- The powers and privileges of the NSW Parliament: The
privileges of the NSW Parliament are uncertain; NSW is the only one of the
Australian Parliaments which has not legislated to define its privileges; and
it is the only Australian Parliament which has not legislated to provide powers
to deal with contempt. The NSW Parliament has only the following powers and
privileges: as are implied by reason of necessity; those imported by the
adoption of the Bill of Rights 1689; such privilege as is conferred by
the Defamation Act 1974; and such privilege as is conferred by other
legislation. (Pages 18-20)
- Other Australian Parliaments: All the other Australian
Parliaments have legislated to define their powers and privileges, either by
reference to the powers enjoyed by the House of Commons and/or in more express
terms. (Pages 3-4)
- The rationale for parliamentary privilege: Parliamentary
privilege is concerned, in essence, with the freedom of the Houses of
Parliament to conduct their proceedings without interference from outside
bodies, notably the Crown and the courts. (Page 5) To a significant extent the
immunities and rights which attach to parliamentary privilege flow from Article
9 of the English Bill of Rights 1689. (Pages 14-15)
- Individual immunities/collective rights and powers:
Parliamentary privilege may be divided into those rights and immunities enjoyed
by Members and parliamentary officers individually (but not for their personal
benefit), on one side, and the rights and powers of the Houses of Parliament in
their collective capacity, on the other. (Pages 6-8)
- Breach of privilege and contempt of Parliament: A
further distinction is to be made between two terms which tend to be used
interchangeably, namely, breach of privilege' and contempt of parliament'. On
one side, a breach of privilege involves a breach of a specified privilege of
Parliament, such as where it appears to a court that a parliamentary debate has
been called into question during the course of a trial. On the other side,
contempt is not confined to breaches of privilege, which means that a contempt
can occur without there being a breach of any specific right or immunity of
Parliament. Further, whereas a breach of privilege must fall within one of the
already existing categories, the Houses of Parliament are said to have complete
discretion to decide without legislation what is or is not contempt of the
House'. (Page 9)
- Parliament and the courts: In the recent NSW case of
Egan v Willis, Gleeson CJ summed up this relationship as far as
parliamentary privilege in concerned as follows: after a long period of
controversy in England, it was established that disputes as to the existence of
a power, privilege or immunity of a House of Parliament are justiciable in a
court of law. The same principle applies in Australia. However, whilst it is
for the courts to judge the existence in a House of Parliament of a privilege,
if a privilege exists it is for the House to determine the occasion and the
manner of its exercise'. Thus, the courts will inquire into the existence and
extent of privilege, but not its exercise. Grey areas and the potential for
dispute still exist, but over the past 150 years or so dispute has been avoided
by the courts and Parliaments exercising mutual respect and understanding for
their respective rights and privileges. Some argue that the decisions of the
courts in this area have been too favourable to Parliament. (Pages 15-17)
- Parliamentary precincts: The word precincts' appears to
have no precise meaning in this context and the point is made that the approach
to definition differs from Parliament to Parliament'. The 1985 Joint Select
Committee Report Upon Parliamentary Privilege recommended that a statute be
enacted physically defining the precincts of the NSW Parliament and vesting
their control in the Presiding Officers. On 17 April 1997 a Private Member's
Bill, the Parliamentary Precincts Bill 1997, was read a second time in the
Legislative Assembly. (Pages 21-22)
- For what purposes may evidence be given in court of what was
said or done in the course of parliamentary proceedings? This concerns the
interpretation of the term impeached or questioned in any court or place out of
Parliament' from Article 9 of the Bill of Rights 1689. The issue is how
broadly or otherwise is the term to be interpreted by the courts. The dominant
line of interpretation, associated with the recent Prebble case, takes a
relatively broad view of the prohibition stated in Article 9. It holds that
there is no objection to the use of Hansard to prove what was done and said in
Parliament as a matter of historical fact; what is not permissible is for the
courts to rely on matters said and done in the House for the purpose of calling
those matters into question. The distinction is between the right to prove the
occurrence of parliamentary events, on one side, and the prohibition on
questioning their propriety, on the other. (Pages 24-28)
- What is meant by the term proceedings in Parliament? The
term denotes the formal transaction of business in either House or in
Committees. The difficulty is that the application of the term proceedings in
Parliament' is less clear-cut in relation to matters only connected with, or
ancillary to, the formal transaction of parliamentary business. It has been
suggested that the relevant test should be functional and not geographical in
nature. In other words, the question to be asked should be Are the proceedings
the transactions of Parliamentary business?'; not Were the proceedings held
inside the Houses of Parliament?'. (Pages 28-32)
- Which parts and versions of Hansard are protected by
absolute privilege? The Defamation Bill 1996 seeks to remove the
uncertainties in this area. (Page 32)
- Does parliamentary privilege protect communications between
Members and Ministers? This vexed question has been debated many times. The
assumption behind it is that the communication, in the form of a letter for
example, is made for the purposes of discharging a Member's parliamentary or
constituency duties and the issue is whether these should be treated as
proceedings in Parliament'. At present the answer seems to be that the defence
of qualified (not absolute) privilege would apply to a communication of this
kind. Opinion differs as to whether legislation should be introduced to provide
for the operation of absolute privilege in these circumstances. (Pages 33-34)
- Can a House by its own resolution create new privileges?
No. New privileges can be created by legislation but not otherwise. (Page 34)
- Waiver of privilege: The position in NSW does not appear
to have been tested in the courts, but the balance of opinion from other
jurisdictions seems to be that, in the absence of specific legislation,
privilege cannot be waived, certainly not by an individual MP. Waiver of
privilege is provided for under section 13 of the UK Defamation Act
1996.(Pages 35-39)
- Does parliamentary privilege protect persons who provide
information to MPs? Erskine May suggests that it does not. What is
available, it is said, is the defence of qualified privilege to informants who
voluntarily and in their personal capacity provide information to MPs - the
question whether such information is subsequently used in proceedings in
Parliament being immaterial'. However, that view was disputed recently by Harry
Evans, Clerk of the Australian Senate, who thought the answer to the question
is likely to be determined by the closeness of the connection between the
communication of the information to the member and potential or actual
proceedings in a house or committee'. That alternative interpretation was
rejected in a recent decision of the Queensland Supreme Court in Rowley v
O'Chee.(Pages 39-42)
- Can an MP use parliamentary privilege as a basis for
refusing to give evidence to a Royal Commission concerning something he or she
said or did in the House? The prevailing view is that the parliamentary
privilege granted by Article 9 can only be taken away by express words in a
statute, in the absence of which a Royal Commission has no power to direct an
MP to attend before it and give evidence concerning what he or she said or did
in the House. The key question in NSW is whether section 17 (1) of the Royal
Commissions Act 1923 has the potential to override Article 9.(Pages 42-45)
- Can the distribution by persons outside Parliament of
extracts from Hansard be suppressed by the courts? This occurred recently
in Commonwealth Bank v Malouf. (Pages 45-46)
- Criticisms of parliamentary privilege and arguments for
change: Perhaps inevitably, the operation of parliamentary privilege has
attracted criticism, including the view that the broad interpretation of
Article 9 means that parliamentary privilege acts as a trump which sets aside
all other claims of public interest. (Pages 46-48) The arguments for change
include the contention that parliamentary privilege has the capacity to cause
substantial injustice to individuals who have no means of redress. (Pages
48-52)
- Proposals for reform: A citizens right of reply has been
adopted by the NSW Legislative Assembly and is currently under consideration by
the Legislative Council's Standing Orders Committee. (Pages 52-54) Other reform
proposals include: the introduction of comprehensive legislation; guidelines
for the exercise of parliamentary privilege; and (in those jurisdictions where
it applies) the abolition of Parliament's penal jurisdiction. (Pages 54-56)
ACKNOWLEDGEMENT
I would like to acknowledge the helpful contributions of Mr John Evans, Clerk
of the Parliaments, and Mr Russell Grove, Clerk of the Legislative Assembly,
and their Officers.
