FEDERAL COURT OF AUSTRALIA
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.
On 28 June 2018, debate occurred in the Senate in the Australian Parliament on a motion that women have access to non-lethal weapons as a means of self-defence. At the conclusion of the division on the vote on the motion, the then Senator Leyonhjelm, the respondent, told the applicant, Senator Hanson-Young, that she should “stop shagging men”. In a media statement which he published later, the respondent said that he had made the comment in response to an interjection by the applicant during the course of the debate which had been along the lines that “all men are rapists”.
In these proceedings, the applicant claimed that the respondent had defamed her in his media statement and in subsequent interviews about his claim on the Sky News “Outsiders” program, the “3AW Morning program” and the “ABC 7.30 with Leigh Sales” program. She denied that she had made the statement attributed to her by the respondent and said that she had said words to the effect of “putting tasers in the street won’t protect women from men”.
The applicant alleged that the respondent’s statements had conveyed the defamatory imputations that:
(a) she was a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;
(b) she had, during the course of Parliamentary debate, made the absurd claim that all men are rapists; and
(c) she was a misandrist for publicly claiming that all men are rapists.
The applicant claimed that her character and reputation were injured and that she has suffered substantial hurt, distress and embarrassment as a result of these publications, and their “grapevine effect”. She also claimed that the respondent was actuated by malice. The applicant sought aggravated damages.
The respondent defended the proceedings. He admitted that his publications conveyed the imputations alleged by the applicant but denied that they were defamatory of her. He raised and pressed the defences of justification and statutory qualified privilege. He did not press at trial the pleaded defences of honest opinion and fair comment on a matter of public interest. In addition, the respondent accepted that, if his defence of statutory qualified privilege did not succeed, it would not be necessary for the Court to consider his defences of common law qualified privilege and the extended Lange defence.
The respondent also submitted that the Court could not receive some evidence and submissions in the trial without infringing s 16(3) of the Parliamentary Privileges Act 1987 (Cth). He submitted that the proceedings should be permanently stayed on that account.
The first issue in the trial was whether the imputations, which the respondent admitted had been conveyed, were defamatory of the applicant. The respondent contended that the fact that both he and the applicant were politicians, about whom a number of people were likely already to have firm views, meant that his statements could not be defamatory of her. He also claimed that the context in which he made the defamatory imputations had “drowned out” or diminished their sting. I have held that, while the political environment in which the imputations were made is a relevant consideration, the persistence with which the respondent made his claims, and the content of his claims meant that ordinary reasonable persons would have been led to think less of the applicant. Accordingly, each of the imputations on which the applicant sued was defamatory.
The applicant conceded that, if the Court found that she had said words to the effect that “all men are rapists”, the respondent’s defence of justification would succeed. The Court heard evidence from a number of members of the Senate as to the content of the applicant’s interjection. In his evidence, the respondent said that he could not recall the precise words spoken by the applicant in her interjection. The account which he gave in his evidence was an account on which he had settled many months after 28 June 2018.
I have found that the applicant did not speak words along the lines which the respondent attributed to her. Instead, it is likely that the respondent “heard” that which he was predisposed to hear by reason of his pre-existing opinion of the applicant as someone who made “collectivist” statements. This meant that the respondent’s defence of justification failed.
The applicant submitted that the defence of statutory qualified privilege could not succeed as the respondent’s conduct was not reasonable and had in any event been actuated by malice. I have found that the respondent’s failure to check the accuracy of his belief as to what the applicant had said with the applicant herself and with other Senators, meant that his conduct in publishing the imputations was not reasonable. I have also accepted that the respondent was actuated by malice in that he published his claim concerning the applicant to a mass audience with the intention of publicly shaming her.
The applicant is entitled to damages in respect of each of the defamatory imputations. I have found that, while the applicant had a generally good reputation, her status as a politician meant that the views of the applicant’s reputation would not have been shared by all ordinary reasonable persons in the community and, accordingly, the political context should be taken into account in the assessment of damages.
I have also accepted that some of the harm suffered by the applicant was caused by an imputation on which the applicant did not sue. The parties referred to this imputation in the trial as the “promiscuity imputation”.
I have accepted that aspects of the respondent’s conduct warrant an award of aggravated damages.
In summary, I find that the applicant has established that the impugned matters did convey the defamatory imputations, that the defences of justification and qualified privilege fail, and that an award of damages of $120,000 is an appropriate award by way of non-economic loss.
I have found that s 16(3) of the Parliamentary Privileges Act 1987 (Cth) did not preclude the Court from receiving the evidence and submissions in the trial which the parties wished to place before it. Further, a permanent stay of the proceedings on that account is not appropriate.
25 NOVEMBER 2019