FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. There be liberty to the parties to appear at that hearing by videolink.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 In 2018, both the applicant and the respondent were members of the Senate in the Australian Parliament. The applicant was then, and is now, a member of The Australian Greens political party elected as a Senator for the State of South Australia. The respondent was a member of the Liberal Democrats political party, and until 1 March 2019, an elected Senator for the State of New South Wales.
2 The applicant alleges that she was defamed by statements made or published by the respondent on four occasions:
(a) in a media statement published by the respondent on a blogging platform, Medium.com, on 28 June 2018 and republished on 29 June 2018 on the respondent’s personal Facebook Page and on the Facebook Page of the Liberal Democrats;
(b) 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 respondent himself;
(c) in the “Sunday Morning” program of Radio 3AW broadcast on 1 July 2018; and
(d) 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.
3 The applicant alleges that each of the second, third and fourth publications of the respondent conveyed the following defamatory meanings:
(i) the applicant is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;
(ii) the applicant had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists; and
(iii) the applicant is a misandrist, in that she publicly claimed that all men are rapists.
4 In relation to the first publication published on 28 and 29 June 2018, the applicant alleges that it conveyed the first and second of these meanings only.
5 The applicant claims damages, including aggravated damages, in respect of the defamatory publications alleged as well as injunctive relief.
6 The defence of the respondent to the applicant’s claim underwent some development and refinement as the proceedings progressed.
7 The filed defence of the respondent did not admit that he had “published” any of the four publications of which the applicant complains. Instead, the respondent admitted that he had “disseminated” the media statement on or about 28 June 2018 by “posting it” on the Medium.com website and that he “spoke and thereby disseminated” the words identified as spoken by him in each of the second, third and fourth publications of which the applicant complains. However, in the trial, the respondent did not dispute that he had published each of the impugned matters. In any event, that was established by the evidence. The respondent admitted, for example, that his interviews on the Sky News and Radio 3AW programs were “live” and that he had known at the time of each that the interview would be broadcast live on the Sky News Channel and on Radio 3AW respectively. He can be taken in these circumstances to have known of the further publication of his words as that was the natural and probable consequence of his conduct.
8 In his filed defence, the respondent denied that any of his publications had conveyed the meanings alleged by the applicant. However, in the opening submissions at the trial, senior counsel for the respondent accepted that the imputations conveyed were as “averred” by the applicant. He said, however, that his statements had not defamed the applicant.
9 The filed defence of the respondent raised the following substantive defences:
(a) justification under s 25 of the Defamation Act 2005 (NSW) (the Defamation Act) and its State and Territory counterparts;
(b) qualified privilege under both s 30 of the Defamation Act and its State and Territory counterparts and under the common law;
(c) extended qualified privilege (the so-called Lange defence) to which the respondent referred as “constitutionally protected free speech”;
(d) honest opinion under s 31 of the Defamation Act and its State and Territory counterparts; and
(e) fair comment on a matter of public interest;
10 However, in his opening submissions at trial, the respondent withdrew the defences of honest opinion and fair comment on a matter of public interest. Moreover, in closing submissions, senior counsel conceded that, if the respondent’s defence of statutory qualified privilege did not succeed, he could not advance any basis on which the defences of common law qualified privilege and the Lange defence could succeed. Senior counsel then accepted that it was not necessary for the Court to deal with those two defences if the defence of statutory qualified privilege failed.
11 The respondent contended that, if defamatory meaning was established and his substantive defences failed, the applicant should be awarded only “nominal or derisory damages”. His filed defence contained pleadings said to support this conclusion.
12 In addition to his substantive defences and the position just mentioned concerning damages, the respondent pleaded that, by reason of the publications impugned by the applicant being either a repetition of, or responsive to, statements made by the applicant and him in the Senate Chamber, they could not be adjudicated upon in this Court without infringing s 16 of the Parliamentary Privileges Act (1987) (Cth) (the PP Act). That being so, he contended that the Court should, in the exercise of a discretion, stay the proceedings permanently. For reasons which will become apparent, the application of s 16 of the PP Act and the respondent’s application for a permanent stay were argued in the trial itself.
13 Accordingly, the issues in the trial were:
(a) does s 16(3) of the PP Act mean that the Court cannot hear all the evidence and submissions otherwise appropriate in the proceedings and, if not, should the Court grant a stay of the proceedings?
(b) are the admitted imputations defamatory of the applicant?
(c) if so, has the respondent established the defence of justification?
(d) alternatively, has the respondent established the defence of statutory qualified privilege?
(e) if these issues are resolved in favour of the applicant, what are the damages to which she is entitled?
14 Because the provisions in the Defamation Act are the model law provisions which are replicated in the Defamation Acts or provisions concerning defamation in the other States and Territories, I will hereafter refer only to the Defamation Act.
15 I indicate now my satisfaction that the conduct of the proceedings did not involve an infringement of s 16(3) of the PP Act and that a permanent stay of the proceedings on that basis is not appropriate. It is convenient, however, to address the other issues in the trial before expressing my reasons for that conclusion.
16 For the reasons which follow, I am satisfied that:
(a) the imputations admitted by the respondent to have been conveyed by the impugned matters were defamatory of the applicant;
(b) the respondent has not established the substantive defences of justification or statutory qualified privilege; and
(c) the applicant is entitled to an award of damages in the aggregate sum of $120,000.
17 The Court directed that the evidence in chief of each witness, including of the parties, be provided by way of affidavit. The respondent’s affidavit was made on 11 December 2018. The applicant objected to numerous paragraphs within that affidavit and the Court directed senior counsel to confer with a view to seeing whether agreement for the resolution of the objections could be achieved. Following that conferral, the parties informed the Court that they were agreed that the objections with respect to - of the respondent’s affidavit should, with one or two exceptions which are not presently material, be addressed in final submissions. The respondent’s affidavit was then received into evidence on that basis.
18 However, in the final submissions, neither counsel sought a ruling on the objections. Counsel for the applicant submitted only that the Court could take the view that it did not need to decide the objections because, having regard to the content of the impugned paragraphs, it could decide to give them no weight. Counsel for the respondent did not contend that all of the paragraphs to which objection was taken should be received. The position is unsatisfactory. The Court should have been told those paragraphs on which the respondent sought to rely and, in the event that the applicant persisted with an objection to them, a ruling sought.
19 I resolve this unsatisfactory state of affairs in this way. The only paragraphs of the respondent’s affidavit on which counsel for the respondent relied in closing submissions were , -, -, - and -. I uphold the applicant’s objection to - (save for a passage in  which was admitted as evidence only of the respondent’s belief) and overrule the applicant’s objection with respect to the remaining paragraphs to which objection was taken and on which the respondent relied in the closing submissions. I indicate now that I have attached relatively little weight to those paragraphs, preferring instead to rely on the oral and documentary evidence received in the trial. I have not received the remaining paragraphs in the respondent’s affidavit to which the applicant took objection. Even had I admitted them, I would have attached little, if any, weight to them.
20 Thursday, 28 June 2018 was the last sitting day of the Senate before it adjourned for the winter recess. The Senate commenced sitting at 9.30 am.
21 At about midday, the Senate moved to consideration of motions put forward by individual Senators. One such motion was from Senator Anning. It is reported in Hansard under the heading “Prevention of Violence Against Women”. 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”.
22 The motion then proposed that the Senate call on the Australian Government:
(i) to allow the importation of pepper spray, mace and tasers for individual self-defence, and
(ii) to encourage state governments to legalise and actively promote carrying of pepper spray, mace and tasers by women for political protection.
23 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.
24 Three Senators were granted leave to speak for one minute on Senator Anning’s motion. These were Senator McGrath (an Assistant Minister to the Prime Minister), Senator Rice (Australian Greens) and Senator Chisholm (Australian Labor Party), who spoke in that order. All three Senators spoke against the motion. The Senate divided on the vote on the motion, with five supporting it and 46 opposed. The respondent was one of the five in the minority.
25 The respondent pleads that, at or shortly before the conclusion of the speech of Senator Rice, the applicant, by an interjection, made a claim “which was tantamount to a claim that all men are responsible for sexual assault or that or all men are rapists”. The applicant denies that she made a claim to that effect. She accepts that she made an interjection but says that the words she used were “putting tasers on the street isn’t going to make women safer from men”.
26 The question of whether the applicant did make a claim to the effect alleged by the respondent is at the heart of the issues in the case. The Court heard evidence from a number of witnesses concerning the words spoken by the applicant and it is sufficient at this stage to say that there was little unanimity amongst them. It is also pertinent to note that the applicant accepted that, if the respondent proved that she had made the claim that “all men are rapists”, then his defence of justification would be made out and that her claim in defamation must fail.
27 It was common ground that, shortly after the disputed interjection of the applicant, the respondent had interjected by saying “you should stop shagging men, Sarah”. At the conclusion of the vote on Senator Anning’s motion, the applicant approached the respondent and asked him to confirm what he had said. The respondent confirmed that he had made the interjection just referred to. The applicant then called the respondent “a creep” and he told her to “fuck off”.
28 The applicant reported the respondent’s statements to the Leader of the Australian Greens, Senator Di Natale. He in turn reported the matter to the President of the Senate. The President spoke to the respondent but he declined to withdraw his statement concerning the applicant “shagging men”.
29 Later that day, the applicant was granted leave to make a short statement to the Senate. In that statement, she referred to the respondent’s comment to her and the events which followed it. She expressed her disappointment that the respondent had refused to apologise to her and called on him to do so.
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):
In the Senate this afternoon my colleague Senator Fraser Anning moved that the Australian Government lift the ban on the importation of non-lethal methods of self-defence such as pepper sprays, mace and tasers and for state governments to be encouraged to actively promote such devices to women for their personal protection.
The defeat of the motion 46 votes to 5 was disappointing. The recent spate of horrific crimes against women has shocked us all.
Greens Senator Janet Rice spoke against this motion. During her speech fellow Greens Senator Sarah Hanson-Young interjected, saying something along the lines of all men being rapists.
I responded by suggesting that if this was the case she should stop shagging men.
I did not yell at her.
Following the division, Senator Hanson-Young approached me and called me a creep.
I told her to fuck off.
Leader of the Greens Senator Richard Di Natale subsequently approached me and said he planned to report my comments to the president.
The president subsequently advised me to withdraw my comments and apologise.
I informed the president I would not be doing this.
I do not agree with Senator Hanson-Young’s sentiments about all men being rapists and I believe I have the right to voice my opinion accordingly. That Senator Hanson-Young took offence from my comments is an issue for her, not me.
However, I am prepared to rephrase my comments.
I strongly urge Senator Hanson-Young to continue shagging men as she pleases.
Meanwhile, the rest of the Senate will return to the business of voting down all common-sense proposals that might make society a safer place for women to exercise their right of freedom of movement.
Media: Kelly Burke [phone number provided]
(Emphasis in the original)
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.
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):
“And welcome back to Outsiders you’re with Ross Cameron and Rowen Dean. And we’re very excited to have on Outsiders the great Senator David Leyonhjelm who is of course of the Liberal Democrats. Senator David you have caused, you know you’re in the headlines again you are, you’re worse than Ross. You grab these headlines, you outrage everybody, this time you made some comments last week about Sarah Hanson-Young that got her very upset and you suggested that she stop shagging men.”
“Now when I heard this Senator, I immediately thought you were enforcing Malcolm Turnbull’s anti-bonking ban! And this is of course we know nowadays in Canberra the Prime Minister has said there will be no no way in which attractive female staffers are allowed to bonk their Ministers even if they think that they are going to do well out of it. They’re not allowed to do that anymore.”
“… and unattractive as well …”
“Yes un-attractive as well. It’s all banned, bonking is all banned in Canberra that’s the safest thing. So when Senator David Leyonhjelm said in Parliament in the Senate the other day, Sarah Hanson-Young stop shagging men, I thought well of course! What else would you tell her to do? What other advice, but tell us the real story what happened David?”
25 30 35 40
“It was in a Motion to consider self-defence. There was a Motion calling on the Government to make it possible for women to protect themselves, thinking in terms of the Eurydice Dixon case or even the Jill Meagher case, and there was the Green’s Senator Janet Rice was making a one minute statement which suggested that it was all men and that men need to change their behaviour and so forth. Sarah called out, 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. Now Sarah’s, this is not a criticism, but Sarah is known for liking men. The rumours about her in Parliament House are well known, so I just said ‘well stop shagging men then Sarah’. I mean it just doesn’t make any sense if you think they’re all rapists why would you shag them? So she took great offence at that which is her problem not my problem. In retrospect I, you know, um she um, she has a right to shag as many men as she likes I don’t care you know … but she took great offence, she came and called me a creep, I told her to … am I allowed to say the F word on TV?”
“We’d prefer not, Sunday morning, I mean we’ve got a religious audience as Ross was explaining earlier.”
“Well you don’t have to be religious to avoid …”
“Mind you Ross liberally sprinkles the F word around, but look we’ll pass on the F word but we get it, we get the gist of what you are implying.”
“Well I told her to make love in another place …”
“and so she lodged a complaint.”
“OK so the bigger issue here ok, so jokes aside, and personalities and all that aside it’s always very easy for, we had Malcolm Turnbull came out, and obviously we had the Dixon murder is horrific but we had straight after it we had Malcom Turnbull coming out and saying words to the effect of ‘men must change what’s in their hearts’, men, not that man – the accused man/murderer or not some men but MEN. We had Daniel Andrews made a similar statement ‘men must change their behaviour’ and Adam Bandt also said ‘men must change their behaviour’.”
“So there’s this broad collective idea David that somehow all men are guilty of these crimes unless men as a collective, as a group, change what it is about us these crimes will continue and this is the Prime Minister, the Victoria leader and the Green’s idiot all saying the same thing and so Sarah Hanson-Young was picking up on the idea that all, or allegedly, that all men are rapists was the sort of thing she was saying. You objected to that. Talk us though it”.
“That’s right. I mean if I had said, or somebody had said all women are sluts the outrage would have been monumental. It would have been called misogyny and it would have been criticised and called out, and rightly so. You know you shouldn’t really say that sort of thing. The male version of that is misandry. I don’t think it’s any less forgivable. If you say all men are rapists or all men do anything, that’s misandry. It’s equally as objectionable as misogyny and yet we have these leading politicians sort of more or less rolling over and saying yes I am a male therefore I am guilty. You know it is the equivalent of this male privilege, white privilege even straight gender privilege issue that because you are something which you have no control over therefore you have inherited guilt.”
“Well, lets just have a quick look at where the whole misogyny caper began. We will take a quick little look at our former Prime Minister putting misogyny not only onto the national but the global table if you like.”
“So Julia Gillard went on to make an entire career and a multi-million dollar salary package out of this misogyny thing and we are still hearing about it from Hilary Clinton and others. You are saying misandry is the one that you are putting on the table now?”
“Yes it is.”
“Will we get the David L.... ‘We will not be lectured on misandry by this woman Senator Hanson Young’.”
105 110 115
“Well yes I mean I think it’s time for at least us alpha males to stand up and say that this is not legitimate, it is not more legitimate than misogyny. If you want to go apologising for your gender, apologising for your colour, apologising for something you have no control over, then you’re not my kind of a guy and I think the rest of us should stand up for ourselves. And in any case we are talking about collectivism v individualism. I am an individualist, libertarians are individualists, we don’t judge people based on the group they belong to. We are all individuals we don’t see colour we don’t even see gender particularly other than that men are from Mars and women are from Venus argument and we take people as individuals and this idea that because you belong to a certain social grouping or an ethnic grouping or racial grouping that you can be defined by that and that you have inherited guilt as a consequence of that is obnoxious. Those of us who think for ourselves anyway.”
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):
“Fairly heated discussion during the week, wasn’t it?”
“Good morning, oh yes, yes, it got a little bit heated, yes. The, um, offence industry was, er, in full swing. So, er, feelings, feelings run high.”
“But, Senator my argument was, that we’re talking Parliament here, so if, if you come back and I am not a huge fan of Senator Hanson-Young and I know she is an offender in many things but in this particular case when you are actually having a serious discussion and you were discussing you know violence against women and you were trying to give women the opportunity to have pepper spray and lasers, so it’s a serious topic so when you use language like stop shagging men to the Senator that downgrades Parliament but also downgrades a very serious topic. That was my point.”
“You, you do know what I was responding to don’t you?”
“Yes I do and you claim that she said something like, all men are rapists, but her spokesperson actually says that she said, “putting tasers on the streets is not going to protect women from men”. So there is a very big difference in what she says she said and what you claim she said.”
30 35 40
SENATOR DAVID LEYONHJELM:
Yeah, I was there and, er, there was, er, very much a, or well along the lines of what Daniel Andrews and several others have commented said commented (sic)subsequent to the rape and murder of Eurydice Dixon, that it is a, a men’s responsibility, men have to change their behaviour. Um, 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. Now, um er, that’s misandry. Um, it’s the male version, or the equivalent of misogyny, it’s, um, not forgivable under any circumstances in my view, now Sarah is a normal healthy woman and, um er, straight as well, um, and um yet I can’t see, I-I-I, the double standards involved in saying on the one hand, all men are rapists, or inferring all men are rapists”
“But she didn’t say that Senator, you know she didn’t say that”
“You, you weren’t there Nick,”
“I know I wasn’t but”
“I was there”
“But you know, and you’re not even saying that she said ‘all men are rapists’ say, you are saying something like that,”
“So, so because I don’t quote the precise words therefore you believe her, is that what you are saying?”
“Well, no, well you can’t tell us, her spokesperson said. She said ‘putting tasers on the streets isn’t going to protect’”
“Her spokesperson also put out a”
“Women from men”
“You did clarify the statement Senator, you came out and, er, I thought you were going to apologise but”
[SENATOR LEYONHJELM LAUGHS]
“But um it wasn’t really an apology was it?”
“Absolutely not, no, no actually what I said, the only thing I said, was that she could shag as many men as she likes”
“as she pleases”
“if she pleases, yes, so um, I mean, my, my point and I think you are missing that next was that …”
“but you weren’t slut shaming her? I want to get to that because that’s not on, you can’t be, er, suggesting that someone is a loose women or that she, her personal life is somehow, um, being called, called into question, so I just want to get that, er, clarified because a lot of people when they read that statement and weren’t, er you know, aware of the exchange, whatever it was to the lead up, immediately looked at that and thought this is a Senator slut shaming a woman and that’s just not on”
“Well that would be misogyny”
“that would be misogyny,”
85 90 95
“Um, how-, what I was referring to was the double standards on the one hand saying all men are responsible for the violence that occurred to Eurydice Dixon, on the other hand having relationships with men as she does and it is well known for, not that I am critical of that, um so that is the double standards that, er, I was concerned about, I am also concerned about the misandry. I don’t think it is legitimate, er, any more legitimate to be a misandrist than it is to be a misogynist and, er, I was calling that out as well. I, I also take exception to this idea that there is some kind of collective responsibility for men, or women for that matter, um it’s er for bad things that happen”
“and society looks at those crimes and, ah er, is appalled by them, we do not have a culture that either turns a blind eye or tolerates violence against women, so let’s get that straight. but I want to go back, I spoke, I asked you before about slut shaming, and whether, the statement you said could be interpreted that way and that not being on and you agreed slut shaming is misogyny but then you did have a bit of a dig there when you said, you know, Sarah Hanson-Young is known for having lots of relationships with men”
“having relationships with lots of men, again, I mean that to me could be seen as”
“I think you are putting words in my mouth Rita”
“she is known for having relationships with lots of men”
“She is known for lots of relationships with men, she had a quite famous one with a, with a Liberal member of parliament a few years ago, Barry Haase, now there’s, I am not criticising her for that, she is perfectly entitled to do that, but the double standard”
“but when you mention are you, are you, are you kind of”
“The double standards are what I am concerned about. You can’t, you can’t on the one hand say or infer all men are rapists and on the other hand have relationships with men, so my comment was to the stop shagging men then otherwise you are being, er, you are being hypocritical. That was the point of my comment, that it wasn’t slut shaming, and um …”
“Do you regret, do you regret senator that whatever the, the circumstances, this debate has actually detracted from an important debate that you were debating at the time and that is whether women should be allowed to have pepper spray or tasers.”
SENATOR DAVID LEYONHJELM:
“No I don’t think, I don’t agree …”
“And its totally, totally distracted because that was an important debate and your, you know, stop shagging men and, and and wherever she said, she claims one thing you say another, that it’s the whole important debate has now been hijacked and this is what we’re talking about”
SENATOR DAVID LEYONHJELM:
“No, I don’t agree. If it hadn’t been for this um, the fact that she, er um um, she went to the President and er made an issue out of this, um unfortunately, regrettably, the issue of self-defence for women, and indeed for all people, would have er dropped off, off the agenda”
“Sarah is, Sarah is known for, er well outrageous speech in fact some of her stuff goes onto Hansard. One day, in chamber there was a, um, issue about immigration Michaelia Cash, … this was a year or so ago, Michaelia Cash was the um member, ah – the Minister representing the Minister for Immigration and always, and Sarah was representing the Greens on immigration on an issue and Sarah called out to um Michaelia Cash ‘why don’t you just build some gas chambers for them …”
“referring to the immigrants on Manus Island and er, um, er um Nauru. I mean, you know, Sarah is known for absolutely outrageous stuff and to not believe that she would say words to the effect that all men are rapists is naïve in the extreme ….. she did, I was there and I heard her and now she is entitled to say that but I am entitled to react as well and I am entitled to call out misandry and I am entitled to point out double standards and that’s what I was doing.
285 290 295
SENATOR DAVID LEYONHJELM:
“I replied, I-I-I rejected the double standard, I rejected, I reject the misandry, just as I reject misogyny and there is an issue which um as, er, a consequence of this dispute, is being kept alive and that is our government prevents women and indeed everybody, from carrying any means to protect themselves, any self-defence um device, pepper spray, tasers, pocket knives, anything at all, lethal, non-lethal, or prohibited, you can be arrested for carrying it, so Eurydice Dixon if she had been carrying anything, a pepper spray, um a taser, mace, um a pocket knife anything like that, er specifically for self-defence, she would have been committing a very serious offence, they are er, they are regarded as prohibited weapons. Er I think that is outrageous,”
“Now we have to move on, Senator David Leyonhjelm thanks for joining us, er enjoy the rest of your Sunday at 12 to 12.”
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:
5 10 15
“Now politics is often a grubby business of name-calling, back-stabbing and buffoonery but even by those standards, Parliament hit a new low last week. You might remember during a Senate debate Senator David Leyonhjelm called out across the chamber to Senator Sarah Hanson-Young for her to quote “stop shagging men”. That was during a debate about protecting women in the form of pepper spray and tasers. Senator Hanson-Young later went up to Senator Leyonhjelm and asked him if he said what she thought he had. He confirmed that he had told her to stop shagging men and he also told her to ‘F-off’. Senator Leyonhjelm doesn’t dispute her version of events. But in media interviews afterwards, he didn’t apologise and he went further airing more rumours about the Senator. He’s been roundly condemned for that but he’s not backing down, I spoke to him a short time ago …”
“Senator David Leyonhjelm, welcome to 7:30.”
“Ahhh, Senator Hanson-Young has engaged lawyers ahead of a potential defamation action for you and others, we understand. Would you like to take this opportunity to withdraw those comments you made and apologise for them?”
“No, no … Bring it on”
“Why not? Why won’t you withdraw them?”
“Because the point I was trying to make is, is valid, I’m on very solid ground, very legitimate. Um I am opposed to misandry just as I am opposed to misogyny and I am also entitled to call out double standards. So, 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.”
“So, um, give me the quote from Senator Hanson-Young where she said any of those things that you just mentioned there “all men are rapists” and the like. Where’s the quote?”
“I, I was there…It wasn’t caught on Hansard. I was in the Chamber, it was in the context of a great deal of, of backchat going on …”
“I understand Senator that you actually can’t really recall exactly what it was that she said.”
“I can recall the, the context, it was in the context of a self-defence motion, it was in the context of a one-minute statement by Senate Janet Rice to the effect that men are collectively are responsible for the violence and it was, er, 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 …”
“No they’re, they’re not the same thing but as we’ve established and I think you’ve admitted that you don’t exactly remember and she certainly denies saying those things”
*interrupts* “but in any case, in any case … Do you, do you you see, as it would seem virtually everyone in Australia sees right now, how offensive, how inappropriate and hurtful those remarks are? Or do you, do you simply not see that?”
“Um offence is taken personally, misandry is offensive and I take offence at that …”
“We’ll leave misandry to one side, do you see …”
“No, no let’s not take it, take it to to one side …”
“No because we’re dealing, we’re dealing with something that actually happened in the, in the Senate. Do you, do you …”
“Yes I was there and it was offensive.”
“Do you, do you accept that those comments that you made were inappropriate to be made to a woman and in, in the Senate chamber?”
“So, how is it that you can sit here and say that but I imagine if that comment was made to any women in your family, I should imagine that you’d take a very different view, wouldn’t you?”
“No, no woman in my family would accuse all men of being sexual predators.”
“And neither did Sar-, Senator Sarah Hanson-Young. You certainly can’t produce that quote and she certainly denies it.”
“So you believe her and you’re calling me a liar? Thank you very much.”
“No I’m saying that you actually can’t remember, you’ve, you’ve said that you can’t exactly remember what she said.”
“and, and do I have to …”
“and, and you give me words to the effect that range across a number of different scenarios …”
“Do I have to remember every word precisely for it to be true?”
“In order to justify a pretty strong comment, yeah I reckon you do …”
“No, I don’t reckon I don’t …”
“Um, I’ve ever wondered if you’ve ever paused to reflect on why you sometimes have such a reflex to get so personal, and frankly bitchy, when women take you on. Have you ever stopped and wondered about that?”
“I don’t accept the premise of your question.”
“Let me say, tell you what its based on … its based on comments that you made to Senator Sarah Hanson-Young, its made on comments you made to an elderly woman once who criticised you and you told her to quote “Go away and stop proving you’re a bimbo”. I’d say those two examples constitute a reflex to get pretty bitchy with women, why do you think that is?”
“Well, er, let me, er, let me put it this way. When I am abused, accused of something such as being a sexual predator, along with all the other, all the other men in Australia …”
“I’m going to jump in there, I don’t think anyone accused you of that but go on …”
“Yes, no, well you weren’t there, I was … um and, er, when, when people irrespective of their age, irrespective of their gender, write obnoxious e-mails to me and the woman who wrote that did, um I feel that I am perfectly entitled to respond …”
“I guess Australia will …”
“I don’t, I don’t …”
“I guess Australia will form its own view on that, time is tight so we’ll have to leave it there. Senator, thank you.”
37 There was no dispute at trial about the accuracy of the three transcripts.
38 Apart from the applicant and the respondent, the Court heard evidence from eight Senators. Of these, five (Senators Siewert, Whish-Wilson, Rice, McKim and Steele-John) are members of the Australian Greens party. The remaining three Senators were Senator Keneally (Australian Labor Party), Senator Griff (Centre Alliance) and Senator Hinch (Independent). The latter two Senators were called to give evidence by the respondent. The remainder were called by the applicant.
39 With the exception of the applicant, the respondent and Senator Keneally, the evidence of the other Senators concerned principally the words spoken by the applicant in her interjection on 28 June 2018, although some also gave evidence of subsequent events.
40 In addition to leading evidence concerning that issue, the applicant led reputation evidence from her Chief of Staff (Ms Marion Gerlaud), Mr Bill Kelty and Dr Katriona Wylie.
41 The respondent submitted that the Court should have reservations about the credibility of the evidence of the applicant, Senators Keneally, Siewert, Rice and Steele-John and of Ms Gerlaud.
42 The applicant submitted that the Court should have doubts about the credibility of much of the respondent’s evidence and that Senator Griff’s evidence seemed to reflect his reconstruction of what must have been said, rather than an account of what he had actually heard.
43 I consider that all of the witnesses were endeavouring to assist the Court by giving their evidence honestly. However, I regarded the evidence of some of the witnesses who gave evidence about the applicant’s interjection in the debate on 28 June 2018 as being more reliable than that of others.
44 Senator Keneally was a member of the Legislative Assembly in New South Wales from 2003 to 2012 and the Premier of that State from 2009 to 2011. Between 2014 and 2018, she worked as a journalist and presenter at Sky News Australia. The Senator’s evidence in chief concerned matters relating to the applicant’s reputation, but her cross-examination extended to matters more broadly. I assessed her evidence as being both honest and reliable and, despite the criticisms made by the respondent, accept it.
45 Mr Kelty is a former Secretary of the Council of Australian Trade Unions and has held several senior directorships. He too was an impressive witness and, save for one matter, I accept his evidence generally,
46 I regarded the evidence of Ms Gerlaud and Dr Wylie as generally reliable.
47 I indicate now that, despite the submissions of the respondent, I regarded the evidence of Senators Siewert, Rice, McKim and Whish-Wilson as reliable and I accept it. For reasons which will become apparent, there is an aspect of Senator Steele-John’s evidence which I do not accept. Senator Siewert’s evidence concerning the events in the Senate on 28 June 2018 was particularly impressive and I have relied on it in making my findings as to the words spoken by the applicant.
48 The respondent accepted that each of his publications conveyed the imputations alleged by the applicant. However, he denied that they were defamatory of the applicant.
49 There was little difference between the parties as to the principles to be applied in the determination of the issues of defamatory meaning. The principles concerning the question of whether a publication did convey the meanings alleged have been stated and summarised in numerous authorities. Given the respondent’s acknowledgement that his publications did convey the imputations pleaded by the applicant, it is not necessary to refer to them in detail. It is sufficient to refer to Radio 2UE Sydney Pty Ltd v Chesterton  HCA 16, (2009) 238 CLR 460 at -; John Fairfax Publications Pty Ltd v Rivkin  HCA 50, (2003) 201 ALR 77 at ; Reader’s Digest Services Pty Ltd v Lamb  HCA 4, (1982) 150 CLR 500 at 505-6; Amalgamated Television Services Pty Ltd v Marsden  NSWSC 4, (1998) 43 NSWLR 158 at 164-5, and Rush v Nationwide News Pty Ltd (No 7)  FCA 496 at -.
50 In determining whether imputations conveyed are defamatory of an applicant, the Court considers whether the publication had a tendency to lead ordinary reasonable people to think less of the applicant: Radio 2UE Sydney Pty Ltd v Chesterton at . Ordinary reasonable people for this purpose are those “of ordinary intelligence, experience, and education”, “not avid for scandal” and “fair-minded”: ibid at . They are expected to bring to the matter in question their general knowledge and experience of worldly affairs: ibid. In times past, they have been referred to as “right thinking members of society”: Slatyer v Daily Telegraph Newspaper Co Ltd  HCA 22, (1908) 6 CLR 1 at 7 (Griffith CJ); Sim v Stretch  2 All ER 1237 at 1240.
51 In Trkulja v Google LLC  HCA 25; (2018) 263 CLR 149, the High Court said in respect of the capacity of a published matter to defame:
 The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, "[s]ome are unusually suspicious and some are unusually naive". So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
 As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to "read between the lines in the light of his [or her] general knowledge and experience of worldly affairs", but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject".
52 Counsel for the respondent emphasised the importance of context in assessing the presence or absence of defamatory meaning. He submitted that what is defamatory of one person may not be defamatory of another and that what may be defamatory coming from the mouth of one person, may not be defamatory when coming from the mouth of another.
53 These propositions are undoubtedly correct. Words which may diminish the standing of one person in the minds of ordinary reasonable people may not diminish the way those people view another: Berkoff v Burchill  4 All ER 1008. To adopt the example given by counsel for the applicant, to say of most people that they play the violin badly is not likely to be defamatory, but to say it of a concert violinist may be a serious slur. This is why the tort of defamation focuses on the effect on the reputation of the particular applicant.
54 Counsel then submitted that, just as a form of words may be defamatory of a particular applicant but not defamatory of persons generally, so also may a form of words which would be defamatory of “a typical plaintiff” not “tend to lower a particular – and relevantly atypical – plaintiff in the public’s esteem”. In the present case this meant, he said, that account had to be taken of the “political brand” which the applicant has established, with the consequence that ordinary reasonable people would not have regarded the admitted imputations as defamatory of her, even if they would, had the same imputations been conveyed in respect of others. The respondent also contended that, in addition to considering the applicant and her “political brand”, account had also to be taken of his status as a rival politician.
55 In support of the respondent’s submission that the identity of the person making the impugned statement bears on the determination of whether a defamatory meaning is conveyed, counsel contended that ordinary reasonable people may view differently a statement made of a politician by a rival politician than they would the same statement made by, say, a member of the media. He submitted that ordinary reasonable persons may see media commentators as “relatively impartial “umpires” of politics”, such that adverse statements made by them about a politician may more readily be regarded as tending to diminish the politician’s standing in the public mind. However, a like statement by a rival politician may be regarded by ordinary reasonable persons as “just part of the theatre of politics”. Right thinking ordinary members of the community, he submitted, are not only “capable of discounting what one politician says about another”, they are “apt to do so”.
56 Counsel submitted that, in the present case, ordinary reasonable people who saw or heard the impugned matters would know that the applicant and the respondent were both politicians; that they generally held different policy positions; that when they did happen to hold the same policy positions, they did so for very different reasons; that their bases of support did not overlap; and that the respondent’s impugned statements were made in a political environment in which politics has become more aggressive than in the past.
57 A related submission of the respondent was that the applicant had, before 28 June 2018, made public statements about men which he contended were absurd, consistent with an attitude of misandry and (when measured against her own actions) hypocritical. Counsel referred in this respect to two public statements of the applicant. The first was a Twitter post of the applicant on 11 December 2016, in the context of a debate about whether women who are victims of domestic violence should be granted leave from their employment:
Note to Minister: It would be even cheaper on the economy if men just stopped hitting women, but sadly they won’t!
58 The second was the applicant’s appearance on the “Sunrise” program on 18 June 2018 in which she referred to men as “pigs” and “morons” and said that “men cannot control themselves and deal with their own issues”.
59 Counsel then submitted that by reason of these statements the applicant had, as at 28 June 2018, established a political identity as a person who made “sweeping, collectivist statements about men”, and “in which she imputed to men truly horrible traits and actions against women”. In this circumstance, the respondent submitted that his publications were not capable of “shifting” the applicant’s image, because they were consistent with it. The consequence, he contended, was that the imputations conveyed by the impugned matters had not been defamatory of the applicant.
60 The respondent made other submissions. One was that each of the impugned statements had conveyed a “promiscuity imputation” which the applicant had not sued on. The respondent’s submissions did not specify the content of the “promiscuity imputation”. It seemed to be the imputation that the applicant is sexually promiscuous conveyed by the respondent’s statements in the impugned matters concerning the applicant “shagging” men, that the applicant had a reputation for “liking” men, and that the applicant is known for having “lots of relationships” with men. The respondent submitted in relation to the first and fourth impugned matters that the material conveying the pleaded imputations had been “drowned out” by material going to the “promiscuity imputation”. He also submitted that, if the “promiscuity imputation” was put to one side, each of the impugned matters was “relatively anodyne”. A related submission was that each publication, taken as a whole, was “a relatively weak expression of the (pleaded) imputations”.
61 In relation to the first impugned matter, apart from his “drowning out” submission, the respondent submitted that the words spoken by the applicant were not the focus of the article but were expressed as a contextual matter explaining why the respondent made his own interjection. That may be so, but it does not detract from the force of the sting in the two imputations which the respondent admits were conveyed.
62 In relation to his statements on the Sky News Outsiders program, the respondent submitted that he had in the course of the interview:
(a) explained the context in which the interjection by the applicant was said to have occurred;
(b) moved quite swiftly away from discussion of the applicant’s words to discussing the broader issues said to arise from them;
(c) focussed primarily on the topic of equality, and repeatedly returned the conversation to that topic such that the focus on the imputations against the applicant was minimised. A related submission was that in that interview, he had been the “adult in the room” and had largely resisted the overtures of his hosts to dwell predominantly on the imputations;
(d) eventually moved to discussing the substance of the motion that was before the Parliament when the relevant exchange occurred, with the effect that the focus on the pleaded imputations was minimised further;
(e) criticised the “46 other senators” who voted against Senator Anning’s motion, such that the focus on the applicant was diminished; and
(f) did not resort to extravagant language which highlighted the imputations.
63 In relation to the statements on the 3AW Sunday Morning program, the respondent said that he had:
(a) focussed in large part upon the issue of equality and had put the imputation of misandry in that broader context;
(b) discussed the surrounding debate about the issue of self-defence and had stressed its importance relative to the imputations; and
(c) stated that Australians speak in colourful terms, thereby diminishing the significance which might otherwise be given to the words imputed to the applicant.
64 In relation to his statements on the ABC’s 7.30 with Leigh Sales program, the respondent submitted that he had:
(a) focussed largely upon “the promiscuity imputation”, such that the pleaded imputations were largely “drowned out”; and
(b) put forward the relevant comments in a hostile and sceptical environment and under intense interrogation by his interviewer, such that viewers were encouraged to be sceptical of the imputations.
65 Finally, the respondent submitted that the “relative mildness” of the publications was assisted by the fact that he had not, in any of the publications, attributed precise words to the applicant and had in fact conceded at all times that he was not in a position to do so. The respondent then submitted that, as his attribution to the applicant of certain words was at the heart of each imputation, this approach had carried “less sting” than a precise quote would have.
66 The assessment of whether the admitted imputations had the defamatory effect on the applicant should take account of a number of matters. These include the words used and the context in which they were spoken.
67 Two matters may be noted at the outset. First, it can be said that each of the imputations admitted by the respondent to have been conveyed was, of its nature, of a kind which could lead ordinary reasonable people to think less of the applicant. The first conveyed that the applicant was engaging in a particular form of hypocrisy; the second that the applicant had made a claim which was plainly absurd; and the third that the applicant was engaging in a serious form of sexism, namely, misandry, which the respondent characterised as “offensive” and “not forgivable”.
68 Secondly, although the respondent described each of the impugned matters as “anodyne” and as a “relatively weak expression of the (pleaded) imputations”, he did not contend that the imputations had to satisfy a threshold of seriousness of the kind discussed in Jameel (Yousef) v Dow Jones & Co Inc  EWCA Civ 75,  QB 946 and in Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB),  1 WLR 1985. See also Lachaux v Independent Print Ltd  UKSC 27 and Armstrong v McIntosh (No 2)  WASC 379, both of which were delivered after judgment in this matter had been reserved. Nor did the respondent raise a defence of triviality under s 33 of the Defamation Act. In these circumstances, I consider that the weakness, if any, for which the respondent contended is to be considered in assessing whether the imputations were defamatory at all. Otherwise, “relative weakness” is not an issue which arises on the issue of defamatory meaning. The relative seriousness of the imputations may, however, be relevant to the other issues in the trial, including the question of the relief which may be appropriate.
69 The respondent gave evidence in support of his contention concerning the public perception of the political differences between the applicant and him. The evidence of Senator Keneally supported that evidence in some respects and I consider that, at least at a general level, the respondent’s submission on this topic may be accepted. I do not consider it necessary to make detailed findings concerning the political and philosophical differences between the Liberal Democrats and the Australian Greens, or between the respondent and the applicant. It is sufficient to say that I accept that many ordinary reasonable people who read, saw or heard the impugned matters are likely to have been aware that there were differences. Counsel submitted that in these circumstances, ordinary reasonable persons who saw or heard the impugned matters were unlikely, on the basis of the respondent’s statements, to have formed an unfavourable view of the applicant.
70 The authorities support the view that, given the public perception of the robustness of political activities, a derogatory remark about a politician may not have the same effect in the mind of the ordinary and reasonable listener as it may if made about someone else. For example, in Gorton v Australian Broadcasting Commission (1973) 22 FLR 181, Fox J said at 189:
The finding of a derogatory imputation is not an end of the matter; it must have been such as to affect adversely the reputation of the plaintiff. A person in public office expects to be, and is, frequently the subject of comment and criticism, and not a little of that comment or criticism is of a personal nature. Sometimes a slur is cast on his honesty, or integrity. The television viewer recognises these things. The result is that criticism and comments made of public figures are apt to have less impact than similar remarks made of others.
71 In Australian Consolidated Press Ltd v Uren  HCA 37; (1966) 117 CLR 185 at 210, Windeyer J noted that “a man who chooses to enter the arena of politics must expect to suffer hard words at times” and Menzies J at 195 noted that “[p]olitical differences not infrequently find public expression in unrefined figures of speech and language”.
72 The applicant herself referred to the robust nature of politics in the booklet “En Garde” which she published on 1 October 2018. At page three of that booklet, the applicant said:
Politics is, by its nature, a tough gig and therefore not for the faint-hearted. The increasingly rigorous debate about ‘values’ means things in and around parliament often become intensely passionate and personal. I’ve always given as good as I get – debating issues and pushing for the ideas I believe in. I’ve never been too shy to say I agree or disagree with something. So, I’m used to the rough and tumble, but that doesn’t mean I like it or that it’s easy. While I’m talking about what we can do to make this country better, I’m constantly preparing for the insults to start flying.
73 The evidence indicates that the applicant is an active participant in the “rough and tumble” of politics. She has at times referred to fellow politicians as a “racist bigot”, as “corrupt” and as “supporting white supremacists”.
74 I accept that account is to be taken of the circumstance that, whether desirable or not, it is commonplace in political discourse for denigratory remarks to be made by one politician about another. The political give and take can be less than civil. Ordinary reasonable people may be taken to be aware that that is so and, at least to an extent, are likely to attach less significance to castigations by politicians of political opponents. Perhaps for this reason, the instances of one politician suing another for defamation tend to be infrequent. But there are examples, of which Rann v Olsen  SASC 83; (2000) 76 SASR 450 (to which the respondent referred in relation to s 16(3) of the PP Act) is one.
75 It is not the case, however, that a politician’s reputation in the minds of ordinary reasonable people is not capable of being diminished by the harsh or derogatory words of another politician. Quite plainly it can and there are numerous instances of that having been achieved effectively (often without becoming the subject of defamation proceedings). The law recognises that politicians may be as entitled to protection from damage to their reputations as any other member of society. As was noted in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568:
The protection of the reputations of those who take part in the government and political life of this country from false and defamatory statements is conducive to the public good. The constitutionally prescribed system of government does not require – to the contrary, it would be adversely affected by – an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics.
76 In Australian Consolidated Press v Uren at 195, Menzies J said:
[A] politician is no doubt entitled to compensation for any loss of reputation brought about by an earthy political libel.
77 As the respondent acknowledged, there are numerous instances of politicians succeeding in defamation proceedings against media entities: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Gorton v ABC; Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1; Conlon v Advertiser-News Weekend Publishing Co Pty Ltd  SADC 91; Hockey v Fairfax Media Publications Pty Ltd  FCA 652, (2015) 237 FCR 33; and Mirabella v Price  VCC 650. In each of these cases, the politician plaintiffs had established that their reputations in the eyes of reasonable ordinary people had been damaged by the impugned statements.
78 In my view, the ordinary reasonable reader, viewer or listener of the impugned matters would have appreciated that the applicant and the respondent were politicians and that their personal and political views were commonly opposed. They would take into account that political discourse can be robust and that personal denigration in the cut and thrust of politics is not uncommon. Many ordinary reasonable people have their own political views and convictions and may not be influenced, whether positively or negatively, by statements concerning a politician about whom they have already formed a view. I accept the submission of the respondent to that extent.
79 However, common experience indicates that the ordinary reasonable person does make assessments of the character of a politician, irrespective of the political party to which the politician belongs. Those assessments are often made progressively, as the person learns more about the politician. In doing so, the ordinary reasonable person does take into account the nature and content of the castigations of opposing politicians.
80 It is also commonplace for ordinary reasonable persons to have respect for the character and integrity of politicians whose political views they do not share. Mr Kelty gave examples from his own participation in political and governmental life of this being so. A reputation for integrity is part of a politician’s stock-in-trade which, even taking account of the robustness to which Fox J referred in Gorton v ABC, can be damaged by defamation. Some of the respondent’s submissions and evidence overlooked this fact as they seemed to have as an implicit premise that an imputation concerning a politician will be defamatory only if it causes a listener to change his or her support for that politician. Such a premise is unsound. It is overly simplistic to think that a politician’s reputation may not be lowered in the eyes of ordinary reasonable people simply because they do not share that politician’s political views. There are, in any event, many ordinary reasonable people with no fixed political views, sometimes referred to as “swinging voters”. In addition, those with no existing view about a politician are likely to be influenced by what they see and hear and, in particular, by the criticisms made of a politician. Moreover, those within the same political party as the subject of the imputations may form a lesser view of the politician by reason of defamatory imputations. The respondent’s binary position that ordinary reasonable people, seeing, hearing or viewing his statements would not be influenced in the views of the applicant because they would have existing firm views about her, whether favourable or unfavourable, is unsound.
81 There is little doubt that the impugned matters did convey the “promiscuity imputation” for which the respondent contended. It is not necessary to attempt to identify more precisely the content of that imputation. Amongst other things, it seemed to be reflected in the reference in the third impugned matter to the respondent having “slut-shamed” the applicant.
82 The respondent’s submission did not explain why the “promiscuity imputation” had the “drowning out” effect for which he contended. The ordinary reasonable person is likely to have been struck by the apparent uncouthness in the respondent’s comments that the applicant should “stop shagging men”, had a “liking” for men, and has had “lots of relationships” with men but such a reader is likely at the same time to have understood the sting in his attribution to the applicant of double standards, sexism and absurdity. Moreover, the “promiscuity imputation” and the imputation that the applicant is a hypocrite were very much interlinked as the latter depended on the former, and the ordinary reasonable person would have understood that to be so. It was, as the respondent would have it, that the applicant is sexually promiscuous with men, and that she was thereby guilty of double standards, ie, hypocrisy. Instead of drowning out the other imputations, the “promiscuity imputation” is likely to have drawn the attention of readers, listeners and viewers to the admitted imputations. This was a point which Ms Panahi seemed to make to the respondent in the Radio 3AW Sunday Morning program.
83 In my opinion, the respondent’s attempt to give a relatively benign view of the impugned matters is belied by their content.
84 In relation to the first imputation, the respondent put his claim concerning the applicant’s hypocrisy at the centre of his statements. In the Radio 3AW Sunday Morning program, he referred on no less than eight occasions to the “double standards” or “hypocrisy” in the applicant’s statements and conduct. In his very first contribution on the Sky News Outsiders program, the respondent drew attention to the inconsistency he perceived in the applicant’s “liking” of men and the statement which he attributed to her. In addition, he asked the rhetorical question “if you think they’re all rapists why would you shag them?” The respondent referred again to the applicant’s double standards in the ABC 7.30 with Leigh Sales program and emphasised the contradiction he saw in the applicant having said that all men are rapists or sexual predators, on the one hand, and the applicant’s engagement in normal sexual relationships with men, on the other. In his media statement on 28 June 2018, the respondent sought to justify his statement that the applicant should stop “shagging men” if she considered that all men are rapists. As counsel for the applicant submitted, the ordinary reasonable reader of that statement would have understood the respondent to be asserting that the applicant’s position was inconsistent and hypocritical: why does she sleep with men if she believes that all men are rapists?
85 In relation to the misandrist imputation, it was the respondent who introduced the word “misandry” into the impugned matters. He did so by contrasting misandry with misogyny. Commencing at line 73 of the Sky News Outsiders program, the respondent described a statement that “all women are sluts” as misogyny which would have been “rightly” criticised. He then identified “misandry” as the male version of misogyny and described it as “equally as objectionable”. The respondent thereby made it plain that he was attributing to the applicant an objectionable form of sexism. The ordinary reasonable viewer would have understood the respondent to be conveying that the applicant engaged in a form of sexism of an offensive kind and, further, that she did so hypocritically. Although the respondent did not mention the word “misandry” thereafter in the Outsiders program, he did by its use provide one of the significant themes for his interview as the term was then adopted by his hosts. In the Radio 3AW interview, the respondent characterised the statement which he attributed to the applicant (“all men are rapists”) as “misandry” and used that expression or a cognate on no less than five occasions. He again described misandry as “the male version, or the equivalent of misogyny” and said that it was “not forgivable under any circumstances”. The respondent insisted that he was entitled to call it out. In the interview of the ABC 7.30 with Leigh Sales program, the respondent twice referred to misandry, describing it as “offensive” and rejected Ms Trioli’s suggestion that it be put to one side in the interview.
86 Moreover, the respondent defended the credibility of his claims. When challenged in the Radio 3AW program and on the ABC 7.30 program as to whether the applicant had actually said the words which he regarded as offensive, the respondent insisted that he was correct because he had been there to hear the words, and his interviewer had not. The implicit assertion was that he should be believed on his account.
87 In my opinion, the very persistence with which the respondent conveyed the imputations of hypocrisy and misandry and his insistence when challenged that the applicant had spoken the words which he attributed to her belies his characterisation of the imputations as “anodyne”. The respondent acknowledged in his cross-examination that accusing an Australian Senator of sexism and hypocrisy were serious allegations, although he said that both were regular events, and that he regarded an accusation of sexism as more serious than an accusation of hypocrisy.
88 The submission that the imputations conveyed by the media statement on 28 June 2018 are anodyne and weak fails to have regard to its context. The respondent published the media statement as a serious document in that he published it under the Australian Coat of Arms, announced himself as a Senator, described himself as the leader of the Liberal Democrats, and identified the applicant as the subject matter of the statement. The fact that the respondent chose to use this “official” means of making the statement would have suggested to the ordinary reasonable reader that the respondent was intending a serious statement concerning the applicant.
89 The respondent is correct in submitting that the focus of the Sky News Outsiders program moved from the applicant’s statement to the issue characterised by him as “collectivism v individualism”. But that shift in focus did not negate the defamatory effect of the words used by the respondent which had preceded it. The respondent not only made the imputations of which the applicant complains, he sought to justify them. His reference to the “collectivism v individualism” debate was part of that justification. In that context, the latter part of the interview served to reinforce the making of the imputations.
90 The respondent’s submission that he had been the “adult in the room” on the Sky News program seemed to imply that there had been a certain juvenile quality about the interview. Counsel elaborated this submission by saying that, whereas the two “professional journalists” had chosen “to focus on sensational aspects of the matter”, the respondent had sought to “steer” the interview to “considerations of principle”. It is not necessary for the Court to express any view about the respondent’s assessment of the character of the interview. One thing which is plain is that, as already noted, it was the respondent who introduced the notions of hypocrisy and misandry and then sought to justify them. This would have reinforced his imputations in the minds of the ordinary reasonable viewers.
91 The respondent’s characterisation of the tone of Ms Trioli’s interview with him on the ABC 7.30 with Leigh Sales program as “hostile and sceptical” has some force. I accept that viewers may thereby have been encouraged to be sceptical of the imputations. However, despite the challenges which Ms Trioli made, the respondent chose to persist with them and, as just noted, sought to add credibility to them by his insistence that he had been present to hear the applicant’s comment. The imputations would thereby have been reinforced.
92 I am unable to regard the respondent’s acknowledgement that he could not state the precise words used by the respondent as reducing the defamatory sting of his imputations. If anything, that is a circumstance which may have added to them.
93 It is the fact that, in each of the impugned matters, the respondent had addressed issues other than his imputations concerning the applicant. These included the issues concerning violence against women, the availability to women of means of self-defence and “collectivism v individualism”. The admitted imputations were not the sole subject matter of any of the impugned publications. However, they do not lose their defamatory effect on that account. It is not uncommon for a defamatory imputation to be part of a larger non-defamatory publication. An incidental comment may cause ordinary reasonable people to think less of a person in the same way as a publication dedicated to the same subject matter. In my view, that is the case presently.
94 I do not accept that ordinary reasonable people at 28 June 2018 would have viewed the applicant as a person who made “sweeping, collectivist statements about men” or as a person prone to input to men “truly horrible traits and actions against women”. The first matter on which the respondent relied for that submission, namely, the applicant’s Twitter post of 11 December 2016, made in the context of a discussion about whether women who are victims of domestic violence should have access to paid leave, cannot reasonably be regarded as causing ordinary reasonable persons to have that view of the applicant as at 28 June 2018. First, a considerable period of time had elapsed between the two events. Secondly and in any event, ordinary reasonable persons would have understood the applicant to be referring only to those men responsible for domestic violence, and not to men generally.
95 It is true that in the Sunrise program on 18 June 2018, the applicant did refer to men as “pigs” and “morons” and said that “men cannot control themselves and deal with their own issues”. However, those remarks are to be understood in context. The applicant was then being interviewed about the defacement of the memorial for Ms Eurydice Dixon. The Court was not provided with full details concerning the defacement, but it appears to have been of an offensive kind. It is apparent that the fire service in Melbourne took prompt action to eradicate a principal component of the defacement. Having referred to the conduct of the person or persons responsible, and in fact describing them as “morons”, the applicant then moved to the entitlement of women to feel safe as they engage in ordinary every day activities, whether it be day or night.
96 In that context, I am satisfied that the ordinary reasonable viewer would have understood the caustic remarks of the applicant on which the respondent relied as not having been directed to men generally but to those who may be minded to engage in sexual assault and violence towards women. It is likely that many ordinary reasonable persons, of both sexes, would have shared the applicant’s sentiments, even if they deprecated the particular words which the applicant had used to express them. For present purposes, it is sufficient to say that I am not satisfied that the words used by the applicant on 11 December 2016 or 18 June 2018 would have created in the minds of ordinary reasonable people such a firm view of the applicant that his publications were not capable of “shifting” their estimation of the applicant.
97 When regard is had to all these matters, I consider that it should be concluded that the first and third imputations are defamatory. That is so even though the ordinary reasonable reader would have understood the respondent’s comments to have been made in a political context, including a context in which the applicant and the respondent had divergent views.
98 The respondent’s submissions may have greater force with respect to the imputations that the applicant had, during the course of the Parliamentary debate, made the absurd claim that all men are rapists. By itself, an assertion that the statement or position of a rival politician is absurd is unlikely in many, and perhaps in most, circumstances to have the effect of diminishing the reputation of the person to whom the statement or position is attributed. As I have indicated, the ordinary reasonable reader may be taken to know that some hyperbole or exaggeration by politicians in public statements is not uncommon, and they are likely to be inured to an extent to an opponent’s characterisation of such statements as absurd. They may well not treat a denigratory remark of that kind as diminishing the reputation of the opponent. However, much depends on the surrounding context.
99 In this case, an important feature of the context is the respondent’s repetition of his statements and his insistence that he knew what the applicant had said. In addition, the ordinary reasonable reader would have understood that the respondent was attaching considerable significance to the applicant’s statement, namely, that it indicated that she is a hypocrite and that she engages in an offensive form of sexism. Having regard to those additional matters of context, I consider that the ordinary reasonable listener/reader would have regarded the imputation as defamatory. It follows that I consider that, despite the respondent’s submissions, the applicant has established that each of the admitted imputations was defamatory of her.
100 The respondent pleads the defence of justification contained in s 25 of the Defamation Act. His plea is as follows:
 The Applicant made a claim, in the course of Parliamentary debates on 28 June 2018, which was tantamount to a claim that all men are responsible for sexual assault or that all men are rapists.
 The said claim was, by the Applicant’s own admission, absurd.
 The Applicant is a hypocrite in that, despite making the said claim, she chooses to have sexual intercourse with men.
 The Applicant is a misandrist in that she made the said claim.
101 Section 25 of the Defamation Act provides:
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
102 In s 4 of the Defamation Act, the term “substantially true” is defined to mean “true in substance or not materially different from the truth”.
103 It is the respondent who has the onus of establishing the defence of justification. He must do so on the balance of probabilities.
104 In Howden v Truth & Sportsman Ltd  HCA 74; (1937) 58 CLR 416 at 420-1, Dixon J said of the common law defence of truth:
The defence depends upon the substantial truth of the defamatory meaning conveyed by a libel. Every material part of the imputations upon the plaintiff contained in the words complained of must be true; otherwise the justification fails as an answer to the action.
See also Starke J at 419 and Evatt J at 424-5. Section 25 of the Defamation Act and the s 4 definition correspond closely with the common law defence.
105 The s 4 definition means that a respondent is not required to establish the truth of every detail conveyed by the imputation. Instead, a respondent must prove that the imputations conveyed were true in substance or were not materially different from the truth. If the substance of the imputation is true, then the defence will not be defeated by some error in detail. The Court of Appeal in New South Wales explained the position in relation to the defence of substantial truth when considering s 15 of the Defamation Act 1974 (NSW) in Channel Seven Sydney Pty Ltd v Mahommed  NSWCA 335; (2010) 278 ALR 232 at  (Spigelman CJ, Beazley JA, McColl JA, McClellan CJ at CL and Bergin CJ in Eq):
In order to establish imputation 12 was substantially true, the appellant had to establish that every material part of it was true: Howden v Truth & Sportsman Ltd  HCA 74; (1937) 58 CLR 416 (at 419) per Starke J; (at 420) per Dixon J; (at 424 - 425) per Evatt J. However this does not mean the appellant had to prove the truth of every detail of the words established as defamatory (Li v The Herald & Weekly Times Pty Ltd  VSC 109 (at ) per Gillard J), rather the defence of substantial truth is concerned with meeting the sting of the defamation: Herald & Weekly Times Ltd v Popovic  VSCA 161; (2003) 9 VR 1 (at ) per Gillard AJA (Winneke ACJ generally agreeing and Warren AJA agreeing). As Lord Shaw of Dunfermline explained in Sutherland v Stopes  AC 47 (at 79):
“It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it.” (emphasis added).
(Emphasis in the original)
See also Gacic v John Fairfax Publications Pty Ltd  NSWCA 362 at -.
106 The respondent accepted that, in order to make out his defence of justification, it was necessary for him to prove that the applicant had spoken the words which he attributed to her. For this purpose, he sought in the evidence to support his pleading that the applicant had spoken words which were “tantamount” to a claim that “all men are responsible for sexual assault” or “that all men are rapists”.
107 In its ordinary meaning, the word “tantamount” means “equivalent, as in value, force, effect or signification to”: The Macquarie Dictionary. In other words “tantamount” can be taken to mean “equivalent to, being almost the same as, or having the same effect as”. That is the sense with which I have understood the respondent to use the term.
108 Counsel for the applicant submitted that, if “tantamount” means something less than a claim that all men are rapists, then proof that the applicant had made such a statement would not amount to proof of the pleaded imputations. Counsel also submitted that the statement “all men are responsible for sexual assault” is not equivalent to the statement “all men are rapists”.
109 For reasons which will become apparent, I consider that it is not necessary to express a concluded view about the first of these submissions. I consider the second to be correct.
110 The respondent’s claim is that the applicant spoke the words on which he relies for his defence of justification in the course of the proceedings in the Senate on 28 June 2018. He does not allege that the applicant spoke those words on any other occasion. Accordingly, the issue which is central to the respondent’s defence of justification is whether the applicant did, in the Senate on 28 June 2018, speak the words which the respondent attributes to her.
111 Much of the evidence at the trial was directed to establishing the words spoken by the applicant. As already noted, the accounts of the witnesses varied.
112 For the reasons to be given later, the making of findings of what the applicant did say does not infringe s 16(3) of the PP Act. It is in short because the Court must determine what was said in the Parliament before determining whether s 16(3) applies to it.
113 The Hansard record of the debate does not record any interjection in the period between Senator Anning moving his motion and the conclusion of the division on the voting on the motion.
114 However, several of the Senators who gave evidence said that it had been noisy in the Senate Chamber during the discussion on Senator Anning’s motion. Senator Siewert said that there had been “a number of interjections”, that “a number of Senators on both sides of the Chamber were speaking loudly across the Chamber about the motion”, that “there was a lot of other yelling going on and various weapons’ names being thrown around”, and that “there [were] a lot of people interjecting”.
115 Senator Rice said that she had been concentrating on making her contribution but that “there [were] a lot of interjections that were carrying on around [her]” and that “there was a lot a noise in the Chamber”.
116 Senator Steele-John said that “there were many interjections during [the] debate”. Senator Whish-Wilson said that “there was a lot of noise in the Chamber and … a lot of interjection[s]”. The applicant said that there was “quite a lot of talking, other people interjecting … general conversations”.
117 The respondent said that, on a controversial motion such as Senator Anning’s, “there is invariably a lot of chatter” but that beyond that and the usual noise in the Senate there had been no impediment to him hearing the applicant’s interjection. Senator Griff described the environment in the Senate during the debate on Senator Anning’s motion as having been “somewhat fiery” with a lot of “spirited things being said”.
118 I am satisfied that the circumstances were generally as the Senators described. However, I do not accept the respondent’s submission that the circumstances did not interfere with his ability to hear the applicant’s interjection. As will be mentioned shortly, the respondent has accepted that he cannot attribute any precise words to the applicant, only their effect. I also accept that, generally, there was no particular reason at the time for an individual Senator to take note of any particular interjection. The potential significance of the precise terms of the applicant’s interjection was not apparent at that time. In particular, it was not until the respondent issued his media release later on 28 June 2018 that the claim was made that the applicant had said something “along the lines of all men being rapists”. The significance of the words used by the applicant became even more apparent on Sunday, 1 July 2018 as a result of the respondent’s statements on the Sky News Outsiders program and on the Radio 3AW Sunday Morning program.
119 The ability of the Senators to hear what the applicant said is also likely to have been affected to an extent to the position which they occupied in the Senate in relation to the applicant. The following plan shows the positions of the cross-bench Senators at the time of the division on Senator Anning’s motion. At that time, Senator McKim was not in his seat, but occupying temporarily a seat next to Senator Siewert.
120 I also accept that the attention of some Senators was, or is likely to have been, on other matters: in Senator Rice’s case, on her own contribution, and in the case of others, on the contributions of Senators McGrath, Rice and Chisholm. Senator Siewert was discharging her responsibilities as Whip for the Australian Greens. Senator Griff explained that he had been looking at the next set of motions to be debated. There are also likely to have been distractions resulting from the interjections of others.
121 In all these circumstances, it is unsurprising that the accounts of the Senators about what the applicant said differ in some respects. Two (Senators Rice and Steele-John) did not recall the applicant making any interjection at all. In the case of Senator Rice, this is explicable by reference to her absorption with the contribution she had just made. Those who did hear the applicant interject testified that she had said something to the effect that “more guns on the streets won’t protect women from men” (Senator Siewert) or “guns won’t make women safer from men” (Senators Whish-Wilson and McKim). Senator Keneally said, and I accept, that she came into the Senate Chamber towards the end of Senator Rice’s one minute contribution and, in her allocated seat, had been too far from the applicant and the respondent to hear any interchange between them. She said, and I accept, that she did not hear any interjection from the applicant. Senator Griff heard only part of what the applicant said.
122 In the affidavit containing his evidence in chief, the respondent deposed that the applicant made the interjection while Senator Rice was speaking:
I do not recall the precise words that the Applicant spoke during the motion.
… I do recall the effect of the words spoken by the Applicant. Their effect was that men are rapists or that men are collectively responsible for rape
123 The parties agreed that the second part of this extract from the respondent’s affidavit should be admitted, pursuant to s 136 of the Evidence Act 1995 (Cth), as evidence only of the respondent’s belief.
124 Later in his affidavit, the respondent deposed:
I am not in the habit of stating non-sequiturs, so I would not have made the interjection that I did make if the Applicant’s words were not a savage criticism of men in general.
125 Counsel was granted leave to lead oral evidence from the respondent as to what the applicant had said and the following evidence in chief was given:
XN: I want you to put the affidavit to one side and simply tell the court what is, at the present time, your best recollection of the words that you heard spoken by Senator Hanson-Young in the Senate chamber on that occasion?
A: Well, I’ve had many opportunities to think through that since 28 June and my best recollection is that it began with the words “Women” and there was something in the middle and it ended with “if men didn’t rape them.” There are a couple of possibilities about the middle bit and we heard – we’ve heard variations from the other witnesses as to what that might be. And I don’t deny that some of those possibilities are …
HIS HONOUR: Now you’re just being asked at the moment to give … your evidence as to what Senator Hanson-Young said and not to comment upon what others might have said? …
A: All right. So the reason I mentioned that is because I’ve been testing my – my recollection against other people’s recollections. And as – so to the best of my knowledge – and I’m quite satisfied that the second half of my recollection is accurate – “Women wouldn’t need” – something – “shouldn’t need, don’t need” and then some reference to the subject of the – of Senator Anning’s motions – motion – which referred to pepper spray, Mace and tasers. But I am quite convinced that the second half of the sentence was “if men didn’t rape them”.
126 In cross-examination, the respondent said that the applicant’s interjection may have been during Senator Rice’s speech or just as she finished it. Later, after being shown a videotape of the proceedings in the Senate on Senator Anning’s motion, the respondent agreed that the applicant’s interjection must have been made after the conclusion of Senator Rice’s speech.
127 In relation to the words of the applicant, the respondent gave the following evidence in cross-examination:
XXN: Now, you gave some evidence this morning about your best recollection now as to what you think my client said. Do you accept that my client did not say all men are rapists?
A: Yes, I’ve never said that were (sic) – those were her precise words.
XXN: Do you accept that she did not say anything that implies all men are rapists?
A: No, I don’t agree.
XXN: Now, when is it do you think you formed the view, prior to giving the evidence at 10 past 10 this morning, my client said “women” and then something in the middle you’re not sure of, “possibly don’t need or shouldn’t need pepper spray, mace, or tasers, if men didn’t rape them.” When do you say you first concluded, over the last 10 months, that that was your recollection of what my client said?
A: It was based … When, I can’t say precisely, but it was after having reflected on some conversations I had and thinking – thinking through the events, it was a matter of months.
XXN: Right. So just so I understand, a matter of months before today, or a matter of months after the events?
A: I – I – what’s the difference? A matter of months after – after the events.
XXN: So not in July. Sometime after July?
A: No. I – it was sometime after July that I actually thought to – tried to think to myself, “What were her precise words?” When I – that’s not when I – it was when I formed the view as to what I thought those precise words were. I – at that stage the – in July, the – the meaning of them was clear to me, but I spent some time thinking about, well, what precisely were those words that led me to conclude that meaning? I mean, I’ve never wavered in my view as to their meaning.
128 Later, the respondent was asked to say when it was in relation to 28 June 2018 he had engaged in the process described in the above passage of evidence:
Well, quite a few months, your Honour. And I can’t even – I mean, about the only thing that I am confident about is the words “if men didn’t rape them”. The preamble to it – I mean, I may have been influenced, even, by Senator Hinch’s tweet or Senator Griff’s discussions with me about his recollections which will be presented in evidence later I understand. The only thing I am – I can, sort of, put my hand on my heart and say I believe I heard was “if men didn’t rape them”. So I mean, my comments earlier about what I think were the actual words – I was attempting to be helpful. But, you know, it was – it’s my best estimate, I suppose, is the best I can say.
129 Later again, the respondent said that he had given close thought to the words spoken by the applicant after 11 December 2018 when he made the affidavit containing his proposed evidence in chief:
So what prompted me to think – well, how good is my memory that I can recall the actual words was the closer we got to the fact that I would be asked that question here. So I suppose, the case management [hearing] – no. The affidavit – I was wondering whether I ought to say something about it in my affidavit and decided I wasn’t confident enough to do so. So I suppose, subsequent to that, your Honour.
130 These passages indicate the probability of reconstruction in the respondent’s account.
131 The respondent also acknowledged in his cross-examination that “even today I’m still not totally confident – well, I’m still not confident that I know the precise full sentence”.
132 It is appropriate in the present context to refer again to the accounts of the applicant’s interjection which the respondent gave shortly after 28 June 2018 in the impugned matters. In his media statement on 28 June 2018, the respondent recorded that the applicant had said “something along the lines of all men being rapists”. In the Sky News “Outsiders” program, the respondent said:
Sarah called out, 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.
133 When the respondent was challenged by Mr McCallum in the 3AW Sunday Morning program about what the applicant had said, the respondent responded:
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.
134 In the ABC 7.30 with Leigh Sales program, the respondent gave the following account:
Ms Trioli: I understand Senator that you actually can’t really recall exactly what it was that she said.
Respondent: I can recall the, the context … 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 that effect …
135 In the second affidavit containing her evidence in chief, the applicant denied that she had said “all men are rapists” or any words that effect. She deposed that she had said “putting tasers on the street isn’t going to make women safer from men”.
136 In cross-examination, the applicant was asked for her “best recollection” of the terms of her interjection, to which she responded “putting tasers on the street wouldn’t make women safer from men”.
137 The applicant was subjected to only limited cross-examination on this topic. Counsel asked the applicant whether she had said anything in the interjection about “guns”. The applicant’s response was to state her belief that she had referred only to “tasers”.
138 As previously indicated, the applicant called Mr Kelty as a reputation witness. He deposed that the applicant had spoken to him in some distress on 1 July 2018 and again after 2 July 2018 concerning the impugned matters. In relation to the terms of the applicant’s interjection on 28 June 2018, Mr Kelty gave the following evidence:
XXN: And what did she tell you that she had said in Parliament?
A: I asked her what she said and she said that she said that women who are raped are raped by men.
XXN: I see. Women who are raped are raped by men. And that’s your best recollection of the version …?
A: Yes. That’s …
XXN: … That she gave to you?
A: Yes, that is the best recollection.
139 In cross-examination, counsel questioned the applicant about Mr Kelty’s account:
XXN: Do you recall telling Mr Bill Kelty what you recalled having said in the Senate in the course of that interjection?
A: I recall speaking to Mr Kelty about what I had been accused of saying.
XXN: And do you recall giving him your best recollection at that time of what you had, in fact, said?
XXN: And was your recollection that you had said that women who are raped are raped by men?
A: No. That’s not how I recall it. What I recall was explaining to Mr Kelty what I had been accused of which was that all men were rapists and I recall continuing on to say that this was absurd and that – but, of course, women who are raped are mostly raped by men and it was a – it was my response to how absurd the accusation had been. I then continued to say – my best of my recollection – what I had said which was putting tasers on the street won’t make women safer from men.
140 The applicant was not cross-examined by reference to the accounts given by the respondent, and Senators Hinch and Griff.
141 Senator Siewert said that there were a number of exchanges during the debate and that she herself had made a comment to the effect that “putting more weapons in the hands of men is not going to protect women”. She said that the applicant’s interjection, which came after her own, was to the effect that “more guns on the streets won’t protect women from men”.
142 In cross-examination, Senator Siewert accepted that the applicant’s words may have been “putting tasers on the street is not going to protect women from men” (emphasis added). She also said that, whether it was guns or tasers or any other specific item, the applicant’s interjection was along the lines of protecting women from men.
143 The accounts of Senators Whish-Wilson and McKim were remarkably similar. Both said that they recalled the applicant interjecting with words to the effect of “guns won’t make women safer from men” and that they did not hear the applicant at any time say words to the effect of “all men are rapists”.
144 Senator Steele-John said that there had been many interjections during the debate on Senator Anning’s motion but that he did not recall any of them in specific detail. In particular, he could not recall whether the applicant had made an interjection. Despite this, the Senator said that he had a “clear recollection” that the applicant had not made a statement to the effect that all men are rapists.
145 Since the conclusion of the trial, Senator Hinch has ceased to be a Senator but it is convenient to continue using the title he had in June 2018 and at the time of the trial.
146 In his evidence in chief, Senator Hinch said that, at the end of, or shortly after, Senator Rice’s speech, he had had heard an interjection from the applicant. He said that the applicant had said “something along the lines … that women … would not need protection, would not need pepper sprays or mace if men stopped – if men weren’t rapists or men stopped raping women”.
147 In cross-examination, Senator Hinch said that he had paid close attention to the debate and he was “fully confident” that the applicant had not said that all men were rapists. He said, however, that the applicant had said something along the lines of “protection for women wouldn’t be necessary … if men stopped raping or attacking women”. He also said that his recollection was “consistent with” the applicant having said words to the effect that:
Putting tasers on the street isn’t going to make women safer from men.
148 Senator Griff said that, by reason of his position in the Senate in relation to the applicant, he had heard only fragments of the applicant’s “comments”:
A: So it would be fragments that I would hear, which the fragments that I understand were men, rape and raping, and women in some form, and my takeout being men should not or shouldn’t rape women, but in the context of the argument at the time, or the debate at the time, which related to women needing to protect themselves from effective predators. So I didn’t actually read or consider the words to be equivalent to “all men are rapists”, but I saw it as relating to the particular debate that was taking – had already taken place.
XN: What is your – at this time, your best recollection of the words that you heard spoken?
A: My takeout of it was men should stop raping women, or men shouldn’t rape women in some form, was my takeout from the words that I heard. But I cannot be precise because, again, I was away from – I wasn’t directly in front or next to the Senator, and there was a lot that was going on at that particular time.
HIS HONOUR: Can I ask the question slightly differently. Instead of using Mr Morris’s words, “What’s your best recollection?”, and just ask this: what did you hear Senator Hanson-Young say?
A: Well, I heard the word “rape” or “raping” and “men” and “women” in there in some combination. Microphones are off, Hansard wasn’t reporting, there was a lot of noise, a lot of chatter around the chamber. So, you know, you piece together – in that kind of environment where you’re sitting there looking at your next set of motions and you’re hearing other things happening around you, you pick things up and then you piece together what you feel is the – has happened during that particular period. So, you know, I was not focused on what Senator Hanson-Young was saying, but there were fragments that, you know, you hear and you piece together in your own mind what you believe had taken place.
149 Senator Griff accepted that the words “putting tasers on the street isn’t going to make women safer from men” was “a comment that would have been made at least by one of the Senators”. However, the Senator added “my recollection is definitely the words “rape” or “raping” were in there as well as men and women in some form”.
150 As is apparent, Senator Griff’s account is based on reconstruction. He had attempted, after the event, to “piece together” what the applicant had said.
151 As indicated earlier, I considered that all the witnesses were giving their evidence honestly and were endeavouring to assist the Court.
152 One finding that can be made at the outset is that the applicant did not speak the words “all men are rapists”. Nor did she say that “all men are responsible for sexual assault”. The respondent acknowledged that that was so in his evidence. The question for decision is whether the applicant made a statement which was “tantamount” to either of those statements.
153 As already noted, a statement that “all men are rapists” is conceptually distinct from an assertion that “all men are responsible for sexual assault”. The possibility that the applicant made a statement to the latter effect can be dismissed for lack of evidence. The sole evidence that the applicant did make a statement to that effect is contained in the passage in the respondent’s affidavit which was admitted only as evidence of his belief. The respondent did not otherwise give evidence that the applicant had made a statement to this effect. Nor did he suggest to any of the other witnesses that the applicant had done so.
154 Accordingly, the critical question is whether the applicant made a statement tantamount to a claim that “all men are rapists”.
155 I do not have confidence in the reliability of the respondent’s account of the applicant’s interjection. There are three principal reasons for that lack of confidence. First, the passages from the respondent’s evidence which I set out earlier indicate that his account is a reconstructed account and, further, an account on which the respondent settled many months after 28 June 2018. While the respondent’s frankness in acknowledging that that was so is to be admired, the fact that the respondent settled on his account so long after the events in questions, and in a context lending itself to distortion in the reconstructions, is a matter of concern. The respondent had numerous opportunities after 28 June 2018 to consider the position. In particular, the respondent was challenged as to the accuracy of his account on the Radio 3AW program on 1 July 2018 and again on the ABC 7.30 program on 2 July 2018. Furthermore, it is likely that the respondent was asked by his solicitors to give as detailed an account as possible before they filed the Defence to the applicant’s Statement of Claim on 10 October 2018 containing the defence of justification, and again before he made the affidavit which was to contain his evidence in chief (on 11 December 2018). By the time the respondent settled on his account, it is obvious that his self-interest in the matter is likely to have influenced his recollection, even if only subconsciously. At the very least, the prospect of that being so cannot be discounted.
156 The second matter is that, in the few days after 28 June 2018, the respondent gave various, and inconsistent, accounts of what the applicant had said. There are obvious differences between a statement “along the lines of all men are rapists” (in the media statement of 28 June 2018), a statement that “men should stop raping women” (the Sky News program) and its cognate “men having to stop raping women” (in Radio 3AW program), and a statement “if only men would stop raping women” and “all men are rapists” (in the ABC 7.30 program). It may be accepted that there is some overlap between some of these versions but the respondent seems to have given three distinct accounts as to what the applicant said:
(i) all men are rapists;
(ii) men should stop raping women; and
(iii) if only men would stop raping women.
157 These differences in the respondent’s contemporaneous accounts add to the doubts about the reliability of his reconstructed account.
158 Thirdly, my impression of the respondent when giving evidence and of the evidence as a whole, is that the respondent “heard” what he was predisposed to hear, rather than the actual words used by the applicant. The respondent appeared to have concluded, well before the speeches on Senator Anning’s motion commenced, that the applicant had a “collectivist” view about men. He resented the notion that all men may be regarded as responsible for the wrongdoing of a few, and he considered the applicant to be a proponent of that view. In that context, the respondent assumed that the applicant had made a statement which he was predisposed to hear and he thereby attributed to her in his own mind a statement which she did not in fact make. It is because words to the effect that the respondent claims to have heard were not spoken at all that he had difficulty, even on and shortly after 28 June 2018, in stating with any definiteness the words the applicant had used. That is why he has had to engage in reconstruction. I also had the impression that the respondent had found himself “locked”, at a relatively early stage, into a position from which, by reason of his pride and obstinacy, he was unable to retreat. This led him to persist in insisting that the applicant had spoken words along the lines which he was predisposed to hear. It is in that context that he has engaged in reconstruction. That reconstruction was influenced by a degree of stubbornness and self-justification.
159 Accordingly, I do not regard the respondent’s evidence as to the terms of the applicant’s interjection as being reliable.
160 Although I consider that Senator Griff gave his evidence honestly, I am not willing to rely on it for the purpose of my findings. It is apparent that Senator Griff was not concentrating on the debate, he heard only fragments of interjections which were not necessarily made by the applicant, interjections of a generally similar kind were being made by more than one Senator and, as the passages above indicate, his account seems to be very much a product of reconstruction.
161 Likewise, I am not prepared to attach weight to Senator Steele-John’s evidence that, despite having no clear recollection of any of the interjections made at the time, he had a clear recollection of something that the applicant had not said, namely, that she had not said that all men are rapists. It seems improbable that Senator Steele-John could have a clear recollection of that kind.
162 I do attach weight to the account of Senator Hinch. Unlike Senator Griff, he said, and I accept, that he was paying close attention to the speeches in the course of the debate on Senator Anning’s motion. That makes it more likely that he would have heard what the applicant said. His account does provide some support for that of the respondent and Senator Griff.
163 However, it is not easy to reconcile Senator Hinch’s acceptance that the applicant’s words may have been to the effect of “putting tasers of the street isn’t going to make women safer from men” with his evidence that the applicant had said “women would not need protection … if men weren’t rapists, or men stopped raping women”. Those two accounts to my mind seem to involve distinct propositions and there is no suggestion that the applicant said both.
164 Senator Hinch said, however, that he was “fully confident” that the applicant had not said that all men are rapists. This was not a matter of reconstruction some months later. He had said exactly the same thing in his tweet on 1 July 2018.
165 The accounts of the applicant, and Senators Siewert, McKim and Whish-Wilson were, subject to one principal matter, generally consistent. That difference is that, whereas the applicant says she referred to “tasers”, her colleagues said that she had used the word “guns”. The Court brought to the attention of the applicant the expressions “taser guns” and “stun guns”, which are terms one hears sometimes, but there was no suggestion that any Senator had used either of those terms.
166 Counsel for the respondent taxed Senators Siewert, McKim and Whish-Wilson about their evidence that the applicant had referred to “guns”. The suggestion in the cross-examination was that a reference to “guns” was incongruent in the context of the debate. Counsel put, in effect, that this was so because the absence of any reference to “guns” in Senator Anning’s motion meant that there was no occasion for the applicant to have referred to “guns”. Counsel overlooked, however, that Senator McGrath had, in his speech, which was the first on the motion, referred expressly to the importation of “firearms and other weapons”. Accordingly, for this reason alone a reference by the applicant to “guns” is explicable. Moreover, given the number of other interjections which preceded the applicant’s, it is possible that they too had referred to “guns”, perhaps because Senator McGrath’s reference to firearms had provoked such references.
167 In all the circumstances, I do not consider it appropriate to attach much significance to the fact that the applicant claims to have used the word “tasers” whereas her colleagues say that she used the term “guns”.
168 A second difference between the account of Senator Siewert and the account of the applicant is that the former said that the applicant had used the term “protect women from men” whereas the latter account had the term “safer from men”. The accounts of Senators McKim and Whish-Wilson were consistent with that of the applicant in this respect as they had her using the latter term. On the other hand, I note that Mr McCallum informed the respondent early in the Radio 3AW program that the applicant’s spokesperson said that the applicant had used the words “putting tasers on the street is not going to protect women from men” (emphasis added). There was no suggestion that Mr McCallum had misquoted the spokesperson and it is reasonable to infer that the spokesperson had obtained that account from the applicant directly. Thus, it can be inferred that, at least at that time, the applicant herself also considered that she had used the words “protect women from men”. Senator Hinch’s account also had the applicant using a cognate of the word “protect”.
169 Counsel for the respondent emphasised Mr Kelty’s evidence that the applicant had told him that she had interjected “women who are raped are raped by men”. In my view, the applicant’s explanation of what she told Mr Kelty on that topic, set out earlier, is plausible. With relatively few exceptions, rapes of women are by men. That makes it improbable, to my mind, that the applicant’s interjection would have contained a statement which was so obvious as to verge on the inane. I am not satisfied that this evidence of Mr Kelty provides support for the respondent’s account.
170 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.
171 I thought that the applicant’s insistence that she had used the word “tasers” seemed a little odd: plainly, Senator Anning’s motion was not confined to tasers and the interjections of others were not confined to those devices.
172 As noted earlier, I was particularly impressed by the evidence of Senator Siewert. I thought that she gave her evidence in a fair and balanced way and with good recall. She had had occasion soon after the incident on 28 June 2018 to think about what the applicant had said because the applicant had told her what the respondent had said and she had seen that the applicant was “noticeably upset”. Senator Siewert was sitting in the row immediately in front of the applicant and, with the possible exception of Senator Rice, was “the person best positioned” in the Senate to hear the applicant’s interjection. She said that she had made an interjection herself shortly before the applicant made hers, so she can be taken to have been concentrating on the debate. Moreover, as indicated, Senator Siewert held the position of Whip for the Australian Greens. She said that one of the responsibilities of that position is “looking at what’s going on in the Chamber” and identifying the position of the Australian Greens on each matter debated. She was also Deputy Leader of the Australian Greens in the Senate at the time.
173 I attach significance to the fact that the substance of Senator Siewert’s account of what the applicant said is corroborated by Senators McKim and Whish-Wilson who I thought also gave their evidence well.
174 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.
175 Had I accepted the applicant’s account of what she said, the respondent’s justification defence would still fail. That is because the words the applicant claimed to have used could not, on any reasonable view, be tantamount to a claim that “all men are rapists”. Further, on any reasonable view, the first set of words attributed to the applicant by Senator Hinch (“women would not need protection if men weren’t rapists or men stopped raping women”) could not be regarded as tantamount to a claim that “all men are rapists”.
176 Finally, even had the applicant interjected the words “women wouldn’t need [tasers, guns or protection] if men didn’t rape them” as the respondent contended, such a statement would not have been tantamount to a claim that “all men are rapists”. A statement that rapes of women are committed by men is not the equivalent of a statement that “all men are rapists”. That proposition has only to be stated to be seen to be so. The respondent himself acknowledged that there is “a big difference between the statement “putting tasers on the street is not going to protect women from men” and the statement “all men are rapists”.
177 In - of his written closing submissions, the respondent submitted that his defence of justification was established by reference to comments said to have been made by the applicant on the Sunrise program on 18 June 2018. Senior counsel acknowledged, however, that these matters had not been pleaded and withdrew the submission. It is accordingly not necessary to make findings about this.
178 The respondent also submitted that the Court should find that the applicant had, in the Senate on 28 June 2018, spoken words by way of interjection which “were capable” of conveying the meaning that “all men are rapists”. This seemed to be different from the respondent’s pleaded defence. In any event, I do not accept the submission. Even if I had found that the applicant did use the words which the respondent attributes to her, they would, for the reasons already given, lack the capacity claimed by the respondent.
179 The respondent’s defence of justification fails.
180 The respondent’s filed defence raised both the statutory and common law defences of qualified privilege. However, as indicated at the commencement of the reasons, senior counsel for the respondent conceded that, if the statutory defence did not succeed, the respondent could not advance any basis on which the common law defence may nevertheless succeed. Counsel made a like concession with respect to the Lange defence.
181 The statutory defence is contained in s 30 of the Defamation Act:
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.
182 As is apparent, in order to establish this defence, the respondent must establish:
(i) that the recipient has an interest or apparent interest in receiving information on some subject;
(ii) that the matter of which complaint is made is published to that recipient in the course of giving him or her information on that subject; and
(iii) that his conduct in publishing the matter was reasonable in the circumstances.
183 The applicant accepted that the first two elements of this defence were established. She disputed, however, that the conduct of the respondent in publishing each of the four impugned matters complained of had been reasonable. In addition, the applicant contended that the defence of qualified privilege was not available to the respondent because he was actuated by malice.
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  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:
 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.
185 Section 30(3) contains a non-exhaustive elaboration of matters bearing upon the reasonableness of a respondent’s conduct. The Court is not confined those matters. Other relevant matters may include the manner and extent of publication, the extent of inquiry made, the degree of care exercised and any knowledge by the respondent that a misleading impression was likely to be conveyed: Austin v Mirror Newspapers Ltd  2 NSWLR 383 at 390.
186 It is established that the matters listed in s 30(3) are not to be regarded as “a series of hurdles to be negotiated by a publisher before [it can] successfully rely on qualified privilege”: Jameel (Mohammed) v Wall Street Journal Europe Sprl  UKHL 44;  1 AC 359 at . Reasonableness “is not a concept that can be subjected to inflexible categorization”: Rogers v Nationwide News Pty Ltd  HCA 52; (2003) 216 CLR 327 at .
187 The relevance or weight to be given to any one or more of the factors in s 30(3) and any other relevant factors is, ultimately, a matter for assessment in the circumstances of the individual case: Rogers v Nationwide News at .
188 In Chau v Fairfax Media Publications Pty Ltd  FCA 185 at -, Wigney J summarised a number of the general principles bearing upon the defence of qualified privilege, giving citations for each:
(a) in most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure that its conduct in relation to the publication was reasonable;
(b) a respondent who intended to convey an imputation that was in fact conveyed must generally establish that he or she believed in the truth of that imputation and that the imputation conveyed was relevant to the subject;
(c) the fact that the respondent may not have intended to convey the imputation that was in fact conveyed does not necessarily mean that its conduct in publishing was unreasonable. In such a case, the respondent must generally establish that it believed in the truth of the imputation which it intended to convey and that its conduct was nevertheless reasonable in relation to the imputation which it did not intend to convey, but which was in fact conveyed;
(d) the respondent must generally establish that reasonable steps were taken before publishing to ensure that the facts and conclusions stated in the publication were accurate. That generally involves the making of proper or reasonable enquiries, checking the accuracy and reliability of sources of information and ensuring that the conclusions followed logically, fairly and reasonably from the information which had been obtained;
(e) the respondent’s belief or perception of the position, standing, character and opportunities of knowledge of the source must be such as to make the respondent’s belief in the truth and accuracy of the information reasonable in the circumstances; and
(f) a respondent must show that the manner and extent of the publication did not exceed what was reasonably required in the circumstances.
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  NSWCA 195 at -; Bolton v Stoltenberg  NSWSC 1518 at ; Hockey v Fairfax Media Publications at -.
191 The respondent’s filed Defence made the bare allegation that, at all times on and from 28 June 2018, his conduct in “disseminating” the matters of which the applicant complains had been reasonable. The respondent should have pleaded the material facts on which he relied for that assertion, so as to give the applicant fair notice of the case to be made at trial: see r 16.02(1)(d) and r 16.03(1)(b) of the Federal Court Rules 2011 (Cth). See also Sims v Wran  1 NSWLR 317 at 327. It is unfortunate that the respondent did not provide those particulars in response to the request of the applicant’s solicitors.
192 These shortcomings in the identification of the respondent’s defence were not made good in the written opening submissions provided by the respondent in the week before the trial commenced. Nor were they made good in the respondent’s oral opening submissions.
193 In his written closing submissions, the respondent identified 12 separate considerations as indicating the reasonableness of his conduct in publishing each of the impugned matters but there was some repetition in his articulation:
(a) the impugned publications were relatively mild expressions of the admitted imputations. He submitted that this diminished the sting of the imputations and that his proceeding in a manner which had achieved that outcome indicated his reasonableness;
(b) with reference to s 30(3)(a), the subject matter of the impugned matters, particularly the means of self-defence available to women, was of intense public interest given the recent rape and murder of Ms Eurydice Dixon;
(c) with reference to s 30(3)(b), the impugned matters concerned the performance by the applicant of her public functions and activities. In particular, the imputation of misandry was relevant to the kind of policies the applicant was likely to promote or support and the imputation concerning the absurdity of her comments went to her comprehension of political issues;
(d) with reference to s 30(3)(c), the imputations were relatively mild and of a type that politicians face routinely;
(e) the expression of the imputations was relatively mild;
(f) with reference to s 30(3)(d), he had made clear that he could not recall the applicant’s exact words, only their effect;
(g) with reference to s 30(3)(e), the applicant’s statement to the Senate on the afternoon of 28 June 2018 meant that it was in the public interest for his version of events to be put into the public domain promptly;
(h) with reference to s 30(3)(f), his status as an individual politician and not a corporate entity. In particular, he was in a different and superior position to a media entity. The respondent referred in this respect to a passage in the reasons of Gleeson CJ and Gummow J in Rogers v Nationwide News, at ;
(i) with reference to s 30(3)(g), he had heard first-hand what the applicant had said and was not, therefore, reliant on the integrity of an intermediary source;
(j) with reference to s 30(3)(h), it would have been futile for him to have attempted to elicit the applicant’s version of what she had said, given that the applicant was ill-deposed towards him at the relevant time;
(k) with reference to s 30(3)(i), the means by which he could otherwise have sought to verify the words used by the applicant were limited. He had been aware that the video footage of the Senate debates did not capture interjections and those other Senators to whom he had spoken were unable to assist him; and
(l) he had been the “adult in the room” on the Outsiders program and had acted responsibly by seeking to resist the overtures of his hosts to dwell predominantly on the imputations and instead had sought to address broader policy issues.
194 It is apparent that, in presenting this list, the respondent’s counsel had sought to make each of the s 30(3) matters apposite in his case. This approach seemed to overlook that s 30(3) matters are not “a series of hurdles to be negotiated” and that reasonableness “is not a concept that can be subjected to inflexible categorisation”: Rogers v Nationwide News at .
195 Other than as indicated in the above summary, the respondent’s submissions did not suggest that, for the purposes of his defence of qualified privilege, a distinction should be drawn between his conduct in publishing any one of the four impugned matters.
196 In my opinion, a number of matters indicate that the respondent’s conduct in publishing the four impugned matters was not reasonable in the circumstances.
197 First, although the respondent on his own admission has not been able at any time to state the precise words used by the applicant, he made no attempt at all to check with her what she had said. He had had the opportunity, when the applicant approached him shortly after the division on Senator Anning’s motion, to check whether she had heard his words correctly. The respondent could easily have reciprocated by making a like enquiry of the applicant. The respondent had additional opportunities later on 28 June 2018 to check the position, in particular, after he was spoken to by Senator Di Natale and by the President of the Senate about his comments. He could then have sought out the applicant to check the reliability of his own belief. His explanation that he did not do so because he regarded the applicant as ill-disposed towards him is hardly an adequate explanation. Even had that been his state of mind, he could have chosen to use an intermediary, for example, by a staff member speaking to a staff member of the applicant.
198 On the respondent’s account, the only attempts he made to check the reliability of his own understanding were enquiries he made to Senators Bernardi and Georgiou later on 28 June 2018, after the applicant had made her statement to the Senate. Each had responded by saying that he had not heard the applicant’s interjection. The suggestion that the respondent had made such an enquiry of these two Senators emerged for the first time in his cross-examination, as the respondent’s affidavit containing his evidence in chief did not contain any such claim. Given my acceptance that all of the witnesses gave their evidence honestly, I am willing to accept that the respondent believes now that he did make such an enquiry of Senators Bernardi and Georgiou. It is the case, however, that, not only did this suggestion emerge for the first time at a relatively late stage in the trial, the respondent also did not adduce evidence from either Senator Bernardi or Senator Georgiou to corroborate his account. Accordingly, I am left with some doubt as to whether the respondent did make the enquiries he claims.
199 However, if it be accepted that the respondent did make the enquiries of Senators Bernardi and Georgiou to check the reliability of his own belief as to what the applicant had said, a number of matters seem to follow. First, it suggests that, despite the respondent’s professed confidence in what he had heard, he may have had some doubts on the matter at the time. Secondly, if the respondent could make enquiries of Senators Bernardi and Georgiou, he could, and should, have been able to make enquiries of others and it was more obvious for him to have done so. That is because Senators Bernardi and Georgiou sat in the Senate Chamber to the respondent’s left, with the consequence that they were further away from the applicant’s position than the respondent himself. An obvious alternative was to speak to someone who sat closer to the applicant. For example, the respondent could have made an enquiry of Senator Hinch, or of any of the Australian Greens Senators, or of Senators Storer, Patrick or Griff, all of whom sat closer to the applicant than Senators Bernardi and Georgiou.
200 The respondent said that he had not asked the Australian Greens Senators nor Senator Hinch because they were not of his “tribe” and it was rare for him to ask questions of his political opponents. He had not asked Senator Storer because he voted with the Australian Greens “90 percent of the time” and because he hardly knew him. I accept that it is possible, and perhaps probable, that there were some Senators with whom the respondent was on friendlier terms than others and some with whom he felt more closely politically aligned. I accept that there were some who he may have regarded as “tribal” in their opposition to him. 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.
204 I accept that it was reasonable for the respondent not to have checked the video footage of the Senate proceedings. He knew from previous experience that the microphones recording sound for the footage did not capture interjections.
205 Contrary to the respondent’s submissions, the impugned matters concerned only to a limited extent the subject matter of the motion before the Senate on 28 June 2018, namely, the availability to women of devices by which they might protect themselves from sexual assault and violence. It is not realistic to consider that this was the principal subject matter of any of the four impugned matters. The very heading to the respondent’s media statement of 28 June 2018 made plain that its subject matter was the applicant. Moreover, there is some inconsistency between this submission of the respondent and his submission that the impugned matters concerned the credibility of statements which the applicant may make in the performance of her public functions and activities.
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.
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.
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.
213 Strictly speaking, given this finding, it is not necessary to address the issue of malice. However, in case this matter goes further, I will make findings concerning it.
214 By s 30(4) of the Defamation Act, a defence of qualified privilege otherwise available under subs (1) is defeated if an applicant proves that the publication of the defamatory matter was actuated by malice. The applicant alleges that the respondent was so actuated in relation to each of the four publications.
215 The principles to be applied in relation to malice in this context are settled. In Roberts v Bass  HCA 57; (2002) 212 CLR 1, Gaudron, McHugh and Gummow JJ said:
 An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term “express malice” is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (“malice”) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff …
 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. 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 …
 Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication. In Godfrey [(1944) 44 SR (NSW) 447 at 454], Jordan CJ said:
“It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla … Any other approach to the subject would in substance destroy the doctrine of qualified privilege altogether.”
(Citations omitted and emphasis in the original)
216 In his reasons in Roberts v Bass, Gleeson CJ referred, at , to the statement of Lord Diplock in Horrocks v Lowe  AC 135 at 149 that “express malice” is the term of art by which the law describes the motive of a person who “uses the occasion for some other reason”, and means malice in the popular sense of a desire to injure the person who is defamed. Earlier at , Gleeson CJ said that “[t]he 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”.
217 In Lange, the High Court said that, “[i]n 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” (at 574).
218 A belief in the truth of what was published will not avoid a claim of malice if a respondent misuses the occasion for a purpose other than that for which the privilege was given, for example, if the respondent publishes the matter complained of in order to injure the applicant or some other person, or to vent spite or ill-will towards the applicant, or to obtain some private advantage unconnected with the privileged occasion upon which the publication is made: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51.
219 In Spautz v Williams  2 NSWLR 506 at 520-1, Hunt J summarised many of the principles relating to the defeat of a defence of qualified privilege by malice. It is not necessary to repeat that summary presently, apart from noting that qualified privilege “should not be nullified by a readiness to treat as evidence of express malice destroying that privilege anything which does not definitely, and as a matter of commonsense, point to the actual existence of some express malice really operative in the making of the statement”. See also Calwell v Ipec Australia Ltd  HCA 47; (1975) 135 CLR 321 at 332.
220 In short, a respondent will be held to have been actuated by malice for the purposes of the defence of qualified privilege if the applicant establishes that it published a statement for some dominant purpose or motive other than that for which the privilege is given. The purpose or motive must be both foreign to the occasion of the privilege and actuate the making of the statement.
221 By her Reply, the applicant pleaded that the respondent had been actuated by malice in publishing the impugned matters because his predominant motive had been to harm her. The applicant provided particulars of malice which were in three broad categories:
(a) an allegation that the respondent had published the impugned matters with knowledge of the falsity of the imputations because he had known that it was false to assert that she had alleged that all men are rapists;
(b) the respondent had published the allegations to a mass audience, which he knew included the applicant’s child and family, in order to hold her up to public shame and disgrace; and
(c) an allegation that the respondent’s publication of the impugned matters was part of a campaign to ensure harm to the applicant.
222 These broad categories of particulars were supported by substantial further particulars.
223 The respondent did not file any responsive pleading.
224 The alleged malice of the respondent should be considered separately with respect to each impugned matter and at the time of publication of each. However, given the close proximity with which each impugned matter was published and the matters of common content, the matters bearing on the malice of the respondent with respect to each publication have a close relationship and the submissions of the applicant’s counsel did not distinguish between them.
225 The only submissions made by the respondent’s counsel concerning the issue of malice concerned the application of the PP Act. On that topic, counsel submitted that the Court could not determine the issue of qualified privilege, in particular, the issue of malice, without infringing s 16(3). For reasons to be given later, I do not accept that submission.
226 Otherwise, counsel for the respondent did not seek to resist the substantive submissions made by the applicant to the effect that each of his publications had been actuated by malice.
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. 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).
231 Many of the matters upon which the applicant relied with respect to her allegation that the respondent had maintained a “campaign” against her occurred after the publication of the impugned matters. That being so, I consider that caution should be exercised before concluding that these matters are evidence that the respondent was actuated by malice at the time of the publications. That is especially so as much of the conduct of the respondent on which the applicant relied for this purpose appears to have been responsive to the applicant’s own comments, or to the public debate which ensued, after the publication of the impugned matters. I will refer to some of the respondent’s conduct in relation to the applicant’s claim for aggravated damages.
232 I consider it unnecessary to consider the applicant’s submissions concerning the “campaign”. 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.
234 Accordingly, had it been necessary to do so, I would have found that the applicant had proved that the publication of each impugned matter was actuated by malice and for that further reason that the defence of qualified privilege fails.
235 The evidence to which I will refer shortly indicates that the applicant considered, at the time of each publication, that the respondent had been actuated by malice. In my opinion, that belief of the respondent was justified.
236 As indicated at the commencement of these reasons, the respondent accepted that, in the event that his defence of statutory qualified privilege failed, it was not necessary for the Court to address these alternative defences.
237 On my findings, the applicant is entitled to damages in respect of each of the defamatory imputations contained in each of the impugned matters.
238 The damages should be assessed separately with respect to each impugned matter.
239 It is established that an assessment of damages for defamation serves three purposes: consolation for personal distress and hurt; reparation for damage to the applicant’s reputation (including, if relevant, the applicant’s business reputation); and vindication of reputation: Carson v John Fairfax & Sons Ltd  HCA 31; (1993) 178 CLR 44 at 60.
240 The first two purposes are often considered together and constitute consolation for the wrong done to the applicant, whereas vindication looks to the attitude of others. The sum awarded must be at least the minimum necessary to signal to the public the vindication of the applicant’s reputation: Carson v John Fairfax at 61.
241 Section 34 of the Defamation Act requires that the Court ensure that there is “an appropriate and rational relationship between the harm sustained by the [applicant] and the amount of damages awarded”.
242 Section 35(1) of the Defamation Act has the effect that the maximum amount of damages for non-economic loss which may be awarded in the applicant’s case is $407,500. Section 35(2) provides for a circumstance in which that limit may be exceeded, but it was not suggested that that subsection should be invoked in the circumstances of the present case.
243 By s 36 of the Defamation Act, “the court is to disregard the malice or other state of mind of the [respondent] at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the [applicant]”. It was not suggested that s 36 was engaged in the circumstances of the present case.
244 Section 38(1)(d) of the Defamation Act provides, in effect, that the Court may take into account in mitigation that an applicant has brought proceedings for damages for defamation in relation to the publication of another matter having the same meaning or effect as the defamatory matter. Its evident purpose is the avoidance of “doubling up” in awards of damages. The principle underlying s 38(1)(d) is of application in the present case.
245 In Hockey v Fairfax, I summarised at  several of the principles bearing upon the assessment of damages for defamation. It was not suggested that the summary was inaccurate or inappropriate to be applied in the present case. Accordingly, I repeat the summary:
(a) Damage to reputation need not be proved as it is presumed: Bristow v Adams  NSWCA 166 at -;
(b) Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment. The harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them: Cassell & Co Ltd v Broome  AC 1027 at 1125;
(c) A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant;
(d) The level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195, applied in John Fairfax Publications Pty Ltd v O’Shane (No 2)  NSWCA 291 at ;
(e) The circumstance that a respondent has not provided any apology is pertinent: Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263;
(f) Aggravated damages are a form of compensatory damages. They are not awarded to punish a respondent. Exemplary or punitive damages for defamation cannot be awarded: Defamation Act 2005 (NSW) s 37;
(g) An award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick  1 NSWLR 643 at 653;
(h) The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations: Carson at 78 per Brennan J;
(i) In awarding aggravated damages, the Court is still compensating applicants for the loss actually suffered by them as a result of the defamation but, in doing so, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085.
246 To this summary may be added some further principles concerning awards of aggravated damages. In Associated Newspapers Ltd v Dingle  AC 371, Lord Radcliffe said at 395 “[d]amages for defamation are an expression of many contributing factors, and, as we know, they can be affected one way or the other by a defendant’s conduct, by his pleadings, by his counsel’s handling of his case, just as, occasionally, even a plaintiff may find his damages affected by the way that he has behaved”.
247 Matters justifying the inclusion of aggravated damages may be found in the circumstances in which the publication of the defamatory matter occurred or in circumstances occurring subsequent to the publication: Broome v Cassell & Co Ltd  AC 1027 at 1071. Ordinarily, a respondent’s pursuit of a bona fide defence, in the absence of improper or unjustifiable conduct, is not an aggravating circumstance: Coyne v Citizen Finance Ltd  HCA 10; (1991) 172 CLR 211 at 237. However, there are circumstances in which the conduct of respondent’s counsel can provide a basis for aggravated damages, such as when counsel puts to an applicant that he or she is lying or asks questions which are without support, gratuitous or calculated to insult: Harbour Radio Pty Ltd v Tingle  NSWCA 194; Haertsch v Channel Nine Pty Ltd  NSWSC 182 at .
248 It is not necessary for an applicant to give evidence that the aggravating behaviour of the respondent increased their sense of hurt: Andrews v John Fairfax & Sons Ltd  2 NSWLR 225 at 250; Flegg v Hallett  QSC 167 at , . When circumstances of aggravation exist, an increase to the applicant’s sense of hurt may be presumed: Wagner v Harbour Radio Pty Ltd  QSC 201 at .
249 The applicant sought to prove the extent of publication of each of the four impugned matters by the tender of documents she described as “metrics”. Other than in the case of the first impugned matter, these were the results of surveys of listening or viewing audiences. Some were not altogether self-explanatory and the extent of publication had to be derived by inference. Those inferences may be drawn more confidently because the respondent did not suggest that those for which the applicant contended were inappropriate.
250 I make the following findings concerning the extent of publication of the impugned matters.
251 As noted at the commencement of these reasons, the respondent published his media statement on Medium.com, a blogging platform, on 28 June 2018 and republished it on 29 June 2018 on his personal Facebook page as well as on the Facebook page of the Liberal Democrats. The data from Medium.com indicates that in the period from 29 June 2018 to about 10 July 2018, the media statement was viewed by 16,300 people with a “Read Ratio” of 82%. Although the evidence did not make this clear, I am satisfied that this means that 82% of those who viewed the respondent’s media statement (in round numbers, 13,400) read it.
252 Although, the “metric” which the applicant provided in relation to this program is not entirely self-explanatory, I am willing to find that it had a viewing audience of about 30,000. That was consistent with the number for which senior counsel for the applicant contended.
253 A survey in 2018 of the 3AW listening audience indicates an average audience for the Sunday Morning program of 87,000 people. It also shows that the program ran for two hours with a “TSL” of 1:21. I understand that to indicate that, on average, each person listened to the program for one hour and 21 minutes.
254 The surveys on which the applicant relied were conducted from 27 May to 30 June 2018 and again from 15 July to 18 August 2018. Neither of these periods encompassed the day on which the respondent appeared on the program, 1 July 2018, but it is reasonable to infer that a like number listened to the program on that day as well. The TSL of 1:21 suggests that it is likely that a little less than 87,000 people listened to the interview between the respondent, Mr McCallum and Ms Panahi.
255 The data indicates that the average number of persons viewing this program on 2 July 2018 in the capital cities of Sydney, Melbourne, Brisbane, Adelaide and Perth for more than five minutes was 630,000. Other data indicated that the average number who viewed the same program for more than five minutes in the regional cities of Cairns, Townsville, MacKay, Rockhampton, Maryborough, Toowoomba, Newcastle, Tamworth and Taree was just over 288,000 people. No data was provided for other locations. Just under 3,700 viewed the program on ABC iview. This suggests that the total number who viewed Ms Trioli’s interview with the respondent is likely to have been a little less than 1,000,000.
256 In addition to these publications, the evidence indicates that there was a substantial amount of republication and reporting of the impugned matters.
257 The applicant is now 37 years old. She was brought up in East Gippsland in Victoria but her tertiary education was at the University of Adelaide. She resides in South Australia and has one child who is now 12 years old.
258 The applicant was elected to the Australian Senate in 2007 as a member of the Australian Greens. She was then aged only 25 years. The applicant has since been re-elected three further times (twice at the time of publication of the impugned matters). For eight years, the applicant was the spokesperson for the Australian Greens on Immigration. Since 2016, she has been a spokesperson for the Australian Greens on the Environment, Finance and Trade, Water and the Murray Darling Basin, Arts and Media and on the use of Nuclear Power. I accept that these are responsible positions.
259 Several witnesses spoke of the good reputation which the applicant enjoyed before the respondent published the impugned matters. Mr Kelty deposed that he has known the applicant for most of her life and that he has witnessed her interaction with friends, family and colleagues. He said that he has come to know that everyone in the applicant’s life, both personal and professional, consider her to be a “determined, caring, independent and intelligent woman”. He spoke of her reputation for leadership and courage in advocating for the rights of refugees and described her generally as having a reputation for being “honest, constructive, hardworking and committed”.
260 Senator Keneally said that, although she had known of the applicant since 2008, she became acquainted with her in 2014. Their acquaintanceship has become closer since Senator Keneally’s own appointment to the Senate in 2018, by reason of her office being directly across the hall from that of the applicant. Senator Keneally has worked with the applicant on the Senate Environment and Communications Reference Committee and said that, quite apart from that involvement, she and the applicant speak frequently during each sitting week.
261 Senator Keneally described the applicant as being known as “a friendly, generous and kind person” with a reputation for being a fierce advocate for causes and issues which are important to her including the safety of women and children, the treatment of refugees, climate change, and equal access to education and training in the Australian community.
262 Dr Wylie has known the applicant since September 2017. She deposed that the applicant has the reputation amongst her staff and employees of being an intelligent and professional woman with a warm engaging manner and as being held in high esteem by those who work with her and amongst the membership of the Australian Greens.
263 Ms Gerlaud has known the applicant since April 2016. She commenced as Executive Assistant to the applicant in September 2016 and became her Chief of Staff in August 2018. Ms Gerlaud described the applicant as having a reputation amongst her staff and colleagues for a high level of resilience as well as the capacity to manage all aspects of her life in a professional manner. She said that the applicant is held in high esteem by colleagues, employees and members of Parliament and that she has a reputation of being passionate, determined and reliable, both in Parliament and in the community.
264 I accept that the applicant’s reputation was generally as described. However, it is appropriate to keep in mind that the views just summarised were from witnesses who were close to the applicant and supportive of her. It is also evident that their views of the applicant were not held universally.
265 The evidence in the trial indicates, unsurprisingly, that there are persons in the community who do not share the political views of the Australian Greens or for that matter of the applicant personally. The evidence also indicates that there are a number of people who hold the applicant in less esteem than the evidence of Mr Kelty, Senator Keneally, Dr Wylie and Ms Gerlaud indicates. That is to be expected as an ordinary incident of political life. It is also commonplace that forthwith advocacy of political views, of the kind in which the applicant engages, can lead to counter assessments, particularly among those opposed, or not sympathetic, to the views of a politician. In these circumstances, it would not be appropriate for the Court to proceed presently on the basis that the views of the applicant’s reputation to which the witnesses deposed were, before 28 June 2018, held without exception in the community.
266 It is convenient at this point to refer to the respondent’s pleaded defence that the impugned matters “could not cause, did not cause, and will not cause any injury to the applicant’s character or reputation” or otherwise cause her to “suffer any loss or damage”. In support of this plea, the respondent pleaded that he and the applicant, and their respective political parties, are, and are widely known and understood by the Australian public to be, “at polar extremes of the political spectrum in Australian politics”. He pleaded that, by reason of those circumstances, “it logically and necessarily follows” that nothing said by the respondent including the admitted imputations could alter the opinions of a person who had been disposed either to hold the applicant in favourable esteem or take a neutral view concerning her. In addition, he pleaded that the only persons who might attach “any credence or weight” to statements made by the respondent, including the admitted imputations, were persons who were otherwise disposed not to hold the applicant in favourable esteem or not to take a neutral view concerning her.
267 The logical necessity asserted in this plea is rejected. The reasons which I gave earlier in respect of the respondent’s submissions concerning defamatory meaning are sufficient to indicate why that is so. While there may no doubt be many people whose views of the applicant were not altered, favourably or unfavourably, by the respondent’s defamatory imputations, I consider that a significant number of ordinary reasonable people who saw or heard the impugned matters would think less of the applicant by reason of them.
268 The second matter pleaded by the respondent as indicating that the applicant had not suffered any harm by reason of his publication of the admitted imputations was the public statements made by the applicant after 28 June 2018. The respondent described these as “the applicant’s self-promotion”. I will refer to that later in these reasons.
269 Other than in a limited way, neither the applicant’s evidence nor submissions sought to differentiate between the damage and distress resulting from each of the three admitted imputations. That is understandable.
270 The applicant testified that she had been informed by a journalist on the evening of 28 June 2018 of the respondent’s media statement concerning her, but that she read it for the first time on Friday, 29 June 2018. She said that her initial reaction had been one of disappointment because she had not made the statement to the effect that all men are rapists, which the respondent attributed to her, and, when she approached him in the Senate, he had not suggested that she had. The applicant said that she felt that the respondent was punishing her “for standing up for myself” by challenging him. She deposed that she has continued to have those feelings ever since.
271 The applicant testified that she had learnt during the course of Sunday, 1 July 2018 of the respondent’s comments concerning her on the Sky News Outsiders program that morning. Her colleagues and some journalists had sent her text messages with screen shots of the Outsiders program stating that she was “known for liking men” and that the “rumours about her in Parliament House [were] well-known”. In addition, she was asked to come on to the Sky News program to respond to the respondent’s claims. At the time the applicant was participating in a campaign event associated with the forthcoming by-election for the Federal seat of Mayo. She was sharing the stage with Mr Bob Brown and the Australian Greens candidate in the by-election. This meant that, while maintaining outwardly her composure, she had been upset and had felt that she was being “played with”.
272 After the completion of the campaign meeting, the applicant saw a segment of the respondent’s interview on the Outsiders program and, within a couple of hours, viewed a tape of the full interview. She described herself as feeling “falsely attacked and accused” and distressed that the respondent had “made something up to justify his attack on my personal life”. She considered that the respondent had “made up a whole story” for the purposes of defending himself with respect to the statement which she had made in the Senate concerning him and described feeling distressed and humiliated. The applicant said that her feelings about the respondent’s interview on the Sky News Outsiders program have not changed even though she has now viewed it a number of times. She described feeling “very raw”.
273 The applicant testified that she first learnt of the respondent’s statements on the Radio 3AW Morning program at the time she was leaving the campaign event. However, she did not hear a tape of the respondent’s interview until the evening of that same day. The applicant said that at that time she considered Radio 3AW to be “mainstream” and probably “the most listened to radio station in Melbourne”. She said that a number of statements made in the interview horrified her. The applicant referred in particular, to the respondent’s insistence that she had said that all men were rapists when she had not, to his “doubling down” on the false statement in his media statement to that same effect, to the references to her sex life, to the respondent’s claims of hypocrisy, to the claim that she had had a relationship with a particular men which was false, and to a statement of the respondent which indicated to her that his comments were a “punishment for standing up for myself”. The applicant referred to the respondent’s rejection of Mr McCallum’s suggestion that the debate concerning the self defence of women had been hijacked by his references to the applicant’s sexual conduct. In relation to that suggestion, the respondent had said:
No, I don’t agree. If it hadn’t been for … the fact that she … went to the President and er made an issue out of this, um unfortunately, regrettably, the issue of self-defence for women, and indeed for all people, would have er dropped off, off the agenda.
It was this statement that made the applicant feel she was being “punished” for standing up for herself.
274 The applicant said that her reaction to the things said about her by the respondent in the 3AW Morning program has not changed since she first listened to a tape of the interview.
275 The applicant said that she heard the spoken voices in the respondent’s interview with Ms Trioli on the ABC 7.30 with Leigh Sales program at the time it was occurring, and had seen a videotape of the interview later. She said that by that time she felt “really trapped” and distressed. The applicant knew that the respondent’s interviews on the Sky News program and the 3AW program had been replayed and re-publicised “far and wide”. She had been seeking advice about how she should respond to the respondent’s comments but had resisted engaging in “direct media” for that purpose. When the applicant heard the respondent’s statements in the ABC interview, she thought that he was “doubling down, continuing to spread these lies, continuing to cast dispersions about my character and my reputation” and that she had known that she was “going to have to respond”. She had thought that would be a difficult thing to do. The applicant said that she was hurt by the respondent’s response to Ms Trioli’s question whether he would withdraw his comments and apologise for them. She said that she has felt the same about the respondent’s comments on the ABC 7.30 with Leigh Sales program ever since.
276 The applicant’s evidence about these matters was plausible and supported by a number of other witnesses. Mr Kelty noted that, when the applicant spoke to him on the telephone on or around 2 July 2018, “her voice was palpably shaken and she was deeply upset about the personal attacks, both on herself and what it meant for women generally, as well as the impact on her daughter”.
277 Ms Gerlaud confirmed that the applicant had told her of the hurt which she felt by reason of the “attacks on herself and her family”. She noted that when the applicant returned to Canberra on or around 13 August 2018 she was “visibly shaken and distressed”, a state in which Ms Gerlaud had never seen her before. Ms Gerlaud also said that following the publication of the impugned matters, she had, in her positon as Executive Assistant and Chief of Staff to the applicant, received many abusive phone calls and letters concerning the applicant and had read various Facebook posts and direct messages threatening violence towards her. Because of this she had reported the matters to the Australian Federal Police.
278 Other witnesses also spoke of the applicant’s reports of hurt and distress to them.
279 During the afternoon of 1 July 2018, the applicant’s solicitors wrote to the respondent pointing out that his statements were defamatory of her. In their letter, the solicitors requested that the respondent “not repeat the highly defamatory imputations already conveyed”.
280 The applicant deposed that, over the ensuing days, she received numerous phone calls and messages from journalists and members of the public concerning the respondent’s statements. She herself made numerous media appearances in response to the respondent’s statements, in which she described herself as “shaking” prior to appearing. Some of the calls to her electorate office were supportive of the applicant and others denigatory of her. The applicant said that she found it humiliating that members of her staff had to answer phone calls and emails from persons claiming that she was a “hypocrite and misandrist” because she was a “slut who had sex with men”.
281 As to the effect of the respondent’s publications on her in the days and weeks following 1 July 2018, the applicant deposed:
 In the days and weeks immediately following these events, I felt emotionally trapped. I felt as though I couldn't let my staff, the media, or my daughter know how distressed I was. I had to keep it together, lead the way and take care of them while struggling internally and dealing with the hurtful and distressing comments I was responding to on a daily basis. I particularly had to keep it together for my daughter Kora as she was being dragged into this in the media and also at school.
 Part of my character and public image is that I am a strong person. I am a person of conviction. It was really hard to make people realise how hurtful all the statements were.
 As a mother, I carried an immense amount of guilt. [My daughter] came back from school on multiple occasions and told me some classmates had asked her about me and had asked "how many boyfriends has your Mum had?''. I felt guilty she had to hear and experience this and had to respond herself, she is only 11 years old and should not be subjected to such accusations of her mother
 I felt physically sick at the idea of being back in the same room as the Respondent. I did not want to be near him. My level of anxiety was very high and this is still the case when I know that I will be in the Chamber with him.
 I recall that journalists said to me words to the following effect, "Senator Leyonhjelm says this is good for your political career'. I found this very upsetting.
282 The applicant also deposed that, on or around 3 July 2018, her Chief of Staff (Ms Gerlaud) had reported to her:
[Your media advisor] just received a call and the caller said, “if you do not stop saying that all men are rapists, there is a group of us who will rape you. Many men are angry at [you] and … we will punish [you] by raping [you].”
283 Dr Wylie discussed the respondent’s comments with the applicant in the weeks after the publications. She testified that the applicant had told her that she regarded the comments as “deeply upsetting and distressing”.
284 I will refer later to the comments made by the respondent at the time of the First Case Management Hearing in this Court on 20 September 2018. It convenient to record at this time Dr Wylie’s evidence that the applicant had told her in relation to the Case Management Hearing at that time:
I am devastated, I’m upset and I’m angry. The whole thing is just really awful and part of me wants to not go through with the court case, because it’s so exhausting, but I can’t let him get away with this. He will continue to bully me unless I stand up to him, so I have to.
285 The matters just summarised are plausible and, despite the respondent’s criticism of the evidence of the applicant and her witnesses, I considered them to be credible. I accept them.
286 The respondent submitted that the Court should find that the applicant “had – or deserved – a bad reputation” at the time of publication of the impugned matters. He submitted that the “relevant reputation to be considered is the “sector” (or sectors) of the [applicant’s] overall reputation upon which the offending publication impacted”, citing O’Hagan v Nationwide News Pty Ltd  NSWCA 302; (2001) 53 NSWLR 89 at 91 (Meagher JA).
287 The respondent identified the “relevant sectors” of the applicant’s reputation as being:
(a) her reputation for coherence and common sense in her public comments, and for comprehension of policy issues;
(b) her reputation for valuing human beings by their worth as individuals and not by their membership of a favoured “identity politics” group; and
(c) her reputation for a propensity to live consistently with the principles she espouses.
288 The respondent’s submission was that the applicant’s reputation at the time he published the impugned matters was already so poor that his imputations had not diminished it, or alternatively, that the damages awarded should reflect that there had been only a minor diminution in that reputation.
289 This submission of the respondent gave rise, at least potentially, to several issues. A number of matters concerning the availability of a plea of prior poor reputation were discussed by Wigney J in Rush v Nationwide News Pty Ltd (No 2)  FCA 550 at -, but the respondent’s submissions did not advert to them. Nor did the respondent address his omission to plead any allegation that the applicant had a previous poor reputation, let alone the material facts to support such a plea. When a plea of prior poor reputation is properly available to a respondent, it should be pleaded and supported by appropriate material facts – see rr 16.03(b), 16.08 and 16.41 of the Federal Court Rules 2011 (Cth). There is also a potential issue concerning the appropriate identification of the relevant sector in which the damage to the applicant’s reputation is to be considered.
290 However, these matters can be put to one side because, in my opinion, the respondent’s submissions fail at a factual level.
291 The respondent’s closing submissions on this topic relied on the same two matters to which he had referred in support of his submissions that the admitted imputations had not been defamatory of the applicant and to which I have made reference earlier in these reasons. The first of these were the applicant’s Twitter post of 11 December 2016 in the context of the debate about the grant of paid leave to victims of domestic violence in which she said that “it would be even cheaper on the economy if men just stopped hitting women, but sadly they won’t”. The second was the applicant’s comments on the Sunrise program on 18 June 2018 in which she had referred to men as “pigs” and “morons” and had said that “men cannot control themselves and deal with their own issues”.
292 I reject the submissions of the respondent concerning these matters for the same reasons which I gave in relation to the issue of defamatory meaning. In particular, I reject as lacking a proper basis the respondent’s submission that “[a]ll or a substantial part of the alleged damage to [the applicant’s] reputation (to the extent it is otherwise made out) either had occurred already or ought to have occurred already” (emphasis in the original).
293 I accept the evidence indicating that the applicant had a good general reputation before 28 June 2018. However, as already indicated, I do consider it appropriate to take into account the political context in which the applicant and the respondent were engaged. I have already referred to aspects of this. Many persons seeing, or hearing, the respondent’s comments are likely already to have had firm views about the applicant and the respondent and their views are unlikely to have been changed by the respondent’s comments. Some would have dismissed them on the basis that they did not accord with their existing favourable view of the applicant. Others would have dismissed them because of their existing adverse view of the respondent. They are likely to have assumed a bias on his part. Others would have taken the respondent’s comments as reinforcing an existing firm adverse view of the applicant.
294 Matters of this kind are a consequence of the partisan positions which politics can engender. They are ordinary incidents of political life, and account should be taken of them in the assessment of damages.
295 However, as noted earlier, the fact that these matters may be incidents of political life does not mean that the applicant has not suffered damage to her reputation. The mere fact that the views of some may not have changed does not mean that the estimation by others of the applicant was not been reduced. I accept that there are many ordinary reasonable people who could have thought less of the applicant by reason of the respondent’s defamatory imputations.
296 The respondent submitted that “the substantial entirety” of any injury to the applicant’s reputation arose from the “promiscuity imputation” in the impugned matters and that much of the hurt, humiliation and distress about which the applicant had given evidence had been caused by that imputation and not by the admitted imputations. This was a significant focus of the respondent’s cross-examination of the applicant and of some of the other witnesses.
297 A related submission of the respondent was that much of the grapevine effect resulting from the respondent’s imputation had focussed on the matters comprising the “promiscuity imputation”.
298 Counsel cross-examined the applicant by reference to numerous publications which had occurred from and including 28 June 2018 concerning, in one way or another, the impugned matters. Considered broadly, these publications comprised documents in the following categories which were often overlapping:
(a) items concerning the events which occurred in the Senate itself and the respondent’s initial media release, with particular reference to his claim that the applicant had said something along the lines of “all men are rapists” and the respondent’s statement concerning the applicant “shagging” men;
(b) media releases issued by the respondent, and items relating to them, including tweets by individuals about the applicant or events in the Senate, shared on various platforms by the respondent and the Liberal Democrats;
(c) items concerning the respondent’s conduct following 28 June 2018, in particular, his appearance on the Outsiders and 3AW programs as well as on other outlets, and his published media statements;
(d) items concerning calls for the respondent to apologise for his remarks, especially after Sky News issued its own apology;
(e) articles regarding the settlement offer made by the applicant in these proceedings (which the respondent had made public) and the commencement of the current proceedings including the content of the Statement of Claim and the Defence; and
(f) items concerning the term “slut-shaming” as asserted by the applicant, and the impugning of her motive in pursuing these proceedings.
299 The applicant described being hurt, upset, offended and frustrated by several of the publications and said that she had felt the subject of public ridicule, bullied, and dismayed.
300 Of present relevance, the applicant confirmed in her cross-examination that the respondent’s statement in the Senate on 28 June 2018 concerning her “shagging men” was “highly offensive” and “distressing”. Counsel then drew her attention specifically to the numerous articles, Facebook posts, Twitter posts, print articles and television or radio broadcasts in which the respondent’s statement concerning the applicant “shagging men” and some of the other statements comprising the “promiscuity imputation” had featured prominently. By way of example, there were over 25 such articles or posts reporting in one way or another on the respondent’s media statement of 28 June 2018. Nearly all of these referred to the respondent’s statement that the applicant should stop “shagging men” or that she should continue “shagging men” as she pleased. Many of the articles were reasonably straightforward reports of the applicant’s statement to the Senate on the afternoon of 28 June 2018 regarding the respondent’s conduct and media statement. Most, but not all, reported the respondent’s claim that the applicant had said something along the lines that “all men are rapists”. Some reported the applicant’s description of the respondent’s comments as “sexist and offensive”. Of significance for present purposes, is that several of the articles linked the respondent’s statement concerning the applicant “shagging men” to the respondent’s claim that the applicant had made a statement along the lines that all men are rapists.
301 The respondent’s statements on the Sky News Outsiders program and the Radio 3AW Morning program were followed by numerous articles, Facebook posts, Twitter posts, print articles and radio and television articles. In more than 20 of these, the respondent’s statements concerning the applicant “shagging men” and having a reputation for liking men were prominent. In several of the articles, various politicians or commentators described the respondent’s comments comprising the “promiscuity imputation” as “offensive”, “controversial”, “appalling”, “inappropriate” or other like terms.
302 However, the articles were not confined to matters comprising the “promiscuity imputation”. Many also referred to the respondent’s assertion that the applicant had said words along the lines that “all men are rapists” and several referred specifically to his claim of misandry. Several repeated the respondent’s claim that he was entitled to call out double standards, thereby drawing attention to his claim concerning the applicant’s hypocrisy.
303 Later articles referred to the applicant’s foreshadowing of the present defamation proceedings and, following their commencement, reported comments made by the respondent with respect to them. The later articles tended to refer less directly to the respondent’s statements said to constitute the “promiscuity imputation”. However, the respondent himself drew attention to the fact that the applicant’s defamation proceedings, when they were commenced, did not make any claim with respect to the “promiscuity imputation”. The respondent continued in the articles which followed, to assert his entitlement to call out double standards and it is apparent that, in several of the articles, the respondent sought to justify himself by reference to this claimed entitlement.
304 An example is in a media statement issued by the respondent on 3 August 2018. The headline to the media statement was “Media Release: Quit the double standard when it comes to sexism”. Immediately underneath that heading, the media release stated “Liberal Democrats Senator David Leyonhjelm will not be apologising to Senator Sarah Hanson-Young, despite calls from Prime Minister Malcom Turnbull to do so”. It then stated:
“I will not apologise for calling out double standards and misandry when I see it,” Senator Leyonhjelm said.
“Society deems misogyny unacceptable and I completely agree with this stance. But let’s start being consistent here.”
“Senator Hanson-Young has a history of saying derogatory and sexist things about men and implying that all men are collectively responsible for the crimes of a few.”
“I suggest my Senate colleague calm down and accept the fact that many people find misandrist comments just as obnoxious as misogynist comments,” he said.
305 The applicant is not of course entitled to damages in respect of the harm or distress she suffered by reasons of the matters comprising the “promiscuity imputation” as she has not sued on that imputation. The respondent is correct to that extent.
306 However, the clear distinction which the respondent’s submission assumed to exist between the harm and distress caused by the “promiscuity imputation”, on the one hand, and that caused by the admitted imputations, on the other, was not always apparent. As noted earlier in these reasons, the imputation that the applicant is a hypocrite because she claimed that all men are rapists but nevertheless had sexual relations with them is closely interlinked with the “promiscuity imputation”. That is so because the respondent did not simply refer to the applicant’s participation in sexual intercourse with men. He did so in terms which suggested that she is promiscuous. It was the promiscuity on which he relied for the claimed inconsistency and hence hypocrisy.
307 Moreover, as noted earlier in these reasons, the “promiscuity imputation” served to draw attention to the admitted imputations.
308 Thus, distinguishing the harm caused to the applicant by the “promiscuity imputation” from that caused by the admitted imputations is not easy.
309 Nevertheless, I accept that a significant amount of the distress which the applicant suffered, and to a lesser extent some of the diminution in reputation, can be attributed to the respondent’s crude comments concerning her sexual behaviour in a way which is separate and distinct from the harm resulting from the admitted imputations. A simple example is the respondent’s statement by in his media statement of 28 June 2018 in which he “strongly urge[d] [the] [the applicant] to continue shagging men as she pleases”. That suggestion was less obviously linked to his claim of hypocrisy and had a “gratuitous” quality about it.
310 Of greater significance in the present context are the frequent references to the respondent’s “slut-shaming” of the applicant.
311 In the 3AW Sunday Morning program, Ms Panahi suggested to the respondent that he was engaged in “slut-shaming” the applicant. The respondent denied that that was so. There were five references to “slut-shaming” in that interview. In a radio interview on 2 July 2018, the applicant herself described the respondent as “slut-shaming” her:
He’s slut-shaming me. That is what he is doing, women right around this country, ah, know it. Men, decent men, know it and I’m not prepared to sit here and be intimidated and bullied. It’s offensive …
312 Thereafter, many of the media references referred to the respondent’s “slut-shaming” of the applicant in ways which were not linked to the defamatory imputations. They also referred to the “sexist” nature of the respondent’s remarks. For example, on 3 July 2018, the applicant said in an interview on ABC Radio National:
You don’t, because you’re losing a political argument, reduce the discussion or the debate down to sexist slurs and sexual innuendo and that’s what David Leyonhjelm has done.
313 The applicant also said that she had “had enough” of men in Parliament using sexism “as part of their intimidation and bullying on the floor”.
314 The Concerns Notice sent by the applicant’s solicitors to the respondent on 4 July 2018 asserted that each of the four impugned matters had defamed the applicant by conveying, amongst other things, that she “is a slut, shagging men indiscriminately”. This was asserted separately from the imputation that the applicant was a hypocrite by stating views that amounted to hating men while at the same time being “a slut, shagging men indiscriminately”. In addition the Notice asserted that other imputations had been conveyed by his statements that she is a misandrist and a hypocrite. Of significance for present purposes is that the Concerns Notice alleged that the asserted imputations concerning the applicant being a slut had caused her “hurt, distress and embarrassment” and that the respondent had made the statements in order to hold her up to “public shame and disgrace”. Accordingly, at least at the time, the applicant’s solicitors were asserting that some of the damage suffered by the applicant was caused by the imputation that she was “a slut, shagging men indiscriminately”.
315 Ms Gerlaud said that she had understood the applicant’s statement of her unwillingness to be in the same room as the respondent as referable to this statements concerning her sexual activities.
316 In her booklet “En Garde” published on 1 October 2018, the applicant included passages which tend to confirm the distress which the “promiscuity imputation” had caused:
In other work places, telling a woman to ‘stop shagging men’ and refusing to apologise for it would probably get you fired. In parliament, though, it landed Senator Leyonhjelm an interview on Sky News, which he used to double down on his abuse.
‘Sarah is known for liking men’, he said. ‘The rumours about her in parliament are well known’. He spent days going from one media outlet to another, making disgraceful comments like this and dragging my name through the mud at every opportunity.
Just when I thought it couldn’t get any worse, I heard that Leyonhjelm had been on the radio station 3AW and gone even further, naming somebody on air who he, incorrectly, told listeners I’d had sex with.
Again, I had known this was coming; that I would be punished for standing up for myself.
And I was hurt and distressed. This bloke was out telling anyone who would listen to rumours he’d heard, or made up, about my sex life, insinuating they were relevant to how I do my job. Media organisations were lining up around the block to give him a platform to repeat his smears.
Leyonhjelm’s assault continued. His suggestions that I am sexually promiscuous were offensive, but his excuses for the attacks on me were worse.
317 Later in the book, the applicant said:
Slut-shaming is a thing. It happens to women everywhere, and it was happening to me. I was lucky to be in the privileged position of being able to do something about it. I could hit back.
318 Much of the content of the remainder of the book made plain the applicant’s offence at the “slut-shaming”. Much more of the book was directed to that issue than the imputations on which the applicant has sued.
319 The applicant also made plain in the booklet that her decision to commence the present proceeding was very much influenced by the respondent’s aspersions regarding her sexual conduct:
Leyonhjelm’s refusal to acknowledge his bad behaviour made my decision to take legal action all the easier, as did knowing that, despite the hate and nastiness coming from his supporters, the majority of Australians felt very differently from the way he did. They want a kinder, better, more respectful society for women and girls, and they want our parliament to step up and lead the way. Former prime minister Malcom Turnbull was right when he said that while disrespecting women doesn’t always result in violence against women, all violence against women begins with disrespecting women.
320 The effect is that I accept that some of the hurt and distress suffered by the applicant was caused by the “promiscuity imputation” in a way which was separate and distinct from the admitted defamatory imputations. I accept the respondent’s submission that the applicant is not to be compensated for that harm. Nevertheless, for the reasons already given, the “promiscuity imputation” is intrinsically linked, and forms part of, the imputation that the applicant is a hypocrite. The conduct said to comprise the “applicant’s promiscuity” is the conduct on which the respondent relied for the assertion that the applicant was guilty of double standards. It cannot be excluded from consideration altogether.
321 The respondent also submitted that the applicant had taken advantage of the opportunities created by his publication of the impugned matters to advance herself politically. His defence contained pleas that, in response to the impugned matters, the applicant had made repeated public statements “promoting herself … as a champion of the rights of women” and in particular of women who are victims of “slut shaming”, workplace bullying and other forms of disrespect. The respondent referred to this as the applicant’s “self-promotion” and pleaded that it had served to enhance her public profile and to reinforce or enhance her standing, reputation and esteem amongst her political supporters. He pleaded that those circumstances made it unlikely that the applicant would suffer any harm, and, instead, were likely to redound to her benefit.
322 I do not propose to review in these reasons the various matters said by the respondent to constitute the applicant’s “self-promotion”. It is sufficient to record that in the weeks and months after 28 June 2018, both the applicant and the respondent participated frequently in the media defending their respective positions. The materials to which I have already referred indicate that the applicant sought to indicate publically the stance which she was making against the sexism, bullying, harassment and the like which she saw in the impugned matters. She sought to articulate the appropriateness, as a matter of principle, of her response and attitude and, conversely, the inappropriateness of the respondent’s position. I am willing to accept that this had the effect of increasing the applicant’s public profile and to mitigating the damage to her reputation which may otherwise have resulted from the respondent’s admitted imputations. However, contrary to the respondent’s submissions, I do not accept that the applicant was able to mitigate all the detriment to her reputation caused by the impugned matters.
323 The respondent’s submissions did not address the issues of principle concerning the manner in which account may be taken of these circumstances in the assessment of damages.
324 Nevertheless, as already indicated, the damages are to be awarded, at least in part, in reparation for the damage to an applicant’s reputation and for the hurt and distress which the imputations have caused. And, as already noted, s 34 of the Defamation Act requires that there be an appropriate and rational relationship between the harm sustained by the applicant and the amount of damages awarded. If an applicant is able to avoid some of the damage to his or her reputation and to avoid some of the hurt occasioned by the defamatory imputations, it is appropriate, as a matter of principle, for this to be taken into account in the assessment. Thus, in the present case, I do consider it appropriate to take account of the extent to which the applicant has been able to avoid some of the damage caused by the respondent’s imputations.
325 The principal effect of the applicant’s actions appear to be reduction in the extent of the damages to her reputation. The effect in diminishing the hurt and distress she suffered is likely to have been much less. Likewise, the applicant’s own actions do not really reduce the need for the damages to reflect an appropriate vindication of her reputation.
326 An assessment of the actual extent to which the applicant has been able to mitigate the damage caused by the respondent’s defamatory imputations is, of its nature, a difficult exercise. That is especially so as in the present case there was little evidence in the trial on the topic. I think it appropriate to proceed on the basis that the applicant was able by her media and public statements to mitigate, to an appreciable extent, some of the harm to her reputation which would otherwise have resulted from the impugned matters but I do not accept the respondent’s contention that the applicant has so used the “opportunities” created by his publication of the impugned matters to enhance her reputation with the consequence that she has not suffered any damage at all.
327 In her Amended Statement of Claim, the applicant submitted that 26 matters warranted the inclusion of aggravated damages in the award for non-economic loss. However, in the final submissions, counsel for the applicant submitted that seven matters were improper, lacking in bona fides and/or unjustifiable so as to warrant the inclusion in the award of aggravated damages.
328 First, the applicant referred to the respondent’s positive refusal to offer any apology. When asked by Ms Trioli on the ABC 7.30 with Leigh Sales program whether he would like to take the opportunity to withdraw his comments and apologise for them, the respondent answered “No, no … bring it on”. He justified that refusal by saying that he was on “solid ground” in expressing his opposition to the applicant’s misandry and double standards.
329 The Concerns Notice sent by the applicant’s solicitors to the respondent sought “an unreserved apology” from the respondent but he declined to provide it. The respondent published his refusal to apologise saying:
I am not apologising for anything. I stand by it. I am opposed to double standards.
330 The respondent’s conduct was thereby a continued assertion of his defamatory imputations. In saying that, I am not overlooking the fact that the applicant’s formulation of the imputations in the Concerns Notice was different from those on which she sued. There is, however, nothing to indicate that that was material to the respondent’s attitude.
331 Secondly, the applicant relied upon what she described as “an overall campaign of denigration” of her by the respondent after 28 June 2018. There is no doubt, as already indicated, that the respondent did, following the publication of the impugned matters, make a number of statements which were belittling of the applicant. I have referred to some of these already. I add the following:
(a) a tweet by the respondent on 3 July 2018 concerning the applicant:
Wouldn’t recognise a principle if it bit her on the behind. Get it straight – misandry is equally as obnoxious as misogyny. Playing the female victim card is cowardice.
(b) his statement to Fairfax Media on 3 July 2018:
Absolutely she’s grandstanding. She loves playing the victim, it’s about the only thing she’s good at.
(c) following his receipt of the Concerns Notice from the applicant’s solicitors, the respondent referred publicly to the applicant’s “confected outrage”;
(d) in the tweet on 6 July 2018, the respondent said “[a]pologising in response to the outrage of a politically correct lynch mob would be insincere. Drawing attention to double standards and misandry is not wrong and does not warrant an apology”;
(e) a media statement by the respondent published on 10 July 2018 under the headline “Another statement about the same thing”:
Liberal Democrats Senator David Leyonhjelm would like to publicly congratulate Greens Senator Sarah Hanson-Young for successfully sustaining her outrage for a second week.
“It’s been almost 48 hours since the public last witnessed Senator Hanson-Young’s transformation from outspoken politician to tearful bullying victim”, Senator Leyonhjelm said.
I am pleased to see she has bravely responded to her feelings of relevance deprivation and managed to issue another statement today, reaffirming her victimhood and repeating her brave decision to sue me – just in case there are some Australians who missed that bit last week.
I will also like to congratulate her on the establishment of her crowdfunding campaign, so that she can continue pursuing her personal gripe against me using other people’s money.
(f) a tweet on 21 July 2018 with respect to the applicant:
who is (threatening) to sue whom? Who made a whiny statement in the Senate? She should heed my advice and discover sex and travel.
(g) following his receipt of the applicant’s Statement of Claim, the respondent issued a media release highlighting the absence of any allegation concerning the “promiscuity imputation”. He described the Statement of Claim as “a tepid whinge that I have insinuated she is a hypocrite and a misandrist”.
(h) on 20 September 2018, the respondent said of the applicant in a media interview:
I suspect she’s the most unpopular Senator in the Chamber today. Her behaviour doesn’t win her any friends.
(i) in the same interview, the respondent told journalists:
[I]n fact this is in our opinion primarily about getting publicity. Sarah is up for re-election at the next election, and so she’s achieved substantial publicity as a result of her accusations levelled at me about slut shaming and sexism and so on, which she is not even suing on. She’s got substantial publicity out of that and um of course presumably it will be good for her re-election chances. I, my suspicion is that that was her primary motivation right from the start.
332 In my view, this denigratory conduct is of a kind which warrants the inclusion of aggravated damages in the award.
333 The third and fourth matters can be considered together. The applicant relied upon the respondent’s disclosure on 9 September 2018 of the without prejudice offer which she had made to settle the current proceedings. The respondent disclosed that the applicant had indicated her willingness to settle the proceedings by payment of the sum of $75,000 in addition to costs and a verdict in her favour. The respondent said publicly that he did not seriously entertain the applicant’s offer.
334 There are real issues about whether or not the conduct of the respondent in making public the applicant’s without prejudice offer to settle the proceedings involved a breach of an implied obligation of confidence. It is not necessary to discuss that question presently. Of present relevance is that, at the First Case Management Hearing on 20 September 2018, the respondent gave journalists the following description of the offer:
[H]er offer was really not a serious offer. She said she wanted $75,000 with costs, there was no way of calculating what those costs might be, it was never a serious offer and it would have involved me saying I was wrong and I have not, I am not admitting I was wrong.
335 In my opinion, the respondent’s publication of the offer, taken together with his disparagement of it, is appropriately taken into account as an aggravating matter. It tends to suggest an attitude by the respondent of not taking seriously the proceedings by which the applicant sought vindication of her character.
336 Fifthly, the applicant relied on questions of the respondent’s counsel in the cross-examination of Senator Keneally concerning the term “slut-shaming”:
XXN: When one hears the expression “slut-shaming” used, is that understood, in your experience, as meaning this person is in fact a person of low sexual morals and someone is unfairly taking advantage of that fact, or is it to be interpreted as someone who is trying to paint me as having low sexual morals whether or not that’s the true position?
A: It could be either.
XXN: It could be either.
XXN: You can’t recall any politician other than Senator Hanson-Young going to the media and saying that she had been slut shamed?
A: No I don’t recall.
XXN: From your earlier answer that it could mean either, are we to take it that an ordinary, reasonable listener to what was said could take the statement “I’m a victim of slut shaming”, as meaning, “I’m a slut and someone who is trying to taking improper advantage of that fact”?
A: Well, of course, it could mean that.
XXN: Yes it could. Well consistently with your evidence about what, in the eyes of the public, published statements are understood as meaning, would you expect that to be a widespread interpretation of such a remark?
XXN. No. What would you expect to be the more common interpretation of that remark?
A: That someone is seeking to use the person’s sexuality as a weapon against them in a political debate.
HIS HONOUR: Sexuality or sexual activity?
A: Sexual activity, your Honour.
337 The applicant was present in Court when that evidence was given.
338 In her evidence, the applicant said that she had found upsetting the suggestion that a statement “I’m a victim of slut shaming” (which was the effect of the statements she had made about herself) would be understood by ordinary reasonable people as the person saying “I am a slut” and that someone is unfairly taking advantage of that fact. The applicant did not elaborate the cause of her upset but it is reasonable to infer (and I do infer) that it was because it was implicit in counsel’s questions that the applicant was to be understood as having admitted that she was a slut.
339 It is not necessary for present purposes to consider whether the suggestion of the respondent’s counsel to Senator Keneally was justified. It is, however, understandable that the applicant was upset by the implicit suggestion made by counsel.
340 Sixthly, the applicant referred to the respondent’s pursuit of his defence of justification. Counsel emphasised that the respondent had done so despite expressly disavowing a claim that the applicant had actually said “all men are rapists”. I do not regard this as being an aggravating factor. The respondent’s claim had not been that the applicant had used those actual words but instead that the words she used had been “tantamount” to a claim that all men are rapists.
341 Finally, the applicant referred to passages in her own cross-examination by the respondent’s counsel. When cross-examining the applicant about her use of the term “slut shaming”, counsel asked:
Well, you say that everyone knows what slut-shaming means. Would you agree with the proposition that the expression “fat-shaming” is only capable of being used in respect of a person who is fat?
342 The proposition which seemed implicit in this question was that, just as the expression “fat-shaming” would be used only in respect of a person who is fat, so would the expression “slut-shaming” be used only in respect of a person who is a slut.
343 The applicant in re-examination said that that was how she had understood the question, namely, that counsel was suggesting that she was a slut. She said that she was “quite taken aback” by that suggestion.
344 In his submissions in reply, counsel for the respondent denied having made the implicit proposition. He continued “were any of my words so interpreted, I withdraw them unreservedly and apologise for them … it was not certainly not a suggestion that reflected on her sexual activity”.
345 In my view, the inference which the applicant drew was reasonably open. However, in the light of counsel’s retraction and apology, I do not regard this as an aggravating factor.
346 In my view, the first five of the matters on which the applicant relied are aggravating matters.
347 The assessment of damages must take account of the various factors which I have mentioned. As is well known, assessments of this kind are not a scientific exercise and there is no single “right” result. I regard compensating the applicant for the hurt and distress which she has suffered as being an important consideration. The vindication of her reputation is also important. Given the successful steps taken by the applicant in the media after 28 June 2018, damages in reparation for the damage to the applicant’s reputation is not a major factor.
348 I take particular account of the fact that both the applicant and the respondent were at the relevant time politicians. Both participated in the rough and tumble of politics and the harm to the applicant has to be seen in that context.
349 I also take into account that the applicant is not entitled to damages in respect of harm resulting from the “promiscuity imputation, considered in isolation.
350 I am particularly conscious of the need to avoid over compensating the applicant by reason of the harm she has suffered having resulted from the four impugned matters and it not being practically possible to differentiate the harm resulting from each individually. In my view, the second and third impugned matters are the more significant.
351 I conclude that assessments as follows are appropriate:
352 I appreciate that the amounts for the individual impugned matters may appear low but, in the aggregate, I consider the sum of $120,000 to be an appropriate award of damages in this case.
353 That figure reflects in particular my assessment of the relative seriousness of the defamatory nature of the admitted imputations, the political environment in which they were made, the fact that the applicant is not to be compensated for the harm caused by the “promiscuity imputation” considered by itself, the fact that the applicant was successful to an extent in mitigating the harm caused by the defamatory imputations (in particular the damage to her reputation, as well as the matters of aggravation. After providing my reasons with respect to s 16(3) of the PP Act, that is the sum I will award.
354 It is appropriate now to give my reasons for rejecting the respondent’s contention that this Court may not adjudicate on the applicant’s claim without impeaching or questioning freedom of speech and debates in the Australian Senate and why a permanent stay of the proceeding would not be appropriate.
355 The respondent relied on s 16 of the PP Act which provides (relevantly):
(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.
356 The respondent first raised s 16(3) of the PP Act in an interlocutory application filed on 18 September 2018 (later amended) by which he sought, amongst other things, the permanent stay of these proceedings. He contended at that time that a breach of s 16(3) would occur when the Court considered whether the impugned publications were defamatory of the applicant and said that he could not pursue his defence of justification without infringing s 16(3). That being so, he submitted that the applicant’s pursuit of her claim in a circumstance in which he would be deprived of an available defence by the PP Act constituted an abuse of the Court’s process, warranting the stay or summary dismissal of the proceedings.
357 I refused that application, for reasons which I gave at the time: Hanson-Young v Leyonhjelm  FCA 1688; (2018) 364 ALR 624 at -. I did so principally because of the dispute as to whether the applicant had in fact spoken the words in the Senate to which the respondent referred in the impugned matters. I noted that, if the dispute as to what the applicant said in the Senate on 28 June 2018 was resolved adversely to the respondent, s 16 would have no application. That is because it protects words spoken and acts done in “proceedings in Parliament” as defined in s 16(2): not words spoken or acts done other than in the course of, or for the purposes of or incidental to, the transacting of the business of the Parliament, at . At the same time, I noted that it may be necessary at some stage in the proceedings to consider the application of s 16(3) if it was found that the applicant had made the statement in the Senate which the respondent attributes to her, at . I also noted that, before the Court took the step of staying the proceedings permanently, it would be desirable for the parties to file and serve the affidavits containing the proposed evidence in chief of their witnesses so that the Court would have a more detailed appreciation of the evidence each wished to lead at trial, at .
358 The respondent sought leave to appeal against that interlocutory judgment on grounds which included a challenge to the decision concerning the PP Act. The grant of that leave was refused: Leyonhjelm v Hanson-Young  FCA 156.
359 Even though the parties later filed affidavits containing the evidence in chief of their witnesses, the respondent did not, before the trial, seek again to agitate the application of the PP Act. Moreover, neither the written or oral opening submissions of the respondent at the trial referred to the PP Act. Senior counsel for the respondent informed the Court on the first day of trial that his client was proceeding on the basis that he was bound by the interlocutory ruling concerning the PP Act.
360 However, in his final submissions, the respondent submitted that it was not possible for the Court to consider a number of issues in the proceedings without infringing s 16(3):
(a) in relation to the respondent’s defence of justification, the Court would have to consider whether the words found to have been spoken by the applicant in her interjection were (a) absurd, (b) exposed the applicant as a misandrist, and (c) when measured against the applicant’s own conduct, made her a hypocrite. Senior counsel described this as the respondent’s primary proposition in respect of the application of the PP Act;
(b) in relation to the statutory defence of qualified privilege, whether the words used by the applicant in her interjection were such that the respondent could honestly and/or reasonably have interpreted them as he did;
(c) in relation to the applicant’s claim for aggravated damages, whether the respondent’s interpretation of the words used by the applicant had been so irrational that the hurt suffered by the applicant was exacerbated by a consciousness that the respondent’s conduct in making the impugned publications involved the dissemination of deliberate falsehoods; and
(d) in relation to damages generally, the Court would be restricted in determining whether the words spoken (said in the submissions to be “the words spoken by the applicant”) had reduced her reputation. It was not altogether easy to understand this aspect of the respondent’s submissions.
361 The respondent contended that these matters, in particular the effect of s 16(3) on his ability to plead the defence of justification, meant that the Court should order a permanent stay of the proceedings.
362 Accordingly, there are two principal issues to be considered. First, whether any infringement of the s 16(3) prohibition is involved in the evidence and submissions which the parties placed before the Court and, secondly, if so, whether it would warrant the Court granting a permanent stay. I think it is fair to say that the submissions which the Court received on these issues, particularly the second, were not extensive.
363 The effect of the way in which the respondent raised the issue at trial meant that the Court was required to consider the application of s 16(3) at its conclusion. Neither party suggested that this was an inappropriate course.
364 Section 49 of the Australia Constitution has the effect that Art 9 of the Bill of Rights 1688 applies to the Commonwealth Parliament. Article 9 provides that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
365 As is apparent from s 16(1) of the PP Act, s 16 is declaratory as to the effect of Art 9. However, s 16 may have an operation additional to that of Art 9: Rann v Olsen at ,  (Doyle CJ, with whose reasons Mullighan J agreed, while adding some short reasons of his own on the issue of whether a stay of proceedings should be granted), - (Perry J), and at - (Lander J); R v Theophanous  VSCA 78, (2003) 141 A Crim R 216 at . I mention that from  onwards in Rann v Olsen, the paragraph numbers in the medium neutral version and the version in the South Australian State Reports do not align. The paragraph numbers for Rann v Olsen in these reasons are those from the report of the case in the South Australian State Reports.
366 A number of matters may be noted about s 16(3).
(a) its purpose is to preserve freedom of speech in Parliament by ensuring that those who participate in debate in the Houses of Parliament can do so confident in the knowledge that what they say cannot be impeached at a later time in a court of law or in any place other than the Parliament itself: Theophanous at ;
(b) its provisions should not be read narrowly. In particular, there is no reason to treat s 16 as limited to the scope of Art 9 of the Bill of Rights: Rann v Olsen at , -; Theophanous at , and it may in fact extend the operation of Art 9: Rann v Olsen at  (Perry J), at  (Lander J);
(c) section 16(3) is a exclusionary provision which operates so as to preclude in proceedings in any court or tribunal the tendering of evidence, the asking of questions, the making of statements, submissions or comments (in shorthand, evidence, questions and statements) concerning “proceedings in Parliament”. That expression is defined in s 16(2) and, relevantly for these proceedings, means “all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of the Senate”;
(d) the exclusion effected by s 16(3) is not absolute. A court is not precluded from making a finding about a matter simply because it involves a conclusion about proceedings in Parliament, or involves dealing with a matter which has been the subject of proceedings in Parliament: Rann v Olsen at  (Doyle CJ). In Egan v Willis  HCA 71; (1998) 195 CLR 424, Kirby J noted with respect to Art 9 of the Bill of Rights that “it is important to avoid confusion between the right to prove the occurrence of parliamentary events and the prohibition on questioning their propriety”, at . See also Prebble v Television New Zealand Ltd  1 AC 321 at 337, in which it was said, amongst other things, that “there could be no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history”. In Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 224-228, Beaumont J reviewed a number of authorities indicating that Hansard extracts may be received for non-contentious purposes;
(e) a thing is done for a purpose proscribed by s 16(3) only if the Court is asked to make a finding or reach a conclusion of the prohibited kind, either as an intermediate step to a finding on a material or ultimate issue, or because the prohibited finding is in fact a material or ultimate issue: Rann v Olsen at  (Doyle CJ).
(f) the exclusion applies only when the tender of the evidence, question or statement is “by way of, or for the purpose of” one or more of the matters listed in subs (3)(a), (b), or (c). The intention or purpose of the tender, question or statement is the critical matter. If the tender, question or statement is not made with one or other of the subs (3) intentions or purposes, then the s 16(3) proscription is not infringed;
(g) while the purpose referred to in s 16(3) is, in one sense, the purpose of the advocate, the prohibited purpose must refer to something that the Court is asked to do in deciding the case: Rann v Olsen at ;
(h) the operation of s 16(3) cannot be waived by parties in litigation. The Court is bound to observe the statement by Parliament that the proposed course of action is not lawful: Rann v Olsen at  (Doyle CJ), at  (Prior J) and at  (Lander J); Hamsher v Swift (1992) 33 FCR 545 at 562-4 (French J); Theophanous at ;
(i) the principle of non-intervention underpins s 16. The privilege is not concerned simply with protecting parliamentarians from legal action but is intended to ensure that parliamentarians and others can engage in the parliamentary process without concern that those actions may be subject to later scrutiny by courts: Prebble at 334B. The privilege also operates to avoid conflicts between Parliament and the courts: Halden v Marks (1995) 17 WAR 447 at 463. It has been said that provisions such as Art 9 and s 16 reflect a broader principle pursuant to which courts and the Parliament are “astute to recognise their respective constitutional roles”: Prebble at 332D, 335G; Rann v Olsen at -, - (Doyle CJ), at - (Perry J); Theophanous at ; Halden v Marks at 462; and
(j) the authorities recognise that the privilege may produce consequences in court proceedings which are regarded as unfair: Prebble at 336G; Rann v Olsen at , . The responsibility for addressing such circumstances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething  FCA 45, (2000) 97 FCR 9 at .
367 In Laurance v Katter  1 Qd R 147, Davies JA gave s 16(3) a restricted construction. His Honour considered that its effect was to preclude evidence, questions or statements concerning proceedings in Parliament when doing so would impeach or question the freedom of proceedings in the Parliament. Davies JA placed reliance on s 16(1) and Art 9 of the Bill of Rights in reaching this construction. His Honour said that it would be a matter for decision in each case whether the freedom of proceedings in Parliament would be impeached or questioned by the evidence, question or statement sought to be put before the court, at 203-4 or 489-490.
368 The construction of s 16(3) proposed by Davies JA in Laurance v Katter was rejected by the Full Court in Rann v Olsen at - (Doyle CJ), at - (Perry J) and by the Court of Appeal in Theophanous at . Although the respondent’s submissions made one reference to Laurance v Katter, he did not submit that the Court should adopt the construction proposed by Davies JA.
369 Numerous authorities indicate that it is not a breach of Parliamentary privilege for a party to prove, as a fact, that certain things were said in Parliament when proof of that fact is relevant to an issue in the proceedings and that proof is not led for one of the purposes proscribed by s 16(3) or its statutory or common law counterparts. I have already referred to some of those authorities. Additional authorities are Mundey v Askin  2 NSWLR 369 at 373; Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 453 and Buchanan v Jennings  UKPC 36,  1 AC 115 at -.
370 Section 16(3) does not preclude the Court from receiving and considering evidence concerning what was said in Parliament for the purposes of determining whether a matter did form part of “proceedings in Parliament” as defined in s 16(2) of the PP Act. The overarching principle is that stated by Dixon CJ in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 that “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”. On this topic, I said in Carrigan v Honourable Senator Michaelia Cash  FCA 1466:
 It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it … The Full Court of the Supreme Court of Western Australia explained the position more fully in Halden v Marks at 462 when outlining the first of two situations in which courts do consider parliamentary privilege:
First, there are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in parliament. In the exercise [of] its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered, if the court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceeding in Parliament …
 Accordingly, the Court may receive and consider evidence concerning parliamentary proceedings for the purposes of determining whether parliamentary privilege applies: ...
371 See also Carrigan v Honourable Senator Michaelia Cash  FCAFC 86 at ; Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 231-2.
372 The prospect of a stay of the proceedings being the appropriate relief when a defendant to defamation proceedings is unable to support a plea of justification by reason of Art 9 of the Bill of Rights 1688 or its counterparts was recognised in Prebble. In that case, the Court of Appeal in New Zealand had, at the same time as striking out the defendant’s pleas of justification by reference to statements made by the plaintiff in the New Zealand Parliament, directed the stay of the proceedings unless and until the privilege was waived by the Parliament. On appeal, the Judicial Committee of the Privy Council said, at 338:
Their Lordships are of the opinion that there may be cases in which the exclusion of material on the grounds of Parliamentary privilege makes it quite impossible fairly to determine the issue between the parties. In such a case the interests of justice may demand a stay of proceedings. But such a stay should only be granted in the most extreme circumstances. The effect of a stay is to deny justice to the plaintiff by preventing him from establishing his good name in the courts.
373 Their Lordships went on to give the following example of the kind of extreme case which may warrant the grant of a stay:
There may be cases … where the whole subject matter of the alleged libel relates to the plaintiff’s conduct in the House so that the effect of Parliamentary privilege is to exclude virtually all the evidence necessary to justify the libel. If such an action were to be allowed to proceed, not only would there be an injustice to the defendant but also there would be a real danger that the media would be forced to abstain from the truthful disclosure of a member’s misbehaviour in Parliament, since justification would be impossible. That would constitute a most serious inroad into freedom of speech.
374 The Judicial Committee then considered that, in the circumstances of Prebble, the statements made in the House on which the defendant wished to rely were “comparatively marginal” and that the handicap for the defendant, if unable to rely on those matters, would be “limited”. In those circumstances, it considered that the grant of the stay of proceedings by the Court of Appeal in New Zealand was inappropriate.
375 In Rann v Olsen, the Court accepted that it had the power to grant a stay of the proceedings if Mr Olsen was unable, by reason of the operation of s 16(3) of the PP Act, to defend the proceedings. As noted earlier, the majority in Rann v Olsen considered that the question of whether a stay should be granted should be left for decision by the trial judge. Doyle CJ noted, however, that the discretion to order a stay should be “exercised with considerable care and by reference to all aspects of the case”, at . This is consistent with the general principle that a permanent stay of proceedings is granted only in exceptional cases, usually when no lesser step can be taken by a court to protect its process against abuse: R v Glennon (1992) 173 CLR 592 at 605.
376 The judgments of the different members of the Full Court in Rann v Olsen indicate that various matters may bear upon the exercise of the discretion. These include:
(a) the mere fact that the Court may be precluded from receiving certain kinds of evidence did not necessarily mean that the trial would be unfair, at , - (Doyle CJ), at  (Lander J);
(b) the mere fact that the outcome of the trial would be unfair or unjust in the proper sense would not of itself justify a stay, at -, - (Doyle CJ);
(c) while the principle of non-intervention standing alone and apart from s 16(3) could not operate as a defence to the proceedings, it was a matter which could properly be taken into account in the exercise of the discretion, at  (Perry J);
(d) in a case in which both litigants are members of the same Parliament, and have the recourse to the means provided by the Parliament for addressing aspersions on the character of the other, it may be appropriate for the Court to take this into account, at  (Perry J); and
(e) in some circumstances, the granting of stay may be the only way in which freedom of speech outside the Parliament can be protected, at  (Lander J).
377 In Sands v The State of South Australia (No 2)  SASC 340; (2010) 273 LSJS 424, Anderson J considered an application for a stay of defamation proceedings on the ground that the State may not, by reason of public interest immunity, be able to plead full defences to all the plaintiff’s claims. His Honour considered closely the impact on the State’s defences and was seemingly willing to stay some of the causes of action which the plaintiff wished to advance. However, it was not necessary for Anderson J to make final orders.
The respondent’s submissions
378 The respondent accepted that s 16(3) did not preclude the Court in the present case from hearing the evidence and making findings as to the words used by the applicant in her interjection on 28 June for the purpose of determining whether the events he attributed to her had been spoken by her in the Senate on 28 June 2018. That acceptance was appropriate given the principles to which I referred earlier.
379 As is apparent from the summary given earlier, the respondent’s contention was that the infringement of s 16(3) would occur after the Court had made the findings as to the words actually spoken by the applicant. His submission was that the consideration of the issues he identified would “fall squarely within the prohibited conduct in s 16(3)” because it would require the Court, amongst other things, to draw inferences from a statement which, once found, would undoubtedly be part of proceedings of Parliament.
380 The respondent submitted that the circumstances of this case are distinguishable from those considered in Rann v Olsen. In that case, Mr Rann (the Leader of the Opposition in the House of Assembly in the Parliament of South Australia) had made statements about the conduct of Mr Olsen (the Premier of South Australia) when giving evidence before a committee of the Australian Parliament. Later, and away from the Parliament, Mr Olsen said that Mr Rann had lied in the statements he had made about him to the Committee. Mr Rann brought defamation proceedings against Mr Olsen. Mr Olsen sought the stay of those proceedings on the basis that s 16(3) of the PP Act would preclude him from supporting his defence of justification and from advancing other defences.
381 The trial judge stated three questions for consideration of the Full Court of the Supreme Court of South Australia. The first question was whether s 49 of the Australian Constitution or s 16(3) of the PP Act, or both, prohibited the parties from leading evidence, cross examining and making submissions concerning the truth of Mr Rann’s statement and his credit. The second question concerned the validity of s 16(3) of the PP Act, which is not an issue in these proceedings. The third question was whether, in the event that s 16(3) was held to have the effect about which the first question enquired, the action should be permanently stayed.
382 The Full Court of five held, unanimously, that s 16(3) prevented Mr Olsen from supporting his defence of justification and, conversely, Mr Rann from responding to that defence. The majority held that s 16(3) would not, or may not, preclude Mr Olsen from supporting his defence of common law qualified privilege. By majority (Doyle CJ, Mullighan and Lander JJ), the Court held that the proceedings should not be stayed, but made it plain that the trial judge could do so when his Honour had more closely appraised the evidence to be led at trial. This was because the impact of s 16(3) on the trial was at that stage uncertain, especially given that the Full Court was not in a position to predict the likely course of the trial with any precision.
383 The factual circumstances of Rann v Olsen do have some similarities with the present case, in that both cases concern an action in defamation by one politician against another. However, the circumstances for the present case differ in one material respect from those considered in Rann v Olsen. Unlike Mr Olsen, the respondent is sued on his statement made outside Parliament with reference to a statement of the applicant which he wrongly claimed to have been made in the Parliament. The applicant’s interjection may have been the precursor for the respondent’s out of Parliament statements, but the comment which the respondent attributes to her did not form part of the proceedings in the Parliament. Mr Rann’s statement to the Parliamentary Committee did undoubtedly form part of the proceedings in Parliament.
384 Nevertheless, as is apparent from these reasons already, the reasoning in Rann v Olsen is of considerable assistance presently.
385 The circumstances of the present case also have some, but an incomplete, analogy with those considered in Buchanan v Jennings. In that case, a member of the Parliament of New Zealand had made a defamatory statement about the plaintiff in the House of Representatives. The member subsequently told a newspaper reporter, outside the House, that he “did not resile” from his earlier statement inside the House. In order to prove the defamation contained in the latter statement, the plaintiff led evidence, over the defendant’s objection, of the statement made by the member in the Parliament. On appeal, it was held that the trial judge had been correct in overruling the defendant’s objection. The Judicial Committee said:
 … The right of Members of Parliament to speak their minds in Parliament without any risk of incurring liability as a result is absolute, and must be fully respected. But that right is not infringed if a member, having spoken his mind and in so doing defamed another person, thereafter chooses to repeat his statement outside Parliament. It may very well be that in such circumstances the member may have the protection of qualified privilege, but the paramount need to protect freedom of speech in Parliament does not require the extension of absolute privilege to protect such statements.
 … In a case such as the present, however, reference is made to the parliamentary record only to prove the historical fact that certain words were uttered. The claim is founded on the later extra-parliamentary statement. The propriety of the member's behaviour as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament. The situation is analogous with that where a member repeats outside the House, in extenso, a statement previously made in the House. The claim will be directed solely to the extra-parliamentary republication, for which the parliamentary record will supply only the text.
386 As already noted, the applicant’s primary position is that s 16(3) will be infringed because the Court will have to consider whether whatever words it finds were spoken by the applicant in her interjection in the Senate were absurd, exposed the applicant as a misandrist or, when measured against her own conduct, made her hypocrite. The respondent’s submissions did not indicate the particular provision in s 16(3) which he contended would be infringed in this way. I have taken it to be subs (3)(c) because it would involve the Court drawing inferences or conclusions from something forming part of the proceedings in the Parliament.
387 The respondent’s submission cannot be accepted. It overlooks that his defence of justification depends on proof of his assertion that the applicant had made the particular claim in the Senate which he alleges, namely, a claim “tantamount to a claim that all men are responsible for sexual assault or that all men are rapists”. On my findings, the applicant made no such claim and, hence, the statement which the respondent attributes to the applicant did not form “part of [the] proceedings in Parliament” on which s 16(3) can operate. Section 16(3) is to not to be invoked in respect of a statement which was not made in the Senate.
388 The particular words pleaded to have been used by the applicant to justify the admitted imputations are important. It is those words, or words which are not substantially different from them, which have to be proved. It is not open to the respondent to contend that, even if the applicant did not speak the words he attributes to her (or words substantially similar to those words), it is still open for the Court to consider whether whatever other words she did speak, may be characterised as absurd, or indicate that she is a misandrist or when measured against her own conduct, indicate that she is a hypocrite.
389 The respondent’s submission concerning the operation of s 16(3) in this respect fails.
390 The respondent submitted that, in considering whether the defence of statutory qualified privilege was negatived by malice on his part, it would be necessary for the Court to consider whether the words spoken by the applicant were such that he could “honestly and/or reasonably have interpreted them as he did”.
391 The respondent’s submissions did not explain why it would be necessary for the Court to consider that matter. That may have been so if the applicant’s plea that the respondent had published the impugned matters with knowledge that it was false to assert that she had alleged that all men are rapists was the only matter on which the applicant relied. However, as previously indicated, the applicant made three substantive assertions in support of her plea of malice, and I have upheld the second of those, namely, the plea that the respondent published the allegations in order to hold the applicant up to public shame and disgrace when that was not necessary for his response to the applicant’s statement in the Senate on the afternoon of 28 June 2018.
392 Furthermore, I have found that the respondent’s plea of statutory qualified privilege fails because his conduct in publishing the impugned matters containing the admitted imputations was not reasonable. The issue of malice arises only when a finding is made that the conduct of a respondent in publishing an impugned matter is reasonable in the circumstances.
393 Accordingly, even if it was the case that s 16(3) precluded the Court from receiving evidence and hearing submissions concerning the issue of malice, this would not avail the respondent. His defence of qualified privilege would still fail and there would be no basis upon which the Court could grant a permanent stay of the proceedings because of an inability to receive and hear all the evidence and submissions which the parties wished to place before it concerning the issue of malice.
394 The respondent submitted that, given the way that the claim for aggravated damages is pleaded, the Court must also consider whether his “interpretation of [the applicant’s] words was so irrational that the hurt suffered by the applicant was exacerbated by a consciousness that [his] conduct in publishing the matters complained of involved the dissemination of deliberate falsehoods”.
395 Although the respondent did not say so expressly, this submission seemed to be based on the plea in  of the Amended Statement of Claim that the harm which the applicant suffered as a result of the publication of the impugned matters was aggravated “by her knowledge of”, amongst other things, the fact that the respondent had published the impugned matters knowing that his imputations were false.
396 Strictly speaking, the issue of rationality to which the respondent referred in this submission does not arise as the Court does not have to consider the rationality or irrationality of his interpretation of the applicant’s statement.
397 Instead, the applicant’s pleading of this particular of aggravated damages would have required consideration of three issues: did the respondent know at the time he published the impugned matters that his imputations were false; did the applicant know that that was so; and was the applicant’s harm as a result of the publication of the impugned matters aggravated by her knowledge?
398 The issue concerning the respondent’s knowledge would involve an enquiry into his subjective state of mind. It would not be an issue to be determined objectively, as the respondent’s reference to the rationality of his interpretation seems to suppose.
399 Nevertheless, I accept that the determination of the respondent’s subjective state of mind may be informed by the surrounding circumstances and that this could include consideration of the effect of the words found by the Court to have been spoken by the applicant. I also accept that it is possible that this assessment could involve “the drawing of inferences or conclusions from the applicant’s words which did form part of the proceedings in Parliament” and thereby be precluded by s 16(3).
400 However, it is not necessary to express final views about these matters. As I noted earlier, the applicant did not pursue at trial all of the matters which she had pleaded in support of her claim of aggravated damages. One of the matters she did not pursue on that aspect of her claim was the claim with respect to the respondent’s knowledge of the falsity of his imputations. The applicant has not been awarded aggravated damages on that account.
401 Further, and in any event, on my findings, the applicant did not establish that the respondent published the impugned matters with actual knowledge of the falsity of his imputations. I said that, were it necessary to do so, I would characterise the respondent’s state of mind as one of recklessness. That conclusion did not rest on the drawing of inferences or conclusions from a matter forming part of the proceedings in Parliament. It rested instead on the circumstance that, although the respondent was not entirely confident of what the applicant had said, and had had the opportunity to check the reliability of his own belief, he had published the impugned matters without making any enquiries. That is to say, the finding does not rest on inferences or conclusions from something forming part of the proceedings in Parliament.
402 Even if these conclusions be wrong, it is hard to see that the grant of a permanent stay of the whole proceedings would be appropriate. An alternative would be simply to exclude this particular circumstance of aggravation from the assessment of the applicant’s damages.
403 I set out verbatim the respondent’s submission concerning this topic:
(c) If the Court were to find that the words actually interjected by the applicant do not establish the defence of justification, they are also relied upon to diminish the damages otherwise recoverable by the applicant. Their effect in this regard is substantial, such that the applicant would be entitled to only nominal or derisory damages. In such a scenario, the applicant would have (in substance) failed in her action, such that it would be appropriate for the Court to order that she pay the respondent’s costs. But the effect of s.16, Privileges Act is that the Court would be significantly restricted in how it could treat the words spoken by the applicant. It would be improper for the Court to find that the words actually spoken by the applicant reduced her reputation in the relevant sector of (for example) principled conduct or rendered such a reputation undeserved; thus, the Court may be required to award damages vastly disproportionate to the merits of the matter.
404 I confess to some difficulty in understanding this submission. If I understand it correctly, the submission assumes that the Court finds that the words spoken by the applicant in the Senate were as alleged by the respondent. It then contends that, even if those words do not establish the defence of justification, they do indicate that the applicant should be entitled to “only nominal or derisory damages”.
405 If that understanding be correct, then the submission must be rejected. The premise upon which it proceeds does not exist.
406 For these reasons, I conclude that the evidence and submissions advanced by the parties in these proceedings do not involve infringement of s 16(3) of the PP Act. This is not a case in which the Court should, in order to protect its own process from abuse, take the relatively extreme step of granting a permanent stay of the proceedings.
407 The applicant has also sought injunctive relief. However, in their final submissions, the parties asked that this aspect of the claim be deferred until after the Court has published its findings. Accordingly, I will hear from the parties further with respect to that aspect of the applicant’s claims.
408 In summary, I find that the applicant has established that the impugned matters did convey the imputations defamatory of the applicant which she has claimed; that those imputations were defamatory of her; that the respondent’s defences of justification and qualified privilege fail; and that an award of damages of $120,000 is an appropriate award of damages by way of non-economic loss. I will hear from the parties with respect to interest, the application for injunctive relief and costs.