11.1 In limited circumstances, public policy recognises that the interests of society in free speech are paramount. In such cases, it is a complete defence to an action for defamation that the defamatory imputations were published on an occasion of absolute privilege.
11.2 The occasions on which absolute privilege applies at both common law and by statute are restricted. As courts have been reluctant to extend the circumstances in which statements will be absolutely privileged at common law, statutory privilege has become the greater, and a constantly growing, source of protection.
11.3 In this Chapter, the Commission considers the concept, incidence and possible regulation of absolute privilege. A particular concern has been the privilege enjoyed by Members of Parliament, and whether persons defamed in Parliament may seek some redress. Quite clearly, the serious consequences which flow from allowing a person to damage another’s reputation with complete immunity indicate the importance of clarifying the circumstances in which absolute privilege should operate as a defence to defamation. Yet submissions to the Commission (as to the Legislation Committee inquiry)1 emphasise that there is uncertainty about the scope and application of this defence.
LEGISLATIVE PRACTICE AND POLICY
11.4 Since 1974, legislative practice has been to amend the Defamation Act on numerous occasions to confer absolute privilege on a range of quasi-judicial, investigative and disciplinary bodies and on positions created by legislation to assist in the regulation of society.2 This proliferation understandably raises the question of the policy on which the decision to confer absolute privilege is founded.
11.5 The Commission is advised that, in conjunction with relevant departmental officers, Parliamentary Counsel’s Office will usually consider whether absolute privilege ought to be conferred on any newly created body, inquiry, or position.3 While the policy underlying absolute privilege at common law can be of use in deciding the appropriate level of privilege, the Commission understands there are no formal guidelines to which reference may be made during the drafting process. These, we feel, should be provided.
11.6 The Commission considers that the Office of Parliamentary Counsel should prepare policy guidelines for determining whether absolute privilege ought to be conferred by statute on any proceedings, publications or actions required by legislation. These should be made available to those responsible for preparing legislation where a privilege may be appropriate.
11.7 In the Commission’s view, principles drawn from the common law should be the basis on which more detailed statements are developed. The law has long recognised that the proper functioning of governmental institutions - executive, legislative and judicial - requires that certain officials and citizens are completely protected from actions for defamation and so may fearlessly undertake their duties.4 The potential for abuse of the privilege is undeniable. However, in each category where absolute privilege applies at common law, there are internal safeguards operating which act as a check on the unimpeded exercise of free speech by those who enjoy the protection it affords.
11.8 In the Commission’s view, the circumstances in which there is a defence of absolute privilege for publication of defamatory statements should be restricted. Freedom to make defamatory statements without restraint may be regarded as a temptation to discard inhibitions which might otherwise operate. In addition, such statements may be accurately reported in the mass media. The cumulative damage to reputation may well be immense.
11.9 The Commission is of the view that absolute privilege should be granted only where there is a clearly demonstrated need. The legislature should be wary of responding to calls to confer absolute privilege in circumstances where a lesser level of protection would be sufficient, or where the lack of control over the conduct of proceedings so protected may lead to its abuse.
11.10 The Commission stresses that there is no evidence that absolute privilege has been conferred inappropriately. However, the absence of a coherent and consistent policy suggests that this may occur. The existence of such a policy will also avoid the question of whether failure to confer a privilege is inadvertent or deliberate. In conjunction with the Commission’s Recommendation 32 relating to the desirability of recording instances of absolute privilege in the Defamation Act where possible, guidelines will reduce uncertainty about the law in this area.
COMMUNICATIONS CONCERNING MATTERS OF STATE
11.11 At common law absolute privilege attaches to communications relating to an act of state by high officers of state,5 although, as “act of state”, or the class of officials whose communications are privileged are not defined, the extent of this protection is uncertain.6 The object of the privilege is to “secure the free and fearless discharge of high public duty”7 by protecting certain activities of government from scrutiny.
11.12 This is a rarely used defence and appears to present no problems in practice. Legislation has abrogated it in some States.8 The courts have been reluctant to extend absolute privilege in this area.9 The Australian Law Reform Commission argued that the protection for internal executive communications may be overstated and that qualified privilege only should apply.10 Subsequently, the Commonwealth Parliament’s Joint Select Committee on Parliamentary Privilege recommended that the privilege should remain, but declined to widen it by legislation.11 An option is to codify the privilege.
11.13 The Commission accepts that there are circumstances in government where free speech is paramount, but considers that these circumstances are limited. In accordance with the position stated in paras 11.8-11.9, we do not recommend any extension of absolute privilege without demonstrated need. Uncertainty surrounding the extent of protection for communications concerning matters of State does exist. However, given that qualified privilege will protect the communications of lesser officials, the Commission considers that legislative action to clarify the position has not been shown to be necessary. Codification may have the disadvantage of widening the privilege unjustifiably, without providing proper analysis of the communications to which it applies.
PROCEEDINGS IN PARLIAMENT
11.14 Absolute privilege for defamatory statements made in the course of Parliamentary proceedings is considered essential so that the business of government is conducted free from interference. Freedom of expression by the legislature is a principle of ancient heritage which culminated in the enactment of Article 9 of the Bill of Rights 1688, which provides that the freedom of speech and debates or proceedings in Parliament are not to be impeached or questioned in any court or place outside Parliament. The principle has been extended by privileges conferred in various other statutes.12 The origin of this privilege accounts for some difficulty in determining the extent of its application in the late twentieth century. The potential for the privilege to be misused makes it a sometimes contentious one.
11.15 The Commission considered various aspects of parliamentary privilege relating to defamation in DP 32, and sought submissions particularly on the need (i) to clarify its scope; (ii) to enact comprehensive legislation covering parliamentary papers and proceedings; and (iii) to introduce a right of reply to people defamed under cloak of the privilege.
11.16 In addressing these issues, the Commission has been mindful that its recommendations could have an impact outside the terms of this reference. The legal principles of parliamentary privilege have a basis and application far beyond the law of defamation. Immunity for defamatory statements is only one of many privileges which attach to the conduct of the business of Parliament. Further, the Commission recognises that Parliament itself determines the privileges which are enjoyed by the members individually and collectively. The Parliament of New South Wales conducted an extensive review of parliamentary privilege a decade ago.13 Many of the recommendations, including those concerning matters relevant to defamation and canvassed in DP 32, have not yet been adopted. Ultimately it is for Parliament itself to make amendments to the privileges it enjoys.
Extent of parliamentary privilege
11.17 There is uncertainty about the extent of parliamentary privilege, an issue particularly relevant to the determination of the scope of protection from actions for defamation in respect of statements made in the course of parliamentary proceedings. DP 32 dealt with two phrases in Art 9 of the Bill of Rights which have been subject to differing interpretations.
Meaning of “proceedings in Parliament”
11.18 Calls for clarification of the scope and meaning of the phrase “proceedings in parliament” were noted in DP 32.14 A major area of uncertainty is whether absolute privilege extends to the repetition outside Parliament of defamatory statements made in the House or a Committee by Members of Parliament (and people who are witnesses before Committees). Canadian decisions have taken a broad view holding that press releases of statements made in the House are part of proceedings in the Parliament.15 Australian decisions have not been so expansive.16 Other areas of uncertainty are communications between Members and Ministers,17 and correspondence received by Committees and passed on to other investigatory bodies such as ICAC or the Ombudsman.18 Technological changes have created some other grey areas in the publication of parliamentary proceedings, such as electronic transmission of proceedings.
11.19 The Commission does not consider that “proceedings in parliament” should encompass statements made by a Member of Parliament outside the chamber repeating what was said in the course of proceedings. Nor do we consider it necessary to make provision for extending the privilege to correspondence by Members to Ministers, or publications to a Committee which may fall outside the cover of existing common law or statutory protection. Such statements should be entitled to a defence of qualified privilege.19 The Commission considers that this is sufficient protection and one which balances the competing interests of freedom of speech and protection of reputation.
Provisions of the draft Defamation Bill 1992
11.20 The draft Defamation Bill 1992 addressed some uncertainties about the extent of protection by absolute privilege of proceedings in Parliament by incorporating into Schedule 1 Part 1 proposals made by the NSW Joint Select Committee on Parliamentary Privilege.20 Protection for papers relating to joint sittings and committees is specifically conferred. The Bill clarifies the status of absolute privilege for proofs of Hansard, and brings under the umbrella of protection of the Defamation Act audio recordings, and transcripts of debates and proceedings in the stages preparatory to the printing of Hansard. The Bill extends the cover of absolute privilege to authorised extracts from Hansard of individual complete speeches by Members. The Commission considers that these draft provisions should be enacted.
Recommendation 31
The clauses of Schedule 1, Part 1, of the Defamation Bill 1992, conferring absolute privilege on a wider class of Parliamentary proceedings and papers should be adopted.
Meaning of “impeached or questioned in any court or place out of Parliament”
11.21 Another area of uncertainty noted in DP 32 is the scope and meaning of the phrase “ought not to be impeached or questioned” in Art 9 of the Bill of Rights, which has been the subject of differing judicial interpretations.21 The use which can be made of statements made in parliamentary proceedings is particularly relevant in defamation actions. The most widely accepted view, recently affirmed by the Privy Council in Prebble v Television New Zealand Ltd,22 and enshrined in s 16(3) of the Parliamentary Privileges Act 1987 (Cth), is that a court will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions or in protection of its established privileges. A narrower view, expressed by Justice Hunt in R v Murphy,23 is that the exercise of the freedom of speech given to members (and witnesses before Committees) may not be challenged by court (or similar) process having legal consequences for those persons because they had exercised that freedom.24 The Commission draws attention to this continuing uncertainty, but, for the reasons specified in para 11.16, considers it inappropriate that the uncertainty should be resolved in the context of defamation law alone.
Statutory definition
11.22 One solution to the uncertainty about the extent of absolute privilege applicable to “parliamentary proceedings” lies in adopting a new statutory definition of the term for that purpose. DP 3225 cited a definition recommended by the Faulks Committee.26 There is also a definition in s 16 of the Parliamentary Privileges Act 1987 (Cth).
11.23 The Commission’s tentative view in DP 32 was that, if a definition were to be adopted, it should be inclusive and exhaustive, but that we were not convinced certainty would come from adopting any statutory definition.27 Despite several inquiries in the United Kingdom supporting statutory definition, the recommendation of the Faulks Committee has not yet been adopted.28 No submissions presented any evidence that would lead the Commission to change its tentative view. The Commission does not recommend that absolute privilege be extended beyond existing publications and occasions and those new situations provided for in the Defamation Bill 1992.
Parliamentary papers and proceedings legislation
11.24 DP 32 sought submissions on the efficacy of implementing a recommendation of the New South Wales Joint Select Committee on Parliamentary Privilege to remove from the Defamation Act 1974 provisions relating to parliamentary privilege and incorporate them in a comprehensive “Parliamentary Papers and Proceedings Act”. The Commission’s tentative view was that statutory provisions concerning defamation should be kept as far as possible in the Defamation Act.29 Although the utility of such a statute for Parliament’s purposes is undeniable, the Commission considers that it would be to the detriment of access to the law relating to defamation. These are, however, matters for Parliament to determine.
Right of reply
11.25 In DP 32 the Commission considered a mechanism enabling people to seek some redress when their reputations have been damaged under the cloak of Parliamentary privilege. Although Members of Parliament should exercise their privileges with an appropriate sense of responsibility, it is inevitable that defamatory statements made in parliamentary proceedings and fairly reported with impunity can have devastating effects on those concerned. Unless matters are investigated in the course of further Parliamentary debate, the reputations of persons allegedly defamed may well be permanently harmed, as there are only limited means by which to make an explanation or seek an apology, correction, retraction or damages.30
11.26 Several submissions to the Commission on this issue supported right of reply procedures,31 such as those adopted in the Australian Senate32 which give a right of reply to a citizen whose reputation has been attacked under parliamentary privilege. The Commission records that the Senate’s procedures appear to have the approval of the Senators and the people who make use of them.33 Since the inception of such procedures in 1988, there have been 20 occasions when a reply has been incorporated into Hansard. Similar procedures have been adopted by the Legislative Assembly of the Australian Capital Territory, and are being considered by other legislatures.34 The Clerk of the Legislative Assembly submitted to the Commission that in the then Speaker’s view, current provisions were adequate and procedures such as those in the Senate unnecessary.35 However, the current Speaker of the Legislative Assembly has argued that
Where the reputation of an individual or group has been unreasonably maligned under parliamentary privilege, the aggrieved party should be given an opportunity to provide a written response which, if deemed appropriate by the Speaker, will be recorded in Hansard.36
11.27 The New South Wales Parliament must determine for itself whether to introduce right of reply procedures and the form they should take. The Commission declines to make a formal recommendation on this matter, but urges that the Parliament should give careful consideration to the issue.
JUDICIAL OR QUASI-JUDICIAL PROCEEDINGS
11.28 At common law absolute privilege attaches to statements made in the course of proceedings before a court or tribunal exercising the functions of a court.37 In recent years various tribunals and other investigative and disciplinary bodies have been created by statute. Often with powers and procedures similar to those of courts, it is not always clear whether their proceedings are judicial proceedings for the purposes of absolute privilege at common law.38 Courts have been very reluctant to extend the protection of absolute privilege to quasi-judicial proceedings.39
11.29 The legislature in New South Wales has not been so reticent. There are several statutes conferring absolute privilege on proceedings and reports of tribunals, investigative and disciplinary bodies. The Defamation Act 1974 alters the common law position by granting absolute privilege to publications in the course of, and official reports of, authorised inquiries generally.40 Since 1974, the Defamation Act has been amended consequentially to confer absolute privilege for publications to or by specific newly created public officials and bodies.41 Several other statutes confer absolute privilege on publications to and by officials or bodies, but do so without a corresponding section also being incorporated in the Defamation Act.42 Alternatively, statutes enact that no liability for defamation is incurred by complying with a requirement of an Act.43 The Royal Commissions Act 1923 (NSW) provides, in section 6, for the immunities of judicial proceedings to apply to proceedings of Royal Commissions. Without specifically conferring an absolute privilege for defamation, many statutes confer immunity on officials acting in the course of their duties which may apply to protect them from liability for the publication of defamatory statements.
EXTENSIONS OF ABSOLUTE PRIVILEDGE
11.30 From time to time various private and public bodies seek to have absolute privilege accorded to their proceedings or communications.44 In most instances a defence of qualified privilege will be available for defamatory statements made in the course of their proceedings, for example in proceedings of church tribunals or private disciplinary tribunals. The Commission received few submissions proposing extension of absolute privilege to specific circumstances45 (other than local government as discussed below) and has not been persuaded of the need to amend the Defamation Act 1974 (NSW) so as to extend absolute privilege to any private body, or public authority, agency or official not currently enjoying that protection.
Local government proceedings
11.31 In DP 32 the Commission raised the question of extending absolute privilege to proceedings of local government bodies. Although local government represents the third tier of government in New South Wales,46 neither the Defamation Act 1974 (NSW) nor statutes concerning local government (the Local Government Act 1919 (NSW) or the Local Government Act 1993 (NSW)) expressly provide for any privilege. Defamatory statements made in the course of proceedings in local councils attract qualified privilege. Reports of proceedings currently fall under the protection of clause 9 of Schedule 2 (“Protected Reports”), although the Commission recommends in Chapter 12 that these be specifically accorded the status of protected reports rather than rely on clause 11.47 While there are periodic calls for the extension to local councils of a form of absolute privilege similar to that which pertains to Parliamentary proceedings - calls which were supported in some submissions received in response to DP 3248 - the Commission is not aware of any argument which would compel such a recommendation, nor of any other State that has so legislated. The question was considered during the recent review and rewriting of local government legislation in New South Wales, but no change to the law was considered necessary.49
IDENTIFYING ABSOLUTE PRIVILEDGE
Recording absolute privilege in Defamation Act
11.32 Uncertainty about whether absolute privilege exists in any particular case has been identified as a significant problem.50 No legislation specifies comprehensively whether, and to what extent, proceedings and publications relating to any tribunal, inquiry, statutory authority, government body or official, are protected by absolute privilege. Unless there is a specific reference in s 17 of the Defamation Act, it is necessary to ascertain whether the general provisions of sections 18 (“proceedings of inquiry”) and 19 (“reports of inquiry”) of the Act apply, or whether a privilege has been conferred by another statute, including Commonwealth legislation, or by the common law, or, indeed, by more than one of these sources.
11.33 The Commission’s Recommendation 30 for the formulation of a policy enunciating the principles to which the decision to confer absolute privilege can be referable will help to remove some of the uncertainty. Complementary action is needed to implement the policy.
11.34 The Commission considers that it is preferable to specify clearly that a particular tribunal, authority, official or body has been granted absolute privilege and the extent to which proceedings and matters arising under any relevant statute are privileged. In the interests of accessibility and certainty, the Defamation Act should, wherever possible, reflect all situations where absolute privilege has been conferred specifically by legislation.
11.35 The Commission recognises, however, that considerable difficulties stand in the way of the achievement of a uniform system. For a start, Commonwealth legislation operative in New South Wales may confer absolute privilege. And, as far as New South Wales legislation itself is concerned, we do not favour requiring in all cases that the Defamation Act be used to confer absolute privilege. Nor do we favour a general provision conferring absolute privilege on every inquiry by statutory bodies.51 At common law there will always be an open class of proceedings and publications that will be entitled to the privilege, so the question of whether a particular tribunal is entitled at common law to absolute privilege for its proceedings will still fall to be determined by the courts. Further, sections 18 and 19 of the Defamation Act, which confer absolute privilege on official “inquiries” from various sources, currently protect a class of proceedings which will always be difficult to specify precisely and in advance. Parliamentary Counsel’s advice to the Commission is that the use of different legislative models for conferring absolute privilege is necessary, for example if legislation is to conform with that of other States.52 The Commission considers that the techniques of footnoting and cross-referencing which are being used more frequently by Parliamentary Counsel may overcome some of the difficulties in ascertaining whether statutory absolute privilege applies in a particular situation.
Recommendation 32
The Defamation Act 1974 should be amended so that, as far as is possible, all instances in which absolute privilege is conferred by legislation are also recorded in the Act in a consistent form. The legislation should clearly indicate the scope of the protection given in each case.
Adoption of draft Defamation Bill format
11.36 The Defamation Bill 1992 has a different format from the Defamation Act 1974 for specifying in what circumstances a defence of absolute privilege will be available. There is a succinct statement in the body of the Bill that “(t)here is a defence of absolute privilege as provided by Schedule 1”. The Schedule contains two parts. In the first, “General Defences”, the areas of parliamentary papers, and proceedings and reports of official inquiries are stated (incorporating Defamation Act s 17 and 18-19 respectively). In the second, “Specific Defences”, the Schedule contains a comprehensive list (some seven pages) of the proceedings, documents and publications under other legislation which have absolute privilege (Defamation Act ss 17A-17R).
11.37 In the Commission’s view, the format of the Bill is to be preferred. It removes to the Schedule the details of specific protected proceedings and publications. When other legislation requires the Defamation Act to be amended so as to confer absolute privilege on publications or proceedings, then this will be reflected in the Schedule. The Commission considers this is a more efficient and accessible way of stating the law.
Proceedings of inquiry not specifically mentioned
11.38 Section 18 of the Defamation Act 1974 (NSW)53 is a general provision which acts as a “catch all”, conferring absolute privilege on the proceedings of inquiries other than those specifically conferred by amendment to the Act in ss 17A-17R. Although there are some five instances in which a tribunal is statutorily deemed to be a “tribunal for the purposes of s 18 of the Defamation Act”,54 the Commission does not accept that the section applies only to the proceedings of the nominated tribunals.55 However, one aspect of
s 18 may be potentially uncertain. The heading of the section in the Defamation Act 1974 is “Proceedings of inquiry” and the section states that “(t)here is a defence of absolute privilege for a publication in the course of an inquiry”. Is the protection limited to statements made during proceedings only, or does it also apply to communications to and by the inquiry? The Commission is firmly of the view that the language56 and the context of the provision57 make it clear that “inquiry” refers to the act of inquiring. It does not refer to the body set up to conduct the inquiry. Absolute privilege can, therefore, only apply to publications made in the course of the act of inquiring by the body in question - that is, in questions asked (orally or in writing) in the course of that act and in answers supplied to those questions. Letters of complaint sent to the body conducting the inquiry will have qualified privilege only. The Commission does not believe that it is necessary to amend the “catch all” provision to give any wider protection than this.
FOOTNOTES
1. Parliament of New South Wales, Legislative Assembly, Report of the Legislation Committee on the Defamation Bill 1992 (October 1992) Chapter 6.
2. See Defamation Act 1974 (NSW) s 17A-17R. Several other statutes confer absolute privilege on a range of officials, proceedings and documents outside the Defamation Act: see eg para 11.29.
3. Advice to the Commission from Parliamentary Counsel’s Office, August 1994.
4. See Royal Aquarium And Summer and Winter Garden Society v Parkinson [1892] 1 QB 431; Gibbons v Duffell (1932) 47 CLR 520.
5. Chatterton v Secretary of State for India [1895] 2 QB 189.
6. Gibbons v Duffell (1932) 47 CLR 520 at 530 per Starke J. Communications by Ministers of State with the Crown and one another are definitely protected. It is, however, the communication rather than the status of the official involved which attracts the privilege.
7. J G Fleming The Law of Torts (8th ed, Law Book Company, Sydney, 1992) at 536.
8. The Codes offer at most a qualified privilege for such communications: The Criminal Code (Qld) s 377; The Criminal Code (WA) s 357; Defamation Act 1957 (Tas) s 16.
9. Gibbons v Duffell (1932) 47 CLR 520. In the United States it has been held to apply to communications of a much more extensive class of officials and occasions, eg a press release explaining an official’s actions: Barr v Matteo (1959) 360 US 564. See W P Keeton (ed) Prosser and Keeton on the Law of Torts (5th ed, West Publishing Co, St Paul, 1984) at 821-3.
10. Australia, Law Reform Commission Unfair Publication: Defamation and Privacy (Report 11, 1979) at para 136.
11. Australia, Parliament, Joint Select Committee on Parliamentary Privilege, Report on Parliamentary Privilege Final Report (October 1984) at para 5.22.
12. Parliamentary Evidence Act 1901 (NSW), Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW).
13. New South Wales, Parliament, Joint Select Committee upon Parliamentary Privilege, Report from the Joint Select Committee upon Parliamentary Privilege (1985).
14. See DP 32 at paras 7.21-7.42.
15. Re Clark and Attorney General of Canada (1977) 81 DLR (3d) 33. See DP 32 at paras 7.21-7.24.
16. ABC v Chatterton (1986) 46 SASR 1; Beitzel v Crabb [1992] 2 VR 121. See DP 32 at paras 7.25-7.27.
17. NSW Joint Select Committee on Parliamentary Privilege, Report From the Joint Select Committee upon Parliamentary Privilege (1985) Recommendation 17. See also Australia, Parliament, Joint Select Committee on Parliamentary Privilege, Report on Parliamentary Privilege Final Report (October 1984) at 43-47. See also DP 32 at para 7.28.
18. See DP 32 para at 7.66.
19. The position adopted by the Commonwealth Joint Select Committee on Parliamentary Privilege: see Australia, Parliament, Joint Select Committee on Parliamentary Privilege, Report on Parliamentary Privilege Final Report (October 1984) at para 5.22. And see s 16(3) of the Parliamentary Privileges Act 1987 (Cth).
20. NSW Joint Select Committee on Parliamentary Privilege, Recommendations 8, 9, 14. See also NSW Attorney General’s Department, Legislation & Policy Division Parliamentary Privilege in New South Wales: Discussion Paper (December 1991) at 25-27.
21. DP 32 at paras 7.43-7.51.
22. [1995] 1 AC 321.
23. (1986) 5 NSWLR 18.
24. The ban on use in court of anything said in parliament is not absolute; evidence may be used consistent with Art 9 to establish material facts about the conduct of proceedings, and where an offence of perjury has been committed. See eg R v Murphy at 26; Prebble v Television New Zealand at 337.
25. DP 32 at para 7.33.
26. Great Britain, Report of the Committee on Defamation (Faulks Committee) (Cmnd 5909, 1975) at 6 and Appendix X.
27. DP 32 at para 7.35.
28. Legislation to extend and clarify the scope of both absolute and qualified privilege was recommended in the United Kingdom by: Select Committee on Parliamentary Privilege (1967); the Joint Committee on the Publication of Proceedings in Parliament, Second Report (1970) (which proposed a draft definition); the Faulks Committee (1975). The recommendation for legislation reflecting the way Parliament actually works was repeated by the Committee on Privileges in 1977. More recently, the Committee of Privileges in 1987 declined to make such a recommendation, and to date, no legislation to define proceedings in Parliament has been laid before Parliament. C J Boulton (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21st edition, Butterworths, London, 1989) at 93.
29. DP 32 at paras 7.53-7.55.
30. The person aggrieved is protected by qualified privilege for a reply to a defamatory attack, and this protection will extend to the media if they are persuaded to carry a person’s response to a public attack on his or her character: Adam v Ward [1917] AC 311. Furthermore, the person may approach another Member with the grievance and seek to have that Member put a response to the House, although Standing Orders restrict the way in which such an issue can continue to be debated.
31. Law Society of NSW, Law Institute of Victoria: Submissions.
32. See DP 32 at para 7.60. See also Australia, House of Representatives Standing Committee on Procedure, A Citizen’s Right of Reply, Report (June 1991).
33. A Citizen’s Right of Reply at 7; advice to the Commission from the Deputy Clerk of the Senate, Anne Lynch, June 1994.
34. Advice to the Commission from Deputy Clerk of the Senate, Anne Lynch, June 1994.
35. Mr R D Grove, Clerk of the Legislative Assembly, Submission (6 January 1994) at 1.
36. Hon John Murray, “Some Proposals Worthy of Consideration for Parliamentary Reform in the New South Wales Lower House” (July 1995) at p 11.
37. See Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431; Jamieson v R (1993) 177 CLR 574. The most recent discussions are in O’Neill v Mann (1994) 54 FCR 212 and Oliver v Bryant Strata Management Pty Ltd (Supreme Court, NSW, Levine J, 28 April 1995, CLD 20521/94, unreported).
38. Relevant considerations are the object of the tribunal, its constitution and manner of proceeding, the authority under which it acts, the nature of the question into which it is its duty to inquire, and finally the legal consequences of the conclusion reached by the tribunal: see Trapp v Mackie [1979] 1 WLR 377.
39. Royal Aquarium v Parkinson [1892] 1 QB 431. See also Douglass v Lewis (1982) 30 SASR 50, where a Royal Commission was held not to be entitled to claim absolute privilege at common law. Statutory protection is conferred on Royal Commissions in some jurisdictions, including NSW: Royal Commissions Act 1923 (NSW) s 6.
40. Defamation Act 1974 (NSW) ss 18, 19. See para 11.38.
41. Defamation Act 1974 (NSW) s 17A-17R.
42. Commissioner of Public Complaints Act 1984 (NSW) s 25; Freedom of Information Act 1989 (NSW) s 64(1); Pure Food Act 1908 (NSW) ss 16, 53; Special Commissions of Enquiry Act 1983 (NSW) s 10(4); Judicial Officers Act 1986 (NSW) s 48(2); Victims Compensation Act 1987 (NSW) s 68. The Community Justice Centres Act 1983 (NSW) provides for privilege as for judicial proceedings on mediations under the Act. See also Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW).
43. Eg Children (Care and Protection) Act 1987 (NSW) s 22 (8)(b), 23 (6)(b), Freedom of Information Act 1989 (NSW) s 64. Some privileges created this way are qualified only, eg Fair Trading Act 1987 (NSW) s 10.
44. See DP 32 at para 7.62.
45. The Australian Securities Commission sought absolute privilege for “publications to or by the Commission”: Australian Securities Commission Submission (17 December 1993) at 1. But this is a matter for federal legislation.
46. Ballina Shire Council v Ringland (1994) 33 NSWLR 11.
47. Recommendation 36, para 12.19.
48. Law Institute of Victoria, Communications Law Centre, Australian Broadcasting Corporation: Submissions.
49. Advice to the Commission from the Department of Local Government, NSW, June 1994.
50. See DP 32 at para 7.8; New South Wales, Report of the Legislation Committee on the Defamation Bill at 57-58.
51. The model proposed in submissions to the Legislation Committee and the Commission came from an earlier Victorian draft for the uniform Defamation Acts, namely, “publication in the course of proceedings of any tribunal board, committee or any other body established by any Act of Parliament”. See DP 32 at paras 7.9-7.11.
52. Advice to the Commission from Parliamentary Counsel’s Office, August 1994.
53. Section 18 becomes cl 3 of Schedule 2 of the draft Bill in Appendix 1.
54. Guardianship Board, Transport Appeals Board, Victims Compensation Board, GREAT, Mental Health Review Tribunal.
55. Young Lawyers (Law Society of New South Wales) Submission to the NSW Legislation Committee on the Defamation Bill 1992 (31 January 1992) at 11. See also DP 32 para 7.11.
56. “[I]n the course of an inquiry”.
57. A Schedule in which absolute privilege extends in some instances to publications “to or by” the body in question: see Appendix 1, Draft Bill Sch 2 cls 5, 6, 9, 11, 13-16, 18-23, 26, 27 and 30.
