BY SARAH HOOK AND ELEN SEYMOUR

In Coleman v Power, Kirby J said:

One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas. Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation. This is the way present and potential elected representatives have long campaigned in Australia for the votes of constituents and the support of their policies. It is unlikely to change.

The comments made on the floor of Parliament may be insulting and damaging. But these comments, are all protected by various parliamentary privileges and immunities. Members of Parliament can say anything in Parliament without being subject to a defamation suit. These privileges and immunities are meant to allow full and frank discussion to take place in Parliament, avoiding the chilling effect that the threat of a civil suit may have on members’ ability to speak their minds on important matters. However, these legal protections may not always serve legitimate ends. It may be that parliamentary privileges and immunities instead protect a culture where genuine discussion of policy and law reform are sidelined in favour of political stunts, ad hominem attacks on credibility, and political point scoring. At worse, they may create, or at least permit, a culture of misogyny and disrespect in what is meant to be a place that reflects the values of our society. This post will look at some examples of insulting and offensive speech, and the mechanisms in place to discipline behavior in Parliament, and suggests that the time has come to re-consider the limits of parliamentary privilege.

There are many instances of rude, disrespectful, and inappropriate behavior by politicians to be found throughout Australian political history. Or, to paraphrase former Prime Minister Paul Keating, the switch is stuck on vaudeville. These instances vary in the level of offensiveness, the ‘target’ of the offence and the ideological basis. Paul Keating was a notable deliverer of such attacks, calling members of the opposition many insults some of which were personal “he’s going troppo,” “scumbags,” “slithering mangy maggot” and also casting aspersions on their abilities, “could not raffle a duck in a pub,” “like being flogged by warm lettuce.”  More recent political stunts, including Senator Hanson wearing a burqa in the Senate, and the then Treasurer and now Prime Minister Morrison bringing coal onto the floor of Parliament, distract from genuine political debate. Other comments are far more problematic, such as Senator Anning’s maiden speech using the loaded phrase “final solution”, or the recent comments made by Senator David Leyonhjelm’s to Senator Sarah Hanson-Young. Those comments (which will not be linked to or otherwise reproduced in this post) would not be tolerated in any other workplace in Australia. It is perhaps difficult to continue to uphold this spectrum of conduct and speech as equally acceptable and/or worthy of privileged protection.

The early rationale for these protections was to establish the autonomy of the parliament from the monarchy and was known as the lex et consuetudo parliament (meaning the laws and customs of Parliament). Prior to the 17th century Parliament was perceived as a type of court. However, this theory was abandoned in the 19th century and no longer forms the legal basis for these powers and privileges.

The ancient rationale for such immunities is clear. Privilege in the 14th century belonged to the Crown rather than Parliament to ensure men summoned to advise the King were not prevented from attending. By the 17th century the privilege belonged to the Parliament and no longer the Crown. As argued by Honeyball[1], over time the original concept of preventing disruption to parliament became more about members’ needs.

Before Australian federation the lex parliament was not considered part of our common law.  It was held in the case of Fenton v Hampton (1858) 14 ER 727 as not forming part of the English legal inheritance to Australia. The early colonial parliaments held the powers and privileges of the House of Commons but were restricted to only those deemed reasonably necessary for the maintenance of order within the Parliament. Privilege in the Federal Parliament was granted by the Constitution. Section 49 of the Constitution left it to the houses to decide the ambit of such immunities and privileges which were then provided for in the Parliamentary Privilege Act 1987 (Cth).

The modern rationale for Parliamentary privilege is that it exists to benefit the people and their representatives. It allows parliaments to operate without the interference of other branches of government in order to fully debate matters of public interest without fear of repercussions. It is meant to promote honesty and transparency. Accusations can be made to get to the truth of a matter without the evidence that would be needed for a truth defence to defamation. Section 50 of the Constitution enshrines the right of the federal Parliament to keep its own house allowing each house to make rules with respect to the mode in which its powers, privileges, and immunities may be exercised and upheld and the order and conduct of its business and proceedings.

Immunity from Defamation

The Parliamentary Privileges Act 1987 (Cth) codifies the freedom of speech and defines proceedings for which it applies to be “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.” There may be a question as to whether Senator Leyonhjelm comments were part of Parliamentary proceedings. President of the Senate Senator Ryan tweeted that he was unable to ask the Senator to withdraw his comments as they were not part of proceedings, nor therefore could he apply any other sanctions. For the immunity to apply it must be in the course of proceedings, or incidental to the transaction of the business of the Assembly (Mauloni v Fraser [2007] 1 Qd R 563). Senator Hanson-Young need not test this line of inquiry, as Senator Anning later repeated his comments to the media. Parliamentary free speech does not extend to comments made to the media.

The Parliamentary immunity to defamation suits is statutorily extended to broadcasters under the Parliamentary Proceedings Broadcasting Act 1946 (Cth) (Section 15) but does not extend to comments made to the media outside Parliament (Beitzel v Crabb [1992] 2 VR 121). There is a gray area around whether just repeating something said in Parliament would give grounds to the immunity. In Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 Prior J said an action would lie even if was just repeating what was said, however Zelling ACJ, in obiter, in Beitzel v Crabb [1992] 2 VR 121 suggested the opposite. Senator Leyonhjelm, for the purposes of amplification and political point scoring, appeared to do more than just quote his earlier remarks in his subsequent appearance on Sky News.  A defamation action at the time of writing has been filed by Senator Hanson-Young in the Federal court.

Neither Senator Anning’s speech nor Senator Hanson’s stunt would be defamatory even without the immunity, as generally, you are unable to sue for defamation of a class or group (David Syme & Co v Canavan (1918) 25 CLR 234). Racial vilification laws could be used if there wasn’t an immunity although this might fail too, as courts continue to see Islamophobia as religion based discrimination rather than race (Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131).  Removing parliamentary privilege is unlikely to receive the necessary support to bring about change.  Are there existing or new measures available to encourage a more respectful, tolerant (and perhaps productive) House?

Existing measures of disciplining behaviour

It is argued that existing powers seem too limited, or too infrequently used, to be effective in upholding a standard of conduct.  Some of that ineffectiveness derives from the unwillingness of members to vote in a motion against party lines.

Parliament does have the power to punish for contempt, as outlined in the Parliamentary Privileges Act 1987. This includes the power to gaol or fine a person for conduct interfering with the free exercise by a House or committee of its authority or functions. Defamatory or critical remarks about the Parliament are not enough unless such conduct involved disturbance or obstruction.

A censure motion may be proposed if a person fails to withdraw a comment or continues unwanted behavior. The use of a resolution censoring the government, or a Minister, does not have legal consequences; it is merely an expression of the House’s disapproval of such conduct. A censure motion may have considerable political impact, especially if widely reported in the media. Its practical effect is usually to put pressure on the censured person to resign. However, that pressure is not always successful, as with Senator Nash in 2014 and Senator Brandis in 2015.

Censure motions need a vote of the House and as a consequence often have more to do with political point scoring than a general consensus that a particular behavior should not be tolerated. A motion was called for regarding the comments for Senator Hanson-Young and received a narrow 30-28 victory. The comments also sparked Senator Ryan to give a warning on appropriate language to “uphold the dignity of the chamber,” although also admitting he couldn’t sanction or force Senator Leyonhjelm to apologise. A censure motion to condemn Senator Anning’s “Final Solution” comments on immigration led by the Greens did not get enough support to pass.   However, a motion recognising the merits of immigration and multiculturalism was passed by both houses.

In recent history, a notable Senate censure motion occurred in 2015 against Senator George Brandis whose bully tactics against then President of the Australian Human Rights Commission Gillian Triggs was condemned by a vote of 35-32. It seems that the level of outrage in the media corresponds to the ability of a such a remedy. Censure motions are more often used to express disapproval of government actions (for example the war on Iraq in 2003 and in 2010 on the Government’s climate change policies).

Contempt of Parliament is different altogether and requires conduct that amounts to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member. (Parliamentary Privileges Act Section 4). Since the famous R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 case (where a citizen and an editor were gaoled for accusations made in a newspaper) contempt has not been used this way to regulate behaviour. Although Section 6 disallows contempt to be used for defamatory remarks about Parliament or the House or a member Subsection 2 retains the right in relation to words spoken or acts done in the presence of a House or a committee.

Several legislatures have now seen the need to introduce what is known as a right of reply to when someone feels they have been defamed in Parliament. In 1988 the Senate saw the need to adopt a right of reply for people who had been referred to by name and could claim to have been adversely affected in reputation. This gave them a right to be recorded on the Hansard in reply. Of course, without media attention this may do very little to rescue a reputation or change behaviour and does not protect those for whom the Senate is a workplace. As Julie Bishop has recently commented this type of behaviour would not be “tolerated in any other workplace across Australia.”

Given the limitations of the existing mechanisms for enforcing a standard of acceptable behaviour it is worth considering introducing new mechanisms. This could include the federal Parliament introducing a code of conduct. NSW Parliament has a code of conduct for its members, however the code relates more to bribery and fraud than preventing intolerant or discriminatory behaviour. This is because the purpose was to engender public trust and confidence in the parliament in the context of ICAC. The Legislative Assembly’s draft code did have a clause confirming members should comply with the Anti-Discrimination Act, yet it appears not to have made it to the approved version. Although only as yet a policy of parties not yet in power, a proposed Federal ICAC (or National Federal Integrity Commission) is also likely to be focused on bribery, fraud and entitlements. There is nothing to stop its scope being extended to investigate disrespectful or discriminatory language and behaviour of the Members of Parliament but political will.

Finally, if alternative remedies are not made available by the Parliament’s rule books then it might be necessary for the people themselves to require acceptable standards of conduct by their representatives.  Parliament is meant to represent its citizens, yet most citizens would attest to the fact that such behaviour is not part of our social identity, or at least not one we are proud of. Not many parents would allow their children to watch Question Time given the behaviour on display is generally discouraged by parents.

Media attention is what the parliamentarians are seeking out and responding to, it is not Hansard for which these stunts are pulled.  Outrageous behaviour and “sound bites” are made for the increasingly short media cycles which derive revenue from “clicks” and sales of ad space. Riling the community up also allows publicity for individual politicians and for their political views to be picked up by citizens and amplified through the media and social media.  Perhaps people will need to be vigilant and apply social media pressure to deter toxic displays and to shine a light on unacceptable conduct. This would thereby allow less engaged citizens to see the real person behind the election campaign and to question in public whether such behaviour is acceptable or not, rather than letting it fester in the darks of the Hansard. Social media can also drive changes in policy by showing public support for watchdogs such as a federal ICAC.

When (in the passage quoted at the outset) Kirby J stated such behaviour is unlikely to change in Australian politics we don’t believe he was celebrating this fact but more lamenting that there is little that can be done to change such ingrained systemic behaviour. Further debate in the media may help point out intolerable behaviour but the power of social media to disseminate and amplify are still being understood and still in many ways problematic.  It may be time to apply pressure to politicians to adopt measures to control and police their behaviour. Pressure may result in the Houses exploring whether a code of conduct might be appropriate to marry the values reflected in our Defamation, anti-discrimination and other such laws with the values broadcast on our TV screens during Question Time. If Parliamentarians get to hide in their “coward’s castle” above the rule of law, then the Castle needs to police and prove that they are worthy of such protection.

[1] Paul Honeyball, ‘The Development of Parliamentary Privilege, 1604-29’ (2015) 34:1 The Parliamentary History Yearbook Trust 114.

 

Dr Sarah Hook is a Lecturer in the Dean’s Unit of the School of Law at the University of Western Sydney. Elen Seymour is the Director Academic Program Interdisciplinary Law Units and Workload Agreement Coordinator in the School of Law, and a Fellow of the Tax Institute.

Suggested citation:  Sarah Hook and Elen Seymour, ‘Rotten Behaviour in the Coward’s Castle’ on AUSPUBLAW (12 September 2018) <https://auspublaw.org/2018/09/rotten-behaviour-in-the-cowards-castle/>.