Elderly senators shouldn't have been called to give evidence about their year-old recollections of what Sarah Hanson-Young said during a brief parliamentary interjection, an appeal court has been told.
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The Parliamentary Privileges Act prohibited consideration of what was said by the Greens senator during the June 2018 interjection, David Leyonhjelm's lawyer, Dr Gillian Dempsey, said on Monday.
But Senator Hanson-Young's barrister, Kieran Smark SC, argued the questioning did not violate the prohibition.
The lawyers were making submissions at Mr Leyonhjelm's Federal Court appeal against a November decision he had defamed his then-fellow senator and was motivated by malice and intended publicly shaming her.
The former Liberal Democrat was ordered to pay her $125,000 in damages and interest.
Justice Richard White found Mr Leyonhjelm had portrayed Senator Hanson-Young as a hypocrite and misandrist, after wrongly stating she'd made an absurd claim along the lines that "all men are rapists".
The Greens senator sued over comments he made outside parliament which expanded on his comment to her in the Senate that she "stop shagging men".
The clash came during a debate on legislation seeking to prevent violence against women.
Senator Hanson-Young denied using words tantamount to claiming all men were rapists and Justice White heard evidence from other senators about what they had heard.
Referring to parliamentary privilege, Dr Dempsey on Monday said while it may seem extreme "you are not allowed to look at what was said in parliament".
"You certainly can't go fishing through the year-old recollections of elderly senators," she said.
"In this case, there was no formal record of what was said - no Hansard report, no video, no audio recording."
Setting senators against each other concerning what was said enlivened the "privilege" that prevents any evidence being given to the judiciary.
"This matter hangs entirely on the wording of this statute," Dr Dempsey said.
It prohibits a court receiving evidence about parliamentary proceedings for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in parliament.
But Mr Smark said this section was not engaged at all and, if it was, would deprive the court of receiving any evidence about what was said in parliament.
"If there was a proper purpose to be served, then the exercise could be engaged in," he said.
While the evidence happened to be given by "a procession of senators", it could have come from others such as members of the press gallery or lip-readers.
The evidence was properly received in order to determine what was said in the chamber, Mr Smark said.
Dr Dempsey also challenged the malice finding - saying it was unrealistic to expect gentility in the "cut and thrust of politics" with parties of opposing views.
But Mr Smark said there was plenty of material to show malice had been Mr Leyonhjelm's "predominant motive".
His comments went well "beyond the pale" and were "far out" of the ordinary political attacks.
The three judges have reserved their decision.
Australian Associated Press
