(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, accusing L of abusing parliamentary privilege and of cheap political opportunism. L said the letter was libelous. W pleaded justification, qualified privilege and fair comment. L’s integrity in making statements in the House was determinative of the action: the letter was plainly defamatory and unless the defendants could challenge the truthfulness of what the plaintiff had said in Parliament, they had no defence.
Held: King CJ set out the result of allowing the action without such evidence: ‘It must be observed at the outset that if the view argued for by counsel for the Attorney-General and the plaintiff is correct, the result is remarkable. A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another. . . If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which was perfectly true. Moreover the defence of fair comment would often be unavailable, as in the present case, because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving the facts as known to him. If this is the true legal position, it is difficult to envisage how a court could apply the law of defamation in a rational way to an action by a Member of Parliament in respect of an imputation relating to his statements or conduct in the House, or could try such an action fairly or adjudicate upon it justly.
If on the other hand such an action is not justiciable, other difficulties and injustices arise.
. . A Member of Parliament would be deprived of the ordinary right of a citizen to obtain damages for defamation in such circumstances notwithstanding , the privilege being that of the Parliament not of the member, that he might be quite willing to have all the ordinary defences put forward and adjudicated upon by the court.’
The Court held limited parliamentary privilege does to exclude challenges to the truth or bona fides of statements made in Parliament where the maker of the statements himself initiates the proceedings. Such a limitation on normal parliamentary privilege would not inhibit the member from exercising his freedom of speech ‘because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary’.
Judges:
King CJ
Citations:
(1990) 53 SASR 416, [1990] Aust Torts Reports 81-026
Jurisdiction:
Australia
Cited by:
Not followed – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Constitutional, Defamation
Updated: 18 May 2022; Ref: scu.409975