Memorandum from the Legislative Council
of New South Wales
ARTICLE 9 AND
A recent case in the Legislative Council illustrates
the operation of Article 9 and freedom of speech in an era (at
least in Australia) of increasing executive domination of the
Parliament and a strong party system. The case involved a Member
in effect seeking to use parliamentary privilege as a shield against
the consequences of a collective waiver of privilege by the House.
Legislation passed by the Parliament in September
1997 permitted either House to authorise an external inquiry into
matters arising in parliamentary proceedings and to waive parliamentary
privilege in connection with such inquiry. Although the legislation
authorised an inquiry to proceed, it preserved the right of any
individual Member to assert parliamentary privilege in relation
to the inquiry.
In the terms allowed by the Act, the Legislative
Council authorised the establishment of an inquiry into the truth
of certain highly controversial statements made by a Member in
the House concerning alleged conduct by prominent political figures
and a judge. The member asserted her right to claim parliamentary
privilege and refused to co-operate with the inquiry. The inquiry,
having investigated the matter, concluded that the Member had
no evidence to support her allegations. The Member's conduct was
then referred to the Standing Committee on Parliamentary Privilege
and Ethics for inquiry and report on what sanctions should be
imposed on the Member in light of the findings of the inquiry.
Among the sanctions being considered by the committee is whether
the Member should be expelled from the House.
The Member challenged the validity of the legislation
in the New South Wales Court of Appeal and the High Court of Australia,
alleging, inter alia, breach of Article 9 of the Bill of Rights.
Both Courts rejected the arguments advanced on behalf of the Member
on this point. While the Courts accepted that there may be limits
to the extent to which the privileges of the Parliament may be
altered, they held that this Act did not exceed those limits.
Details of this case will be provided in an
article to be submitted for publication in the next edition ofThe
Table. The transcript of the High Court proceedings incorporating
the Court's decision (Arena v Nader and Anor, unreported)
may be viewed on the Internet at: www.austlii.edu.au/au/cases/cth/high<fy10>-<fy1>ct
In line with developments in a number of Australian
Houses, the New South Wales Legislative Council has adopted a
procedure which provides certain remedies for persons aggrieved
by statements made about them in the House. A copy of procedure,
adopted on 13 November 1997, is attached. The procedure has not
yet been applied in any particular case.
A case in 1993 raised the issue of the extent
of "proceedings in Parliament".
Over a number of years, a Member of the Legislative
Council, the Honourable Stephen Mutch, made speeches in the House
expressing concern at the activities of various cults and the
mind control techniques allegedly practised by such organisations.
Much of the material on which the speeches were based was obtained
by the Member in confidence from informants.
In 1993 Mr Mutch was served with a subpoena
issued out of the Local Court in the course of a criminal trial
of one Kenneth Dyers on a charge of sexual assault. Mr Dyers was
a leader of one of the cults which had been the subject of speeches
by Mr Mutch and the alleged assault was supposed to have occurred
during the course of cult activities. The subpoena required Mr
Mutch to produce certain documents which would have revealed the
identity of informants and other confidential information gathered
in the course of preparing speeches given in the House. Mr Mutch
claimed that the documents were covered by parliamentary privilege
and should not be produced. He also argued that production of
the documents could have had the effect of obstructing the flow
of information to him on matters which he was pursuing in the
House, thereby impeding his ability to carry out his duties as
a Member of Parliament. The Magistrate in the case ruled that
the documents were protected from production on the grounds of
public interest immunity and parliamentary privilege.
No specific legislative attempt has been made
in New South Wales to subject Members' conduct to the criminal
law or to the jurisdiction of the courts. However in 1988 the
New South Wales Parliament "legislated for corruption"
in a sense by passing the Independent Commission Against Corruption
Act. The Act established the Independent Commission Against
Corruption (ICAC) which investigates and reports to Parliament
on "corrupt conduct" by public officials. The operations
of the ICAC are oversighted by a joint parliamentary committee.
Corrupt conduct as defined in the Act includes
various criminal offences such as extortion, bribery, and obtaining
secret commissions (s 8). Although "public official"
under the Act includes a Member of Parliament, the powers of the
ICAC with respect to Members are limited. This is because, by
virtue of s 9, conduct does not amount to corrupt conduct unless
it "could constitute or involve" a criminal offence,
or a disciplinary offence, or reasonable grounds for dismissal.
As only one of these alternatives applies to Members of Parliament,
the ICAC was, before the Act was amended in 1994, limited to investigating
conduct which could amount to a criminal offence.
An attempt to broaden the ICAC's jurisdiction
with repsect to Members was made in the ICAC (Amendment) Act
1994. This Act expanded the definition of corrupt conduct
by including two additional matters, namely:
conduct which "would cause a
reasonable person to believe that it would bring the integrity
of the office concerned or of Parliament into serious disrepute"
(s 9 (4)); and
conduct which could amount to a "substantial
breach" of an applicable code of conduct adopted by the relevant
House (section 9(1)(d)).
While draft codes of conduct have been recommended
by ethics committees in each House, neither House has as yet adopted
a code for the purposes of the Act, so this provision remains
inoperative at present.
The following matters involving possible contempts
have been considered in the Legislative Council or its committees
in recent times:
1. In 1969 the Legislative Council resolved
that a Member, the Honourable Alexander Ewan Armstrong, be adjudged
guilty of "conduct unworthy of a Member" and be expelled
from the House and that his seat be declared vacant. The relevant
conduct by the Member included participating in an arrangement
to procure false evidence for the divorce court, and stating in
evidence before a court of law that he would consider bribing
The validity of the House's actions was
upheld by the New South Wales Court of Appeal in Armstrong
v Budd (1969) 71 SR (NSW) 386.
2. In 1988 a minor party Member, the Reverend
the Honourable Fred Nile, circulated a letter to certain party
officials alleging that a Select Committee of the House was conducting
a "witch-hunt" with the aim of discrediting a government
minister and gaining electoral advantage for the major opposition
party. The matter was referred to the Privileges Committee of
the House. The Privileges Committee found that, although Reverend
Nile's actions may have been intemperate and reflected on the
motives of Members, they did not constitute a contempt as they
did not have the effect of obstructing or impeding the Select
Committee or its Members in the discharge of their duty. (Report
of the Standing Committee upon Parliamentary Privilege together
with the proceedings of the Committee, December 1989).
3. In 1993, certain evidence given in camera
before a select committee of the House was published in a Sydney
newspaper. The Legislative Council referred the matter to the
Standing Committee on Parliamentary Privilege for investigation.
The Committee found that no contempt had been committed, as the
publication had not impeded the Select Committee in the performance
of its functions. It found that a breach of privilege had occurred
but recommended that no action be taken against the journalist
responsible or the editor of the newspaper concerned, as the principal
offender was the person who originally disclosed the information
and whose identity had not been able to be ascertained. (Report
concerning the publication of an article appearing in the Sun
Herald newspaper containing details of in camera evidence, Standing
Committee upon Parliamentary Privilege, October 1993).
4. In 1995 the Legislative Council passed
a series of resolutions requiring that certain documents held
by the Government be tabled in the House. When the resolutions
were not complied with, the House resolved that the Treasurer
and leader of the Government in the Council be adjudged guilty
of contempt and be suspended from the service of the House for
the remainder of the sitting day. The Treasurer refused to leave
the Chamber and had to be escorted from the premises by the Usher
of the Black Rod.
The New South Wales Court of Appeal subsequently
found that the expulsion and suspension of the Treasurer were
within the scope of the inherent powers of the House (Egan
v Willis & Cahill, unreported, 29 November 1996). The
High Court of Australia has granted leave to the Treasurer to
appeal against this decision.
5. In 1996 the Financial Controller of the
Parliament (the parliamentary accountant) refused to provide direct
answers to questions from a Legislative Council estimates committee.
The Financial Controller had been directed by the Speaker to take
this action on the ground that, in the Speaker's view, the Financial
Controller is an officer of the Legislative Assembly and therefore
not required to answer to a Council committee.
The Legislative Council Standing Committee
on Parliamentary Privilege and Ethics investigated the matter.
The Committee affirmed that the Financial Controller is an officer
of both Houses, but recommended that in the circumstances it was
not appropriate to invoke any sanctions against him. (Report
on inquiry arising from Special Report of Estimates Committee
No. 1, Standing Committee on Parliamentary Privilege and Ethics,
6. As indicated in the first item of this
submission ("Article 9 and freedom of speech"), the
Standing Committee on Parliamentary Privilege and Ethics is currently
considering whether a Member who made statements in the House
which were subsequently discredited by an external inquiry is
guilty of contempt and should be expelled from the House.
In light of this case, one possible advantage
of codifying the actions which can be treated as contempt is the
reduction of opportunities for parliamentary sanctions to be used
as a political tool.
Clerk of the Parliaments
9 February 1998