Chapter 2 - Parliamentary Privilege: immunities and powers of the Senate

Qualified privilege

The immunity of parliamentary proceedings from question or impeachment in the courts is absolute. This means that the immunity of a member from action for defamation in respect of what was said in parliamentary debate remains regardless of the motives in making the remarks in question.

Reports of parliamentary proceedings in newspapers and elsewhere may attract what the law knows as qualified privilege, that is, a privilege which may be lost on proof of malice or other improper motive in making the publication.

Qualified privilege is not a diluted extension of the absolute parliamentary immunity. The law relating to qualified privilege is a completely separate branch of the law, related to parliamentary immunities only because it has application in respect of reports of proceedings in Parliament. It also applies to other transactions totally unrelated to parliamentary matters, for example, relations between private societies and their members.

The law relating to qualified privilege is determined by the ordinary law of defamation of states or territories. Reports of parliamentary proceedings may also attract the implied freedom of political communication found by the High Court in the Constitution (Lange v Australian Broadcasting Commission 1997 189 CLR 520).

The 1987 Act, however, provides in section 10 a defence against defamation actions for all fair and accurate reports of proceedings in the Houses of the Commonwealth Parliament and their committees.

The privilege attaching to reports of parliamentary proceedings, including radio and television reports, is further discussed in Chapter 3 on the publication of proceedings.

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