Alex White (Labour)

It certainly goes back to the early 17th century. The principle is a very good one. I suggest if Senator Norris reflects on it, a good analogy is the protection afforded to us in this Chamber. We have a responsibility in this House to debate public issues, to deal with the cut and thrust of those issues. There have been occasions when — I will not say Senator Norris — some of our colleagues over the years may have been tempted to engage in very robust analysis and debate of issues and of the conduct of individuals. They have speculated on individuals and their actions and on what they ought to have done. This Chamber affords a protection for both Senator Norris and me and other Members. We are not exposed to being sued for libel in circumstances where we stray into that area, albeit one hopes, on rare occasions. In other circumstances we could end up in the High Court being sued for defamation. There is a very good reason for that protection and if Senator Norris reflected on it, he would see it is right he has that protection in this House. It is not a protection that should be abused but it is right that Senator Norris has that protection.

The same applies in regard to the exercise of a judicial function. The independence of a judge is vitally important to the conduct of his or her duties. Judges must be fully and entirely independent in the exercise of their important job. If they are to have a concern or a fear that they may be sued for defamation in respect of remarks they might make — these are sometimes very intemperate and I have criticised in this House remarks made by District Court judges — this would risk undermining the important independence of their function. Judges should be able to administer justice in a free, impartial and independent way. I suggest to Senator Norris it is quite wrong to interpret this section as being a protection for a member of the establishment — that we are singling out individual members of the establishment and giving them protection that is not given to other people. The issue is to do with the function they exercise for the community and for society. We as a community believe it important that judges have full independence in the carrying out of that function. This is for the protection of the community rather than it being a licence for individual members of the Bench to say whatever they want about whoever they want at any time. Senator Norris is under a misconception of what is at stake. A very important principle is at stake and it is the same principle that applies in this House and in the other House in the protection of persons. Those of us engaging in public debate in the House can at times stray into areas that could expose us to suit, even without knowing it; we could defame somebody.

It would undermine the effectiveness and the important independence of the role of the Judiciary if this section of the Bill were to be changed. Senator Norris's proposal would constitute a change. I do not have before me the particular provision of the 1961 Act but I am almost certain a similar provision exists in that Act. It is our law, as I understand it, that judges cannot be sued for defamation in the exercise of their judicial function. They are not protected when they step down from the Bench and start, willy-nilly, to gratuitously defame or attack people. They ought to be protected when they are carrying out their functions.

I have other issues to speak about on the same section of the Bill.