defamed despite publishing false and defamatory matter about him. A publisher who publishes serious allegations as fact without having checked with the person concerned is taking the risk that they cannot be justified. In that event, outside the limits of reasonableness, it is the publisher who bears the risk, not the person defamed.

…

189    In Lange, the High Court said at 574 in relation to the defence of qualified privilege in relation to publication of defamatory imputations relating to matters of governmental and political affairs:

Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of the response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.

(Emphasis added and citations omitted)

190    The failure of a respondent to contact the subject of a publication with a view to checking or seeking verification of the accuracy of the content of the publication, in the manner suggested in Lange at 574, has been fatal to a defence of qualified privilege in a number of matters. See, for example, Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [149]-[151]; Bolton v Stoltenberg [2018] NSWSC 1518 at [228]; Hockey v Fairfax Media Publications at [357]-[372].

(bold emphasis added, italics emphasis in original)

70    The primary judge found that it was reasonable for Senator Leyonhjelm not to check the video footage of the Senate proceedings because he knew from his past experience that the microphones recording sound for the footage did not capture interjections.

71    However, the primary judge held that Senator Leyonhjelm’s conduct in publishing the four matters complained of was not reasonable in the circumstances for the following reasons:

    although Senator Leyonhjelm had never been able to state the precise words that Senator Hanson-Young spoke, he had made no attempt to check with her what she had said. He had had the opportunity to do so when she had approached him in the Chamber soon after the division to check what he had said of her,

    the primary judge had some doubt (but does not appear to have rejected) Mr Leyonhjelm’s evidence that he believed, when being cross-examined, that, later on 28 June 2018, he asked Senators Bernardi and Georgiou, but both had said they had not heard Senator Hanson-Young’s interjection. However, as his Honour observed, both Senators Bernardi and Georgiou were further away from Senator Hanson-Young in the Chamber than Senator Leyonhjelm,

    an obvious alternative was to speak to someone who sat closer to Senator Hanson-Young. Senator Leyonhjelm had not checked with Senator Hinch or with Senator Hanson-Young’s Greens Senator colleagues “because they were not of his ‘tribe’ and it was rare for him to ask questions of his political opponents”.

72    His Honour found:

200    It is difficult to see, however, why that should have precluded him from making a relatively simple enquiry of other Senators with a view to checking the accuracy of his own belief as to what the applicant had said. A failure to check does not become reasonable because a publisher fears that the response will be unhelpful or even hostile. In any event, even on his own explanation, the respondent could have made enquiries of Senators Griff and Patrick, as he eventually did some weeks later.

201    To my mind, the respondent’s failure to take reasonably obvious and readily available verification steps points strongly against the reasonableness of his conduct.

202    There was no immediate imperative for the respondent to act with the speed which he did in issuing the first impugned matter. Furthermore, the two days which elapsed before his appearances on the Sky News, Radio 3AW and ABC 7.30 programs meant that he had the time to check with others the reliability of his belief. Yet, he took no such steps.

203    The unreasonableness of the respondent’s conduct is made stark in the third and fourth impugned matters when he was informed that the applicant disputed his account of what she had said. In the 3AW Sunday Morning program, Mr McCallum informed the respondent that the applicant denied having said “all men are rapists”, having said instead “putting tasers on the street is not going to protect women from men”. Ms Trioli also told him on the ABC 7.30 program that the applicant denied saying the words he attributed to her. That should have alerted the respondent to the appropriateness of checking what the applicant had said. However, instead of indicating that he would do so, the respondent maintained the righteousness of his position, by insisting that because he had been there he knew what had been said.

(emphasis added)

73    Finally, his Honour reasoned that:

206    The respondent’s position as a Senator was undoubtedly different from that of a media entity engaged in publication for the purposes of commercial profit. However, this distinction loses its significance because it is apparent that the respondent was seeking to obtain for himself an advantage, albeit of a non-commercial kind. An article published in The Sydney Morning Herald on 25 July 2018 containing statements of the respondent is pertinent in this respect:

[O]utside my electorate office and suite in Parliament House, it’s a jungle. I’m surrounded by people who are indifferent, or outright antagonistic, to the Liberal Democrats and our vision of smaller government and more freedom.

So, when I step out of my suite in Parliament House, it’s game on.

…

[L]et me be clear: Senator Sarah Hanson-Young is not my work colleague; she is my opponent. We strive for opposing things. If I can inhibit her from achieving her political goals I will.

We face off in the Senate Chamber just as bitter enemies face off on opposing sides in a court. And, just like opposing sides in a court, it is my role to ruthlessly tear down the other side’s case using all the tools of argument.

Where I can point out the other side’s double standards and inconsistency, I do. Where it is effective to argue by example or pose rhetorical questions, I do.

…

(Emphasis added)

207    There is no reason to suppose that this article did not report the respondent accurately. In fact the respondent’s counsel cross-examined the applicant by reference to it.

208    Further, although those statements of the respondent were published approximately one month after the publication of the impugned matters, there is no reason to suppose that they were not also his views at the time of publishing the impugned matters. They indicate that the respondent had a personal interest with respect to the applicant which he was pursuing, namely, his desire to achieve his party’s political goals. It would not be realistic to regard him as a detached participant, seeking simply to inform the public in a disinterested manner.

209    For the reasons given earlier, I do not regard the impugned matters as being “mild expressions” of the relevant imputations. Nor do I regard the imputations themselves as “relatively mild”.

210    In my opinion, none of the other matters for which counsel contended serve to indicate that the respondent’s conduct in publishing the impugned matters should be regarded as reasonable. In particular, I am unable to see that the respondent’s acknowledgement that he could not state the words used by the applicant assists him on the topic of reasonableness. It tends to point up the unreasonableness of his conduct. It also undermines the respondent’s claim that he had been entitled not to seek verification from others because he had heard first-hand what the applicant had said.

Conclusion on reasonableness

211    I conclude that it was not reasonable for the respondent to make, and to persist in making, the admitted imputations when he could not, at the time of doing so, state with any accuracy the words spoken by the applicant on which he relied.

212    For these reasons, I consider that the respondent has not shown that his conduct in publishing the impugned matters was reasonable.

(bold emphasis added, italics emphasis in original)

Consideration

74    I am of opinion that the primary judge erred in his analysis of the defence of qualified privilege under s 30. Mr Leyonhjelm’s desire to pursue the goals of his political party in publishing the matters complained of did not require him to be “a detached participant, seeking simply to inform the public in a disinterested manner” (see [208]). Nothing in s 30 prescribed such a criterion or requirement. The purpose of the qualified privilege is to enable a person to communicate, to persons with an actual or apparent interest in receiving it, information that need not necessarily comprise objective, verified or accurate statements or matter. It provides a defence to the publication of false or inaccurate information or matter if the preconditions that s 30(1) prescribes are met. Moreover, the publisher’s state of mind that defeats the existence of the defence is that prescribed in s 30(4), namely a state of mind amounting to malice that actuates the publication.

75    In its 1971 Report on Defamation (LRC11) (at 98 [104]), the Law Reform Commission of New South Wales explained that the purpose of the test of reasonableness in its proposed s 22(1)(c) (now reflected in s 30(1)(c)) was to replace the common law doctrine of the publisher needing to have a reciprocal duty or interest with its audience to publish the defamatory matter.

76    In Lange 189 CLR at 569–570, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ observed that s 22 operated to provide an “appropriate defence for a person who mistakenly but honestly publishes government or political matter to a large audience” (emphasis added). They said the basis of the common law rule for determining whether a publication is made on an occasion of qualified privilege is the existence of reciprocity of interest or duty, between the audience and the publisher, which was essential, citing Adam [1917] AC at 334 per Lord Atkinson (see too Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at 372–373 [9]–[10] per Gleeson CJ, Hayne and Heydon JJ). They held that this common law doctrine imposed an unreasonable restraint on the exercise of the constitutional freedom. The Court explained (at 572–573) that because the damage that can be done by publication to a large audience “is obviously so much greater than when there are only a few recipients”, a requirement of reasonableness, as contained in s 22, “which goes beyond mere honestly, is properly seen as reasonably appropriate and adapted to the protection of reputation” and so is not inconsistent with the constitutional freedom.

77    The reasonableness of conduct in what is now s 30(1)(c) concerns the defendant’s reasonableness in publishing to a large audience, such as the general public here. Thus, the criterion of the reasonableness of the defendant’s conduct in s 30(1)(c) is relevant to whether the occasion will be privileged, analogously to the common law: cf Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at 47–48 [30]–[32] per Gummow, Hayne and Bell JJ. Although s 30(1) and the constitutional freedom expand the circumstances under which a defamatory publication can be made under qualified privilege, the application of the test of the reasonableness of the conduct of the defendant in publishing is, as this case demonstrates, attended with the same difficulties in its application as the common law test: Mowlds v Fergusson (1940) 64 CLR 206 at 212 per Starke J, 214 per Dixon J and 219–220 per Williams J, see too Guise v Kouvelis (1947) 74 CLR 102 at 116–117, 122 per Dixon J, whose statement of the principles is unaffected by his dissent on the facts. In both cases, Dixon J applied Lord Loreburn’s speech in Baird v Wallace-James (1916) 85 LJ PC 193 at 198 (see Mowlds 64 CLR at 214, 216; Guise 74 CLR at 117) who said that at common law:

In considering the question whether the occasion was an occasion of privilege, the Court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances in was published, and will see whether these things establish a relation between the parties which gives a social or moral right or duty; and the consideration of these things may involve the consideration of questions of public policy…

(emphasis added)

78    The criterion of the reasonableness of the conduct of the defendant in publishing the defamatory information to persons with an interest, or apparent interest, in receiving it (under s 30(1) or the constitutional freedom), creates the need for a similar relation to exist if a publication is made under qualified privilege.

79    The considerations relevant to whether the conduct of a defendant in publishing defamatory matter is reasonable in the circumstances will depend on the particular facts of each case: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 339–340 [30]–[32], per Gleeson CJ and Gummow J; Austin v Mirror Newspapers Ltd [1986] AC 299 at 313C–D; (1985) 3 NSWLR 354 at 360B–C, per Lord Griffiths for himself and Lords Hailsham of St Marylebone LC, Keith of Kinkel and Roskill. As Lord Griffiths said in giving the advice of the Judicial Committee on the meaning of s 22(1)(c) of the Defamation Act 1974 (NSW) (the analogue of the present s 30(1)(c)), the circumstances “will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be”. Gleeson CJ and Gummow J said in Rogers 216 CLR at 339 [30] that “reasonableness is not a concept that can be subjected to inflexible categorisation”.

80    Relevantly, in discussing the position of a commercial news media publisher, Gleeson CJ and Gummow JJ said in Rogers 216 CLR at 340 [32] that the assessment of a defendant’s reasonableness in publishing fell to be assessed by reference to the legitimate interests which the law of defamation seeks to protect, including the public interest in freedom of speech and the plaintiff’s interest in his, her or its reputation.

81    Moreover, Gleeson CJ said in Roberts v Bass (2002) 212 CLR 1 at 11 [8], before applying Horrocks v Lowe [1975] AC 135 at 149, that the “kind of malice that defeats a defence of qualified privilege at common law is bound up with the nature of the occasion that gives rise to the privilege”. Gleeson CJ, as well as Gaudron, McHugh and Gummow JJ, drew on what Lord Greene MR (speaking for himself, Asquith and Evershed LJJ) had said in Braddock v Bevins [1948] 1 KB 580 at 591 (see Roberts 212 CLR at 12 [11] and 29 [72]) that the interest of those to whom the defendant communicates the matter complained of was “to have what is honestly believed to be the truth communicated”.

82    In Lange 189 CLR at 571–574, the Court discussed the interaction between the criterion of reasonableness of the publisher’s conduct in creating the occasion of qualified privilege and the criterion of the publisher’s malice in defeating his, her or its use of that privilege to publish defamatory matters. The distinction between reasonableness and malice, and the factual elements that can evidence each criterion, is vital to be maintained in any analysis of a defence of qualified privilege under s 30 or the constitutional freedom. The reason why the criterion of reasonableness is a component of qualified privilege under s 30 and the constitutional freedom is that both defences extend the reach of the common law defence to publications to a wider audience than the traditional common law test allowed (Lange 189 CLR at 570; Bashford 218 CLR at 378 [26] per Gleeson CJ, Hayne and Heydon JJ). In Lange 189 CLR at 573–574, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ explained:

But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. … Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege….

In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.

It may be that, if a statutory provision were to require the additional elements of want of knowledge of falsity and absence of recklessness, as required by Theophanous, it would not, on that account, infringe the freedom of communication which the Constitution requires. For present purposes, it is necessary only to state that their absence from s 22 of the Defamation Act cannot have the consequence that the provisions of that Act infringe the constitutional freedom. Moreover, these are not requirements of the common law, as it has traditionally been understood, and there is no reason why they should be engrafted on the expanded common law defence of qualified privilege….

As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive (Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329). Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff's onus of proof of this issue.

Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond (Stephen’s Case (1994) 182 CLR 211 at 252-253).

(bold emphasis added, italics emphasis in original)

83    However, the last paragraph in the above quotation must be understood in light of two further matters. First, their Honours’ reference to the need for a defendant to verify the accuracy of the proposed publication and seek a response from the plaintiff, that they supported with Brennan J’s reasons in Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211 at 252–253, occurred in cases involving a news media defendant. Secondly, in Roberts 212 CLR at 29 [73], Gaudron, McHugh and Gummow JJ noted that it “is a serious mistake to think that Lange exhaustively defined the constitutional freedom’s impact on the law of defamation”. They said that this was because that case had dealt only with general media publications to the general public. But, as the Court also held in Lange 189 CLR at 573, s 22 of the Defamation Act 1974 (NSW) did not include, as statutory relevant considerations, elements of want of knowledge of falsity or absence of recklessness, and those elements were not part of the reasonableness criterion in the constitutional freedom.

84    In Roberts 212 CLR at 31 [76], Gaudron, McHugh and Gummow JJ (with whom Kirby J agreed at 66–67 [185] on their description of the common law elements of malice in circumstances attracting the constitutional freedom) held:

Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive (Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327, per Jordan CJ, Davison and Halse Rogers JJ agreeing; Horrocks v Lowe [1975] AC 135 at 149-150, per Lord Diplock). But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication (Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329, per Jordan CJ, Davidson and Halse Rogers JJ agreeing). … Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion (Watt v Longsdon [1930] 1 KB 130 at 154-155, per Greer LJ). That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.

(bold emphasis added, italics emphasis in original)

85    Their Honours elaborated in their reasons on why mere carelessness or negligence of a defendant in publishing defamatory matters is not malice. Rather than being a consideration to negate the reasonableness of a publication, the desire of a politician-publisher to achieve his or her own or party’s practical goals establishes both of the elements in s 30(1)(a) and (b), namely communicating information to recipients with an apparent (or actual) interest in receiving that information: Roberts 212 CLR at 28 [69], 42–43 [107]. For, as Gaudron, McHugh and Gummow JJ said in Roberts 212 CLR at 42 [107]:

Publishing material with the intention of injuring a candidate’s political reputation and causing him or her to lose office is central to the electoral and democratic process. There is nothing improper about publishing relevant material with such a motive as long as the defendant is using the occasion to express his or her views about a candidate for election.

(bold emphasis added, italics emphasis in original)

86    In his classic speech in Horrocks [1975] AC 135, Lord Diplock (with whom Lords Wilberforce, Hodson and Kilbrandon agreed) explained the principles of qualified privilege at common law, including the effect of malice. Those principles are applicable to the consideration of whether a publication is actuated by malice for the purposes of s 30(4) and the constitutional freedom.

87    In particular, both at common law (including in a matter involving the constitutional freedom) and under s 30, the defence of qualified privilege is directed at balancing two competing public interests: first, the right of a plaintiff to vindicate his or her reputation from a defamatory attack and, secondly, the right of a defendant to publish information in discharge of some legal or moral duty, or in the conduct of the defendant’s own affairs, in matters where his, her or its interest is concerned (at common law as Parke B explained in his judgment in Toogood v Spyring (1834) 1 Cr M & R 181) or where the defendant’s conduct in publishing is reasonable in the circumstances, under s 30(1) or the constitutional freedom.

88    The objective criterion in the tort of negligence of what a reasonable person in the position of the defendant ought to have done is not the test that s 30(1)(c) or the constitutional freedom prescribes. The importance of this is that the defence of qualified privilege can only arise if the defendant has published defamatory matter that he, she or it cannot defend as true, or as honest opinion, a fair report or on another basis. Thus, the reasonableness of the defendant’s conduct in publishing such matter has to be evaluated on the basis that, for this important defence to work for the benefit of the community and freedom of speech, the publication would never have been made by the cautious common law construct of the reasonable person. Part of the evaluation focuses on the nature of the matter, and why the defendant published the incorrect matter as he or she did. That is because if the tort of negligence’s reasonable person’s conduct were relevant, the statutory defence would almost always fail since almost every defamatory publication that cannot be proven true contains a mistake – and the reasonable person in the tort of negligence is always careful not to make mistakes. The defence of qualified privilege under s 30 or the constitutional freedom would be inutile if the defendant had an obligation to act as an objectively reasonable person would have acted. Rather, s 30(1)(c) provides that the existence of the privilege it confers depends on the conduct of the defendant in his, her or its subjective circumstances in publishing defamatory matter being reasonable in the circumstances.

89    The critical question is whether Senator Leyonhjelm’s conduct in publishing the media release was reasonable in light of his statement in it that Senator Hanson-Young “interjected, saying something along the lines of all men being rapists”. Embedded in that account was the revelation that, at the time of this publication, Senator Leyonhjelm did not recall the exact words that she had used in her interjection, although he recounted what he recalled was their substance.

90    The primary judge found that Senator Leyonhjelm honestly (but mistakenly) believed that Senator Hanson-Young had made an interjection to that substantive effect. However, his Honour considered that Senator Leyonhjelm’s conduct in publishing what and when he did on 28 June 2018 was unreasonable because he could not recall the exact words of the interjection and did not check with anyone what they were. Of course, if Senator Leyonhjelm’s conduct in publishing the media release on the basis of his honest, but mistaken, belief was unreasonable, his conduct in publishing the second, third and fourth matters complained of would be equally unreasonable.

91    Most people do not have a photographic memory, or ability to recall verbatim what is said during a conversation or in listening to others. That is why, for example, Hansard is the official record of what is said in Parliament, the courts use official transcripts of hearings or evidence and students take notes of what teachers or lecturers say. But, we do not usually note down what we hear others say in conversation or when listening to them in our presence, or when viewing or listening to media publications. Nonetheless, we all rely on our memories to capture the essence of a conversation or a statement that we need later to repeat or recall. Rarely will that be verbatim. That is what Senator Leyonhjelm did, albeit he made a mistake in his recollection of the content of Senator Hanson-Young’s interjection. Yet, we also know that our memories, visual, oral or aural, can be mistaken or inaccurate. Experience of life teaches us that a discussion amongst persons present at the same event with no motive to lie will reveal differing recollections of what occurred that can vary in all manner of ways from minor, to subtle yet distinct, to fundamental. Indeed, the primary judge’s findings about the recollections of all the Senators who gave evidence at the trial amount to a vivid illustration of how honest witnesses of the one event can have recollections of it that differ over such a wide spectrum that a third party would be able to think that the witnesses were not at, or speaking about, the same event.

92    The primary judge found that Senator Leyonhjelm’s conduct was unreasonable because he failed to check his recollection of what the interjection was “when he could not… state with any accuracy the words spoken by the applicant on which he relied”. This finding appears to have been premised on there being someone who would be a reliable source of knowledge about what Senator Hanson-Young actually had said and, whoever that person was, that Senator Leyonhjelm could and should have checked with him or her to set himself straight before publishing.

93    As I have explained, the primary judge identified various Senators with whom Senator Leyonhjelm could have checked. But the analysis required under s 30(1) is in the context that Senator Leyonhjelm had information (being his belief about what the interjection he had heard was) that the general public had an interest in having within the meaning of s 30(1)(a) and (b).

94    This is not a case where Senator Leyonhjelm published information that he had received from a third party or a source, such as was the position in cases to which the primary judge referred at [188]–[190] of his reasons (set out at [69] above). Indeed, as F Gleeson JA (with whom Macfarlan and Brereton JJA agreed) held in dismissing the appeal in Stotdenberg v Bolton (2020) 380 ALR 145 at 155 [51] and 184 [196]–[198], Payne JA, as the trial judge, found that the defendant’s conduct there in publishing was not reasonable in the circumstances because he, first, did not have an honest belief in the truth of what he published, secondly, took no steps to prevent the pleaded imputations being conveyed and, thirdly, made his serious allegations about events (which he had not witnessed) without checking with the plaintiff or otherwise. That situation, and that of a general media publisher who relies on a source or third party account of an event in publishing, is substantially different from the one in which Senator Leyonhjelm was placed.

The media release (the first matter complained of)

95    Here, Senator Leyonhjelm’s publications were all to the general public. The media release was calculated to be republished in the media, and he must have been aware that the three radio or television broadcasts were to large audiences. His Honour found that when Senator Leyonhjelm published the media release on 28 June 2018, he honestly believed that it was accurate in attributing to Senator Hanson-Young that, in her interjection, she had said “something along the lines of all men being rapists”. Senator Leyonhjelm wrote that he was responding to Senator Hanson-Young’s request, through the President of the Senate, for him to withdraw and apologise for his remarks, that he believed that he had heard her say in an interjection during a noisy and chaotic debate. By publishing material that he believed electors had an interest in knowing about, he was explaining why he had said what he had said, and what (he honestly believed) another Senator had said in the Chamber and why he was maintaining his position.

96    His Honour’s finding that there was no “immediate imperative” for Mr Leyonhjelm to act with the speed he did ignored the immediacy of the debate, Senator Hanson-Young’s complaint and her subsequent statement in the Chamber, that all occurred on 28 June 2018, their newsworthiness and Senator Leyonhjelm’s self-evident interest in explaining his own public conduct and in capitalising on what he (mistakenly) believed was a misstep of his political opponent. We live in an age of a 24 hour news cycle, where news can lose its currency within the space of the time it takes to tweet.

97    Senator Leyonhjelm could exercise a qualified privilege to respond to Senator Hanson-Young’s statement in the Senate later on 28 June 2018, by explaining his conduct in the media release. In this factual setting, the primary judge’s assertion that there was no immediate imperative to act with the speed he did in issuing his media release later on the last sitting day before the winter recess, after Senator Hanson-Young had criticised him in her statement to the Senate, was erroneous. His Honour gave no reasons for that assertion. It did not depend on any credibility based finding and it is contrary to compelling inferences: Lee v Lee (2019) 266 CLR 129 at 148–149 [55] per Bell, Gageler, Nettle and Edelman JJ.

98    Senator Leyonhjelm was entitled to explain his side of the story in the evolving events of 28 June 2018. His explanation was to the public at large in response to a similar audience that Senator Hanson-Young had chosen in her short statement to the Senate.

99    True it is that Senator Leyonhjelm may not have been able to recollect the exact words of the interjection, but he honestly believed that it was to the effect of his subsequent recountings of it. He may have been mistaken, but he was defending, in the matters complained of, his behaviour that Senator Hanson-Young and, later, the interviewers in the Radio 3AW and 7.30 Report interviews, had called into question. However offensive his behaviour was, or was perceived to be, is beside the point. As Lord Diplock said in Horrocks [1975] AC at 149H–150E in respect of the common law:

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief.” If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest,” that is, a positive belief that the conclusions they have reached are true. The law demands no more.

(emphasis added)

100    His Lordship was dealing with what a politician, albeit at the local council level, had said in a council meeting under qualified privilege about another councillor from an opposing party. He added (at 152A–B):

My Lords, what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.

(emphasis added)

101    Of course, s 30 operates, as does the constitutional freedom, on publications to a broader audience and on an occasion that will only be privileged if the publisher’s conduct (not state of mind) in publishing the defamatory matter is reasonable in the circumstances. So much is clear from s 30(1)(c), Lange 189 CLR 520 and Roberts 212 CLR 1. Senator Leyonhjelm was not an established general media publisher. He was a politician engaged in the fray of a political debate when his statements made in the Senate had been criticised. In the circumstances, he was not obliged to ask Senator Hanson-Young for her version of her interjection. He honestly believed that he had heard her make a statement to the effect that he attributed to her and was responding to her criticism in the Senate about his comment and failure to apologise (see s 30(3)(g), (h) and (i)).

102    The criterion in s 30(3)(i) of “any other steps taken to verify the information in the matter published” will only carry the issue so far. It is one thing for a professional journalist or general media publisher to publish defamatory matter without verifying its accuracy if the author has not observed the actual event or information the subject of the publication. It is quite another when the actual publisher has observed the event or information directly, so that, as in Senator Leyonhjelm’s case, he or she believes that the version he or she publishes is true. The former circumstance involves the publication of what a third party has told the publisher occurred on an occasion at which the publisher was not present or did not witness. It is not usual human behaviour to conduct a further verification exercise about an event one has been part of, and witnessed directly, when responding to a criticism of one’s conduct in that event.

103    As the Court held in Lange 189 CLR at 573, ordinarily, qualified privilege, where the publisher’s reasonableness is in issue, will be lost “as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication”. Here, the primary judge found both that Senator Leyonhjelm was unaware of the falsity, and did not act with reckless indifference as to the truth or falsity, of what he published.

104    Senator Leyonhjelm had been in the Chamber during the debate on 28 June 2018. As his Honour found, the attention of some of the Senators who gave evidence of what occurred during the debate “was, or is likely to have been, on other matters”. The nature of the “fiery” debate and multiple interjections made it unlikely that Senator Leyonhjelm would have found someone who heard any interjection or could give him information about what was said. Significantly, while his Honour criticised Senator Leyonhjelm for failing to check, the primary judge made no finding that, had he checked with someone, he would have appreciated that he was wrong in his recollection or belief.

105    The primary judge found that, given the circumstances of the debate, the locations of various Senators in the Chamber, the level of interjections, distractions and noise, some Senators were unlikely or unable to hear, others were not listening and some were focussed on other matters than a brief interjection by any one Senator, such as Senator Hanson-Young. For example, his Honour heard evidence, but, as he was entitled to, did not accept as reliable, from both Senators Griff and Hinch that Senator Hanson-Young had said “the words ‘rape’ or ‘raping’… were definitely in there as well as men or women in some form” (at [149]) and “women would not need protection… if men weren’t rapists, or men stopped raping women” (at [163]). His Honour also found that Senator Hinch was confident that she had not said that “all men are rapists”, as he had tweeted on 1 July 2018.

106    His Honour did not make a finding of what Senator Leyonhjelm should have done if he had spoken to, and received some comfort from, Senator Griff in confirming his recollection or what his position would have been if, notwithstanding what Senator Hinch is likely to have said, Senator Leyonhjelm still preferred his own recollection. His Honour did not identify when such enquiries might have been sufficient or indeed anything about what they would have revealed.

107    Moreover, his Honour’s finding that Senator Leyonhjelm was unreasonable in not checking with Senators whom he regarded as in “tribal” opposition to him is, with respect, erroneous. Politicians are not professional journalists preparing stories for general media publication; far less are they to be expected to be judicial in their approach as to whether they should seek out a version of events from their political foes.

108    With all the benefits of a trial, the primary judge had to make a judicial appraisal of honest, but conflicting and confusing, evidence about whether an interjection of a few short words, lasting for just seconds, was said during a “fiery” debate in the Senate Chamber. His Honour did so in his careful evaluation of all of their evidence. However, Senator Leyonhjelm was cross-examined about potential informants who might have been a source of information about what occurred. In that regard he was entitled to think that members of Senator Hanson-Young’s party, the Greens, would have been unlikely to assist him in defending his own confronting interjection in the debate.

109    What the evidence at the trial revealed was that there were as many degrees of recollection ranging from none to some, but varying, detail about Senator Hanson-Young’s interjection as there were Senators in the Chamber at the time. None was, objectively, a person whom the primary judge found (or on the evidence could find) Senator Leyonhjelm, acting reasonably, should have checked his recollection with, except, in his Honour’s view, Senator Hanson-Young. Nor, in my opinion, was it necessary for him to check with Senator Hanson-Young what he believed he had heard. After all, she was a person about whom his Honour made this finding:

I do not have complete confidence in the account of the applicant. Generally, her evidence was marked by a degree of defensiveness and evasiveness. Both she and the respondent were prone to arguing their respective positions in the witness box. This was another matter which detracted from the reliability of each, but more so in the applicant’s case.

(emphasis added)

110    His Honour did not explain why Senator Leyonhjelm would have any reason to think she would have been more straightforward with him on 28 June 2018 than his Honour found her to be in her evidence.

111    For these reasons, I am of opinion that the primary judge erred in finding that the media release was not published under qualified privilege within the meaning of s 30(1).

The interviews (the second, third and fourth matters complained of)

112    The circumstances of the publication of the second matter complained of were that Senator Leyonhjelm participated in a live television interview on the Outsiders program. His Honour observed that the existence of the period “before his appearance on the Sky News [the second matter complained of], Radio 3AW [the third matter complained of] and ABC 7.30 programs [the fourth matter complained of on 2 July 2018] meant that he had time to check with others the reliability of his belief. Yet, he took no such steps” (emphasis added). Both the Outsiders and Radio 3AW interviews occurred live on the morning of 1 July 2018.

113    Again, his Honour gave no reason why Senator Leyonhjelm needed to check anything with others, at least before he was challenged in the Radio 3AW interview when Mr McCallum asserted that Senator Hanson-Young did not say what Senator Leyonhjelm had attributed to her. But, as he reposted “[y]ou weren’t there Nick”.

114    His Honour said that the unreasonableness of Senator Leyonhjelm’s conduct was made stark when he was confronted in the Radio 3AW and 7.30 Report interviews with Senator Hanson-Young’s denials, and that those should have alerted him to “the appropriateness of checking” what she had said. With respect, the 7.30 Report was the last of the publications, so that checking after it occurred could have had no bearing on the reasonableness or otherwise of Senator Leyonhjelm’s conduct in publishing on that or any earlier occasion. His Honour did not explain why anything Senator Leyonhjelm said on 1 July 2018, including in the Radio 3AW interview, made his conduct in publishing unreasonable on that day. The Radio 3AW interview appears to have come after the Outsiders one, and nothing in it would have alerted Senator Leyonhjelm to a need to seek verification. His Honour seems to have reasoned (although he did not say so expressly) that a duty to check arose, or was re-enlivened, interview once Senator Leyonhjelm became aware, during the Radio 3AW interview, that a spokesperson for Senator Hanson-Young claimed that she had said only “putting tasers on streets isn’t going to protect women from men”.

115    The essential point was that Senator Leyonhjelm was explaining, outside the Senate Chamber in each of the matters complained of, why he made the statement or interjection during the Senate debate on 28 June 2018 that Senator Hanson-Young “should stop shagging men” and why he would not withdraw or apologise for saying it. That is the remark which she had asked, in her statement to the Senate later on 28 June 2018, that he should withdraw and apologise for making, before he published the first matter complained of. In other words, the occasion for the publication of the media release was that Senator Leyonhjelm was wishing to explain publicly, but outside the absolute privilege of Parliamentary proceedings, why he had spoken and acted as he had earlier in the day while participating in the debate in the Senate and, subsequently, in refusing to withdraw or apologise for his interjection. In that context, he explained that the prompt for his remark to which Senator Hanson-Young took offence was what he stated (and, on the primary judge’s finding, honestly believed) he had heard her say.

116    The context for the Outsiders and Radio 3AW interviews (the second and third matters complained of) was that Senator Leyonhjelm was being questioned about his media release and conduct. His Honour made no finding, and we were not taken to any evidence, that Senator Leyonhjelm had had some matter called to his attention in the period before those interviews that should have raised a substantial reason for him to seek to verify his own recollection of what he thought that Senator Hanson-Young had said. The interviews explored his reasons for making the remark that Senator Hanson-Young “should stop shagging men”. The Outsiders interview did not involve any challenge to Senator Leyonhjelm’s account of events or his conduct. Senator Leyonhjelm made that point in the Radio 3AW interview when the following exchange occurred:

117    The Radio 3AW interview did challenge his account with some vigour, and the interviewers put to him that Senator Hanson-Young’s spokesperson had asserted only that she had said that “putting tasers on the streets isn’t going to protect men from women”. He defended himself, saying, among other things, that “I was there”, and reasserting his recollection. At that point, Senator Leyonhjelm had been told, so far as the evidence revealed, only that Senator Hanson-Young’s spokesperson had advanced a version of her interjection different from his.

118    Again, given that he honestly believed that he had heard an interjection to the effect of what he attributed to Senator Hanson-Young, and was seeking to defend his controversial remarks about her, it could only have been after the publication of the Radio 3AW interview and, before he appeared the next day on the 7.30 Report, that the new material might have raised the question of whether Senator Leyonhjelm should have done anything to check his recollection.

119    His Honour did not make any finding, and we were not taken to any evidence to suggest, that at the point of time when he published the media release Senator Leyonhjelm was aware that there was any dispute about his attribution in it to Senator Hanson-Young of her making an interjection during the debate “saying something along the lines of all men being rapists”. Nor did the particulars of malice in Senator Hanson-Young’s pleaded reply suggest that some event had occurred between the debate and the publication of the 7.30 Report on 2 July 2018, being the fourth matter complained of, which raised a need to check the accuracy of what he believed she had said.

120    His Honour arrived at his finding that Senator Hanson-Young had not made the interjection that Senator Leyonhjelm attributed to her by acting judicially, weighing all of the evidence and preferring the testimony of some of the witnesses to others. At the trial, Senator Leyonhjelm would have been aware, at least by the time his cross-examination finished, that other Senators did not agree with his recollection. If he had made enquiries of the other Senators who gave evidence before he published, it is likely that he would have maintained the honest (but mistaken) belief that his Honour found which persisted to the conclusion of his testimony. The primary judge did not make any finding that anything else in his conduct in publishing would have been unreasonable if, after checking, he still had the belief (as is likely) that Senator Hanson-Young had made the interjection in, or substantially to the effect of, the words he attributed to her.

121    As I have explained, I do not consider that Senator Leyonhjelm needed to check the accuracy of his belief before he published any of the matters complained of but, even if he had, his belief would have remained the same.

122    For these reasons, his Honour erred in finding that Senator Leyonhjelm’s conduct, in failing to check the accuracy of what he honestly believed he had heard Senator Hanson-Young say before publishing any of the matters complained of, was unreasonable. The publications were directed to explaining (and repeating outside the Parliament) why he had interjected as he did and staying his course, in circumstances where he was responding to the same wide audience as that to which Senator Hanson-Young had criticised him in Parliamentary proceedings when making her later statement.

Conclusion to the qualified privilege issue

123    As Lord Diplock said in Horrocks [1975] AC at 151A–B:

The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that “express malice” can properly be found.

(emphasis added)

124    His Honour did not find any facts, in this context, why Senator Leyonhjelm’s conduct, in failing to check the reliability of his belief with others, was not reasonable. Rather, the primary judge began his analysis of the qualified privilege defence with the presupposition that Senator Leyonhjelm’s conduct was unreasonable in publishing the media release, being the first matter complained of, because he had failed, before publishing it, to check what he honestly believed that he had heard Senator Hanson-Young say. That presupposition affected the primary judge’s findings that there was a continuing obligation to check before Senator Leyonhjelm defended his controversial statement in each of the three interviews.

125    I am not satisfied that merely by learning, during the third matter complained of in the Radio 3AW interview, that Senator Hanson-Young, through a spokesperson, had advanced a different version of her interjection, that Senator Leyonhjelm’s conduct somehow became unreasonable in the 7.30 Report interview when he repeated, without checking, what he continued to believe she had said.

126    As I have noted above, the primary judge made no findings about what or how many enquiries Senator Leyonhjelm should have made and what, depending on whom he asked, he would have been told and should then have done or that checking would have made any difference.

127    In the end, s 30(1)(c), like the constitutional freedom, is concerned with the reasonableness of the defendant’s conduct in creating an occasion of qualified privilege. By the time of the fourth publication on the 7.30 Report, Senator Leyonhjelm was not required to make inquiries of others to ascertain whether his honest belief about what Senator Hanson-Young had said was correct.

128    For these reasons, I am of opinion that the primary judge erred in finding that none of the matters complained of was published under qualified privilege. I find that each matter complained of was published on an occasion of qualified privilege under s 30(1) of the Defamation Act. This raises the final issue in the appeal, namely whether each publication was actuated by malice (s 30(4)).

The malice issue

The primary judge’s findings

129    The primary judge made findings about the issue of malice that were obiter dicta. As he acknowledged, because of his finding that none of the matters complained of was published under qualified privilege “it is not necessary to address the issue of malice. However, in case this matter goes further, I will make findings concerning it”. His Honour correctly identified the principles for determining whether a plaintiff can establish that a defendant, in publishing defamatory matter, was actuated by malice.

130    Senator Hanson-Young alleged in her reply that Senator Leyonhjelm was actuated by malice in publishing the matters complained of by reason of:

(a)    his knowledge of the falsity of the imputations “in that he knew that it was false to assert that [she] had alleged that all men are rapists”,

(b)    his publishing “the allegations to a mass audience, which he knew included [her] child and family, in order to hold her up to public shame and disgrace”,

(c)    his engaging in a campaign against her “to ensure harm to her”.

131    His Honour found, as I have noted earlier, that Senator Leyonhjelm mistakenly, but honestly, believed that Senator Hanson-Young had interjected in the Senate debate with a statement to the effect that “all men are rapists”. Accordingly, he rejected the first particular of malice and did not decide about whether Senator Hanson-Young had established the third. But his Honour found that the second particular was established.

132    The primary judge said that the only submissions that counsel for Mr Leyonhjelm made “concerning the issue of malice concerned the application of the [Parliamentary Privileges] Act”. However, that was not so. As his counsel (who did not appear below) pointed out, Mr Morris QC had said:

So there can be no question, we would respectfully submit, that when the court comes to consider the defence of qualified privilege and the expressly pleaded case, that the defence is negated by malice or lack of reasonableness, your Honour is going to be called upon to decide, on your Honour’s finding of fact as to what was said in fact and on your Honour’s assessment of what those words meant, could Mr Leyonhjelm either honestly or reasonably understood those words in the way he did at the time when they were used. Likewise, in relation to our paragraph 14(b), which is the question of whether aggravated damages should be awarded because, as it is again expressly pleaded against us, Senator Hanson-Young was conscious that Mr Leyonhjelm was saying things which he knew to be untrue.

(emphasis added)

133    The primary judge was satisfied that Senator Leyonhjelm had published each matter complained of with a view to shaming Senator Hanson-Young publicly. His Honour found:

228    … He set out in each of the four impugned matters to expose the applicant as a hypocrite and to do so in a way which would embarrass her. The respondent’s repeated references to the applicant “shagging” men, his statement that “the rumours about [the applicant] in Parliament House are well known”, his statement that “Sarah is known for liking men”, and his statement that the applicant “is known for having lots of relationships with men” were calculated to embarrass.

229    These statements about the applicant were not necessary if the respondent had wished simply to express his opinions about the difference between individual and collective responsibility or about the availability of means by which women could defend themselves against sexual assault and violence. If the respondent had simply wished to point up the inconsistency he perceived between the applicant making the statement he attributed to her and her participation in sexual intercourse with men, he could have done so in a way which was much less crude. Instead, the respondent’s reference to the applicant “shagging” men had a belittling and denigratory connotation.

230    In my view, the respondent’s other references to the applicant’s sexual behaviour indicate his malice in the requisite sense. Each of these had a gratuitous quality and seemed calculated to belittle or shame the applicant. In this category are the respondent’s statements “Sarah is known for liking men”; “if you think they’re all rapists why would you shag them?”; the applicant “is known for having lots of relationships with men”; and the statement that the applicant had had a sexual relationship with a particular parliamentarian (which the applicant denies).

…

232    I consider it unnecessary to consider the applicant’s submissions concerning the “campaign” [being the third particular of malice]. In my view, the matters to which I have already referred indicate that the respondent’s publications were actuated by malice without having to take account of matters occurring after the publications. The impugned matters went well beyond what was necessary for an appropriate response to the applicant’s statement in the Senate on the afternoon of 28 June 2018 and rested on an attribution to the applicant of a statement she had not made. The personal nature of the respondent’s comments is a strong indication that his statements went beyond the purpose of communicating ideas or opinions concerning the subject matter of Senator Anning’s motion, or views concerning individualism or the “collectivist” notions which he attributed to the applicant. The very nature of his comments and the persistence with which the respondent advanced them indicates his malice. The fact that the respondent did not behave reasonably in making the publications is a matter supporting this conclusion.

233    The conclusion that the respondent was actuated by malice can be drawn with greater confidence in the circumstance that, with the exception of his reference to the applicant’s claim of malice in relation to s 16(3), his counsel did not seek in his closing submissions to resist the claim that the respondent had been actuated by malice.

(emphasis added)

Consideration

134    As can be seen from the passages that I have emphasised, his Honour assessed malice on the basis that the matters complained of “went well beyond what was necessary for an appropriate response to [Senator Hanson-Young’s] statement in the Senate on the afternoon of 28 June 2018 and rested on an attribution to [her] of a statement she had not made” (emphasis added).

135    In my opinion, that finding was erroneous. It was crucial to his Honour’s conclusion on malice.

136    The four occasions of qualified privilege arose because Senator Leyonhjelm mistakenly, but honestly, believed that he was responding to what Senator Hanson-Young had said in her interjection and subsequent statement to the Senate. Instead, when dealing with malice, the primary judge said in [232] that his publication rested on his “attribution to [her] of a statement she had not made”. The primary judge appears to have overlooked his earlier, crucial finding that Senator Leyonhjelm honestly believed what he published as that attribution (being the point of Mr Morris QC’s submission quoted above, contrary to his Honour’s statement at [233]). His Honour assessed Senator Leyonhjelm’s state of mind on the erroneous basis that he should have been responding to what Senator Hanson-Young actually had said. As Lord Diplock said in Horrocks [1975] AC at 153F:

However prejudiced the judge thought Mr. Lowe to be, however irrational in leaping to conclusions unfavourable to Mr. Horrocks, this crucial finding of Mr. Lowe's belief in the truth of what he said upon that privileged occasion entitles him to succeed in his defence of privilege.

(emphasis added)

137    Of course, Senator Leyonhjelm’s criticisms, embodied in the imputations, were pungent and shamed Senator Hanson-Young for expressing what he honestly, but erroneously, attributed to her as extreme, indeed absurd, views. But, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said in Lange 189 CLR at 574:

As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive (Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329). Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff's onus of proof of this issue.

(emphasis added)

138    Here, if Senator Hanson-Young had said or made a statement to the effect that “all men are rapists”, then Senator Leyonhjelm’s tasteless remark in the Senate that she “should stop shagging men”, which he repeated and sought to justify in the matters complained of, was an attempt to repudiate such a statement. The occasions of qualified privilege arose because he honestly believed that Senator Hanson-Young had made such a statement and was being a hypocrite in doing so: Roberts 212 CLR at 11 [8], 12 [11], 29 [72]; Braddock [1948] 1 KB at 591; Horrocks [1975] AC at 149. And, as Gaudron, McHugh and Gummow JJ said in Roberts 212 CLR at 41 [103]:

Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice [Clark v Molyneux (1877) 3 QBD 237 at 244 per Bramwell LJ; Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128 at 133 per Lynskey J]. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully.  Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice.

(emphasis added)

139    Essentially, his Honour’s findings about the purpose or motive of Senator Leyonhjelm proceeded from the erroneous premises, revealed in [232] of his reasons, that, first, there was some yardstick of necessity as to what would be an appropriate response to what Senator Hanson-Young actually said, and, secondly, it was relevant to the exercise of the qualified privilege that his attribution of a statement to her was wrong. As I have explained above, neither premise was relevant to an evaluation of the purpose or motive of a publisher of defamatory material under qualified privilege. Once his Honour found that Senator Leyonhjelm honestly believed that Senator Hanson-Young had made a statement that, or to the effect that, “all men are rapists”, he had a qualified privilege to communicate his views, in his own words, to his audience in the general electorate. There is no legal principle to limit a person’s honest expression of his or her views on an occasion of qualified privilege to what was “necessary for an appropriate response”: Lange 189 CLR at 574. There, the Court said (consistently with Roberts 212 CLR at 12 [11], 29 [72]):

In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, “actuated by malice” is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.

(emphasis added)

140    Likewise, in Horrocks [1975] AC at 151E–H, Lord Diplock formulated the test as to when irrelevant matters included in a publication made under qualified privilege could be used as evidence of malice. He said that the test is not whether the matter is logically relevant, but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, believing it to be true, realised that it had nothing to do with the particular interests or duty on which the privilege was based, but nonetheless seized the opportunity to include the irrelevant defamatory matter to vent personal spite, or for some improper purpose. But, he said that juries and judges should be slow to draw such an inference. He had said earlier (at 151E–F):

Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded.

(emphasis added)

141    In my opinion, the primary judge erred in failing to apply this principle in reaching his view that Senator Leyonhjelm was actuated by malice. As his Honour noted, he judged (at [232]) the matters complained of as going “beyond the purpose of communicating ideas or opinions concerning the subject matter of Senator Anning’s motion, or views concerning individualism or the ‘collectivist’ notions which he attributed to [Senator Hanson-Young]”. This finding did not have regard to the purpose of Senator Leyonhjelm in explaining his conduct in the Senate, why he had made the interjection on which he was questioned in the interviews, namely that Senator Hanson-Young “should stop shagging men” and why he had not withdrawn or apologised for his interjection. He did so because he believed that he had heard her say (or something to the effect) that “all men are rapists”.

142    I have also considered whether the matter should be remitted to the primary judge to make findings, having regard to these reasons, on the issue of malice, based on Senator Hanson-Young’s argument that Senator Leyonhjelm engaged in a campaign against her to ensure harm to her. On balance, I do not think that a remittal is necessary. In [232] of his reasons, his Honour said that he did not find it necessary to consider the post publication conduct because of his findings about the circumstances of the publication. If (as I have found) those circumstances failed to support a finding of malice, because Senator Leyonhjelm honestly believed in the truth of what he published, it is unclear how his subsequent conduct could support an inference that he published the matters complained of for an improper purpose, or that such a purpose was different from the second particular of malice, namely that he was actuated by the improper purpose of holding her up to public shame and disgrace.

143    However offensive or tasteless Senator Leyonhjelm’s four publications complained of were or might be viewed, they were calculated to make the point that, by saying (as he erroneously asserted she had) “all men are rapists” (or something to that effect), he believed that his criticisms of her were therefore justified. Of course, with the benefit of his Honour’s careful and detailed analysis of what occurred during the Senate debate, Senator Leyonhjelm was in error in his understanding of what Senator Hanson-Young had said. However, his honest belief in that understanding created the occasion of qualified privilege which he used to cause Senator Hanson-Young political damage, which is not malice: Lange 189 CLR at 574; Horrocks [1975] AC at 151E–H.

Conclusion to the malice issue

144    For these reasons, Mr Leyonhjelm’s defence of qualified privilege under s 30 of the Defamation Act succeeds and Senator Hanson-Young has failed to establish that the publication of any matter complained of was actuated by malice.

Conclusion

145    I would allow the appeal, set aside the orders made by the primary judge and in lieu order that the originating application be dismissed.

146    Given the time spent at first instance and on appeal on the issue of Parliamentary privilege, I would grant the parties leave to make short submissions as to what, if any, reduction in Senator Leyonhjelm’s party/party costs of the proceeding below and the appeal should be made in respect of that issue.

Associate:

Dated:    3 March 2021

REASONS FOR JUDGMENT

WIGNEY J:

147    This appeal arises out of an unedifying episode in the relatively brief and at times controversial political life of Mr (formerly Senator) David Leyonhjelm. In June 2018, Mr Leyonhjelm made some statements about his then fellow Senator, Senator Sarah Hanson-Young, a colleague with whom he was not, it seems, politically friendly or pleasantly disposed. Those statements were made outside Parliament, but were, at least ostensibly, an attempt to explain or justify something that Mr Leyonhjelm had said to Senator Hanson-Young in an interjection during a debate in the Senate. The statements made by Mr Leyonhjelm outside Parliament were, on just about any view, pretty crass, puerile and offensive. The primary judge found that they were also defamatory of Senator Hanson-Young. His Honour also rejected Mr Leyonhjelm’s contention that the proceeding necessarily infringed s 16 of the Parliamentary Privileges Act 1987 (Cth) and his defence of qualified privilege. The issues raised by this appeal revolve around those two findings.

148    I have had the advantage of reading the separate reasons for judgment to be published by Rares J and Abraham J. I agree with both Rares J and Abraham J that Mr Leyonhjelm’s grounds of appeal which rely on the Privileges Act have no merit. Subject to what follows, largely by way of elaboration or elucidation, I also agree with the separate reasons given by their Honours in relation to those grounds. As for the grounds of appeal concerning the primary judge’s rejection of Mr Leyonhjelm’s defence of qualified privilege, I agree with Abraham J that the primary judge did not make any appellable error in rejecting that defence. Given the division of opinion in respect of those grounds, however, I propose to give my own reasons in relation to them. Ultimately, I agree with Abraham J that the appeal should be dismissed with costs.

factual background

149    It is fortunately unnecessary to recount the factual background in all its excruciating glory. It is comprehensively set out in the reasons of both Rares J and Abraham J. Following are the highlights, or lowlights, as the case may be.

The Senate debate and the offending interjection

150    On 28 June 2018, Mr (then Senator) Fraser Anning moved a motion in the Senate. Mr Anning was also a figure who was at times prone to excite controversy. He did not disappoint on this occasion. It would perhaps be an understatement to say that his motion was not particularly well received by many in the Senate Chamber that day. The thrust of the motion was to call on the Australian Government to allow the importation of pepper spray, mace and Tasers for individual self-defence. The apparent stimulus for the motion was a particularly awful rape and murder of a woman that had occurred in Melbourne a fortnight earlier. The motion was eventually soundly defeated, with all other than a handful of crossbenchers, including Mr Anning and Mr Leyonhjelm, voting against it.

151    While it appears that, given the absence of support from the major parties, Mr Anning’s motion was foredoomed to fail, it nevertheless prompted a spirited debate which was, at times, fiery, unruly and raucous. There were a number of interjections. One of them was by Senator Hanson-Young.

152    Exactly what Senator Hanson-Young said in that interjection was hotly disputed. The resolution of that dispute by the primary judge is referred to later. What was not in dispute was that, shortly after Senator Hanson-Young’s interjection, Mr Leyonhjelm interjected and said: “you should stop shagging men, Sarah”. Perhaps predictably, that nuanced piece of political repartee on the part of Mr Leyonhjelm did not go down so well with Senator Hanson-Young. Indeed, it prompted a further unpleasant exchange between the pair, albeit an apparently private one, at the conclusion of the debate. The reader will be spared the detail of that fairly tawdry incident. It suffices to say that the minds of the two Senators did not meet and they traded insults or, in Mr Leyonhjelm’s case, profanities. Despite subsequently being spoken to by the President of the Senate, Mr Leyonhjelm refused to withdraw the statement he made during the course of the debate. Needless to say, he also refused to apologise to Senator Hanson-Young.

153    Had the matter been left at that, the exchange which occurred on the fringes of the debate in the Senate that day would probably have been written off by most observers as being just another uncomplimentary slanging match between two well-known adversaries in the House, albeit an unedifying and ultimately fairly pointless one. In time, all memories of it would probably have disappeared into the ether. The more gratuitous parts of the rambunctious goings-on did not even make their way into Hansard, possibly an indication that the compilers of that august journal not only had the ability to sift out the relevant from the irrelevant, but also had a keen sense of decorum.

154    More significantly, whatever Senator Hanson-Young, or anyone else, may have thought about the nature and quality of Mr Leyonhjelm’s interjection, it undoubtedly occurred in the course of a Parliamentary debate. As a result, it almost certainly could not itself have been the subject of a defamation action. If it was considered worthy of any form of criticism, censure or sanction, that was entirely a matter for Parliament, not the courts.

155    Mr Leyonhjelm, however, was not, it seems, one to let a good opportunity for a bit of mud-slinging or muck-raking pass him by. As will be discussed later, the question whether the proverbial mud-slinging which followed took it too far, so to speak, loomed large in the consideration of Mr Leyonhjelm’s qualified privilege defence. The important point to emphasise at this point is that the only mud-slinging relevant to this proceeding occurred outside, not inside, Parliament.

156    So what exactly did Mr Leyonhjelm do? Quite simply, he got out his megaphone, figuratively speaking of course, and publicly repeated outside Parliament what he had already said to Senator Hanson-Young in the Senate Chamber. To make matters worse, he then doubled down in the media on what some may have thought was already a rather crass, boorish and offensive missive.

The four publications

157    It is, unfortunately, necessary to go into some level of detail concerning the four publications that formed the basis of Senator Hanson-Young’s defamation action. That is because, as will be seen, Mr Leyonhjelm was bold enough to claim, in support of his defence of qualified privilege, that his conduct in publishing the defamatory matter was reasonable because, amongst other things, the publications were “relatively mild expressions” of the defamatory imputations. Mr Leyonhjelm also challenged the primary judge’s finding of malice, which turned in part on the gratuitous, belittling and deprecating nature of the publications.

158    The first publication (or “matter complained of”) was a media release that Mr Leyonhjelm issued on 28 June 2018. In that release he asserted that, in an interjection during the debate that had occurred in the Senate that day, Senator Hanson-Young had said “something along the lines of all men being rapists”. He then noted that his response to that interjection had been to suggest to Senator Hanson-Young that she should “stop shagging men”. He did not directly explain why he chose to respond to the alleged interjection in that particular way, but he did state that he disagreed with Senator Hanson-Young’s “sentiments about all men being rapists” and that he had the right to express his opinion accordingly. Exactly how his somewhat ridiculous suggestion to Senator Hanson-Young, now repeated outside Parliament, amounted to any relevant expression of opinion was not the subject of elaboration. Plainly, he could have disagreed with the statement about “all men being rapists”, if indeed that statement was made, in a way which was less obtuse and puerile.

159    To make matters worse, in lieu of offering any serious or rational justification for his undoubtedly demeaning statement, Mr Leyonhjelm turned to mockery and sarcasm. After noting that he had refused to withdraw the statement that he had made in Parliament, he said that he was nevertheless prepared to rephrase his comments thus: “I strongly urge Senator Hanson-Young to continue shagging men as she pleases”.

160    That insightful and subtle piece of commentary from Mr Leyonhjelm was, as he might well have expected, republished in various ways via social media.

161    But wait, there is more.

162    The second publication occurred some days later when Mr Leyonhjelm appeared on a show called “Outsiders” which was broadcast on a pay television channel. That show purported to provide “news and commentary”, including about politics and politicians. It would perhaps not be unfair to say that the hosts of that program often courted controversy and liked to consider themselves as being outside the mainstream; hence the program’s name. Mr Leyonhjelm’s statements to or about Senator Hanson-Young would appear to have been manna from heaven for the two self-described outsiders. Even Mr Leyonhjelm was later to suggest, through his counsel, that he had been the only “adult in the room” during the interview.

163    It is both unnecessary and undesirable, for many reasons, to repeat here all the pearls of wisdom that fell from Mr Leyonhjelm and his hosts during that interview. The transcript of much of what was said is repeated, in all its glory, in the reasons of both Rares J and Abraham J. It suffices to highlight but a few features of what Mr Leyonhjelm said during his exchanges with the program’s hosts.

164    First, Mr Leyonhjelm gave a somewhat different account of what he claimed to have heard Senator Hanson-Young say in her interjection. He said that he did not know the exact words that were used, but said that they were to the effect that “men should stop raping women”. It is worth pausing at this point to observe that it is somewhat questionable that those words, if spoken, amount to a claim, even an implicit claim, that all men are rapists. It seems, however, that Mr Leyonhjelm interpreted them in that way, or so he told his interlocutors.

165    Second, Mr Leyonhjelm contended that saying or implying that all men are rapists amounted to “misandry”. He added, without any apparent sense of irony, that it was time for “us alpha males to stand up and say that this is not legitimate”. It would seem that the other two alpha males in the room enthusiastically agreed.

166    Third, Mr Leyonhjelm again explained that his response to what he thought Senator Hanson-Young may have said or implied was to interject by saying “well stop shagging men”. This time, however, the honourable member chose to ratchet up the crudity and insult by adding that “Sarah is known for liking men”, that the “rumours about her in Parliament House are well known” and that “she has a right to shag as many men as she likes”. Mr Leyonhjelm did not explain to his hosts exactly why he chose to publish such crude and unsourced innuendo and inanity concerning Senator Hanson-Young’s private life to the audience of the program at large. The available inference as to his motive for doing so is discussed later.

167    The third publication occurred when Mr Leyonhjelm was interviewed on a program broadcast on commercial radio on the same day as his Outsiders appearance. Towards the commencement of that radio interview, one of the interviewers suggested that Mr Leyonhjelm’s by-now-notorious statement that Senator Hanson-Young should “stop shagging men” had not only downgraded Parliament, but had downgraded a “very serious topic”, being the protection of women against violence. In answering that apparently well-founded accusation, Mr Leyonhjelm simply said that when he made that remark he was responding to an interjection by Senator Hanson-Young.

168    The interviewer then pointed out that Senator Hanson-Young’s spokesperson had issued a statement which made it clear that Senator Hanson-Young denied Mr Leyonhjelm’s version of her interjection and asserted that what she had in fact said was that “putting tasers on the streets isn’t going to protect women from men”. Mr Leyonhjelm maintained, however, that Senator Hanson-Young had in fact said “something like” all men are rapists.

169    While during this interview Mr Leyonhjelm reaffirmed his belief or interpretation of what Senator Hanson-Young had said, by this point at least it must have been quite clear to him that Senator Hanson-Young strongly denied his version of her interjection. That apparently did not, however, deter Mr Leyonhjelm or cause him to pause or reflect on his disparaging assertions. This honourable member was obviously not for turning.

170    This particular radio interview is also notable because it was the first occasion that Mr Leyonhjelm provided, or attempted to provide, any sort of rational justification for his interjection. He claimed, in response to the allegation that he was simply “slut shaming” his fellow Senator, that he was not doing that at all, but was instead “calling … out” what he considered to be double standards or hypocrisy on the part of Senator Hanson-Young. He opined, in that regard, that “you can’t on the one hand say or infer all men are rapists and on the other hand have relationships with men”. Of course, the logic of that justification, if indeed it could seriously be regarded as a justification for what many would regard as simply crude and insulting behaviour, hinged entirely on the accuracy of the allegation that Senator Hanson-Young had in fact made the rather absurd claim that all men are rapists. Mr Leyonhjelm well knew by this point that Senator Hanson-Young had emphatically denied that she had said or claimed any such thing.

171    The fourth and final publication was an interview with Mr Leyonhjelm on a well-known nightly current affairs program broadcast by the national broadcaster. It would perhaps be fair to say that the host of this program was not nearly as receptive as the Outsiders’ hosts had been to Mr Leyonhjelm’s attempted justification of what he had said to and about Senator Hanson-Young. During the interview, which occurred on the day after the other television and radio interviews, Mr Leyonhjelm again sought to explain or justify his interjection by claiming that he was “entitled to call out double standards”. His plea on this occasion was that “arguing on the one hand that, um er, all men, um are evil, the enemy, um rapists, er sexual er sexual predators and then on the other hand having a normal relationships with men obviously is contradictory and I can call it out.” The viewer was no doubt left to ponder whether that rambling statement was capable of amounting to a reasonable and rational justification of anything, let alone the statements that Mr Leyonhjelm had made to or about Senator Hanson-Young.

172    Mr Leyonhjelm also again admitted, during this interview, that he could not remember exactly what Senator Hanson-Young had said. He claimed, however, that he could remember the “context”. Exactly what he meant by that is unclear. He also appeared to deny that his interjection had been offensive or inappropriate. Indeed, he claimed that he was the one who had been offended because he took offence to misandry. Perhaps not surprisingly, however, he did not reprise the alpha male call-to-arms that he pronounced during the Outsiders interview.

THE PROCEEDINGS BELOW

173    Senator Hanson-Young commenced proceedings against Mr Leyonhjelm seeking damages for defamation. It is critical to emphasise that Senator Hanson-Young’s case was not that she had been defamed by the statement Mr Leyonhjelm had made in Parliament. Her claim was that the four publications by Mr Leyonhjelm outside Parliament conveyed defamatory imputations.

The imputations

174    Senator Hanson-Young’s case was that the four publications conveyed three defamatory meanings or imputations.

175    The first imputation was that she, Senator Hanson-Young, was a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them.

176    The second imputation was that she, Senator Hanson-Young, had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists.

177    The third imputation was that she, Senator Hanson-Young, was a misandrist, in that she publicly claimed that all men are rapists.

178    It can readily be seen that a key element in each of the three imputations was that Mr Leyonhjelm had asserted, in the relevant publications, that Senator Hanson-Young had claimed that all men are rapists.

179    Mr Leyonhjelm initially denied that the publications conveyed any of the three imputations. At the commencement of the trial, however, he withdrew that denial and conceded that the imputations were conveyed. He continued to deny, however, that they were defamatory.

180    Needless to say, the trial judge gave Mr Leyonhjelm’s contention that the imputations were not defamatory relatively short shrift. Mr Leyonhjelm’s grounds of appeal do not include any challenge to the primary judge’s finding that the imputations were defamatory.

Mr Leyonhjelm’s defences

181    While Mr Leyonhjelm initially raised a number of substantive defences to Senator Hanson-Young’s claim, he ultimately pressed only two: first, a plea of justification pursuant to s 25 of the Defamation Act 2005 (NSW) and its State and Territory counterparts; and second, a plea of qualified privilege under s 30 of the Defamation Act.

The justification defence

182    To make out the justification defence, it was necessary for Mr Leyonhjelm to prove that the imputations were substantially true. That essentially required, at a minimum, that Mr Leyonhjelm prove, on the balance of probabilities, that Senator Hanson-Young had in fact claimed, in the course of the relevant Parliamentary debate, that all men are rapists. Mr Leyonhjelm did not endeavour to prove that Senator Hanson-Young had made that claim at any other time, or seek to justify the imputations on any other basis.

183    As was noted earlier, there was no dispute that Senator Hanson-Young made an interjection during the course of the debate. The issue was what she in fact said. The interjection was not recorded in Hansard. Evidence was adduced from a number of Senators in respect of what they heard during the course of the debate. It is unnecessary to consider their evidence for the purposes of this appeal. Having considered and analysed all the evidence, the primary judge concluded that Senator Hanson-Young did not, in the course of the Senate debate on 28 June 2018, make a claim that all men are rapists, or say anything that was tantamount to such a claim: Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 (Judgment).

184    Mr Leyonhjelm did not challenge the primary judge’s finding in that regard in this appeal.

The qualified privilege defence

185    Mr Leyonhjelm initially pleaded not only the statutory qualified privilege defence under s 30 of the Defamation Act, but also common law and extended qualified privilege. The latter was referred to as the “Lange defence” given that its source or exposition was said to be found in the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25. The primary judge noted, however, that in his closing submissions, Mr Leyonhjelm conceded, through his senior counsel, that if the statutory defence was not made out, the common law qualified privilege and Lange defences would also fail and that, in those circumstances, it was unnecessary for those defences to be addressed: Judgment at [10] and [180]. In his submissions in support of his appeal, Mr Leyonhjelm appeared to dispute that any such concession was made. That issue is addressed later in the context of the appeal grounds concerning the primary judge’s rejection of the defence of qualified privilege.

186    The critical issue in relation to Mr Leyonhjelm’s qualified privilege defence was whether his conduct in publishing the defamatory matter was reasonable in the circumstances. In his submissions before the primary judge, Mr Leyonhjelm identified a number of considerations that were said to establish the reasonableness of his conduct in the relevant sense. Those considerations, in summary, were: first, the publications were “relatively mild expressions” of the imputations; second, the subject matter of the imputations, which was said to be the means of self-defence available to women, was of intense public interest; third, the imputations related to the kinds of issues that Senator Hanson-Young was likely to promote or support and her comprehension of political issues; fourth, it had been made clear by Mr Leyonhjelm in the publications that he could not recall the exact words spoken by Senator Hanson-Young, only their effect; fifth, Mr Leyonhjelm had heard what Senator Hanson-Young said first hand and did not rely on an intermediate source; sixth, Mr Leyonhjelm was an individual politician and not a media entity; seventh, it would have been futile for Mr Leyonhjelm to try to ascertain from Senator Hanson-Young what her version was because she was ill-disposed towards him; eighth, the means by which Mr Leyonhjelm could otherwise have sought to verify the words spoken by Senator Hanson-Young were limited; and ninth, Mr Leyonhjelm had sought to resist the overtures of the hosts of the Outsiders program to dwell on the imputations instead of the broader policy issues.

187    The primary judge found that Mr Leyonhjelm’s conduct in publishing the defamatory matters was not reasonable in the circumstances: Judgment at [196]. The primary judge’s reasons for so finding are discussed in more detail later in the context of the appeal grounds relating to the primary judge’s rejection of the defence of qualified privilege. In short summary, the primary judge identified four considerations that supported the finding of unreasonableness.

188    The first consideration was that Mr Leyonhjelm failed to take “reasonably obvious and readily available” steps to check or verify exactly what Senator Hanson-Young had said: Judgment at [197]-[201].

189    The second consideration was that the relevant publications “concerned only to a limited extent the subject matter of the motion before the Senate on 28 June 2018”: Judgment at [205]. Rather, the subject matter of the publications was Senator Hanson-Young, in respect of whom Mr Leyonhjelm had a “personal interest” which he was pursuing, “namely, his desire to achieve his party’s political goals”: Judgment at [208]. It was, the primary judge reasoned, “not … realistic to regard [Mr Leyonhjelm] as a detached participant, seeking simply to inform the public in a disinterested manner”: Judgment at [208].

190    The third consideration was that the publications were not “mild expressions” of the relevant imputations or “relatively mild”: Judgment at [209].

191    The fourth consideration was that none of the other considerations which Mr Leyonhjelm had identified supported the contention that his conduct was reasonable: Judgment at [210]. In particular, the primary judge noted that the fact that Mr Leyonhjelm acknowledged that he could not say exactly what Senator Hanson-Young had said did not assist him and undermined his reliance on the fact that he had heard what she said first hand.

Malice

192    Senator Hanson-Young contended that Mr Leyonhjelm’s defence of qualified privilege, if otherwise made out, was defeated because his words were actuated by malice: see s 30(4) of the Defamation Act. The primary judge noted that it was strictly not necessary for him to address the issue of malice because the qualified privilege defence had not been made out in any event: Judgment at [213]. His Honour nevertheless concluded that, had it been necessary to do so, he would have found that Mr Leyonhjelm was actuated by malice in respect of each of the publications and that would provide an additional reason for finding that the defence of qualified privilege failed: Judgment at [234].

193    The primary judge’s reasoning in relation to malice is addressed in more detail later in the context of the ground of appeal concerning the primary judge’s finding of malice. It suffices at this point to merely note that the primary judge found that the publications were made “with a view to shaming [Senator Hanson-Young] publicly” and were “calculated to embarrass”: Judgment at [228]. In particular, the references to Senator Hanson-Young’s “sexual behaviour” had a “gratuitous quality” which “seemed calculated to belittle or shame” her: Judgment at [230]. The publications also “went well beyond what was necessary for an appropriate response to [Senator Hanson-Young’s] statement in the Senate on the afternoon of 28 June 2018” and “went beyond the purpose of communicating ideas or opinions concerning the subject matter of Senator Anning’s motion”: Judgment at [232].

Mr Leyonhjelm’s reliance on the Privileges Act

194    It is necessary to say something briefly about the history of Mr Leyonhjelm’s contention that any trial of Senator Hanson-Young’s defamation claim and his defence to it would necessarily involve an infringement of s 16(3) of the Privileges Act.

195    Mr Leyonhjelm first advanced that contention in support of an interlocutory application in which he sought a permanent stay of the proceeding. That application was dismissed, essentially on the basis that it was premature: Hanson-Young v Leyonhjelm (2018) 364 ALR 624 at 633; [2018] FCA 1688 at [58] (Interlocutory Judgment). The primary judge reasoned that it was for the Court to determine the existence of the privilege and that the Court may receive and consider evidence concerning Parliamentary proceedings for the purposes of determining whether the privilege applies: Interlocutory Judgment at [55]. His Honour held, in effect, that if it was found that Senator Hanson-Young did not say the words attributed to her by Mr Leyonhjelm, the privilege would not exist or apply because it does not protect “words not spoken”: Interlocutory Judgment at [56]. His Honour noted, however, that if it was found that those words were spoken, it may be necessary to consider the application of the Privileges Act: Interlocutory Judgment at [57]. His Honour also observed that it would, in any event, be preferable for the parties to file and serve their evidence before the issue was considered: Interlocutory Judgment at [58].

196    An application for leave to appeal from the Interlocutory Judgment was dismissed, essentially on the basis that there was insufficient doubt attending the primary judge’s reasons for dismissing the application: Leyonhjelm v Hanson-Young [2019] FCA 156 at [26].

197    Mr Leyonhjelm did not seek to re-agitate his contentions concerning the Privileges Act until his closing submissions at trial. He did, in his opening address, note that he was proceeding on the basis that he was bound by the Interlocutory Judgment. He did not, however, renew his application for a permanent stay, even though, by this time, outlines of the evidence of the witnesses to be called had been exchanged.

198    Mr Leyonhjelm gave evidence about what he believed he heard Senator Hanson-Young say during the course of the debate in the Senate on 28 June 2018. He also did not object, on the basis of the Privileges Act, to the evidence of Senator Hanson-Young about what she said in her interjection during the debate, or to the evidence of the other witnesses who gave evidence about what they heard Senator Hanson-Young say. It should also be noted, having regard to some of the submissions that were advanced by Mr Leyonhjelm in support of his appeal, that he did not submit that the evidence concerning what was said on appeal should be received de bene esse, or provisionally, for the purpose of determining the application of the Privileges Act. Nor did he apply for that issue to be determined in a voir dire.

199    In his final submissions, Mr Leyonhjelm contended that it would not be possible for the primary judge to consider a number of issues in the proceeding without infringing s 16(3) of the Privileges Act and that the proceeding should therefore be permanently stayed. His primary submission was that to consider his defence of justification, it would be necessary for the primary judge to determine whether the words found to be spoken by Senator Hanson-Young in her interjection were absurd and exposed her as a misandrist and a hypocrite. He also submitted that it would be necessary for the primary judge to consider and make findings in relation to the words spoken by Senator Hanson-Young for the purpose of considering his defence of qualified privilege and Senator Hanson-Young’s claim that she was entitled to damages, including aggravated damages.

200    The primary judge rejected Mr Leyonhjelm’s contentions concerning the application of the Privileges Act and refused to stay the proceeding for the following reasons.

201    First, as for Mr Leyonhjelm’s primary contention that his justification defence could not be considered or determined without infringing s 16(3) of the Privileges Act, the primary judge noted that Mr Leyonhjelm’s justification defence, as pleaded, hinged on him proving that Senator Hanson-Young had made a claim “tantamount to a claim that all men are responsible for sexual assault or that all men are rapists”: Judgment at [387]. His Honour reasoned, however, that as he had found, on the basis of the evidence that had been adduced, that Senator Hanson-Young had made no such statement, it “did not form ‘part of [the] proceedings in Parliament’ on which s 16(3) can operate”: Judgment at [387].

202    Second, the primary judge noted that Mr Leyonhjelm’s claim that it would not be possible to determine his qualified privilege defence without infringing s 16(3) appeared to be based on the contention that it would be necessary for the Court to decide whether the words spoken by Senator Hanson-Young were such that he, Mr Leyonhjelm, could have “honestly and/or reasonably have interpreted them as he did” and that his defence could therefore not be defeated by Senator Hanson-Young’s plea of malice: Judgment at [390]. The primary judge found, however, that Senator Hanson-Young’s case in respect of the qualified privilege defence was not limited to the claim that Mr Leyonhjelm knew that his statements about what Senator Hanson-Young had said were false; nor had any such finding been made: Judgment at [391]. His Honour also noted that, insofar as Mr Leyonhjelm’s arguments were based on Senator Hanson-Young’s plea of malice, the issue of malice only arose if there was a finding that Mr Leyonhjelm’s conduct in publishing the defamatory matter was reasonable and no such finding had been made: Judgment at [392]-[393].

203    Third, as for Mr Leyonhjelm’s contention that Senator Hanson-Young’s claim that she was entitled to aggravated damages could not be determined without infringing the Privileges Act, the primary judge noted that Mr Leyonhjelm’s arguments in that regard relied on the fact that Senator Hanson-Young had pleaded that her hurt was exacerbated by the fact that she knew that Mr Leyonhjelm knew that the imputations were false. That plea, however, was not pursued by Senator Hanson-Young at trial: Judgment at [400]. Nor had it been found that Mr Leyonhjelm published the defamatory imputations knowing that they were false: Judgment at [401]. Even if such a plea had been pursued, the appropriate course would, his Honour reasoned, have been to exclude that particular circumstance of aggravation from the assessment of damages, rather than permanently stay the proceeding: Judgment at [402].

GROUNDS OF APPEAL AND SUBMISSIONS

204    Mr Leyonhjelm’s notice of appeal attacked the primary judge’s findings concerning the application of the Privileges Act, his qualified privilege defence and malice.

Grounds and submissions relating to the Privileges Act

205    Mr Leyonhjelm pressed two grounds of appeal relating to the primary judge’s finding that the conduct of the proceeding did not give rise to any infringement of the Privileges Act and that there was accordingly no basis for a permanent stay.

206    The first of those grounds (ground 2) was that the primary judge should have found that evidence and submissions “as to the effect of the interjection attributed to” Senator Hanson-Young would be for the purpose of “impeaching” or “questioning” Senator Hanson-Young’s speech or for one or more of the purposes prohibited by s 16(3) of the Privileges Act. The second of those grounds (ground 3) was that “having found that the question as to whether [Senator Hanson-Young] said the words was central to [Mr Leyonhjelm’s] defence of justification”, the primary judge should have stayed the proceeding “in the interests of justice”.

207    Mr Leyonhjelm’s submissions did not always closely align with these two grounds. Nor did they closely correspond to the submissions that were made in respect of the Privileges Act before the primary judge. The central tenet in Mr Leyonhjelm’s submissions was that the evidence that was adduced and the submissions that were made concerning what Senator Hanson-Young said, by way of interjection, during the relevant Senate debate necessarily infringed s 16(3) of the Privileges Act. That was said to be the case for two reasons.

208    First, it was contended that the effect of s 16(3) of the Privileges Act was that it is impermissible to adduce any evidence, or make any submissions, about what was or was not said during Parliamentary proceedings, at least where there is some dispute or disagreement about what was said. That was said to be because any finding by a court in respect of what was said during the Parliamentary proceedings would necessarily involve questioning the truth, motives, intentions or good faith of the Parliamentarians who gave evidence about the issue, or the drawing of inferences or conclusions from what was said during those proceedings. Mr Leyonhjelm appeared to rely primarily on what was said in Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223; [1988] FCA 24 in support of this submission. He also submitted that the authorities concerning the Privileges Act do not support the proposition that it is permissible to prove what was said in Parliament as a historical fact.

209    Second, Mr Leyonhjelm contended that the purpose for which the evidence concerning Senator Hanson-Young’s interjection was adduced was to raise inferences about Senator Hanson-Young’s conduct in speaking those words; that is, to demonstrate that her statement was absurd and that she was a misandrist and a hypocrite. It also appeared to be suggested that the purpose for which the evidence was adduced was to attack the motives and intentions of Mr Leyonhjelm in saying what he said about Senator Hanson-Young. It followed, in Mr Leyonhjelm’s submission, that the evidence was adduced for one or more of the purposes set out in s 16(3)(a), (b) or (c) of the Privileges Act.

Grounds and submissions relating to the defence of qualified privilege

210    Mr Leyonhjelm raised four grounds of appeal that related, in one way or another, to the primary judge’s finding that the defence of qualified privilege was not made out.

211    The first ground relating to the issue of qualified privilege (ground 5) was simply that the primary judge erred in finding that Mr Leyonhjelm’s statements were not protected by qualified privilege, whether at common law, by statutory qualified privilege or the “extended form of qualified privilege” recognised in Lange. This ground did not contain any particulars or articulation of the asserted error.

212    The second ground (ground 6) was that the primary judge was wrong to have found that Mr Leyonhjelm acted unreasonably by failing to verify with Senator Hanson-Young or other Senators whether she had used words to the effect of those that Mr Leyonhjelm had attributed to her.

213    The third ground (ground 7) was that the primary judge was wrong to have relied on authorities regarding the conduct of newspapers’ and broadcasters’ reliance on sources and that his Honour ought to have given “primacy” to the fact that Mr Leyonhjelm was a politician who was himself a “participant” in that he had heard the interjection himself.

214    The fourth ground of appeal relating to qualified privilege (ground 8) would appear to raise a question of law that was not advanced before the primary judge, being that qualified privilege should “protect public statements made by a politician regarding the conduct and character of another politician, which are not actuated by malice, without a further requirement of reasonable care in publishing the statement”.

215    Mr Leyonhjelm’s submissions, both written and oral, did not significantly develop these grounds of appeal. The submissions also addressed the grounds globally rather than separately and tended to elide or conflate the primary judge’s findings concerning qualified privilege and malice. The submissions in relation to the primary judge’s findings and reasoning concerning malice will be addressed separately.

216    Mr Leyonhjelm’s primary submission effectively challenged the primary judge’s finding that Mr Leyonhjelm’s failure to take reasonable steps to verify what he heard, or believed that he heard, Senator Hanson-Young say before he made the defamatory publications militated against a finding that his conduct was reasonable in all the circumstances. He submitted that the circumstances of this case were very different to the cases involving the failure of media organisations to verify their sources, that he was a direct participant in the relevant events and “believed he had heard the statement directly” and that requiring a politician to make enquiries before commenting adversely on a political opponent would have a “chilling effect on the implied freedom considerations” highlighted in Lange.

217    As for ground 8, Mr Leyonhjelm disputed the primary judge’s observation that he had conceded that if he failed to make out his statutory qualified privilege defence, he could not advance any basis upon which he could succeed in respect of his common law qualified privilege defence. He relied on the decision of the New Zealand Court of Appeal in Lange v Atkinson [2000] 1 NZLR 257 in support of the proposition that the defence of qualified privilege should be expanded, in cases involving statements made about politicians, so that there is no requirement of reasonableness, so long as the statements are not actuated by malice.

The ground and submission concerning malice

218    The notice of appeal included a ground (ground 4) concerning the primary judge’s finding of malice. That ground contended that the primary judged failed to “apply the test for malice in the context of political debate” as stated in Lange, being that “the motive of causing political damage to the respondent or her political party could not be regarded as improper”.

219    The main submission made by Mr Leyonhjelm in support of this ground was that, having found that Mr Leyonhjelm did not convey the defamatory imputations knowing they were false, the primary judge erred in finding that Mr Leyonhjelm nonetheless acted with malice because his statements were calculated to embarrass, belittle or shame Senator Hanson-Young. That was said to be an error because “the motive of causing reputational harm to a political opponent” is not an improper motive and therefore cannot constitute malice. In Mr Leyonhjelm’s submission, it mattered not that he could have been “less crude” because that would be to impermissibly rely on the “pungency” of the statement in discharging the onus of proof.

PARLIAMENTARY PRIVILEGE – GROUNDS 2 aND 3

220    It is convenient to deal with appeal grounds 2 and 3 together. That is how they were dealt with in the parties’ submissions.

221    The reasons of both Rares J and Abraham J include the text of s 16 of the Privileges Act. It is accordingly unnecessary to set it out again here.

Grounds 2 and 3

222    The central question raised by these grounds of appeal is whether the primary judge erred in finding that the conduct of the proceeding did not involve any infringement of the Privileges Act and that it was not appropriate to permanently stay the proceeding on that basis. The answer to that question depends on whether it is possible to identify any “evidence to be tendered or received”, or any “questions asked or statements, submissions or comments made” which satisfied two conditions or criteria. Those conditions or criteria are: first, the questions, statements, submissions or comments concerned “proceedings in Parliament”; and second, they were tendered, received, asked or made, as the case may be, “by way of, or for the purpose of” one or more of the purposes referred to in s 16(3)(a), (b) or (c) of the Privileges Act. As will be seen, it is the second condition or criterion, the purpose for which the questions were asked, or the statements, submissions or comments were made, which is the critical condition or criterion.

223    Mr Leyonhjelm did not, either before the primary judge or in this appeal, identify any specific evidence, questions, statements, submissions or comments which were tendered, received, asked or made for one or more of the purposes in s 16(3)(a), (b) or (c) of the Privileges Act. Rather, his case proceeded on the basis that the relevant proceeding in Parliament was the debate of the motion moved by Senator Anning on 28 June 2018 and that all of the evidence that was tendered or received, and all of the questions, statements, submissions or comments which were asked or made, concerning the interjection made by Senator Hanson-Young during that debate were tendered, received, asked or made for one or more of the impugned purposes.

224    There was, and is, no dispute that Senator Hanson-Young’s interjection was made in the course of proceedings in Parliament. There also was, and is, no dispute that evidence was adduced or received, and questions, statements, submissions or comments were asked or made with a view to determining whether, as Mr Leyonhjelm alleged, Senator Hanson-Young’s interjection was “tantamount to a claim that all men are responsible for sexual assault or that all men are rapists”.

225    It was essentially common ground that it was necessary for the primary judge to determine whether the words that were spoken by Senator Hanson-Young in the interjection constituted such a claim. That was because Mr Leyonhjelm’s justification defence relied on him proving that Senator Hanson-Young made such a claim. The critical question, therefore, is whether any of that evidence was adduced or received, or any of the questions that were asked, or any of the statements, submissions or comments that were made, in respect of that issue, were adduced or received, or asked or made, for one of the impugned purposes; that is, for one of the purposes referred to in s 16(3)(a), (b) or (c) of the Privileges Act.

226    The short answer to that question is “no” and the primary judge was correct in effectively so finding.

227    The purpose for which the evidence about what Senator Hanson-Young said, or was heard to have said, was tendered and received, at least in the first instance, for the purpose of determining whether, as a matter of fact, her words amounted to, or were tantamount to, a claim that all men are responsible for sexual assault or that all men are rapists. The submissions that were made in respect of that evidence were essentially made for the same purpose. That was not, or did not amount to, any of the proscribed purposes in s 16(3)(a), (b) or (c) of the Privileges Act.

228    It may be accepted that Mr Leyonhjelm’s ultimate purpose in adducing evidence and making submissions about what he claimed Senator Hanson-Young said in the interjection was to justify or establish the substantial truth of the defamatory imputations. If he was able to prove that Senator Hanson-Young had made a claim tantamount to a claim that all men are responsible for sexual assault, or that all men are rapists, that may in turn have enabled him to submit that the claim was absurd and that Senator Hanson-Young was a hypocrite and a misandrist. As the primary judge plainly recognised, that further step may have amounted to an infringement of s 16(3) of the Privileges Act. Such a submission may, for example, have amounted to “questioning” a statement made in Parliamentary proceedings contrary to s 16(3)(a), or questioning the “credibility” or “good faith” of Senator Hanson-Young contrary to s 16(3)(b), or drawing or inviting the drawing of inferences or conclusions from a statement made in Parliamentary proceedings contrary to s 16(3)(c) of the Privileges Act.

229    The first step, however, was to determine whether what was said by Senator Hanson-Young amounted to, or was tantamount to, a claim that all men are responsible for sexual assault or that all men are rapists. If it did not, there would essentially be no occasion for Mr Leyonhjelm to submit, on the basis of anything said by Senator Hanson-Young during the relevant proceeding in Parliament, that the imputations that he had conveyed about Senator Hanson-Young were substantially true in that she had made such an absurd claim and was a hypocrite or misandrist. There would therefore be no question of s 16(3) being infringed as a result of the making of such a submission. Mr Leyonhjelm did not seek to justify the imputations on the basis of any other claim said to have been made by Senator Hanson-Young, in Parliament or otherwise.

230    It was on this basis that the primary judge permitted the evidence about what Senator Hanson-Young said or was heard to say to be adduced and received. It was also on that basis that the primary judge permitted submissions to be made concerning that evidence. The purpose was to determine, in the first instance, whether an issue concerning the infringement of s 16(3) of the Privileges Act arose or would arise: Interlocutory Judgment at [56]-[57]; Judgment at [357], [370]. As noted earlier, at the substantive hearing before the primary judge, Mr Leyonhjelm did not object to any evidence being adduced, or any submissions being made, on the basis that the evidence or submissions would infringe s 16(3) of the Privilege Act. That was apparently because he considered that he was bound by the Interlocutory Judgment. Be that as it may, he did not submit that the evidence should be adduced on a de bene esse or provisional basis (cf Amann Aviation at 232), or that the primary judge should determine the factual question whether Senator Hanson-Young had made the alleged claim as a preliminary question or in a voir dire.

231    As events transpired, the primary judge found, on the basis of the evidence adduced on the topic, that Senator Hanon-Young had not made any claim that was tantamount to a claim that all men are responsible for sexual assault or that all men are rapists. That finding was not challenged in this appeal. The implications of that finding were twofold.

232    First, as the primary judge found (Judgment at [387]), the claim that Mr Leyonhjelm alleged Senator Hanson-Young made to the effect that all men are responsible for sexual assault or that all men are rapists could not, on any view, have formed part of the “proceedings in Parliament” because no such claim was made in Parliament.

233    Second, and perhaps more significantly, it followed that there was no occasion for Mr Leyonhjelm to make any submission, statement or comment, or ask the Court to make any finding, which infringed, or might have infringed, s 16(3) of the Privileges Act. He could not submit, or ask the Court to find, that his defamatory statements that Senator Hanson-Young was a hypocrite and a misandrist were true on the basis that she had claimed that all men are rapists. That was because the Court had found, on the basis of the evidence, that Senator Hanson-Young had made no such claim. There could, in those circumstances, be no basis for concluding that any evidence that had been adduced to that point, or any submissions or comments that had been made, could be relied on or used for any of the impugned purposes in s 16(3) of the Privileges Act.

234    There is authority which tends to support the approach taken by the primary judge. In Amann Aviation, Beaumont J held (at 232) that it was open to the Court, without any breach of s 16(3) of the Privileges Act, to “look at” an extract from Hansard on a “de bene esse basis, that is to say, to receive it provisionally for the purpose of a temporary and conditional examination in order to enable the court to inquire whether the reception of the extract into evidence, is, or is not, prohibited by s 16(3)” of the Privileges Act. The approach taken by Beaumont J to the receipt of Hansard on a provisional basis was endorsed or approved by the Full Court in Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86 at [42].

235    It may be accepted that the approach approved in Amann and Carrigan differed somewhat from what occurred in this case. The evidence concerning what Senator Hanson-Young said, or was heard to say, and the submissions made about it, was not received on a provisional basis. That said, Mr Leyonhjelm did not submit that it should be received on that basis. It is also somewhat questionable whether that precise course of action was available given that the primary judge was required to make a factual finding, based on the evidence, about what Senator Hanson-Young had said, or not said, before determining whether any issue concerning the Privileges Act might arise. It is difficult to see how that could be done if the evidence was admitted only provisionally, though it could perhaps have been admitted on a voir dire.

236    The more significant point is that the difference between the approach taken in Amann and Carrigan and the approach taken by the primary judge in this case is immaterial. What is clear is that the purpose for which the primary judge received the evidence in the first instance was limited to the purpose of determining whether what was said by Senator Hanson-Young in the interjection amounted to, or was tantamount to, a claim that all men are responsible for sexual assault or that all men are rapists. That limited purpose for receiving the evidence did not infringe s 16(3) of the Privileges Act because it did not amount to any of the purposes referred to in s 16(3)(a), (b) or (c). The primary judge made it clear in the Interlocutory Judgment that if he was to find that such a claim was made, consideration would then be given to whether any further use of the evidence would infringe s 16(3) of the Privileges Act. As events transpired, that occasion did not arise.

237    It was open to the primary judge to receive the evidence on that basis and for that purpose without contravening s 16(3) the Privileges Act. In Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83, Doyle CJ stated (at [74]-[75]) that if the only purpose that the Court can discern for the receipt of evidence is a “prohibited purpose”, the Court must refuse to receive the evidence. If, however, the evidence has a purpose that is not a prohibited purpose, then it should be admitted, even though the evidence is “capable of being turned to a prohibited purpose”. That is because if one of the parties seeks to use evidence otherwise properly received for a prohibited purpose, the Court “will refuse to allow that course to be followed”.

238    In this case, it was open to the primary judge to receive the evidence of what Senator Hanson-Young said, or was heard to say, for the purpose of determining whether there may be an infringement of s 16(3) of the Privileges Act. That was not a prohibited purpose. If it was found that Senator Hanson-Young did not make the claim that Mr Leyonhjelm claimed she made, the evidence would not be capable of being used for a prohibited purpose. If, however, it was found that Senator Hanson-Young did make that claim, and Mr Leyonhjelm then sought to use the evidence for a prohibited purpose, such as to question Senator Hanson-Young’s credibility, or draw the inference or conclusion that Senator Hanson-Young was a hypocrite or misandrist, it would have been incumbent on the primary judge to prevent that from occurring. It may, in those circumstances, have been necessary for the primary judge to consider whether the proceeding could be permitted to continue in those circumstances. As events transpired, it was not necessary for his Honour to consider that issue because he found that Senator Hanson-Young made no such claim.

239    As has already been observed, it is tolerably clear that the proceeding before the primary judge did not proceed in two stages, the first being to determine what was said by Senator Hanson-Young and the second being to determine if, in light of that finding, any issue concerning infringement of s 16(3) of the Privileges Act could or would arise. That was, however, essentially because Mr Leyonhjelm did not ask the primary judge to determine the question of what Senator Hanson-Young had said as a preliminary question.

240    Mr Leyonhjelm did not raise any objection, make any application or advance any submissions alleging infringement of s 16(3) of the Privileges Act until his closing submissions. While that may have been because he was bound, or considered himself bound, by the Interlocutory Judgment, the terms of the Interlocutory Judgment did not preclude him from seeking to have the question of what Senator Hanson-Young had said determined as a preliminary question. Indeed, the Interlocutory Judgment made it quite plain that the primary judge was proceeding on the basis that no issue concerning the infringement of s 16(3) of the Privileges Act could or was likely to arise until he determined, on the basis of the evidence, what Senator Hanson-Young had said. It would have been open to Mr Leyonhjelm to ask the primary judge to determine that question as a preliminary question so he could then, depending on the finding, make a further application for a stay or dismissal based on the Privileges Act. He did not do so. As the primary judge correctly found, the effect of the way that Mr Leyonhjelm raised the Privileges Act issue at trial meant that the primary judge was required to consider it in his final judgment: Judgment at [363].

241    It follows that Mr Leyonhjelm’s contention in ground 2 of his notice of appeal that the primary judge ought to have found that the evidence and submissions “as to the effect of the interjection attributed to [Senator Hanson-Young] would be … for the purpose of ‘impeaching’ or ‘questioning’ [her] speech”, or for one or more of the purposes prohibited by s 16(3) of the Privileges Act, must be rejected. The evidence and submissions were not received by the primary judge for any of those purposes. The primary judge was correct to conclude, in effect, that the evidence and submissions were not received for any of those impugned purposes and that, having found that Senator Hanson-Young did not say the words, or make the claim, that Mr Leyonhjelm said she did, there was no basis for finding that s 16(3) of the Privileges Act had been, or could be, contravened.

242    It also follows that Mr Leyonhjelm’s contention, in ground 3 of the notice of appeal, that the primary judge should have stayed the proceeding because the question of what Senator Hanson-Young had said was central to his defence of justification, must be rejected. There could be no doubt that the question of what Senator Hanson-Young had said was central to Mr Leyonhjelm’s justification defence, but that alone provided no basis for a stay of the proceeding. There may well have been a proper basis for the stay of the proceeding if the primary judge had found that Senator Hanson-Young had said, or made the claim, that all men are rapists. That is because Mr Leyonhjelm would undoubtedly have then submitted, and the Court would have been asked to find, that Senator Hanson-Young was a hypocrite and a misandrist on the basis of what she was found to have said in Parliament. That course, however, would almost certainly have been precluded by s 16(3) of the Privileges Act. There may, in those circumstances, have been a proper basis to argue that it would be manifestly unfair for the proceeding to continue.

243    Once the primary judge found, however, that Senator Hanson-Young had not said the words, or made the claim, that all men are rapists, there was no proper basis for a stay. That is because that finding essentially defeated Mr Leyonhjelm’s defence of justification. Mr Leyonhjelm did not seek to justify, or prove the truth of, his defamatory statements on any other basis. It was not open for him to seek to demonstrate the truth of his statements that Senator Hanson-Young was a hypocrite and a misandrist on the basis of a finding that she said something, or made a claim, other than that all men are rapists. In the circumstances, Mr Leyonhjelm’s justification case failed, or was bound to fail, because the primary judge found that Senator Hanson-Young had not said, or claimed, what Mr Leyonhjelm had claimed she said or claimed, not because Mr Leyonhjelm was likely to be somehow precluded by s 16(3) of the Privileges Act from pursuing his justification defence. His Honour was accordingly correct to reject Mr Leyonhjelm’s stay application.

244    In the submissions advanced on Mr Leyonhjelm’s behalf, it was conceded or acknowledged that s 16(3) of the Privileges Act does not prevent the Court from receiving and considering evidence and submissions concerning proceedings in Parliament so as to determine whether or not Parliamentary privilege applies. That concession was properly made: see Amann Aviation at 231-232; Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 at [14]-[15]; affirmed in refusing leave to appeal (Carrigan at [42], [48]). Despite that concession, Mr Leyonhjelm maintained that s 16(3) precluded the primary judge from receiving evidence and submissions for the purpose of determining what Senator Hanson-Young had said when she interjected during the course of the proceedings in Parliament. He did not, however, explain how the primary judge could possibly have determined whether s 16(3) of the Privileges Act applied in his case without first receiving evidence and submissions for the purposes of determining exactly what Senator Hanson-Young had said in the relevant interjection.

245    In the oral submissions advanced on Mr Leyonhjelm’s behalf, senior counsel went so far as to contend that s 16(3) precluded the Court from ever receiving any evidence or submissions concerning what was said during proceedings in Parliament, at least where there was a dispute about what was said. That was said to be because if the evidence of a witness who gave evidence about what he or she heard or said in Parliament was challenged in cross-examination, that would necessarily involve questioning the credibility, motive, intention or good faith of the witness, or drawing inferences or conclusions from proceedings in Parliament, contrary to s 16(3)(b) and (c) of the Privileges Act.

246    There are at least two problems with that argument.

247    First, it fundamentally misconceives the operation of s 16(3) of the Privileges Act. It is abundantly clear from the very terms of s 16(3) that it only prevents the tender of evidence, or the receipt of submissions, concerning proceedings in Parliament if that evidence is tendered, or the submissions are made, for one of the impugned purposes. It is not a blanket prohibition in respect of evidence and submissions concerning proceedings in Parliament. If the evidence of a witness concerning what was said in Parliamentary proceedings is challenged in cross-examination, the challenge is to the reliability, credibility or honesty of the evidence that the witness is giving in Court. It is not a challenge to their credibility, motive, intention or good faith in respect of anything that was said in Parliament. Nor does it involve the drawing of inferences or conclusions from or about something said in Parliament. It involves drawing inferences or conclusions from what was said in Court.

248    Second, the argument is contrary to authority. There have been numerous cases where evidence concerning what had been said in Parliament has been tendered and admitted where the Court has found that the “historical fact” of what was said in Parliament was a relevant fact and the tender was not for one of the proscribed purposes in Article 9 of the Bill of Rights 1688 (UK) or s 16(3) of the Privileges Act: Mundey v Askin [1982] 2 NSWLR 369 at 373; Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 453; Amann Aviation at 230; Buchanan v Jennings [2005] 1 AC 115 at [17]-[18]; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; [1994] 3 NZLR 1 at 10-11; Rann v Olsen at [73]; Egan v Willis (1998) 195 CLR 424 at 490-493; [1998] HCA 71 at [133]; McCloy v The Honourable Megan Latham [2015] NSWSC 1782 at [20].

249    It may be accepted that most of the cases where evidence concerning proceedings in Parliament has been found to be admissible involve the tender of the formal record of the relevant Parliamentary proceedings. Nothing said in the judgments in those cases concerning the admissibility of the evidence, however, suggests that it was only held to be admissible because it comprised a formal record, or because the evidence as to what was said was not in dispute. While it was suggested in Amann (at 231) and McCloy (at [21]), that there may be an issue if the use of the evidence was contentious, that was only if the contentious aspect of the evidence could be used to impugn the credit of a person based on what they said in Parliament. That would plainly be a prohibited use of the evidence.

250    Mr Leyonhjelm’s contentions plainly “confuse the right to prove the occurrence of Parliamentary events and the embargo on questioning their propriety”: Prebble at 337; see also Egan v Willis at [133].

251    For the reasons essentially already given, the evidence of what Senator Hanson-Young said in the relevant interjection was a relevant fact and it was not tendered or received, at least in the first instance, for one of the proscribed purposes. It was tendered so as to establish what was said for the purpose of determining whether the further use of the evidence was precluded by s 16(3) of the Privileges Act. The fact that the evidence, or the submissions relating to it, may have been capable of being turned into a prohibited purpose, if it was determined that Senator Hanson-Young said what Mr Leyonhjelm alleged she had said, was irrelevant. It is the duty of the Court to prevent that occurring: Rann v Olsen at [74]; Prebble at 337. There was ultimately no way that the evidence of what Senator Hanson-Young had said could be turned into a prohibited purpose because the primary judge found that she did not say, or make the claim, that Mr Leyonhjelm alleged she had.

252    It should finally be noted that, as adverted to earlier in these reasons, Mr Leyonhjelm also appeared to contend before the primary judge that the consideration of his plea of qualified privilege and Senator Hanson-Young’s damages claim, including aggravated damages, would necessarily involve the use of evidence and submissions about what Senator Hanson-Young had said in Parliament in contravention of s 16(3) of the Privileges Act. Those contentions appear to have been made in support of his application for a stay of the proceeding made in the course of his closing submissions. The primary judge rejected those contentions: Judgment at [390]-[405].

253    The primary judge’s reasons for rejecting Mr Leyonhjelm’s contentions to the effect that the Court’s consideration of his qualified privilege defence and Senator Hanson Young’s claim for aggravated damages would necessarily breach s 16(3) of the Privileges Act were summarised earlier in these reasons. It is unnecessary to consider them in any greater detail. That is because Mr Leyonhjelm’s appeal grounds and submissions did not challenge any of the primary judge’s reasons for rejecting these particular contentions. It suffices to say that the primary judge was clearly correct to reject them.

254    The arguments that Mr Leyonhjelm put to the primary judge in respect of this aspect of his case concerning s 16(3) of the Privileges Act were referred to earlier in these reasons. They were, in many respects, somewhat difficult to comprehend. It appeared to be contended that the evidence or submissions about what Senator Hanson-Young had said in Parliament could somehow be used to impugn Mr Leyonhjelm’s conduct and motive in publishing the defamatory statements. That proposition is itself dubious, but even if it was possible that the evidence and submissions could be used in that way, that would not involve any contravention of s 16(3) of the Privileges Act. The use of evidence or submissions to impugn something that Mr Leyonhjelm said or did outside Parliament is not a prohibited purpose under s 16(3) of the Privileges Act. And even if it was, as discussed earlier, the primary judge would be obliged to prevent the evidence and submissions being used for that purpose. As events transpired, of course, the reasons of the primary judge reveal that the evidence and submissions were not used for such a purpose.

Conclusion in relation to grounds 2 and 3

255    The primary judge was correct to admit the evidence and to receive the submissions concerning what Senator Hanson-Young said or claimed, or purportedly said or claimed, for the reasons he gave. That course was not prohibited by s 16(3) of the Privileges Act. It gave rise to no unfairness or prejudice to Mr Leyonhjelm such as to warrant a stay of the proceeding. Nor was Mr Leyonhjelm able to point to any evidence which was, or any submissions which were, used for any purpose prohibited by s 16(3) of the Privileges Act. Mr Leyonhjelm has not demonstrated any error on the part of the primary judge arising out of the operation of the Privileges Act. It follows that appeal grounds 2 and 3 of Mr Leyonhjelm’s notice of appeal are not made out.

the QUALIFIED PRIVILEGE GROUNDS – grounds 5, 6, 7 and 8

256    A number of preliminary points should be made concerning Mr Leyonhjelm’s appeal grounds and submissions concerning the primary judge’s rejection of his defence of qualified privilege.

257    First, the primary judge only addressed and made findings concerning whether Mr Leyonhjelm had made out the statutory defence of qualified privilege in s 30 of the Defamation Act. That was because, as noted earlier, Mr Leyonhjelm conceded, in his closing submissions at the trial, that if he could not make out the statutory defence, he could not advance any basis upon which his pleaded common law and Lange defences could succeed and that, in those circumstances, it would not be necessary for the primary judge to deal with those defences: Judgment at [10] and [180]. In his appeal submissions, Mr Leyonhjelm appeared to cavil with the suggestion that he made this concession at trial, however the transcript (the relevant part of which is extracted in the reasons of Abraham J) clearly records that it was made in precisely the terms recorded by the primary judge.

258    Mr Leyonhjelm’s appeal grounds must therefore be assessed by reference to the statutory qualified privilege defence in s 30 of the Defamation Act. The text of s 30 of the Defamation Act is set out in the judgments of Rares J and Abraham J. It need not be set out again here.

259    Second, Mr Leyonhjelm’s appeal grounds and submissions did not take issue with the primary judge’s summary (at Judgment [181]-[190]) of the relevant principles concerning the statutory defence of qualified privilege, including the requirement in s 30(1)(c) of the Defamation Act that the conduct of the defendant in publishing the defamatory matter was reasonable in the circumstances. The only appeal ground which raised any issue or question of principle is ground 7, in which it is contended, in effect, that because he is a politician, the primary judge was wrong to apply the principles that have been established in the context of publications by newspapers or broadcasters. Given that the primary judge’s summary of the relevant principles is not challenged, it is for the most part unnecessary to set those principles out again in these reasons.

260    Third, Mr Leyonhjelm’s appeal grounds in relation to qualified privilege essentially concerned the requirement in s 30(1)(c) of the Defamation Act that the defendant prove that their conduct in publishing the defamatory matters was reasonable in the circumstances. The question whether the defendant’s conduct was reasonable is ultimately a question of fact. While appeal ground 5 appeared to challenge the primary judge’s conclusion that Mr Leyonhjelm’s conduct was not reasonable, Mr Leyonhjelm’s appeal grounds and submissions did not challenge any of the underlying factual findings that the primary judge made in arriving at that ultimate conclusion. The general assertion in ground 5 would thus appear to be that the primary judge was wrong to have concluded, on the basis of the facts as found, that Mr Leyonhjelm’s conduct was not reasonable.

261    Fourth, Mr Leyonhjelm undoubtedly bore the onus of proving that his conduct was reasonable. Mr Leyonhjelm’s appeal grounds and submissions largely proceeded on the basis that the primary judge’s reasons for concluding that Mr Leyonhjelm had not discharged that onus rested almost entirely on the finding that he had not taken reasonable steps to verify with others that Senator Hanson-Young had in fact made the claim that he believed she had. That was, however, far from the only basis upon which the primary judge found that Mr Leyonhjelm’s conduct had not been reasonable.

262    Mr Leyonhjelm advanced a number of contentions or submissions which he claimed demonstrated that he had acted reasonably: see Judgment at [193]. Those contentions or submissions, which were summarised earlier in these reasons, sought to address the non-exhaustive list of potentially relevant considerations in s 30(3) of the Defamation Act. The primary judge rejected all of those contentions or submissions: Judgment at [210]. Mr Leyonhjelm’s appeal grounds and submissions do not directly take issue with the primary judge’s rejection of the contentions and submissions which he had advanced with a view to establishing that he had acted reasonably. While Mr Leyonhjelm appeared to contend that the primary judge should have concluded, on the facts as found, that he acted reasonably, the factual and legal basis of that contention is largely unclear.

263    Fifth, Mr Leyonhjelm’s written and oral submissions concerning the appeal grounds relating to qualified privilege tended to address the grounds in a global, and somewhat amorphous, way. It is, however, preferable to address the appeal grounds separately, at least in the first instance. The grounds which identify a specific error said to have been made by the primary judge – grounds 6, 7 and 8 – will be addressed before the more general ground 5, which essentially asserts that the primary judge should have found that he acted reasonably.

Ground 6

264    Appeal ground 6 is that the primary judge was “wrong to have found that [Mr Leyonhjelm] acted unreasonably by failing to verify with [Senator Hanson-Young] or other Senators whether she had interjected using words to the effect of those attributed to her”.

265    There are at least two fundamental problems with this appeal ground.

266    The first problem is that it misstates or misrepresents the actual finding by the primary judge, which was that Mr Leyonhjelm’s “failure to take reasonably obvious and readily available verification steps points strongly against the reasonableness of his conduct”: Judgment at [201]. The primary judge’s finding that Mr Leyonhjelm did not take obvious and reasonable steps to check whether his belief as to the effect of what Senator Hanson-Young had said in the interjection was but one of the reasons for concluding that Mr Leyonhjelm had not demonstrated that he had acted reasonably. It was not the only reason, as the terms of appeal ground 6 tended to suggest.

267    The second and perhaps more fundamental problem is that, when consideration is given to the underlying factual findings made by the primary judge, none of which were challenged, his Honour’s conclusion that Mr Leyonhjelm’s failure to take any steps to verify the accuracy of his belief about the effect of Senator Hanson-Young’s interjection pointed strongly against the reasonableness of his conduct could not be said to be erroneous in any respect. Indeed, the conclusion was inescapable.

268    A critical contextual consideration in assessing Mr Leyonhjelm’s conduct, including his failure to make any real attempt to verify his belief as to the effect of Senator Hanson-Young’s interjection, is that he obviously did not clearly hear what Senator Hanson-Young said. The conditions and atmosphere in the Senate Chamber on the afternoon in question were undoubtedly not conducive to Mr Leyonhjelm, or any of the other Senators, being able to clearly hear what Senator Hanson-Young had said: Judgment at [114]-[117]. The primary judge rejected Mr Leyonhjelm’s evidence to the contrary: Judgment at [118]. That no doubt provides some explanation for why the Senators who gave evidence at the trial gave different accounts of what they heard Senator Hanson-Young say.

269    Mr Leyonhjelm was unable at any point to give a consistent or cogent account of what he heard Senator Hanson-Young say: Judgment at [197]. In the days immediately following the episode in the Senate, Mr Leyonhjelm gave various inconsistent versions or accounts of what he believed he heard Senator Hanson-Young say, some of which could not even be said to be consistent with his stated belief as to the effect of what she said: see Judgment at [156]. As for Mr Leyonhjelm’s evidence at trial concerning his recollection of what Senator Hanson-Young had said, on just about any view that evidence was woeful: see Judgment at [122]-[131]. Not surprisingly, the primary judge rejected it as a reconstruction and an unreliable one at that: Judgment at [130] and [155].

270    The significant point that flows from this evidence and the primary judge’s findings based on it is that, irrespective of the honesty and genuineness of what Mr Leyonhjelm apparently believed about the effect of what Senator Hanson-Young had said in the interjection, he plainly had no sound or reasonable basis for that belief. Moreover, in all the circumstances, it was open to infer that Mr Leyonhjelm either knew, or ought reasonably to have known, that his belief in that regard was built on the flimsiest of foundations. Indeed, that inference was essentially inescapable. In those circumstances, it was plainly unreasonable for him to launch a blistering personal attack on Senator Hanson-Young based on his belief without making any real or genuine attempt to check that it was accurate or at least soundly based.

271    Yet he did next to nothing before launching that attack. He made no attempt whatsoever to ascertain from Senator Hanson-Young that his belief was accurate or soundly based, even when Senator Hanson-Young approached him shortly after the exchange to ascertain whether she had heard his words correctly. As the primary judge found, Mr Leyonhjelm’s explanation that he did not ask Senator Hanson-Young if he had heard her correctly at that point because he believed that she was ill-disposed towards him is hardly a reasonable explanation: Judgment at [197].

272    The primary judge was understandably sceptical about the reliability of Mr Leyonhjelm’s inexplicably belated evidence that he spoke with Senators Bernardi and Georgiou later on 28 June 2018 to check the reliability of his belief, but that neither of them had heard what Senator Hanson-Young had said: Judgment at [198]. Be that as it may, it was open to the primary judge to find, as his Honour did, that Mr Leyonhjelm’s evidence concerning those enquiries, if accepted, simply demonstrated the unreasonableness of his failure to make the same enquiries of Senators who were better placed to have heard what Senator Hanson-Young had said: Judgment at [199]. The primary judge was also unpersuaded that Mr Leyonhjelm’s explanation for not having made those “relatively simple” enquiries was a reasonable explanation: Judgment at [200]. Of course, those other Senators may not have been able to assist Mr Leyonhjelm. That itself, however, may have given Mr Leyonhjelm pause for thought. In any event, the main point is that he made no real attempt to confirm or verify that his belief about the effect of Senator Hanson-Young’s interjection, which was the very foundation for his attack on Senator Hanson-Young, was soundly or reasonably based.

273    Mr Leyonhjelm advanced no persuasive or compelling argument in support of the contention that the primary judge was wrong to find that his failure to take any “reasonably obvious and readily available” steps to check or verify that his belief about the effect of Senator Hanson-Young’s interjection pointed against the reasonableness of his conduct. His submission that the “ruling” puts a politician such as himself in an “invidious position, since it in effect imposes a rule that a politician cannot comment adversely on what a political opponent has said, without first making inquiries” is, with respect, nonsense. The primary judge’s findings were based on the evidence and particular facts of this case. His Honour did not impose any general “rule” about the circumstances in which a politician can reasonably make a comment about a political opponent without making any inquiry.

274    The submission that the imposition of such a rule would have a “chilling effect” on the implied freedom of political debate is equally baseless for essentially the same reason. So too is the claim that the primary judge effectively imposed a “requirement of reasonable care to verify the content of [Senator Hanson-Young’s] statement before making any public comment”. The primary judge imposed no such requirement. His Honour simply found that, in the particular and peculiar circumstances of this case, Mr Leyonhjelm’s failure to check whether his belief about the effect of what Senator Hanson-Young had said in Parliament told against the reasonableness of his conduct in publishing the defamatory matter. For the reasons already given, that finding was well and truly open on the evidence and has not been shown to be erroneous in any way.

275    It follows that appeal ground 6 has no merit. The primary judge did not err as alleged in this ground.

Ground 7

276    Appeal ground 7 is that the primary judge was “wrong to have relied on authorities regarding the conduct of newspapers or broadcasters reliant on sources, but ought to have given primacy to the situation in which [Mr Leyonhjelm] was a politician, discussing the conduct of another politician, in an incident which he was himself a participant, and having heard the interjection himself”.

277    The fundamental problem with this appeal ground, and the submissions made in support of it, is that it is clear that the primary judge was conscious that Mr Leyonhjelm’s position was different to the position of a media company: see Judgment at [206]. And while his Honour referred (at Judgment [190]) to some authorities that involved media companies which had failed to check the accuracy of the content of their publications, his Honour did not simply apply those authorities, or the principles referred to in them, to the particular facts and circumstances of Mr Leyonhjelm’s publications. Rather, as the discussion in the context of appeal ground 6 indicates, his Honour’s finding concerning the steps taken by Mr Leyonhjelm to verify the information in the matter published, or the lack thereof, were based entirely on the particular facts and circumstances of this case. Those facts and circumstances included that Mr Leyonhjelm was a politician, that his defamatory statements concerned another politician and that he was a “participant”, in the sense that he claimed to have heard what Senator Hanson-Young had said and was not relying on what he was told by others.

278    The primary judge’s reasons, read fairly, simply do not support the contention that his Honour somehow approached the consideration of reasonableness on the basis that Mr Leyonhjelm was in an analogous position to the publisher of a newspaper or a broadcaster. Indeed, quite to the contrary.

279    It may perhaps be accepted that some of his Honour’s reasoning in this area was not particularly cogent or persuasive. In particular, it is difficult to see how the fact that Mr Leyonhjelm was “seeking to obtain for himself an advantage”, being a “non-commercial” advantage relating to his political goals, meant that the distinction between his position and the position of a “media entity engaged in publication for the purposes of commercial profit” somehow “loses its significance”: Judgment at [206]. It is similarly somewhat difficult to see the relevance, in this context, of the fact that Mr Leyonhjelm could not be regarded as being a “detached participant, seeking simply to inform the public in a disinterested manner”: Judgment at [208]. On one view, this may have been a point of distinction between Mr Leyonhjelm’s position and the position of a media company as the publisher of the defamatory matter.

280    In any event, even if those findings could not be said to be particularly cogent or compelling, they were not demonstrative of any relevant error on the part of the primary judge, let alone the error which is the subject of appeal ground 7. Contrary to Mr Leyonhjelm’s contention, the primary judge did not find that he was “required” to be “‘detached’ and ‘disinterested’” in order to rely on the defence of qualified privilege. That was plainly not what the primary judge said in his reasons. The primary judge’s observation about Mr Leyonhjelm not being detached or disinterested was a relatively minor and immaterial element of his overall reasoning concerning Mr Leyonhjelm’s position. Ultimately, the primary judge accepted that Mr Leyonhjelm was in a different position to a media entity and his Honour approached the issue of reasonableness on that basis. His Honour was also plainly cognizant of, and gave detailed consideration to, the political context in which the defamatory matters were published.

281    It follows that appeal ground 7 is not made out. The primary judge did not err as alleged in this ground.

Ground 8

282    Appeal ground 8 is that “[h]aving regard to the freedom of communication concerning governmental and political matters implied by the Commonwealth Constitution, the common law conceptions of qualified privilege and considerations of freedom of speech, qualified privilege should protect public statements made by a politician regarding the conduct and character of another politician, which are not actuated by malice, without a further requirement of reasonable care in publishing the statement”.

283    The appellant did not substantially develop this ground in his submissions. Fleeting reference was made to the decision of the Court of Appeal of New Zealand in Lange v Atkinson, however it was acknowledged that the primary judge was not taken to that case. Ultimately, all that was said about it was that it was “no more than a point of argument about the proper scope of the privilege in this very specific political context”.

284    There are at least two other fundamental problems with this ground.

285    The first problem is that, as already noted, Mr Leyonhjelm conceded at trial that if he did not succeed on the statutory qualified privilege defence, there was effectively nothing he could put in relation to the common law or Lange varieties of the defence. He therefore conceded that he was required to prove that his conduct in publishing the defamatory matter was reasonable. The case was argued on that basis. It is, therefore, not surprising at all that it was not argued, on the basis of the decision in Lange v Atkinson or otherwise, that a politician who relied on the defence of qualified privilege was not required to prove that his or her conduct was not reasonable. Mr Leyonhjelm’s apparent contention that this was not a new argument has no basis and no merit.

286    It follows that Mr Leyonhjelm was required to seek the Court’s leave to raise this ground of appeal: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at 247; [2016] FCAFC 52 at [88]. He did not do so. Even if he had, it would have been appropriate to refuse that application.

287    In the absence of reason to do so, a court will not allow an appellant to depart from the basis upon which a case has been conducted at first instance: Sun at [89] and the cases there cited. There are, however, “circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial”: Park v Brothers (2005) 222 ALR 421 at 430-431; [2005] HCA 73 at [34]. No such circumstances exist in this case. Mr Leyonhjelm advanced no rational explanation for why the argument in ground 8 of his notice of appeal was not advanced at trial. Perhaps more significantly, the concession made in the closing submissions made on Mr Leyonhjelm’s behalf amounted to an abandonment of any argument that Mr Leyonhjelm did not have to demonstrate that his conduct was reasonable because he was a politician. Mr Leyonhjelm put forward no reason for why he should not be bound by the conduct of his case at trial.

288    The second problem is that the argument that Mr Leyonhjelm sought to advance has no merit in any event. This Court is bound by what was said in Lange. If there is to be any development of, or change to, the law in this area, that development or change has to occur in the High Court, or be the subject of legislation. As to the former, whether this would be an appropriate vehicle to develop the so-called Lange defence is questionable, but that will ultimately be a matter for others to determine.

Ground 5

289    Ground 5 is that the “primary judge erred in finding that [Mr Leyonhjelm’s] statements were not protected by qualified privilege, whether at common law, by statutory qualified privilege or by operation of the extended form of qualified privilege recognised in Lange”.

290    As has already been noted, Mr Leyonhjelm abandoned any reliance on common law qualified privilege or the Lange defence. It follows that this ground should be considered as being limited to the contention that the primary judge erred in finding that Mr Leyonhjelm had not made out his statutory defence of qualified privilege.

291    Mr Leyonhjelm did not advance any separate or distinct submissions in relation to this ground. Rather, it was addressed together with the submissions relating to grounds 6, 7 and 8. The challenge to the primary judge’s finding was essentially limited to his Honour’s conclusion that Mr Leyonhjelm’s conduct in publishing the defamatory matter had not been shown to be reasonable. As has already been noted, the focus of the challenge to that conclusion was on the primary judge’s findings and reasoning concerning the fact that Mr Leyonhjelm failed to take “reasonably obvious and readily available” steps to verify whether his belief as to the effect of what Senator Hanson-Young had said was accurate.

292    For the reasons already given, it was open to the primary judge to find that Mr Leyonhjelm’s failure to take any real steps to verify that his belief as to the effect of Senator Hanson-Young’s interjection pointed strongly against the reasonableness of his conduct. That finding alone would have justified the conclusion that Mr Leyonhjelm’s conduct was not reasonable.

293    That finding was not, however, the only basis upon which the primary judge reached that conclusion. His Honour also effectively rejected all of the contentions and submissions that had been advanced in support of the proposition that Mr Leyonhjelm’s conduct was reasonable. In that context, the primary judge found, amongst other things, that Mr Leyonhjelm’s defamatory statements had little, if anything, to do with the issue of public interest that had been the subject of the Senate motion during which the exchange between him and Senator Hanson-Young occurred: Judgment at [205]. His Honour also rejected the submission that the defamatory imputations were “relatively mild” and that the impugned publications were “mild expressions” of those imputations: Judgment at [209].

294    Mr Leyonhjelm did not challenge the primary judge’s rejection of any of the contentions or submissions that he had advanced in support of the contention that he had acted reasonably. He did not, in this Court, advance any, or any compelling or persuasive, reasons as to why the primary judge should have concluded, on the facts as found, that his conduct was reasonable. That alone would be a sufficient basis upon which to reject appeal ground 5.

295    There is, however, an even more fundamental problem for Mr Leyonhjelm. That problem is that the unchallenged and ineluctable facts amply reveal the demonstrable unreasonableness of his conduct in publishing the defamatory matter in all the circumstances.

296    It may be accepted, as it was at trial, that Mr Leyonhjelm published the defamatory matter on an occasion of qualified privilege. He published the defamatory matter in the course of giving the public information which the public had an interest or apparent interest in receiving. That was effectively conceded by Senator Hanson-Young at trial. While it is not entirely clear from the reasons of the primary judge, it would appear from the pleadings that the subject matter of the information that the public was said to have had an interest in receiving was whether Senator Hanson-Young had made an absurd claim that “all men are rapists” during a Senate debate and whether that showed that she was a hypocrite and a misandrist. That information was no doubt said to be of interest to the public in the context of Mr Leyonhjelm explaining, or seeking to explain, why he had said to Senator Hanson-Young, during the same debate: “you should stop shagging men, Sarah”.

297    Did Mr Leyonhjelm act unreasonably in making the statements he did and thereby misuse or abuse this occasion of qualified privilege? Did the defamatory publications exceed what was reasonably required in the circumstances: cf Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [114] (affirmed on appeal) referring to Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 388C; Bailey v WIN Television NSW Pty Ltd [2020] NSWCA 352 at [140]; see Judgment at [188]? The answer to those questions is obvious when consideration is given to the nature of the defamatory matters and the circumstances in which they were published.

298    Simply put, Mr Leyonhjelm launched a full-scale personal attack on Senator Hanson-Young’s character and integrity on the most flimsy of pretences: that she was supposed to have said something the effect of which was self-evidently absurd, but in circumstances where he plainly was not, and could not have been, certain or even confident about exactly what she had said. That attack was manifestly crass, offensive and obviously sexist. It employed boys’-own locker-room gossip and innuendo – of the most dubious provenance – to shame, ridicule and embarrass Senator Hanson-Young before the public at large. That attack went well beyond what was reasonably required to defend or justify the statement that he had made in Parliament. It was one thing for Mr Leyonhjelm to claim that his interjection during the debate was intended to expose what he considered to be the absurdity and hypocrisy of Senator Hanson-Young’s interjection; it was another thing altogether to exploit the occasion by making what amounted to little more than a crude and demeaning attack on Senator Hanson-Young’s private life.

299    Perhaps more significantly, as the primary judge found, the offensive personal attack was also made in circumstances where any reasonable person, including a politician, would, before launching such a belittling personal attack, take at least some steps to check, with Senator Hanson-Young or anyone else, that Senator Hanson-Young had in fact made the absurd claim that he supposedly believed she had made in Parliament. To use the language of the legislation, Mr Leyonhjelm made no attempt to get Senator Hanson-Young’s “side of the story”, let alone provide her response, and effectively took no steps to verify the critical fact that supposedly provided the basis for his attack: s 30(3)(h) and (i) of the Defamation Act. It is difficult to avoid the conclusion that he did nothing in that regard because he was determined, in any event, to use the occasion to vent his ill-will and personally belittle and embarrass someone towards whom he was obviously hostile.

300    The fact that Mr Leyonhjelm was a politician and that the target of his personal attack was his political opponent does not somehow convert or transform what was manifestly unreasonable conduct into reasonable conduct. It is true that “[p]olitical communication in Australia is often robust, exaggerated, angry, mixing fact and comment and commonly appealing to prejudice, fear and self-interest” and that “[c]ommunications in this field … place emphasis upon brevity, hyperbole, entertainment, image and vivid expression”: Roberts v Bass (2002) 212 CLR 1 at 62-63; [2002] HCA 57 at [171] per Kirby J, citing Lange at 565. Those observations, however, were made in the context of the question whether the publication of the defamatory statements was actuated by malice, not with the question whether the conduct of the publisher had been reasonable.

301    In any event, even in the context of political discourse, if that is how Mr Leyonhjelm’s self-justifying blatherings in the media could accurately be characterised, there must be a line beyond which needlessly and gratuitously offensive and boorish statements about the personal life of one’s political opponents can be considered to be unreasonable. That line was clearly crossed in this case.

302    Nor does the fact that Mr Leyonhjelm was a politician excuse him from his failure to take any steps to check or verify the accuracy or otherwise of his belief as to the effect of Senator Hanson-Young’s interjection. There may, of course, be some circumstances where it would not be reasonable to expect a politician to check or verify exactly what his or her opponent had said before criticising them outside Parliament. This, however, was plainly not such a case.

303    The validity or justification for Mr Leyonhjelm’s trenchant attack on Senator Hanson-Young disappeared entirely if she did not in fact say something to the effect that “all men are rapists”. The evidence clearly established that Mr Leyonhjelm did not clearly hear what Senator Hanson-Young said. His evidence concerning what he recalled hearing her say was nothing short of pathetic. He gave inconsistent and unreliable accounts of what he had heard in the days that followed the interjection and his evidence in Court was, as the primary judge found, obviously a reconstruction. In all the circumstances, Mr Leyonhjelm must have recognised that there was at least a significant risk that his belief as to the effect of Senator Hanson-Young’s interjection was, or may have been, flawed and unreliable. At the very least, he must have known that there was a distinct possibility, if not likelihood, that he had misheard or misunderstood exactly what Senator Hanson-Young had said. Yet he launched his broadside before taking any real steps to check or confirm that it had any basis whatsoever. That was manifestly unreasonable in all the circumstances, irrespective of the fact that he was a politician who was attacking a political opponent.

304    It was well and truly open to the primary judge to find that Mr Leyonhjelm had not proved that his conduct in publishing the defamatory matters was reasonable. Indeed, that conclusion was well-nigh inescapable given the evidence. His Honour has not been shown to have erred in arriving at that conclusion and rejecting Mr Leyonhjelm’s defence of qualified privilege.

305    Appeal ground 5 has no merit and must be rejected. The same can be said of all of the other grounds of appeal concerning the primary judge’s finding that Mr Leyonhjelm did not make out his defence of qualified privilege.

the MALICE GROUND – ground 4

306    The primary judge noted that it was strictly unnecessary for him to consider the issue of malice: Judgment at [213]. That is because he had found, in any event, that the defence of qualified privilege had not been made out.

307    The same can be said in relation to this appeal ground. As Mr Leyonhjelm’s challenge to the primary judge’s finding that his conduct was not reasonable has been unsuccessful, the finding that the defence of qualified privilege had not been made out must stand and the appeal must be dismissed. The appeal ground concerning malice is accordingly essentially otiose. It should, however, nevertheless be briefly addressed.

308    Appeal ground 4 is that the “primary judge erred in finding that [Mr Leyonhjelm] was actuated by malice, and in particular, failed to apply the test for malice in the context of political debate stated by the High Court in Lange, relevantly that the motive of causing political damage to [Senator Hanson-Young] or her political party could not be regarded as improper”.

309    Mr Leyonhjelm’s submissions in support of this ground focussed on one finding by the primary judge, being the finding that Mr Leyonhjelm published the defamatory matters “with a view to shaming [Senator Hanson-Young] publicly” and that he “set out … to expose [Senator Hanson-Young] as a hypocrite and to do so in a way which would embarrass her”: Judgment at [228]. In Mr Leyonhjelm’s submission, that finding ignored the principle that “the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper”: Lange at 574. He also submitted that the primary judge’s observation that, if Mr Leyonhjelm had wanted to point out the inconsistency between what he believed was the effect of Senator Hanson-Young’s interjection and the fact that she engaged in sexual relationships with men, he “could have done so in a way which was much less crude”, was inconsistent with the principle that the “vigour of an attack or the pungency of a defamatory statement” cannot “without more, discharge the plaintiff’s onus of proof” on the issue of malice: Lange at 574.

310    It is necessary, to address this appeal ground, to give more detailed consideration to the primary judge’s factual findings relevant to malice. It should be reiterated, in this context, that none of those factual findings were challenged. Nor did Mr Leyonhjelm challenge or allege that the primary judge’s statement of the relevant principles in relation to malice in this context were incorrect. The essence of his appeal ground and submissions concerning malice was that the primary judge failed to apply, or misapplied, the relevant principles to the facts as found.

311    The important factual findings which bore on the issue of malice were as follows.

312    First, the primary judge was not satisfied that Mr Leyonhjelm knew that it was false to assert that Senator Hanson-Young had made a statement to the effect that “all men are rapists”: Judgment at [227]. His Honour found that Mr Leyonhjelm mistakenly made that statement, essentially because he “assumed that he had heard that which he was predisposed to hear”: Judgment at [227]. This finding was positive to Mr Leyonhjelm, in the sense that had it been found otherwise, that would almost certainly have established that he was actuated by an improper motive and therefore acted with malice: Roberts v Bass at [76].

313    Second, the primary judge found that Mr Leyonhjelm published the defamatory statements “with a view to shaming [Senator Hanson-Young] publicly” and in a way that was “calculated to embarrass” and “calculated to belittle or shame”: Judgment at [228]-[230].

314    Third, the primary judge found that the “personal nature” of Mr Leyonhjelm’s “comments” and the “persistence with which [he] advanced them indicates his malice”: Judgment at [232]. His Honour also observed, in this context, that Mr Leyonhjelm’s statements “went well beyond what was necessary for an appropriate response to [Senator Hanson-Young’s] statement in the Senate” and that the fact that Mr Leyonhjelm “did not behave reasonably in making the publications” supported the finding of malice: Judgment at [232].

315    It must be said, with the greatest respect, that some of the primary judge’s reasoning in relation to malice is not entirely pellucid. His Honour’s reasons must, however be read in context. The relevant context includes that Senator Hanson-Young alleged, in her pleading, that Mr Leyonhjelm’s publication of the defamatory matter was actuated by his motive to harm her. The particulars of that allegation included that Mr Leyonhjelm published the “allegations” to a “mass audience”, which he knew included her child and family, “in order to hold her up to public shame and disgrace”. His Honour also noted, when considering the relevant principles concerning malice, that a publication can be said to have been made for an improper purpose if it was made “in order to injure the applicant or some other person, or to vent spite or ill-will towards the applicant”: Judgment at [218]. His Honour cited the decision in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51 in support of that proposition.

316    Read fairly and in context, it would appear that the primary judge found that, in publishing the defamatory statements, Mr Leyonhjelm was actuated by the improper motive or purpose of personally harming Senator Hanson-Young, or venting his spite or ill-will, by publicly shaming, belittling and embarrassing her about personal matters. That motive was improper because it in truth had nothing to do with the communication of government or political information or ideas and nothing to do with the “ideas or opinions” which had been the subject of the relevant Senate debate.

317    The question, then, is whether that finding somehow fell foul of the statements in Lange referred to earlier: that the “motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper” (emphasis added); and that “the vigour of an attack or the pungency of a defamatory statement, without more, [cannot] discharge the plaintiff’s onus of proof” in relation to malice (emphasis added).

318    The short answer to that question is “no”. That is so for essentially two reasons.

319    First, Senator Hanson-Young did not allege, and the primary judge did not find, that Mr Leyonhjelm’s actuating motive was to cause political damage to her. Rather, as has just been noted, the primary judge found, in effect, that Mr Leyonhjelm’s actuating motive or purpose was to vent his spite and ill-will and to personally harm Senator Hanson-Young by publicly shaming, belittling and embarrassing her about personal, not political, matters. That was revealed by the very nature of the statements and the persistence with which Mr Leyonhjelm advanced them. Mr Leyonhjelm made the defamatory statements not for the purpose of communicating government or political information or ideas, but for that improper purpose.

320    Second, while Mr Leyonhjelm’s attack was undoubtedly vigorous and pungent, that was not the only basis upon which the primary judge found that he was actuated by malice. Rather, the crass, offensive and personal nature of the statements supported the inference or conclusion that Mr Leyonhjelm was actuated by an improper purpose or motive, being to vent his spite and ill-will and to personally harm Senator Hanson-Young by publicly shaming, belittling and embarrassing her about personal, not political, matters.

321    It should perhaps be noted in this context that, at first blush at least, there appears to be some tension or inconsistency between the primary judge’s finding that Mr Leyonhjelm’s publication of the defamatory statements was actuated by his motive to personally harm her and some of his Honour’s reasoning in relation to the issue of whether Mr Leyonhjelm’s conduct was reasonable. As discussed earlier, in considering whether Mr Leyonhjelm’s conduct was reasonable, his Honour observed that it would not be realistic to regard Mr Leyonhjelm as being a “detached participant, seeking simply to inform the public in a disinterested manner”: Judgment at [208]. His Honour noted, in that context, that certain views that Mr Leyonhjelm had expressed in a newspaper article indicated that he “had a personal interest with respect to [Senator Hanson-Young] which he was pursuing, namely, his desire to achieve his party’s political goals”: Judgment at [208].

322    That latter observation might tend to suggest that the primary judge considered that Mr Leyonhjelm was motived by a desire to cause political damage to Senator Hanson-Young or her party. It is important to emphasise, however, that the observation formed part of the primary judge’s reasoning concerning the reasonableness of Mr Leyonhjelm’s conduct. The point his Honour appeared to be making in that context was that Mr Leyonhjelm had a “personal interest” in Senator Hanson-Young and was therefore not detached or disinterested, like a media entity. The relevance of that point may perhaps be debatable. Be that as it may, the observation that Mr Leyonhjelm had a “desire to achieve his party’s political goals” did not amount to a finding that Mr Leyonhjelm’s publication of the defamatory matter was actuated by a motive to cause political damage to Senator Hanson-Young. It does not detract from the primary judge’s finding, made specifically in the context of considering the issue of malice, that Mr Leyonhjelm’s defamatory publications were actuated by a motive to vent his spite and ill-will and personally harm Senator Hanson-Young by publicly shaming, belittling and embarrassing her about personal, not political, matters.

323    The primary judge’s finding concerning Mr Leyonhjelm’s actuating motive or purpose was open on the evidence and was not directly challenged by Mr Leyonhjelm in his appeal grounds and submissions. The actuating motive or purpose that the primary judge found Mr Leyonhjelm had when publishing the defamatory matters was improper in the relevant sense and supported the conclusion that Mr Leyonhjelm was actuated by malice for the purposes of s 30(4) of the Defamation Act. Mr Leyonhjelm’s contention that the primary judge’s reasoning and findings concerning malice failed to apply, or misapplied, the relevant principles concerning malice as articulated in Lange, Roberts v Bass or any other binding authority, has not been made out.

CONCLUSION AND DISPOSITION

324    None of Mr Leyonhjelm’s grounds of appeal have been found to have any merit.

325    The primary judge did not err in finding, in effect, that s 16(3) of the Privileges Act did not preclude the Court from receiving any evidence or submissions concerning what was said by Senator Hanson-Young during the relevant Senate debate. Nor did his Honour err in refusing to stay the proceeding on that basis.

326    The primary judge also did not err in finding that Mr Leyonhjelm had not made out his pleaded defence of qualified privilege. The primary judge’s finding that Mr Leyonhjelm had not proved that his conduct in publishing the defamatory matter was reasonable was open on the evidence and his Honour’s reasoning disclosed no appellable error. The same can be said concerning the primary judge’s finding and reasoning that Mr Leyonhjelm was actuated by malice, though as his Honour noted, it was unnecessary to go so far as to find that Mr Leyonhjelm was actuated by malice given the finding that he had not shown that he had acted reasonably.

327    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    3 March 2021

REASONS FOR JUDGMENT

ABRAHAM J:

328    On 28 June 2018 a debate occurred in the Senate in the Australian Parliament on a motion that women have access to non-lethal weapons as a means of self-defence.

329    At the time, the appellant and respondent were members of the Senate in the Australian Parliament. The appellant was a member of the Liberal Democrats political party, and until 1 March 2019, an elected Senator for the State of New South Wales. The respondent was then, and is now, a member of The Australian Greens political party elected as a Senator for the State of South Australia.

330    These proceedings related to four statements made or published by the appellant, in which the respondent contended she had been defamed: in a media statement published by the appellant on a blogging platform, Medium.com, on 28 June 2018 (and republished on 29 June 2018 on the appellant’s personal Facebook Page and on the Facebook Page of the Liberal Democrats); in the Sky News Australia program “Outsiders” broadcast on 1 July 2018 (which was republished on 1 July 2018 on the Sky News Australia website, on 10 July 2018 on YouTube and on 11 July 2018 by the appellant himself); in an interview on the “Sunday Morning” program of Radio 3AW broadcast on 1 July 2018; and in the ABC program “7.30 with Leigh Sales” broadcast on 2 July 2018, (which was republished later that same day on the ABC website, the ABC News Facebook Page and the ABC News Twitter page).

331    The respondent alleged that the second, third and fourth publications conveyed the following defamatory meanings: (1) the respondent is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them; (2) the respondent had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists; and (3) the respondent is a misandrist, in that she publicly claimed that all men are rapists. As to the first publication it was alleged that it conveyed the first and second of these meanings.

332    The primary judge concluded that the impugned matters did convey imputations defamatory of the respondent; the appellant’s defences of justification and qualified privilege failed; and that an award of damages of $120,000 was an appropriate award of damages by way of non-economic loss: Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981.

333    The appellant appeals that decision alleging seven grounds, the first ground having been abandoned at the hearing. The issues raised on this appeal fall into two categories: first, those relating to the application of s 16(3) of the Parliamentary Privileges Act 1987 (Cth) (the PP Act), and the consequences thereof (grounds 2 and 3); and second, those relating to the defence of qualified privilege (grounds 4, 5, 6, 7 and 8).

334    For the reasons below the appeal must be dismissed.

Factual background

335    Before addressing the grounds it is necessary to refer to the factual setting. No issue was taken with the primary judge’s recitation at [20]-[37].

336    On 28 June 2018, the last sitting day of the Senate before it adjourned for the winter recess, the Senate commenced sitting at 9.30 am. The Senate moved to consider motions put forward by individual Senators, including from Senator Anning. The motion proposed that the Senate note certain matters and accept that “access to a means of self-protection by women in particular would provide greatly increased security and confidence that they will not become just another assault, rape or murder statistic”. It proposed that the Senate call on the Australian Government: to allow the importation of pepper spray, mace and tasers for individual self-defence, and to encourage state governments to legalise and actively promote the carrying of pepper spray, mace and tasers by women for personal protection. Part of the context in which Senator Anning moved his motion was the rape and murder of Ms Eurydice Dixon in the early hours of 13 June 2018, which had been the subject of considerable public, media and political attention. Three Senators were granted leave to speak, with all speaking against the motion. The Senate divided on the vote with five supporting it and 46 opposed. The appellant was one of the five in the minority.

337    The appellant pleaded that during the debate the respondent by interjection, made a claim “which was tantamount to a claim that all men are responsible for sexual assault or that all men are rapists”. The respondent denied she did so, although she accepted she made an interjection. There is no record in Hansard of the interjection. Shortly after the disputed interjection the appellant interjected saying “you should stop shagging men, Sarah”. At the conclusion of the vote on the motion, the respondent approached the appellant and asked him to confirm what he had said. He did so, then the respondent called the appellant “a creep” and the appellant told her to “fuck off”.

338    The respondent reported the appellant’s statements to the Leader of the Australian Greens, who in turn reported the matter to the President of the Senate. The President spoke to the appellant but he declined to withdraw his statement concerning the respondent “shagging men”. Later that day, the respondent was granted leave to make a short statement to the Senate in which she referred to the appellant’s comment to her and the events which followed and expressed disappointment that the appellant had refused to apologise to her and called on him to do so.

339    The appellant’s four publications referred to above occurred thereafter.

340    The publications are recited by the primary judge at [30]-[36]:

The respondent’s media statement of 28 June 2018

[30] Later on 28 June 2018, the respondent posted a media statement onto the blogging website “Medium.com”. It commenced with the Australian Coat of Arms and underneath had the heading:

SENATOR DAVID LEYONHJELM

Leader of the Liberal Democrats

[31] The balance of the media statement was as follows (with the line referencing added for ease of later reference):

[32] On or about 29 June 2018, the respondent republished the media statement on his personal Facebook Page by posting a link to the statement on the Medium.com website.

[33] On the same day, the respondent republished, or caused to be republished, the same media statement on the Facebook Page of the Liberal Democrats by similarly posting a link to the statement on the Medium.com website.

The Sky News Australia program “Outsiders”

[34] On the morning of Sunday 1 July 2018, the respondent participated in an interview on a program on Sky News entitled “Outsiders”. The hosts of the program were a Mr Dean and a Mr Cameron. The transcript of the relevant portion of the Outsiders program is as follows (with the line numbering added for ease of later reference):

The 3AW “Sunday Morning” program of 1 July 2018

[35] A transcript of the interview between the respondent and Mr Nick McCallum (NM) and Ms Rita Panahi (RP) on the Sunday Morning program on Radio 3AW is as follows (again with the lines added for ease of later reference):

The ABC “7.30 with Leigh Sales” program – 2 July 2018

[36] A transcript of the respondent’s interview with Ms Virginia Trioli on the ABC 7.30 program on Monday 2 July 2018 is (relevantly) as follows: