Workshop 1C – Effective Repetition
The majority of the NZ Court of Appeal held
that Mr Jennings’ statement outside the House that he did not resile from what he said in
Parliament - was effectively a repetition of the
parliamentary statement, and was
therefore defamatory of Mr Buchanan.
Buchanan v Jennings
First up
(1) introduction of presenters.
(2) a quick round of the room for each
participant to identify themselves, their role
and jurisdiction.
Issues for discussion
Does Buchanan v Jennings require
remedial action at all?;
The current situation in each jurisdiction;
Recommendations and remedies in the
three reports (NZ, WA and Senate); and
Where does uniform Australian defamation
legislation sit with the notion of effective
repetition?
Definition
House of Representatives Practice, (5th Ed) 2005; 707
The term ‘parliamentary privilege’ refers to
the special rights and immunities which
belong to the House, its committees and
Members, and which are considered
essential for the proper operation of the
Parliament.
Definition (cont)
These rights and immunities allow the
House to meet and carry out its proper
role, for committees to operate effectively,
for Members to discharge their
responsibilities to their constituents, and
for others properly involved in the
parliamentary processes to carry out their
duties and responsibilities without
obstruction or fear of prosecution.
Definition (cont)
Privileges are not the prerogative of
Members in their personal capacities:
In so far as the House claims and Members enjoy those
rights and immunities which are grouped under the
general description of ‘privileges’, they are claimed and
enjoyed by the House in its corporate capacity and by its
Members on behalf of the citizens whom they represent.
House of Commons Select Committee
on Parliamentary Privilege - Report (1967-68) p vii; para 12.
Authority giving rise to privilege
In the United Kingdom, Parliamentary
Privilege is conferred by Article 9 of
the Bill of Rights 1688,
which is in the following terms:
Article 9 – Bill of Rights 1688
That the freedom of speech and debates or
proceedings in Parliament ought not be
impeached or questioned in any Court
or place out of Parliament.
Authority (cont)
Australia has no Bill of Rights, however section 49
of the Constitution enshrines Article 9 of the Bill
of Rights in the following terms:
The powers, privileges, and immunities of the
Senate and the House of Representatives, and
of the members and the committees of each
House, shall be such as are declared by the
Parliament, and until declared shall be those of
the Commons House of Parliament of the United
Kingdom, and of its members and committees,
at the establishment of the Commonwealth.
Authority (cont)
Note that the s 49 of the Constitution permits both Federal Houses to
legislate in respect of privileges. An example of this was the
Parliamentary Privileges Act 1987.
The powers, privileges and immunities attaching to the two
Houses under the section and the statute are extensive. The
principal privilege, or immunity, is the freedom of parliamentary
debates and proceedings from question and impeachment in
the courts, the best known effect of which is that members of
Parliament cannot be sued or prosecuted for anything they say
in debate in the Houses. The principal powers are the power to
compel the attendance of witnesses, the giving of evidence and
the production of documents, and to adjudge and punish
contempts of the Houses.
- Odgers, Australian Senate Practice (10th Ed), Chapter 2
(emphasis added)
What is it?
Whilst Parliamentary Privilege applies to
individuals (ie Members, witnesses,
petitioners), it exists for the effective
operation of an institution – the parliament.
In other words, it does not exist for the
convenience of Members; its purpose is
to facilitate the efficacy of the parliament.
Defamation
The publication, whether orally or in writing,
of a statement tending to bring another
person into hatred, ridicule, or contempt.
Penguin Macquarie Dictionary of Australian Politics, 1988; 105
Defamation may attract both civil
and criminal penalties.
New Zealand Cases
Prebble v TVNZ
[1994] 3 NZLR 1; 1994 NZLR LEXIS 609
Cushing v Peters/Peters v Cushing
[1996] NZLJ 287 & [1994] 3 NZLR 30
Buchanan v Jennings/
Jennings v Buchanan
[2002] 3 NZLR 145 & [2004] UKPC 36 (14 July 2004)
Prebble v TVNZ
 Plaintiff was NZ Minister for State-Owned Enterprises.
 TVNZ’s Frontline program, in two reports on different
dates in 1990, reported on Prebble in his ministerial
capacity.
 Prebble alleged defamation in that the programs inferred
that he secretly conspired with highly placed business
leaders and public officials to sell state assets on unduly
favourable terms in return for political donations.
 TVNZ claimed truth, fair comment on matters of public
interest, protection by qualified privilege and negation or
mitigation of damages on the basis of the plaintiff’s bad
reputation as a politician.
Prebble v TVNZ
 TVNZ relied on speeches in the House of
Representatives by Prebble and other ministers,
proceedings in the House, memoranda, reports,
announcements, correspondence or action
falling within the umbrella of ‘proceedings in
Parliament’.
 The court held that Article 9 of the Bill of Rights
applied and that proceedings of parliament could
not be questioned or impeached in court
proceedings.
 TVNZ appealed.
Prebble v TVNZ
 Prebble cross-appealed and the case went to
the Privy Council.
 The nett results (for our purposes) were that:
 the courts allowed the Parliamentary Record or
Hansard to be used in evidence to prove what
had been said, which is not in any way
questioning or impeaching those words.
 Article 9 of the Bill of Rights provided absolute
privilege for Prebble and the government,
notwithstanding TVNZ’s claim to qualified
privilege attached to the re-broadcast of
parliamentary proceedings.
Cushing v Peters
 In June 1992, Winston Peters MP appeared on Four Corners and
Television One’s Holmes show and alleged that a leading
businessman had offered bribes in an attempt to obtain Peters’
support for ‘new-Right’ economic policies. When pressed, Peters
declined to name the businessman.
 A week later in the House, Peters identified ‘Mr Selwyn Cushing of
Brierley Investments Limited’ as the individual to whom he was
referring.
 Cushing appeared on the Holmes show and denied the allegation.
 In October 1993, Peters appeared on Frontline and was confronted
by the Cushing denial. He responded:
You’ve seen Selwyn Cushing on TV, as have the public of this
country. They can take his word or they can take mine. They
can believe me or believe him.
 Cushing alleged defamation.
 Peters claimed parliamentary privilege.
Cushing v Peters
 Cushing’s first cause of action arose from the June interviews and
Peters’ naming of Cushing in the House; the second arose from the
latter interview on Frontline in which Peters identified the plaintiff by
name.
 Justice Dalmer of the District Court held the rule in Prebble and
found that Cushing produced the Parliamentary Record not to
question or impeach what was said, but rather to prove what was
said. This was not subject to Parliamentary Privilege and Peters
could not claim Article 9.
 Commentators noted that:
[Peters’] naming of the plaintiff, Mr Selwyn Cushing, in Parliament
made a potentially defamatory (but unactionable) statement
actionable…The plaintiff’s action for defamation could succeed
only on the strength of what was said in Parliament.
 This decision was later overturned by the Full Court of the High
Court.
Cushing v Peters
Whilst the High Court reversed Dalmer J’s decision
in relation to Article 9, some academics argue
that the judges got it wrong and that Dalmer J
faithfully applied Article 9 and the Privy Council’s
decision in Prebble. Further, they argue that:
Ellis J failed to recognise the limiting language of Article 9. Article 9 is the
statutory embodiment of the privilege and precludes any broader assumptions
about the scope of the protection. The second judge erred on this account
also.
- Phillip A Joseph, Asia Pacific Constitutional Yearbook (1997); 169
Cushing v Peters
To recap, the argument was whether
Cushing could use the Parliamentary
Record to prove something that Peters
said in the House. Use of the record did
not include impeaching or questioning
what was said; the record was produced
merely to prove that Peters had named
Cushing in the House.
Cushing v Peters
James Allan of the University of Otago
disagreed with his contemporaries:
Did the judge get it right? Should a defamation action against an
MP be allowed to proceed where the terms of a statement made
in the House provide the only evidence of an essential element
of the plaintiff’s cause of action? Both these questions, in my
view, should be answered in the negative.
Allan, Parliamentary Privilege in New Zealand
in Canterbury Law Review 6 (2) 1996; 324-332
Cushing v Peters
Allan argued that were Cushing to stand, no
MP who makes unspecified allegations
outside the House is free to particularise
them inside the House, thus breaching the
‘fully and freely’ component of speaking in
the Chamber.
Cushing v Peters
• David McGee, former Clerk of the NZ
House of Representatives, took a different
view:
Whatever may have been the case in 1689, members of Parliament are not
the only people who take part in parliamentary proceedings and Article
9 applies to ‘debates and proceedings in Parliament’ not to
individuals. In contemporary New Zealand far more witnesses take
part in parliamentary proceedings…and a rule designed to protect that
process is of critical public importance.
…
Cushing v Peters
Article 9 is obviously alive and of contemporary relevance. It is also a
basic rule relevant to a consideration of any facet of the relationship
between the courts and parliament. But it does not…raise an
impenetrable barrier between the two that would seek artificially to
prevent the courts taking account of what has occurred in Parliament.
David McGee, Parliament and the Law – Some Recent Developments
in Canterbury Law Review 6 (2), 1996; 196-201
Cushing v Peters
Ultimately, it was held by the Court of
Appeal that Peters was protected by
absolute Parliamentary Privilege.
Cushing was then reduced to alleging
identification by innuendo on the television
programs, and his counsel conceded this
would fail.
The matter rested there.
Buchanan v Jennings
The principle of defamation in Cushing v
Peters was upheld, under different
circumstances, in the matter of Buchanan
v Jennings.
Jennings was a member of parliament
who alleged in the House on 9 December
1997 that Roger Buchanan, an employee
of the Wool Board, had acted improperly
during a promotional tour of the UK.
Buchanan v Jennings
 Two months later, The Independent newspaper,
on 18 February 1998, published an interview
with Mr Jennings in which it was reported that:
He [Jennings] did not resile from his claim about
the officials’ relationship.
 Note that the language is indirect and does not
attribute a direct quote to Mr Jennings.
 Two weeks later, Jennings wrote to the paper to
follow up on the story.
 Buchanan alleged defamation.
Buchanan v Jennings
 Defamation action proceeded to the High Court.
It was asserted for Mr Buchanan that the
statements to the newspaper were being sued
upon. The parliamentary statement was being
used merely to show, as a matter of fact, what
Mr Jennings was not resiling from.
 The judge upheld the use of the parliamentary
statement and found that Owen Jennings, MP
was liable for defamation.
Buchanan v Jennings
 Jennings appealed to the Court of Appeal which,
by majority (4-1) dismissed the appeal and
upheld the High Court’s findings of liability.
 The majority held that Mr Jennings’ statement
that he did not resile from what he had said in
parliament was effectively a repetition of the
parliamentary statement.
 In effect, he was repeating the statement in a
non-protected environment and was liable for it.
Buchanan v Jennings
 The majority noted that the defamation
proceeding did not question freedom of speech
in parliament itself. They considered that at the
time Mr Jennings spoke, he was not inhibited
from exercising his parliamentary freedom of
speech.
 For the majority, the sequence in which the
parliamentary and extra-parliamentary
statements were made was crucial. Only the
extra-parliamentary statements in the interview
and letter to the newspaper led to the
defamation action.
Buchanan v Jennings
The minority judge disagreed and said that
parliamentary words can never be invoked
to give a defamatory meaning to words
which, when viewed in isolation, are not
defamatory in themselves. That is, a
statement such as ‘I do not resile from
what I said in Parliament’ is not
defamatory in itself.
Buchanan v Jennings
The Court of Appeal cited three cases
of relevance:
 Hyams v Peterson [1991] 3 NZLR 648
 Beitzel v Crabb [1992] 2 VR 121
 Laurance v Katter CA (Qld) 1996 141 ALR 447
____________________________________
 Also to note Erglis v Buckley & Ors [2004] QCA
223 and Rann v Olsen (2000) 76 SASR 450
Buchanan v Jennings
distinguished Hyams v Peterson
 In Hyams, the plaintiff sought to use documents tabled in Parliament
‘as background or extrinsic material to be considered in appreciating
the likely impact and meaning of publications’ on which he sued
(being referred to as member of the ‘Gang of 20’ which referred to
possibly fraudulent persons).
 In that case, the plaintiff was denied on the grounds that the record
was being used to identify the plaintiff rather than to complete the
substance of an unprivileged statement.
 Distinguished because freedom of speech or proceedings in the
House were not being questioned, nor is the purpose of Article 9
being inhibited since at the time the Member makes the
Parliamentary statement, the member is completely protected.
Buchanan v Jennings
affirmed Beitzel v Crabb
 Crabb described Beitzel in Parliament as a ‘blood
sucking parasite’, which was widely reported in the
media.
 On radio later, he refused to apologise and said he stood
by what he said in Parliament.
 Beitzel alleged defamation; Crabb claimed privilege &
applied for Beitzel’s cause of action to be struck out.
 the Supreme Court held that by his comments on radio,
Crabb adopted and repeated what he said in the
Parliament, and the cause of action stood.
 Did not proceed to further hearing; case settled.
 The Court of Appeal in Buchanan affirmed effective
repetition as was held in Beitzel v Crabb.
Buchanan v Jennings
affirmed Laurance v Katter
 Statutory declaration read in Parliament and comments
made in the media.
 Katter (to the media):
I am not alleging anything except for the
statements I have made inside Parliament.
 The majority of the Court of Appeal held that subsection
16(3) of the Privileges Act did not prevent Mr Laurance
from relying on statements Mr Katter had made in the
House in an action for defamation in connection with the
statements allegedly made later in the course of the
interview.
 Did not proceed to further hearing; case settled.
Buchanan v Jennings
affirmed Laurance v Katter
The Court of Appeal said in respect of Laurance v Katter:
The Courts in such cases are saying that there is no difference in
principle or indeed in defamatory effect between the complete
repetition of the parliamentary statement and its effective repetition,
in each case by an unprivileged statement. To repeat, the purpose
of protecting freedom of debate and speech in Parliament is not
infringed by defamation proceedings being founded on the
later unprivileged statement. Nor are the precise terms of
Article 9 itself breached…The Privilege is about debate, speech
and proceedings “in Parliament:”, about promoting free and
frank debate and speech “in Parliament,” and about facilitating
Parliament’s essential political and constitutional functions.
Buchanan v Jennings
Jennings appealed to the Privy Council.
The Privy Council dismissed the appeal
and upheld the majority judgement of the
Court of Appeal, saying it was the extraparliamentary comments following the
parliamentary comments that made
Jennings’ behaviour actionable.
Effective repetition
 Buchanan v Jennings changes the previous
understanding that members had to say enough
outside Parliament to amount to a defamatory
statement in its own right, without referring back
to what was said in Parliament to support the
cause of action, for legal liability to arise.
 The difference between an acknowledgement (‘I
did say that’) and an affirmation or effective
repetition (‘I stand by what I said in Parliament’
or ‘I do not resile from what I said’) will be
difficult for Members of Parliament to determine.
What does it mean?
 In short, it means that Members should be very
careful about adopting or repeating statements
they make in the House or during Committee
hearings.
 Effective repetition in an extra-parliamentary
environment could trigger hitherto unactionable
statements into actionable statements, thus
removing the protection of absolute
Parliamentary Privilege and exposing a Member
to liability for defamation.
The View of the Privy Council
A degree of circumspection is
accordingly called for when a Member
of Parliament is moved or pressed to
repeat out of Parliament a potentially
defamatory statement previously made
in Parliament.
-
Buchanan v Jennings [2004] UKPC 36.
Australia’s defamation laws
Australia has uniform defamation laws which
have been adopted by each of the states
and territories through SCAG.
Because of this uniformity, states and
territories have been loath to amend
individual defamation acts because said
uniformity would be lost.
Since Buchanan v Jennings
Three reports have been commissioned:
New Zealand – Question of Privilege referred 21
July 1998 concerning Buchanan v Jennings, Report of
the Privileges Committee, 47th Parliament, (Matt Robson,
Chairperson), May 2005;
Western Australia – Procedure and Privileges
Committee, Effective Repetition: decision in Buchanan v
Jennings, Report No 3, 2006; and
The Senate – Committee of Privileges, Effective
Repetition, 134th Report, June 2008.
New Zealand Report
Considered several remedies
(all legislative – see pp 7-8), including:
Straight-forward reversal of Jennings in
defamation (ie amend act);
Limitation of Jennings;
Create qualified privilege for interviews;
Abolish ‘effective repetition’ generally.
New Zealand Report
Summarised the issues as:
 involves courts assessing and adjudging
parliamentary proceedings;
 affects free speech;
 has a chilling effect on public debate;
 potentially has an effect beyond defamation in a
parliamentary context;
 statutory remedy;
 internal controls on abuse of freedom of speech;
and
 authority to refer to proceedings in Parliament.
New Zealand report
Ultimately recommended:
…that the Legislature Act be amended to provide
that no person may incur criminal or civil liability
for making any oral or written statement that
affirms, adopts or endorses words written or
spoken in proceedings in Parliament where the
oral or written statement would not, but for the
proceedings in Parliament, give rise to criminal
or civil liability.
New Zealand Action
To date, no action has been taken on the
report and/or recommendation of the New
Zealand Privileges Committee.
WA Report
This report used the New Zealand report as
its model and adapts its approach to WA
conditions and needs.
WA Report
 Recommended:
 That the Parliamentary Privileges Act 1891, be
amended to include a provision which ensures
that parliamentary proceedings cannot be used
to establish what was ‘effectively’ but not actually
said outside Parliament; and
 That the Attorney General raise the form of
wording for this proposal at the next Standing
Committee of Attorneys General meeting to
ensure as far as possible a uniform approach on
the matter across Australia.
WA Report
To date, no action has been taken by the
Parliament of Western Australia.
Senate Report
Examining cases such as Buchanan v
Jennings, and Australian cases including
Beitzel v Crabb [1992] 2 VR 121, the
Senate Committee reported:
The concept of incorporation or adoption by reference,
applied to privileged speech, undermines the basis
of the privilege as it has been previously
understood to apply.
Senate Report
The Committee recommended (at 1.18)
an amendment to the Parliamentary
Privileges Act 1987 which would be ‘for the
avoidance of doubt’ and which ‘should not
expand the currently accepted scope of
the protection of proceedings in parliament
but should provide
clarification only’.
Senate Report
The Committee recommended that the
amendment be in ‘generalised terms so that it
covers actions done in the course of
parliamentary proceedings, not just words
spoken or written’.
Further, the amendment ‘should enable the courts
to distinguish between simple reference to or
adoption of words written or spoken in
parliament, or acts done…, and any extended
use involving elaboration of the protected
statements or actions’.
Senate Report
And finally, the Committee reported:
The purpose of the amendment would be to
declare (for the avoidance of doubt) that
subsection 16(3) applies to any reference
outside parliament by a person to (or affirmation
or adoption of) words spoken or written, or
actions taken, in the course of proceedings in
parliament by that person, provided that the
reference, affirmation or adoption is made
without elaboration.
Senate Report
Conclusion
The Committee:
• seeks the Senate’s endorsement of the
principles outlined in paragraph 1.18 to
guide any amendment of the
Parliamentary Privileges Act 1987 to
address the issue of effective repetition;
and
Senate Report
• requests the President of the Senate to
write to the Attorney-General and to the
Speaker of the House of Representatives,
drawing their attention to this report, and
seeking from the Attorney-General
information on the progress of
consideration by SCAG of the issue.
Senate Action
The Senate endorsed the principles outlined
in paragraph 1.18 of the report to operate
as drafting instructions to frame any
proposed amendment to the
Parliamentary Privileges Act.
The President of the Senate has written
to the Speaker and the Attorney-General
in the terms recommended by the
Committee.
Senate Action
The Attorney-General responded to say
that he welcomed the Committee’s
analysis of Australian law relating to
effective repetition and that he has asked
his Department to consider the matter
further in light of the report, including the
desirability of amendment to the
Parliamentary Privileges Act.
Beitzel v Crabb
Beitzel v Crabb
Discussion
Recommendations and remedies of the
three reports (NZ, WA and Senate);
Does Buchanan v Jennings require
remedial action at all?
The current situation in each jurisdiction;
Where does uniform defamation legislation
sit with the notion of effective repetition?
Actions of Senate President and/or SCAG.
What happens next?
In the event that the Senate and House of
Representatives amend the Parliamentary
Privileges Act (Cth), is it likely that state
and territory jurisdictions would follow suit
by amendments in the same or similar
terms where possible? Will uniform
Australian defamation legislation need to
be similarly amended?
Presented by:
Ian McNeill
Clerk of the Northern Territory
Legislative Assembly
Robyn Smith
Office of the Clerk, NT Legislative Assembly
Rapporteur
Vaughn Koops
Executive Officer, Legislative Council (Vic)