Parliamentary Privilege First Report


Memorandum by the Clerk of the Australian House of Representatives

THE AUSTRALIAN PARLIAMENTARY PRIVILEGES ACT 1987 AND RELATED MATTERS*

THE ACT

  The Parliamentary Privileges Act 1987 ("the 1987 Act") should not be seen as a response to a decision that privilege should be codified. Rather it should be seen as the vehicle by which, the Commonwealth Parliament:

    —  implemented a number of recommendations of the Joint Select Committee on Parliamentary Privilege;

    —  overcame problems caused by decisions of courts in New South Wales in respect of the interpretation of the provisions of Article 9 of the Bill of Rights.

BACKGROUND

  A Joint Select Committee reported in October 1984 following a comprehensive review of all aspects of the law and practice of parliamentary privilege. The Committee examined and made recommendations about:

    —  the rights and immunities seen as appropriate for the Houses, their committees and Members;

    —  the provisions which should apply in relation to contempt;

    —  the arrangements for the consideration of possible contempts or breaches of privilege.

  The committee did not approach the matter from the point of view of asking whether or not privilege should be codified but rather by going through the various rights and immunities and asking what changes, if any, were necessary or desirable, by looking at the difficult area of contempt and asking what were the best arrangements and by looking at the means by which complaints should be considered. The results of this review were varied—for example:

Rights and Immunities

  The committee concluded that a number of traditional rights and immunities should be varied—for example the duration of the period of immunity from compulsory attendance as a witness before a court.

Contempts

  The committee acknowledged the arguments in favour of setting down in a concise form the various matters which could be held to be contempts, but it felt that this should be done in resolutions of the Houses, rather than in the form of an Act—this was consistent with its view that the Houses should retain responsibility in these matters and not transfer them to the courts.

Consideration of Complaints etc

  The committee felt that the Houses should retain responsibility for the consideration of complaints. It did however recommend certain changes, such as giving persons involved with Privileges Committee inquiries the right to have the assistance of a lawyer or other person. It also recommended that doubts about the Houses' ability to impose fines on persons found guilty of contempt should be removed, and it recommended that a warrant for the committal of a person should state the grounds for the committal, thus allowing a limited judicial review of such a decision.

Implementation

  The committee grouped its various recommendations in three categories according to whether they required statutory enactment, whether they should be implemented by means of resolution of the Houses, or whether by changes to the standing orders.

PARLIAMENTARY PRIVILEGES BILL

  In 1986 the cases involving the late Justice Murphy and Judge Foord, the New South Wales courts gave decisions contrary to the traditional interpretation of Article 9 in allowing witnesses and accused persons to be examined in court as to evidence they had given to Senate Committees. The view was taken that the Parliament should act to restore the traditional interpretation. At the time that this was being considered no action had been taken to implement the recommendations of the joint select committee. It was decided to have a bill drafted which would cover (with some modifications) the recommendations of the joint select committee which required statutory enactment and which would deal with the difficulties arising from the New South Wales court decisions.

GENERAL COMMENT

  The Parliamentary Privileges Act does not seem to have created particular problems in practice. It has certainly not proved to be a straitjacket.

  In many ways it is convenient to have a concise statement of the current law in these matters, and, as mentioned, it was necessary to enact such a law to make many of the changes recommended by the Joint Select Committee and to counter the New South Wales court decisions mentioned.

  The 1987 Act is not a full codification of the law in these matters. In particular, it does not contain any enumeration of matters that can be held to be contempts. It is also of interest to note that section 5 of the Act provides that except to the extent that the Act expressly provides otherwise the powers, privileges and immunities of the Houses and their committees and members in force under section 49 of the Constitution (the section which links the powers, privileges and immunities to those of the Commons and its committees and members as at 1901) continue in force.

* The memorandum was sent in reply to specific queries about the 1987 Act and Australian legislation on bribery.

DETAILED COMMENTS

  Section 4 provides a threshold to be satisfied before conduct can be found to be a contempt: it must amount or be intended or likely to amount to an improper interference with the free exercise by a House or a committee of its authority or functions, or with the free performance by a member of his or her duties as a member. This section is intended to give effect to the "policy of restraint" espoused by many around the world. In practice it has probably helped to sift out some of the more trifling matters which have sometimes caused complaint. The House's Committee of Privileges has had to grapple with the interpretation and application of the term "the free performance by a member of the member's duties as a member". There is no accepted definition or statement of just what constitutes a member's duties as a member, and so the committee has had cause to reflect on that term in particular. This is no reflection on the Act, and it is probably to the good that the Act has required all involved in these matters, whether complainants, other members of the Committee of Privileges, to focus on such precise terms.

  Section 6 provides that words or acts cannot be taken to be an offence against a House by reason only that they are defamatory or critical of the Parliament, a House or a member. The view of the Joint Select Committee was that individual members had recourse to the law of defamation in some circumstances, and that complaints in this area had in fact been very counterproductive.

  Section 7 sets out the penalty provisions by putting an upper limit of a period of imprisonment for contempt of 6 months. This precise period was in itself helpful. The Act also provides that a House can impose a fine not exceeding $5,000 on a person and $25,000 on a corporation for a contempt. This is useful because of well recognised doubts as to whether the Houses could impose fines because of their links to the House of Commons as at 1901 and a belief on the part of some that the Commons may not have possessed this power at that time. This section also provides a means by which such a fine can be recovered. No penalty has been imposed by either House since the Act was passed.

  Section 8 removes the power of a House to expel a member. This has been commented upon recently—there has been considerable controversy here about travelling allowance claims, and a sitting Senator, a sitting member and a former Senator have been charged. This section is however in accordance with recommendations of the Joint Select Committee, and while it has been criticised, it was made with great care and after a good deal of thought.

  Section 9 reports that resolutions and warrants for committal should set out the particulars of the matter found to constitute the contempt. The effect of this is that the High Court could review a warrant to the extent of ascertaining whether the matter stated to amount to a contempt was in fact capable of constituting a contempt. Again this is in line with a recommendation of the Joint Select Committee to the effect that there should be such a limited review where the serious penalty of imprisonment is imposed.

  Section 12 provides statutory penalties for persons who interfere with witnesses or prospective witnesses. It has never been used in practice, and it does not displace the traditional ability for such an action to be found to be a contempt. Nevertheless to have such provisions in such precise statutory form may have a useful effect.

  Section 14 modifies the duration of the traditional immunites from arrest in civil matters and attendance before courts to sitting days, and five days before and after such days. Sitting days include days on which the House of which the member in question is a member meets, and days on which a committee of which the member is a member meets.

  Section 16 provides a partial definition of "proceedings in Parliament" and is very significant. It has been now applied in a number of court cases in a way which has not caused any problems, however as a result of a Queensland court decision finding that the section was invalid constitutionally, the matter is now awaiting consideration by the High Court.

  The Joint Select Committee considered the question of whether letters between members and Ministers should attract absolute privilege. Ultimately it rejected this idea. It did not consider the issue of correspondence between members and constituents, although the term in the section to the effect that proceedings in Parliament means all words spoken and acts done in the course of "or for purposes of or incidental to, the transacting of the business of a House or of a committee. . . " introduces a necessary flexibility and could in some circumstances be found to extend absolute privilege to correspondence either between members and Ministers or between constituents and members.

  In 1994 the Committee of Privileges reported on a complaint raised by a Member against whom a government official had initiated action for defamation. The Member had written to a Minister complaining about a Government decision and attacking the official in very strong terms. The Committee recognised that the Member's letter, which was not connected with proceedings in the House or a committee, was not covered by absolute privilege. The matter turned on whether the official's action in suing the Member amounted or was intended or likely to amount to improper interference with the free performance by the Member of his duties as a Member. The Committee found that there was no evidence that the official had intended to interfere improperly in the performance by the Member of his duties.

  Section 17 is a machinery provision providing that evidence of certain matters can be provided by an appropriate certificate signed by or on behalf of the President of the Senate, the Speaker of the House or the Chair of a Committee. One minor matter of detail: paragraph (a) provides that such a certificate can state that "a particular document was prepared for the purpose of submission, and submitted, to a House or a committee". While there is no difficulty with a Presiding Officer or a Committee Chair stating that a document was submitted to a House or a committee, it has always seemed to me that it would be difficult for such an officeholder to know whether a document was in fact prepared for the purpose of submission to a House or a committee—ie how can they know the intent of the person or persons preparing the document?

BILL OF RIGHTS, FREEDOM OF INFORMATION

  There is no Bill of Rights in Australia, although some have argued that we should have such a law. Australia has had a Freedom of Information Act since 1982. However it applies only to give certain rights of access to information held by government departments. It therefore does not apply to the records of the Parliament, let alone to the records of individual members. It is also relevant to note that section 46 of the Act gives Departments a right to withhold a document from release if, among other things, disclosure would "infringe the privileges of the Parliament of the Commonwealth or of a State or of a House of such a Parliament. . . ".

BRIBERY

  It is obviously open to a House here to find bribery, or attempted bribery, of a Member to be a contempt. In addition, section 73A of the Crimes Act 1914 provides that a person who in order to influence or affect a Member in the exercise of his duty or authority as such a Member, or to induce him to absent himself from the House or any committee of which he is a Member, gives or confers or promises or offers to give or confer any property or benefit of any kind to or on the Member or any other person is guilty of an offence. The penalty is imprisonment for two years. There is no record of a Member of either House having been prosecuted under these provisions.

CONSIDERATION OF COMPLAINTS

  In the House, complaints are still raised by Members openly. They are considered by the Speaker who must decide whether a prima facie case exists and whether the complaint has been raised at the first opportunity. If so satisfied, the Speaker will allow precedence to a motion—these days invariably to refer the matter to the Committee of Privileges. Since 1984 Speakers have had regard to the policy of restraint in the exercise of the House's penal jurisdiction.

  The Committee of Privileges has taken steps to change its procedures in recent years. Its modern practice is to

    —  invite parties involved with inquiries to present written submissions, and to publish such submissions to the other parties;

    —  invite the Clerk to submit a memorandum;

    —  after considering written submissions make a decision as to whether to call witnesses to give evidence in person.

  Witnesses are given the opportunity to be assisted by a lawyer or other person. They are allowed to confer freely with their advisers when giving evidence, but the advisers cannot respond on behalf of their clients, they cannot make submission and they cannot question other witnesses. Witnesses are given the opportunity to make an opening and a closing statement and they are advised that the committee does not wish to receive hearsay evidence. Such procedures are intended to confer worthwhile rights on witnesses but to avoid making proceedings too much like a court. The House adopted a "right of reply" procedure in August 1997, and special procedures apply to this—the Committee of Privileges is confined very much to considering whether an agreed response should be published, and the normal procedures mentioned cannot be followed.

I C Harris

Clerk of the House

October 1997



Annex

PARLIAMENTARY PRIVILEGES ACT 1987

Reprinted as at 31 December 1991

TABLE OF PROVISIONS

Section

  1.  Short title

  2.  Commencement

  3.  Interpretation

  4.  Essential element of offences

  5.  Powers, privileges and immunities

  6.  Contempts by defamation abolished

  7.  Penalties imposed by Houses

  8.  Houses not to expel members

  9.  Resolutions and warrants for committal

  10.  Reports of proceedings

  11.  Publication of tabled papers

  12.  Protection of witnesses

  13.  Unauthorised disclosure of evidence

  14.  Immunities from arrest and attendence before courts

  15.  Application of laws to Parliament House

  16.  Parliamentary privilege in court proceedings

  17.  Certificates relating to proceedings

PARLIAMENTARY PRIVILEGES ACT 1987

An Act to declare the powers, privileges and immunities of each House of the Parliament and of the members and committees of each House, and for related purposes.

Short Title

  1.  This Act may be cited as the Parliamentary Privileges Act 1987.1

Commencement

  2.  This Act shall come into operation on the day on which it receives the Royal Assent.1

Interpretation

  3.  (1)  In this Act, unless the contrary intention appears: "committee" means:

    (a)  a committee of a House or of both Houses, including a committee of a whole House and a committee established by an Act; or

    (b)  a sub-committee of a committee referred to in paragraph (a);

"court" means a federal court or a court of a State or Territory;

"document" includes a part of a document;

"House" means a House of the Parliament;

"member" means a member of a House;

"tribunal" means any person or body (other than a House, a committee or a court) having power to examine witnesses on oath, including a Royal Commission or other commission of inquiry of the Commonwealth or of a State or Territory having that power.

  (2)  For the purposes of this Act, the submission of a written statement by a person to a House or a committee shall, if so ordered by the House or the committee, be deemed to be the giving of evidence in accordance with that statement by that person before that House or committee.

  3.  In this Act, a reference to an offence against a House is a reference to a breach of the privileges or immunities, or a contempt, of a House or of the members or committees.

Essential element of offences

  4.  Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.

Powers, privileges and immunities

  5.  Except to the extent that this Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and the committees of each House, as in force under section 49 of the Constitution immediately before the commencement of this Act, continue in force.

Contempts by defamation abolished

  6.  (1)  Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee or a member.

  (2)  Subsection (1) does not apply to words spoken or acts done in the presence of a House or a committee.

Penalties imposed by Houses

  7.  (1)  A House may impose on a person a penalty of imprisonment for a period not exceeding six months for an offence against that House determined by that House to have been committed by that person.

  (2)  A penalty of imprisonment imposed in accordance with this section is not affected by a prorogation of the Parliament or the dissolution or expiration of a House.

  (3)  A House does not have power to order the imprisonment of a person for an offence against the House otherwise than in accordance with this section.

  (4) A resolution of a House ordering the imprisonment of a person in accordance with this section may provide that the President of the Senate or the Speaker of the House of Representatives, as the case requires, is to have power, either generally or in specified circumstances, to order the discharge of the person from imprisonment and, where a resolution so provides, the President or the Speaker has, by force of this Act, power to discharge the person accordingly.

  (5) A House may impose on a person a fine:

    (a) not exceeding $5,000, in the case of a natural person; or

    (b) not exceeding $25,000, in the case of a corporation;

for an offence against the House determined by that House to have been committed by that person.

  (6) A fine imposed under subsection (5) is a debt due to the Commonwealth and may be recovered on behalf of the Commonwealth in a court of competent jurisdiction by any person appointed by a House for that purpose.

  (7) A fine shall not be imposed on a person under subsection (5) for an offence for which a penalty of imprisonment is imposed on that person.

  (8) A House may give such directions and authorise the issue of such warrants as are necessary or convenient for carrying this section into effect.

Houses not to expel members

  8. A House does not have power to expel a member from membership of a House.

Resolutions and warrants for committal

  9. Where a House imposes on a person a penalty of imprisonment for an offence against that House, the resolution of the House imposing the penalty and the warrant committing the person to custody shall set out particulars of the matters determined by the House to consitute that offence.

Reports of proceedings

  10. (1) It is a defence to an action for defamation that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter, and the defamatory matter was contained in a fair and accurate report of proceedings at a meeting of a House or a committee.

  (2) Subsection (1) does not apply in respect of matter published in contravention of section 13.

  (3) This section does not deprive a person of any defence that would have been available to that person if this section had not been enacted.

Publication of tabled papers

  11. (1) No action, civil or criminal, lies against an officer of a House in respect of a publication to a member of a document that has been laid before a House.

  (2) This section does not deprive a person of any defence that would have been available to that person if this section had not been enacted.

Protection of witnesses

  12. (1) A person shall not, by fraud, intimidation, force or threat, by the offer or promise of any inducement or benefit, or by other improper means, influence another person in respect of any evidence given or to be given before a House or a committee, or induce another person to refrain from giving any such evidence.

    Penalty:

    (a) in the case of a natural person, $5,000 or imprisonment for six months; or

    (b) in the case of a corporation, $25,000.

  (2) A person shall not inflict any penalty or injury upon, or deprive of any benefit, another person on account of:

    (a) the giving or proposed giving of any evidence; or

    (b) any evidence given or to be given;

before a House or a committee.

    Penalty:

    (a) in the case of a natural person, $5,000 or imprisonment for six months; or

    (b) in the case of a corporation, $25,000.

  (3) This section does not prevent the imposition of a penalty by a House in respect of an offence against a House or by a court in respect of an offence against an Act establishing a committee.

Unauthorised disclosure of evidence

  13. A person shall not, without the authority of a House or a committee, publish or disclose:

    (a) a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera; or

    (b) any oral evidence taken by a House or a committee in camera, or a report of any such oral evidence;

unless a House or a committee has published, or authorised the publication of, that document or that oral evidence.

    Penalty:

    (a) in the case of a natural person, $5,000 or imprisonment for six months; or

    (b) in the case of a corporation, $25,000.

Immunities from arrest and attendance before courts

  14. (1) A member:

    (a) shall not be required to attend before a court or a tribunal; and

    (b) shall not be arrested or detained in a civil cause;

on any day:

    (c) on which the House of which that member is a member meets;

    (d) on which a committee of which that member is a member meets; or

    (e) which is within five days before or five days after a day referred to in paragraph (c) or (d).

  (2) An officer of a House:

    (a) shall not be required to attend before a court or a tribunal; and

    (b) shall not be arrested or detained in a civil cause;

on any day:

    (c) on which a House or a committee upon which that officer is required to attend meets; or

    (d) which is within five days before or five days after a day referred to in paragraph (c).

  (3) A person who is required to attend before a House or a committee on a day:

    (a) shall not be required to attend before a court or a tribunal; and

    (b) shall not be arrested or detained in a civil cause;

on that day.

  (4) Except as provided by this section, a member, an officer of a House and a person required to attend before a House or a committee has no immunity from compulsory attendance before a court or a tribunal or from arrest or detention in a civil cause by reason of being a member or such an officer or person.

Application of laws to Parliament House

  15. It is hereby declared, for the avoidance of debt, that, subject to section 49 of the Constitution and this Act, a law in force in the Australian Capital Territory applies according to its tenor (except as otherwise provided by that or any other law) in relation to:

    (a) any building in the Territory in which a House meets; and

    (b) any part of the precincts as defined by subsection 3(1) of the Parliamentary Precincts Act 1988.

Parliamentary privilege in court proceedings

  16. (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

  (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, "proceedings in Parliament" means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

    (a) the giving of evidence before a House or a committee, and evidence so given;

    (b) the presentation or submission of a document to a House or a committee;

    (c)  the preparation of a document for purposes of or incidental to the transacting of any such business; and

    (d)  the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

   (3)  In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

    (a)  questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

    (b)  otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

    (c)  drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

   (4)  A court or tribunal shall not:

    (a)  require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

    (b)  admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence, unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

   (5)  In relation to proceedings in a court or tribunal so far as they relate to:

    (a)  a question arising under section 57 of the Constitution; or

    (b)  the interpretation of an Act;

neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.

   (6)  In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.

   (7)  Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.

Certificates relating to proceedings

  17.  For the purposes of this Act, a certificate signed by or on behalf of the President of the Senate, the Speaker of the House of Representatives or a chairman of a committee stating that:

    (a)  a particular document was prepared for the purpose of submission, and submitted, to a House or a committee;

    (b)  a particular document was directed by a House or a committee to be treated as evidence taken in camera;

    (c)  certain oral evidence was taken by a committee in camera;

    (d)  a document was not published or authorised to be published by a House or a committee;

    (e)  a person is or was an officer of a House;

    (f)  an officer is or was required to attend upon a House or a committee;

    (g)  a person is or was required to attend before a House or a committee on a day;

    (h)  a day is a day on which a House or committee met or will meet; or

    (i)  a specificd fine was imposed on a specified person by a House;

is evidence of the matters contained in the certificate.


 
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