Former senator David Leyonhjelm was entitled to launch an attack on Greens senator Sarah Hanson-Young because the purpose of politics “is to denigrate the other party”, an appeal court has heard.
- Senator Hanson-Young said Mr Leyonhjelm falsely claimed she said “all men are rapists”
- The Greens senator won a defamation case in November
- Mr Leyonhjelm is now appealing against that decision
Mr Leyonhjelm was ordered to pay Senator Hanson-Young $120,000 over defamatory comments he made during Parliament and in media interviews in June and July 2018.
He is appealing against that ruling.
The Federal Court previously heard that at the conclusion of a Senate vote in June 2018, Mr Leyonhjelm told Senator Hanson-Young that she should “stop shagging men”.
In a subsequent media statement, Mr Leyonhjelm claimed he had made the comment in response to an interjection by Senator Hanson-Young along the lines of “all men are rapists”.
Mr Leyonhjelm’s lawyer, Dr Gillian Dempsey, told the full Federal Court hearing that that basis of the appeal is around parliamentary privilege.
She said the accuracy of Senator Hanson-Young’s interjections could not be proved and, therefore, should not have been allowed as evidence.
“In this case there was no formal record of what was said, there was no Hansard, there was no video nor was there any audio recording,” she said.
“His Honour Justice [Richard] White determined that he would hear the issue by taking evidence from witnesses, mainly other senators who were then also subjected to cross examination.
“The appellant contends that this should never have happened, the dispute as to what Senator Hanson-Young said during this debate ought not to have been ventilated in court, should not have been the subject of any evidence … and ought certainly not to be the subject of any factual findings.
“We certainly can’t go fishing through the memories of elderly senators to try and recollect what was said in less than a minute in an interjection in an active Parliament.”
In November last year, Justice White found Mr Leyonhjelm acted out of malice with the intention to publicly shame Senator Hanson-Young when he made the defamatory comments.
But Dr Dempsey disputed that ruling.
“The pungency of his attack has been criticised by Justice White saying he could have used gentler words, he could have been nicer about it and we say, ‘well no, that’s not the purpose of politics’,” she told the court.
“The purpose of politics, as far as I can tell, is to use any means whatsoever within reason, and that’s the question, what is within reason, to raise your party and denigrate the other party.”
Lawyer’s comment criticised by judge
Dr Dempsey said her client was never legally reprimanded over his alleged “sexual shaming” of Ms Hanson-Young, including the comment that “she should stop shagging men”.
“Which of course wasn’t actually pressed at any time because I gather that Senator Hanson-Young wasn’t keen to have the litany of people that she might or might not have had relations with dragged through court,” she told the court.
“It was withdrawn, and I expect that to be the reason for it.”
Her remark was criticised by Justice Steven Rares, one of three judges presiding over the case.
“That was not an appropriate thing to say,” he said.
Ms Hanson-Young’s lawyer, Kieran Smark SC, told the court that the attack on his client was malicious and Mr Leyonhjelm had not been deprived a fair trial on the grounds of parliamentary privilege, as was the grounds of appeal.
“The nature of the attack was so far out of the ordinary political discourse,” Mr Smark said.
“Politicians, however vigorously they attack each other, they don’t go around saying these sorts of things to each other.”