Parliamentary Privilege First Report

Memorandum by the Clerk of The Legislative Assembly for the Australian Capital Territory



  In 1988 the Commonwealth Parliament of Australia passed a package of four Bills, the principle becoming the Australian Capital Territory (Self-Government) Act 1988 (the Self-Government Act). This legislation provided self-government (by establishing the Territory as a body politic under the Crown) for the Australian Capital Territory. The Territory had been created within the boundaries of the State of New South Wales soon after Federation to house the capital of Australia, Canberra. Prior to 1988, although there were advisory bodies created that were partly and later wholly made up of members elected by citizens of the Territory, the people of the Territory had been governed essentially by a Commonwealth Minister who was answerable to the Federal Parliament. Citizens of the Territory had, at the best, four representatives elected to the Federal Parliament and until the early 1960s the (then one) representative had limited voting rights.

  The first meeting of the Legislative Assembly for the Australian Capital Territory was held in May 1989 in accordance with the provisions of the Self-Government Act which also established the Legislative Assembly and sets down its powers. Of the 17 Members that were sworn that day, only 10 Members belonged to an established political party within Australia and it would be safe to say that the majority of Members did not have a strong link with the traditions of Westminster and that some actively argued for a legislature not steeped in the past but one relevant to the people of today. Wigs and gowns held no place and the first meeting place was a rented office space (although, since 1994, the Assembly has had a Chamber purpose-built in a building of its own).

  It is from this perspective, one from a jurisdiction that differs significantly to Westminster (although it has it as its basis) and one that has not recoiled from being innovative in developing practice and procedure and actively pursuing a modern parliamentary tradition (the Government is currently conducting an inquiry into governance in the Territory) that I make this submission.

Powers, Privileges and Immunities of the Assembly

  The Self-Government Act (which can be regarded as the constitution of the Territory) clearly sets out the powers, privileges and immunities of the Assembly. In section 24 it provides:

    24.(1) In this section:

    "powers" includes privileges and immunities, but does not include legislative powers.

      (2) Without limiting the generality of section 22 [relating to the power of the Assembly to make laws], the Assembly may also make laws:

      (a) declaring the powers of the Assembly and its members and committees, but so that the powers so declared do not exceed the powers for the time being of the House of Representatives or of its members or committees; and

      (b) providing for the manner in which powers so declared may be exercised or upheld.

      (3) Until the Assembly makes a law with respect to its powers, the Assembly and its members and committees have the same powers as the powers for the time being of the House of Representatives and its members and committees.

      (4) Nothing in this section empowers the Assembly to imprison or fine a person.

  The final subsection marks a significant departure from the tradition of Australian Parliaments and has had a significant impact in the consideration of issues relating to contempt and parliamentary privilege in the Territory.

  To date the Assembly has passed legislation which has been enacted relating to the broadcasting of its proceedings to both the public and government offices and, late in the last sitting year, the Government introduced the Legislative Assembly (Privileges) Bill 1997. The Bill takes up subsection 24(2) in the Self-Government Act relating to the Assembly declaring its own powers. The Bill also addresses the issues of privilege (seeking to clarify some areas of the law relating to the privileges applying to authorised publications of the Assembly and its committees and sets in place certain statutory offences in relation to breaches of privilege or contempts) as well as that of the Assembly's precinct. It provides the following definition of proceedings:

    "proceedings in the Assembly" 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 the Assembly or of a committee, and, without limiting the generality of the foregoing, includes—

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

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

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

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

  As the Assembly is a new institution the issue of the potential for the corruption of Members has been addressed by the Self-Government Act which provides that Members vacate their office as a Member if they take or agree ". . . to take, directly or indirectly, any remuneration, allowance, honorarium or reward for services rendered in the Assembly, otherwise than under section 73." [Section 73 provides, in effect, that a Remuneration Tribunal determines Members' remuneration and allowances]. Members are advised to be very careful about this disqualification provision, its intention being seen to ensure that Members receive a set amount of remuneration and allowances for their work and do not receive any additional benefits by virtue of their position.

  The Self-Government Act also provides that a Member vacates office if the Member, at any time after the beginning of the first meeting of the Assembly after a general election, is not qualified to take a seat as a Member. The Electoral Act 1992 provides that persons are not eligible to be Members of the Assembly if, inter alia, they are convicted of certain offences under the Electoral and Crimes Acts (including bribery, violence and intimidation). The Assembly can, by resolution, refer any question relating to the eligibility of a Member to be an MLA to the Court of Disputed Elections.

  This legislation is reinforced by the Crimes (Offences against the Government) Act 1989 which provides (in section 15) that a Member of the Legislative Assembly

    . . . who asks for, receives or obtains, or offers or agrees to ask for, receive or obtain, any property or benefit of any kind for himself or herself or for any other person, on an understanding that the performance by the member of his or her duty, or the exercise by the member of his or her authority, as such a member will, in any manner be influenced or affected, is guilty of an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years.

  A further provision provides that a similar offence, with a similar penalty, is committed by anyone seeking to "corrupt" a Member of the Assembly.


  Particular issues that have arisen that are noteworthy are:

    —  the use of Assembly proceedings or the proceedings of Assembly committees in courts and tribunals;

    —  possible contempts arising out of premature publication or disclosure of committee proceedings;

    —  the questioning of the level of protection that is available to the publication of reports or records of Assembly proceedings beyond the Assembly;

    —  the level of protection available to the inter-State publication of reports or records of Assembly proceedings (ie publication within Australia but beyond the borders of the Australian Capital Territory);

    —  the limitation on the Assembly's powers to punish contempts;

    —  the perceived need for, and later adoption of, procedures for citizens right of reply; and

    —  the occasional resistance of the Executive to requests by committees for documents.


General Comments

  Before making specific comments on certain issues I would like to make a general comment on the issue of privilege as an official of a relatively new and developing legislature. The Legislative Assembly, because of its relatively short history and the climate in which it has grown, has perhaps been more prepared than most Parliaments with a strong history of tradition that is respected, to push the boundaries. In many respects it has been innovative and has actively sought to respond to the mood of the people. In doing so it has questioned many of the precedents that have existed in Australian Parliaments and the concepts of parliamentary democracy.

  The institution of Parliament must, if it is to continue to have a valid role in the governance of the people and if people are to have a respect for it, evolve and meet its challenges. One of these challenges for the concept of parliamentary privilege is the technological advances of the 20th century. Internet distribution of parliamentary debates and other documents gives rise to a number of problems that could not have possibly been foreseen only a generation ago.

  It is not only the technological advances of the day that are providing challenges but also the evolution of today's society. In Australia the legal system has expanded beyond that of the courts with the development in recent decades of a strong quasi-judicial system. The interaction of this system and the courts alter the context in which the legislatures operate and again have implications for parliamentary privilege. Furthermore, Australian courts are no longer reluctant to become involved in matters that were once considered the domain of the Parliament. Recently, in the State of New South Wales, a Minister who had been suspended from the Chamber pursued the matter in the courts.

  However, as well as the ability to bend (to a certain extent) with the prevailing wind, the Parliament must ensure that it maintains the ability to function effectively in the worse case scenario. It would be ill advised to give up or erode immunities and powers that would perhaps become vital in a less than ideal world—one example of disorder or dislocation within the community (either social or economic). To give up its rights may also be to lose sight of one of its major functions, ie to make government accountable.


  There are a number of specific comments I would like to make in response to the issues listed in the invitation to submit evidence.

Citizen's right of reply

  In the early days of the Assembly, Members were quick to grasp that material that became part of the Assembly's proceedings could receive wider publication as a report of those proceedings. In one notable case a Member made allegations about the criminal activities of a businessman from another State in Australia and these allegations received press coverage. The businessman strenuously denied the allegations in letters to Members of the Assembly and, after a period of over a year, the Member who made the allegations informed the Assembly that the source of the material was not who he had purported to be and the allegations were false. The Member then apologised to the businessman.

  The case was a matter of some concern amongst the other Members of the Assembly, including the Speaker, and led to an Assembly Committee recommending that a citizen's right of reply procedure (similar to that in operation in the Australian Senate) be adopted by the Assembly. In 1993 the Assembly adopted the procedure for the term of that Assembly. The Assembly formed following the next elections again passed the resolution but gave it continuing effect. On both occasions the resolutions were accompanied by another which seeks to remind Members of the responsibility that they must exercise when using the valuable right of freedom of speech.

  Although the right of reply has been in effect for four years, the first use that was made of it was in December 1997. The Assembly Committee charged with the responsibility of considering the request for a reply and reporting to the Assembly was not unanimous in recommending the request for incorporation into Hansard be agreed to, but the majority of the Committee took the view that the request should be treated in a similar manner to a Member asking for leave to make a personal explanation. On presentation of the report the Assembly agreed to the recommendation for incorporation into Hansard.

  I am aware that a House of Commons Select Committee has previously investigated the procedure as it operated in its infancy in the Senate and decided against adoption. However, I would recommend that it be reconsidered. As Clerk I have discussed the procedure with a number of residents in the Territory who have taken exception to statements made about them in Assembly proceedings and it is my belief that the effectiveness of the procedure lies partly in its existence. For Members, the existence of the resolution relating to freedom of speech reminds them of their responsibilities and also empowers the Speaker to refresh their memory should the situation so demand, and for some within the community, just knowing that the opportunity to respond to statements made about them (or their corporations) exists, is sufficient for them to believe that they are not locked out of the process with no defence should they so desire it. The terms of the resolution require a certain amount of work on behalf of the citizen seeking redress and to some extent act as a measure of their commitment to the process. Its usage in the Senate where it has operated for greater time span would suggest that very few seek it without believing that they have true cause.

Use of Assembly proceedings in courts and tribunals

  An issue that has given concern to Speakers in the brief history of the Legislative Assembly is the issue of the use of or reference to Parliament's records in courts and tribunals.

  Boards of inquiry established pursuant to the Inquiries Act have been seen to seek to inquire into the proceedings of the Assembly as such and, as recently as July last year, the Executive appointed a Board of Inquiry to inquire into, inter alia:

    The circumstances including all considerations by the Assembly, the Executive, Ministers, officials and Agencies relating to the demolition of Royal Canberra Hospital, since the Acton-Kingston Land Swap.

  These terms of reference were agreed to, apparently, following consultation with Members of the Assembly. The issue did not come to a head as, for other reasons, the particular inquiry has not proceeded.

  On another occasion it was believed that the Commonwealth and Territory Ombudsman was questioning evidence that had been given to a committee of the Assembly and action had to be taken to bring to the attention of the Ombudsman the provisions of section 16 of the Parliamentary Privileges Act (Commonwealth) to which the Assembly is linked via section 24 of the Self-Government Act.

The level of protection available to the publication of parliamentary records beyond the boundaries of the Territory

  The Assembly has in the past and is currently examining the issue of the publication of records of the proceedings of the Assembly and other documents authorised by the Assembly to persons residing interstate (ie beyond the boundaries of the Territory). The current examination of the matter relates to addressing the question of what protection, if any, is there against actions for defamation or other civil or criminal proceedings for officers of the Assembly and others who make the Hansard and other documents of the Assembly or its committees available on the internet. In other words, would the Clerk or officers of the Assembly have immunity from proceedings that are based on interstate law? The extent to which immunity is available is seen to vary according to the law in each jurisdiction.

  The advice we have to date refers to a recent case in the High Court (Lange v Australian Broadcasting Commission (1997) 145 ALR 96) where the principles that will determine whether a defence of qualified privilege is available as an answer to a claim based on alleged defamation were restated. The advice received was that this statement by the Court provides a basis for concluding that, on balance, Hansard and other documents of the Assembly may safely be made available on the internet although it could not provide a guarantee that this would not result in adverse consequences.

Limitation on power of Assembly to punish contempts

  As mentioned above, section 24 of the Self-Government Act specifically limits the powers of the Assembly by providing that the Assembly cannot imprison or fine a person.

  The Bill currently before the Assembly seeks to create certain statutory offences relating to the operation of the Assembly, thus enabling a court to impose a punishment by means of fine or imprisonment. The facts relating to an offence would be established through production of evidence by certificate—thus limiting as far as possible the extent to which a court must examine the proceedings of the Assembly in order to establish the facts at issue. Offences contained in the Bill are:

    —  contravention of an order prohibiting publication of words spoken or material published in proceedings in the Assembly or a committee;

    —  unauthorised disclosure of evidence taken in camera or on a confidential basis;

    —  the failure of a person, without reasonable excuse, to attend or produce a document or other thing as required by summons;

    —  refusal or failure, without reasonable excuse, to take an oath or affirmation or to answer questions when required after being summonsed;

    —  knowingly providing false or misleading evidence or documents when attending on summons; and

    —  improperly influencing witnesses in relation to evidence given or to be given or inducing a person to refrain from giving evidence.

  The Bill includes a clause retaining the legislative and common law framework of powers, privileges and immunities that apply to the Assembly by virtue of section 24 of the Self-Government Act to the extent that these powers are not dealt with by the Bill.

  Although our Assembly has an unusual restriction on its powers in that it cannot imprison or fine a person and to some extent the genesis of the Bill was to address this issue, the Bill also reflects an acceptance by the Government and, I believe, the people of the Territory that Parliament should not be a remote body with unfettered powers, and the appropriate venue for a decision concerning guilt or innocence is the courts.

Other matters the Joint Committee is investigating

  Your invitation lists a range of matters the Joint Committee is investigating. Some of these issues I have addressed either directly or in the context of the Australian Capital Territory experience. Further comments I would make are as follows.

  I see legislatures as having particular constitutional roles, usually a legislative and scrutiny role including, in our case, the making of governments, the surveillance and appraisal of Government administration and initiation, examination and approval of legislative proposals including financial proposals. The purpose of privilege is to enable the legislature to perform its functions effectively and its scope must be limited to what is necessary for it to perform its functions free from interference.

  Should it be seen as desirable to modify the scope and application of parliamentary privilege there could be a danger of eroding the powers and immunities that have been seen as essential for the legislature and its Members to fulfil their role.

  I can see merit in codifying the necessary protections however there would also be merit in retaining the residual powers except to the extent that any resolution or legislation otherwise provided.

  Whilst there may be a more modern phrase to replace "parliamentary privilege" it is widely known and self explanatory and to replace the phrase could run the risk that it could develop a different identity.

Proceedings in Parliament

  One issue that arises from the exclusive jurisdiction of a House over its Members and internal proceedings is that it is important that it be seen to be able to prevent abuse by Members of their immunities and to demonstrate the ability and willingness to act on improper behaviour. As mentioned above, in Territory law any Member accepting or seeking bribes in relation to the exercise of his or her duty or authority is guilty of an offence and it is also an offence to seek to influence a Member. In addition, the Self-Government Act contains a provision whereby any Member who is a party to or has a direct or indirect interest in a contract made by or on behalf of the Territory or a Territory authority is precluded from taking part in a discussion of a matter or voting on a question in a meeting of the Assembly where the matter or question relate directly or indirectly to that contract. Any question concerning the application of this provision shall be decided by the Assembly. Similar provisions are contained in the standing orders.

  The decision of the Federal Parliament to provide self-government for the Territory was a contentious decision and the response of the people of the Territory was, initially at least, somewhat wary. The Assembly must have various powers and immunities to function effectively and I believe by its Members accepting and putting in place some checks and balances (whether they be legislative provisions regarding bribery and corruption or regarding unauthorised disclosure of evidence) so that the Parliament is not seen as law beyond all else by the electorate, confidence in the institution has been enhanced without paring down or removing those powers.

Mark McRae

3 February 1998

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Prepared 9 April 1999