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Just as long as you’re not “impugning Parliament”…

By Steven | November 6, 2009

Another part of Justice Dobson’s decision in Leigh (discussed below) revolves around the court’s anxiousness not to involve the courts in any impugning of Parliament. He rules that Ms Leigh can’t use Trevor Mallard’s attack on her in Parliament during Question Time to support her case.

There is good authority for this rule. One is the Bill of Rights 1688, which warns courts off calling into question anything that’s said in Parliament. Another is the principle of comity, a Gentlemen’s agreement between Parliament and the Courts not to muscle into each others’ territory. In defamation actions, then, the courts shouldn’t involve themselves in evaluating whether something said in the House is untrue or misleading or inspired by improper motives.

The point Ms Leigh wants to make is that the Briefing Paper (and the later oral briefing) were always likely to be drawn upon by the Minister in the House, and their very public and damaging republication in Parliament was thus a natural and probable consequence of the original (alleged) defamations – a republication for which the briefer should be held responsible, even though the Minister himself can’t be sued for what he said.

The judge said that this would inevitably invite the court to compare what the Minister said with what he was told. True. And if the Minister embellished what he was told, that comparison would inevitably involve critically analysing any defamatory meanings inherent in the Minister’s speech. I’m not sure the second part follows. You don’t have to characterise the embellishment as defamatory or otherwise, just separate it, ie identify which bits effectively repeat what he was told and which bits don’t. But perhaps it’s harder to separate meanings than I think. That may be another point on appeal, I guess.

Anyway, on to the amusing point. Here’s some of what the Minister said in Parliament:

Erin Leigh had repeated competence issues. She had to fix up the piece of work that she was employed to do six times after complaints from senior officials from a number of departments. As a result of that, someone had to come in and fix up that mess. Clare Curren was employed to do that…

Ministers have the right to insist on competent advice. That has been established for a long period of time. When something comes to them six times and is criticised by officials not only from the Ministry for the Environment but from other Government departments, I think that any reasonable chief executive would look for someone who could do the work. When there is someone available to try and fix up the mess who did climate change strategic work for the Australian Liberal Government, I can understand why the Ministry employed her…

[Erin Leigh], who is a sad person, who had six attempts at doing a piece of work, and who was replaced on that job…

It seems the Minister purported to understand the Briefing Paper in the way that the judge said it wasn’t capable of being interpreted. Perhaps the later oral briefing added some more juice to the allegations.

More amusingly: the judge can be read as being pretty scathing about the Minister’s comments. They “may be considered critical and demeaning of Ms Leigh”. The words in the Briefing Paper “do not provide a foundation” for the comments about competence; “nor does it warrant the comment” that Clare Curren had to fix up botched work.

Now, bear in mind that it’s possible that the oral briefing provided better foundation for the comments. And bear in mind that the judge is simply trying to explain why allowing Ms Leigh to use the republication in the House would force the court to evaluate any defamatory meanings in the Minister’s words. And bear in mind that it does seem likely that the Minister stretched what he’d been told to squeeze out maximum political benefit.

But, you know, the difference between this judgment, and another one that may impugn the Minister’s words, rather eludes me.

Topics: Defamation, Parliamentary privilege | 36 Comments »

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