Federal Court: May 2021

DEFAMATION & CONSTITUTIONAL LAW

Whether s 16 Parliamentary Privileges Act 1987 (Cth) precludes court hearing evidence or determining whether particular words were spoken in Parliament – qualified privilege – malice

Leyonhjelm v Hanson-Young [2021] FCAFC 22

Facts: On 28 June 2018, debate occurred in the Senate of the Australian Parliament on a motion that women should 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 told Senator Hanson-Young that she should ‘stop shagging men’. In a media statement which he published later, he said that he had made the comment in response to an interjection by Hanson-Young during the course of the debate which had been along the lines that ‘all men are rapists’.

In the first instance proceedings before the trial judge, Hanson-Young claimed that Leyonhjelm had defamed her in his media statement and in subsequent media interviews. She denied that she had made the statement attributed to her by Leyonhjelm and said that her interjection had been to the effect that ‘putting tasers in the street won’t protect women from men’.

Proceedings at first instance: Hanson-Young sued Leyonhjelm for defamation in the Federal Court, seeking aggravated damages. She alleged that his statements had conveyed the following defamatory imputations:

1. She was a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;
2. She had, during the course of Parliamentary debate, made the absurd claim that all men are rapists; and
3. She was a misandrist for publicly claiming that all men are rapists.

Leyonhjelm admitted his publications conveyed the imputations alleged but denied that they were defamatory. He 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) (‘PP Act’). He submitted that the proceedings should be permanently stayed on that account. Finally, he raised the defences of justification and statutory qualified privilege.