Parliamentary Privilege First Report


Memorandum by the Parliament of New South Wales

1.   We understand that New South Wales is the only Australian Parliament which has no legislation comprehensively defining its powers and privileges. Have you considered legislation? Do you consider that your approach has advantages over those of other states?

  In 1878 a bill to give the New South Wales Parliament the powers and privileges then held by the House of Commons passed the Legislative Assembly but was defeated in the Upper House. In 1901 another attempt to define the Parliament's privileges passed the Legislative Assembly but lapsed with the prorogation of the Parliament. At least three other attempts have been made to define the Parliament's privileges.[46] In 1985, a Joint Select Committee on Parliamentary Privileges recommended that legislation be passed providing that the Parliament has the privileges of the House of Commons at 1856[47] but no such legislation was introduced.

  The absence of comprehensive privileges legislation in New South Wales, where the Parliament has a statutory origin, leaves the definition of privileges to the courts. This means that the Parliament's privileges are uncertain and open to adaptation to contemporary conditions by the courts (eg, Egan v Willis & Cahill, NSW CA (1996) 40 NSWLR 650). Whether such uncertainty tends to foster or dispel constitutional conflicts and whether the privileges and functions of the Parliament are shaped to best serve the public interest if defined by unelected courts or a Parliament in most cases controlled by the executive are continuing matters for debate.

2.   How close is the linkage between your privileges and those in the United Kingdom? Is this link based on statute? If we change our privileges will this directly, or indirectly affect your own?

  There is a link between the privileges of Parliament in the United Kingdom and New South Wales. Although it has been asserted that New South Wales acquired the privileges of the House of Commons of 1856,[48] it is generally accepted that the New South Wales Parliament possesses only those privileges acquired by statute and, under the common law, has inherited those powers and privileges that are necessary for the existence of the Legislature and the proper performance of the functions it is intended to execute.[49]

3.   A central issue is the extent to which Parliament should have exclusive control over its own affairs. Apart from exclusive control over their procedure does your Parliament have exclusive control over the buildings in which it meets and over its staffing and administration?

  Section 7 of the Parliamentary Precincts Act 1997 vests the control and management of the parliamentary precincts with the Presiding Officers.

  Each House is administered by its Presiding Officer and joint services are administered by the Presiding Officers jointly.

  Each Presiding Officer controls the staffing of their individual Houses and jointly control the staffing of joint services. Whether such control is exclusive is uncertain as the precise legal status of parliamentary staff is not clear. Since 1895, the staff of the Parliament have been excluded from the Public Service Act. All minor servants of the Parliament are appointed by delegation of the Governor to the Presiding Officers under section 47 of the Constitution Act 1902 (NSW). In practice only the Clerks, the Serjeant-at-Arms and the Usher of the Black Rod are appointed by the Governor as they are with a Commission under Letters Patent by the Governor.

  Since 1988, Parliament has received a global salaries vote, allowing the Presiding Officers to use the funds allocated to salaries according to their discretion.

4.   Does the general law (eg, on employment, office conditions) automatically apply within the parliamentary precincts; or does it only apply to the extent accepted by Parliament and/or the extent specifically provided in statute?

    There is no abrogation of the general law within the parliamentary precincts and the Parliament is subject to employment and occupational health and safety laws of general application.

5.   Can you punish a member of the public for a contempt of Parliament? Is there any appeal to a court?

  The Parliament has no general power to punish for contempt. Specific powers to punish are provided in the Parliamentary Evidence Act 1901 which provides:

Penalty for refusal to answer

    11.  (1)  Except as provided by section 127 (Religious confessions) of the Evidence Act 1995, if any witness refuses to answer any lawful question during the witness's examination, the witness shall be deemed guilty of a contempt of Parliament, and may be forthwith committed for such offence into the custody of the usher of the black rod or sergeant-at-arms, and, if the House so order, to gaol, for any period not exceeding one calendar month, by warrant under the hand of the President or Speaker, as the case may be.

      (2)  Such warrant shall be a sufficient authority for all gaolers and other officers to hold the body of the person therein named for the term therein stated.

      (3)  No person acting under the authority of this section shall incur any liability, civil or criminal, for such act.

Penalty for false evidence

    13.  If any such witness wilfully makes any false statement, knowing the same to be false, the witness shall, whether such statement amounts to perjury or not, be liable to penal servitude for a term not exceeding five years.

  Thus, the House may punish a witness for refusing to answer a lawful question and a witness may be prosecuted in a court for a false statement. Following the reasoning of the Queen v Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157, whether the House was acting within the jurisdiction conferred by this statute would be appellable to a court. There has been no purported exercise of the powers conferred by these two sections.

6.   Have you codified those offences which are considered to be a contempt of Parliament? If not, can you give examples of cases where a member of the public has been punished for a contempt?

  The only codification of offences considered to be a contempt of Parliament are addressed under 5 above, nor does the New South Wales Parliament have any other punitive powers.

7.   Is freedom of speech in debate or other proceedings absolute? Does it even extend to the revelation of official secrets in debate? Does freedom of speech derive from Article IX of the Bill of Rights or another source? Are there any derogations such as those in s 13 of the United Kingdom Defamation Act 1996?

    There is no statutory limit on the freedom of speech in Parliament.

    The source of freedom of speech includes the common law (what is necessary for the operation of the legislature), Article 9 of the Bill of Rights 1688 (given force by the Imperial Acts Application Act 1969) and statutes such as the Defamation Act 1974, and the Parliamentary Evidence Act 1901.

8.   Do the Courts in your state interpret Parliament's privilege of freedom of speech as having the same scope as that described in the 1987 Parliamentary Privileges Act as applying to the Federal Parliament?

  No. The Commonwealth Parliamentary Privileges Act 1987 was passed in response to rulings of three judges of New South Wales Supreme Court which took a more limited view of parliamentary privilege than that expressed in the Act (Cantor J, R v Murphy, unreported, 5 June 1985; Maxwell J, R v Foord, unreported, 1985, Hunt J, R v Murphy (1986) 5 NSWLR 18). The Act does not directly affect the privileges of the New South Wales Parliament. Since the passage of the Act, Justice Loveday of the District Court has ruled that parliamentary privilege did not prevent the subpoenaing of evidence given in camera to a select committee of the Legislative Assembly to impeach the credit of a witness at a criminal trial (Regina v Abraham Gilbert Saffron, unreported, District Court of New South Wales, 21 August 1987). Nevertheless, a judge of the Federal Court has expressed the view that s 16(3) of the Act is declaratory of the law in Australia before its enactment (Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 231) and such views influence interpretation by the courts (eg, NSW Australian Medical Association v Minister for Health and Community Services (1992) 26 NSWLR 114 at 126).

9.   Are there any circumstances (eg, where a parliamentary committee's responsibilities relate to the administrative management of the House or the letting of contracts) where the proceedings of a parliamentary committee can be considered by a court (eg, in a dispute over a contract)?

  The law on this point in unclear, with conflicting rulings not yet definitively resolved. It is settled that records of proceedings may be admitted into evidence to prove certain things were said in those proceedings. For a more detailed discussion see Gareth Griffith, Parliamentary Privilege: Use, Misuse and Proposals for Reform, NSW Parliamentary Library Research Service Briefing Paper No 4/97 and "Parliamentary Privilege—Parliament versus the Courts: Cross-examination of Committee Witnesses", Australian Law Journal, vol 67, Feb 1993, pp 109ff, especially 129-30.

  The proceedings of a parliamentary committee (either Commonwealth or New South Wales) have been used by a NSW court in the following circumstances:

    —  In camera committee proceedings (NSW) allowed to assist defence in a criminal trial impeach the credit of a prosecution witness (R v Saffron, unreported, District Court of NSW, 21 August 1987)

    —  Committee proceedings (Com) of evidence given by defendant in criminal proceedings admitted to be compared with testimony given at trial. Ruled that Bill of Rights only prevents legal consequences arising directly from what is said in Parliament. (R v Murphy (1986) 5 NSWLR 18)

    —  Cross examination allowed of prosecution witness on evidence they had given to a Senate committee (Com) (R v Foord, unreported, 1985).

    —  Committee report allowed as evidence of the objective events of a seven year problem (the subject of the committee report) as there could be no concern that the motives or intentions or reasoning of the committee would be questioned or held against the committee, but not allowed as evidence of the facts and opinions contained in the report as that would inevitably result in a challenge to the functions of the committee and the way in which it has performed those functions. R v Murphy distinguished. (NSW Branch of the Australian Medical Association v Minister for Health and Community Services (1992) 26 NSWLR 114)

10.   The United Kingdom Government may introduce legislation on corruption which, as part of a general reform, will include an offence of bribery of an MP or a Peer.

what statutory offence exists in your state relating to bribery of a member of either House?

  Part 4A of the Crimes Act 1900 (NSW) attempts to codify the common law relating to bribery (see Appendix A).

  Statutory offences for bribery also exist under various Acts including the Independent Commission Against Corruption Act 1988, the Police Integrity Commission Act 1996, the Casino Control Act 1992, the Parliamentary Electorates and Elections Act 1912 and the Constitution Act 1902 (relating to bribery of electors).

  Bribery is dealt with under proposed codes of conduct which are under consideration by the Parliament. If agreed to, contravention of the code will be a matter that will fall under the jurisdiction of the Independent Commission Against Corruption for investigation (s. 9 Independent Commission Agains Corruption Act 1988). The code does not create any criminal offences.

who authorises prosecution?

  Both the Director of Public Prosecutions and the Attorney-General may authorise or call off prosecutions for indictable offences, the Director being subject to any such determination by the Attorney (Director of Public Prosecutions Act 1986).

are there any circumstances where the court can hear and examine evidence on what a member or senator has said or done in Parliament?

  No. The Courts can only use what was said in Parliament as evidence of fact.

are there circumstances where a tribunal or a Royal Commission may do so?

  The Royal Commissions Act 1923 (see Appendix B) provides for special powers, including the power to reject claims of privilege, which may apply to a Commission if specifically so declared by the Governor.

  In response to a request in 1995 from the Royal Commission into the New South Wales Police Service, the Legislative Assembly passed a motion:

  That this House grants leave to officers assisting the Royal Commission into the New South Wales Police Service to inspect the in camera evidence taken before the Select Committee upon Prostitution on condition that—

    (1) the evidence is inspected at Parliament House;

    (2) any information obtained be used by the Royal Commission to pursue appropriate further inquiry without revealing to any other person other than the Royal Commissioner and officers of the Royal Commission, the contents of the in camera evidence, and its contents not made public; and

    (3) before adducing into evidence of the Royal Commission any evidence taken before the Select Committee upon Prostitution, the Royal Commissioner, his Honour Justice Wood, QC, seek leave of the Legislative Assembly. (Votes & Proceedings 26 October 1995, pp 361-2).

  On a subsequent request from the Commission, the House resolved:

  That this House, being of the opinion that to grant leave to the Royal Commission into the New South Wales Police Service for any evidence taken before the Select Committee upon Prostitution to be adduced into evidence before the Royal Commission has real potential to breach Article 9 of the Bill of Rights, and as the House has no authority to waive its privilege in this regard, declines to grant leave as requested. (Votes & Proceedings, 27 November 1996, pp 686-7).

  The Commission did not subsequently adduce the transcripts into evidence, notwithstanding its legal power to do so.

  The Special Commissions of Inquiry Act 1983 does not allow a witness to refuse to answer a question or produce a document by claiming privilege, although, at a public hearing and as far as practicable, the Commissioner is not to receive evidence in breach of parliamentary privilege if that privilege has not been waived under the Act or otherwise.

  Part 4A of the Act, which was inserted in 1997 after a member of the Legislative Council made certain allegations in the House and expires six months after commencement, provides for either House authorising the Governor to commission an inquiry into a proceeding of the House and to waive privilege in relation to such an inquiry.[50] Any waiver by the House under the Act does not affect the privileges of any member unless the member also waives his or her privilege. A challenge to the constitutionality of these provisions in the Court of Appeal of New South Wales was unsuccessful and, on a request for special leave to appeal that decision in the High Court, the court found that the Parliament's plenary powers include the power to affect its privileges. Whether there was a limit on the extent to which Parliament could affect its own privileges, on the grounds that to do so invalidly erodes the institution of Parliament itself, was said to be an issue worthy of exploration and special leave would have been granted if the Act could have been construed as having such an effect (Arena v Nader and Anor S111/1997).

  Other Acts that override a person's right to plead privilege include the Local Government Act 1993 (witnesses before the Pecuniary Interest Tribunal), and the New South Wales Crime Commission Act 1985.

  The relevant provisions are appended (Appendix B)

11.   Is there any procedure for "waiving privilege" when a member or senator is charged with an offence relating to his or her parliamentary duties?

  No, except as described in question 10 above (see Parliamentary Privilege: Use, Misuse and Proposals for Reform).

12.   Immunity from arrest

  In NSW status as a Member of Parliament confers no immunity from arrest or imprisonment for a criminal offence.[51] In relation to arrest for civil matters, in 1894 it was held that members of Parliament could be arrested under a writ to enforce payment of judgment debts even though the House was sitting (Norton v Crick (1894) 15 LR (NSW) 172). The reasoning of the Court was that immunity in such cases did not fall within the scope of the inherent or implied powers of the House as it was not reasonably necessary to enable Parliament to function properly. However, there may be other circumstances, for instance, civil contempt of court, in which limited immunity from imprisonment might be permitted.[52]

IMMUNITY FROM ATTENDANCE AS A WITNESS OR AS A DEFENDANT IN A CIVIL SUIT BEFORE A COURT

  The generally accepted practice is that Members are exempt from the duty of attending in court to give evidence so long as the House or a committee of the House is sitting. A Member may attend to give evidence in a civil suit while the House is sitting if leave of absence is given by the House.

  Section 15 (2) of the Evidence Act 1995 (NSW) is relevant to this issue:

    15(2) A member of a House of an Australian Parliament is not compellable to give evidence if the Member would, if compelled to give evidence, be prevented from attending:

      (a) a sitting of that House, or a joint sitting of that Parliament, or

      (b) a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member.

  Section 10 of that Act states:

    (1) This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

    (2) In particular, section 15(2) does not affect, and is in addition to, the law relating to such privileges.

CONFIRMATION BY STATUTE

  None of the immunities discussed are confirmed by statute other than by the provisions of the Evidence Act referred to above concerning compellability of witnesses.

ATTENDANCES BEFORE TRIBUNALS OR ROYAL COMMISSIONS

  Principles similar to those applying to process issued from a court would apply to attendance by Members before tribunals and royal commissions.

SERVICE OF SUBPOENA TO APPEAR IN COURT ON A SITTING DAY

  The service of a subpoena on a Member to appear in Court on a sitting day has not of itself been regarded as a breach of privilege, unless the actual service was within the precincts of the House and on a sitting day.

AUTHORISATION FOR EXERCISE OF IMMUNITY

  Where a Member is required to appear in Court while the House is sitting, the practice is for the Presiding Officer to write to the Chief Judge or other appropriate officer of the Court claiming the privilege of exemption. If the Member wishes to appear, and depending on the circumstances of the particular case, the Member may be granted leave of absence to attend, by vote of the House.

13.   Whether ICAC overrides Parliament's powers

  Under the Independent Commission Against Corruption Act 1988 (NSW) (copy attached) the principal functions of the ICAC include the investigation of allegations or complaints of "corrupt conduct"(s 13(1)(a)). "Corrupt conduct" is defined in ss. 8 and 9 of the Act. Section 8 contains a broad, wide-ranging list of types of conduct which involve criminal conduct or serious offences such as breach of public trust. Section 9 cuts down the extent of s 8 by providing that conduct which satisfies s 8 does not amount to "corrupt conduct" unles it "could constitute or involve" various matters. The matters relevant to Members of Parliament are:

    —  a criminal offence (s 9(1)(a));

    —  a substantial breach of an applicable code of conduct (s 9(1)(d));

    —  conduct that 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)).

  At present, the only grounds applicable to Members are the first and third options listed above as neither House of Parliament has as yet adopted a code of conduct for the purposes of the ICAC.

  The ICAC has power to summons witnesses to attend and give evidence under s 37. Section 37 (2) states:

    A witness summoned to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground. (emphasis added)

  However, s 122 states:

    Nothing in this Act shall be taken to affect the rights and privileges of Parliament in relation to the freedom of speech, and debates and proceedings in Parliament.

  Section 4 of the Parliamentary Evidence Act 1975 enables either House or a committee to authorise the publication of certain documents and evidence. This provision is overridden by s 70 (7) of the ICAC Act in the case of certain confidential evidence taken by the joint parliamentary committee which oversights the ICAC.

EFFECT ON STANDING AND INDEPENDENCE OF PARLIAMENT

  There is some effect on the standing and independence of Parliament as the ICAC in effect exists as a watchdog to scrutinise the activities of "public officials" including Members and investigate possible corruption. However, the Act establishes a parliamentary committee which oversights the ICAC, so that some checks and balances are maintained. The functions of the committee include:

    —  monitoring and reviewing the exercise by the ICAC of its functions; and

    —  reporting to Parliament on any matter appertaining to the ICAC or connected with the exercise of its functions to which, in the opinion of the Committee, the attention of Parliament should be directed (s 64(1)).

14.   Service of subpoena in precincts on sitting day

  Both houses have regarded the service of a subpoena on a Member in the precincts of the House on either a sitting day or non-sitting day as a contempt and such matters are reported to the House by the Presiding Officer. It has been considered that the contempt is purged if the person responsible for the service acknowledges that the service was improper and withdraws the process. Once this has occurred the person may, if desired, effect service on the Member in the conventional manner, outside the precincts of the House.

15.   Expulsion of Members

  Unlike other Parliaments in Australia, the NSW Parliament has not by legislation or resolution adopted the powers, privileges or immunities of the House of Commons, or declared its privileges and powers in a comprehensive manner. Accordingly, in matters such as expulsion, the Houses rely on their inherent or implied powers and, in the case of the Legislative Assembly, the Standing Orders. The nature and extent of the inherent powers of former colonial legislatures is governed by common law principles originally formulated in a series of Privy Council decisions in the nineteenth century. According to these principles, the Houses of such legislatures possess only such powers as are "necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute".[53] The Courts have determined that punitive action does not fall within the scope of this formulation. To be lawful, any action which a House in NSW takes to deal with a contempt must be "protective" and "self-defensive" and not punitive.[54] These principles have been applied in NSW in recent times in Armstrong v Budd (1969) 71 SR (NSW) 386 and Egan v Willis & Cahill, Court of Appeal decisions, 29 November 1996.

EXPULSION IN THE LEGISLATIVE COUNCIL

  In 1969 the Legislative Council expelled a Member in the exercise of its inherent powers on the ground of "conduct unworthy of a Member of the Legislative Council". The conduct which led to the expulsion included statements that the Member would consider bribing a judge, and suggestions that the Member would give false evidence. The validity of the expulsion was subsequently upheld in Supreme Court proceedings brought by the Member challenging the validity of the House's actions Armstrong v Budd (supra). The Court held that the expulsion in this case was "protective" and "self-defensive" as it was necessary to protect mutual trust and confidence among Members which was essential for the House to perform its functions.

  In November 1997 a motion was moved in the Legislative Council proposing the expulsion of a Member, Mrs Arena, on the ground of "conduct unworthy of a Member". The Member in question had made a speech in the House which suggested that prominent political figures (including the Premier of the State) and a judge were involved in an agreement to suppress the names of high-profile persons who had allegedly engaged in paedophile activities. A judicial inquiry established to investigate the Members's statements found that the claims were false and that the evidence strongly suggested that the Member knew she had no evidence in support of her claims. The motion for the expulsion of the Member was amended in the House in a manner which referred the Member's conduct to the Standing Commitee on Parliamentary Privilege and Ethics for inquiry and report on what sanctions should be enforced in relation to the Member's conduct. The Committee is due to report in the coming weeks.

EXPULSION IN THE LEGISLATIVE ASSEMBLY

  There have been three cases of expulsion in the Legislative Assembly. In 1881 a Member, Mr Baker, was expelled on the ground of "conduct unworthy of a Member", being conduct involving misappropriation of funds. The resolution expelling the Member was later rescinded, in 1883.

  In 1890 Mr Crick was expelled having defied the ruling of the Chair in Committee of the Whole and afterwards having violently resisted the Serjeant-at-Arms when that officer was directed to remove him, and further having continued such resistance until other officers rendered assistance, causing a great disturbance and scandal.

  Legislative Assembly Standing Order 294 states:

    294.   A Member adjudged by the House guilty of conduct unworthy of a Member of Parliament may be expelled by vote of the House, and the seat declared vacant.

  In 1917 a Member, Mr Price, was expelled pursuant to the Standing Order which preceded Standing Order 294 and which was in the same terms. The relevant conduct in that case included findings by a Royal Commission that certain claims made by the Member in Parliament alleging improper conduct by a Minister were made wantonly, recklessly, and without foundation. At the subsequent by-election Mr Price wasre-elected to the House.

16.   Power to fine

  The NSW Parliament has not conferred on its Houses by statute any power to fine. In the absence of statutory powers, it is doubtful that the Houses possess a power to fine as such action could be considered to be punitive and therefore outside the scope of the inherent or implied powers.

17.   Citizen's right of reply

  The Legislative Council adopted a citizen's right of reply procedure by resolution on 13 November 1997 (see Appendix C). The Legislative Assembly adopted a Sessional Order governing this matter on17 September 1997 (see Appendix D). No right of reply has yet been granted under either procedure.

18.   Protection of witnesses before parliamentary committees

  The protection of witnesses before parliamentary committees is governed not by Standing Orders, but by statute:

    —  Article 9 of the Bill of Rights applies in New South Wales by virtue of section 6 and schedule 2 of the Imperial Acts Application Act 1969 (NSW).

    —  Section 12 of the Parliamentary Evidence Act 1901 (NSW) states:

    No action shall be maintainable against any witness who has given evidence, whether on oath or otherwise, under the authority of this Act, for or in respect of any defamatory words spoken by him while giving evidence.

  The extent of protection afforded to witnesses by Article 9 has been the subject of conflicting judicial authority in Australia. In R v Murphy 1986 64 ALR 498 the NSW Supreme Court adopted a narrow interpretation of Article 9 which allowed witnesses to be examined in a criminal trial concerning the evidence they had given to a federal parliamentary committee. In R v Jackson 1987 8 NSWLR 116 the Supreme Court rejected the reasoning in the earlier case, declining to allow the admission in evidence in criminal proceedings of statements made in Parliament about the accused. However, in R v Saffron (unreported, 21 August 1987) the District Court allowed in camera evidence of a select committee of the NSW Legislative Assembly to be subpoenaed and made available for use by the defence.

19.   Intimidation of witnesses

  Intimidation of witnesses would be treated as a contempt of Parliament if such conduct was shown to have substantially interfered with the performance of functions by Members of a Committee or of the House. This has yet to be tested in the New South Wales Parliament, in either House. There are no statutory mechanisms conferring protection on witnesses in this area.

20.   Perjury

  The Houses of the NSW Parliament may take evidence on oath or affirmation: Parliamentary Evidence Act 1901 (NSW) section 10.

  In relation to witnesses giving evidence under the authority of the Act, section 13 states:

    If any such witness wilfully makes any false statement, knowing the same to be false, he shall, whether such statement amounts or perjury or not, be liable to penal servitude for a term not exceeding five years.

  The legislation does not state whether or not this offence may be prosecuted only in the courts.

21.   Absolute privilege to papers published under the authority of Parliament

  Section 17(1) of the Defamation Act 1974 (NSW) provides a defence of absolute privilege for the publication of a document by order or under the authority of either House or both Houses of Parliament.

  Section 18 provides a defence of absolute privilege for a publication in the course of an inquiry made under the authority of an Act or Imperial Act or under the authority of Her Majesty, of the Governor, or of either House or both Houses of Parliament.

  Section 6 of the Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW) states:

  Subject to section 7, it is a defence to any action or proceedings civil or criminal, brought in respect of the publication of any document or any copy thereof or any evidence if it is proved that the publication of the document, the document from which the copy was made or the evidence, as the case may be, as authorised under section 4 or by section 5.

  Section 7 states that the Act does not operate so as to provide or affect a defence to an action or proceeding for defamation.

ABSOLUTE PRIVILEGE TO PAPERS PUBLISHED BY THE GOVERNMENT WITHOUT PARLIAMENT'S AUTHORITY

  Section 17 of the Defamation Act establishes a defence of absolute privilege, without the authority of Parliament, for certain publications by specified government agencies eg:

    —  a publication to or by the Ombudsman as such officer (section 17A(1));

    —  a publication to a member of the Privacy Committee for the purpose of the execution or administration of the Privacy Committee Act 1975 (section 17B(1));

    —  a publication to or by a conciliation officer for the purpose of any proceedings under the Workers Compensation (section 17BB).

22.   Freedom of Information Act

  The Freedom of Information Act 1989 (NSW) establishes rights and procedures which enable members of the public to obtain access to documents held by Government agencies. By virtue of sections 7 and 8, the Houses of Parliament, parliamentary committees, and membership of either House are excluded from the definition of "agency". Further, section 17 states that, for the purposes of the Act,

  [a]  a document is an exempt document if it contains matter the public disclosure of which would, but for any immunity of the Crown:

    (a)  constitute contempt of court; or

    (b)  contravene any order or direction of a person or body having power to receive evidence on oath; or

    (c)   infringe the privilege of Parliament. (Emphasis added)

9 April 1998



Appendix A

CRIMES ACT 1900

PART 4A—CORRUPTLY RECEIVING COMMISSIONS AND OTHER CORRUPT PRACTICES

Definitions

  249A. In this Part:

    "agent" includes:

    (a)  any person employed by, or acting for or on behalf of, any other person (who in this case is referred to in this Part as the person's principal) in any capacity;

    (b) any person purporting to be, or intending to become, an agent of any other person (who in this case is referred to in this Part as the person's principal); and

    (c) any person serving under the Crown (which in this case is referred to in this Part as the person's principal); and

    (d) a police officer (and in this case a reference in this Part to the agent's principal is a reference to the Crown).

  "benefit" includes money and any contingent benefit.

Corrupt commissions or rewards

  249B. (1) If any agent corruptly receives or solicits (or corruptly agrees to receive or solicit) from another person for the agent or for anyone else any benefit:

    (a) as an inducement or reward for or otherwise on account of:

      (i) doing or not doing something, or having done or not having done something; or

      (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent's principal; or

    (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent's principal, the agent is liable to imprisonment for seven years.

  (2) If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit:

    (a) as an inducement or reward for or otherwise on account of the agent's:

      (i) doing or not doing something, or having done or not having done something; or

      (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent's principal; or

    (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent's principal, the firstmentioned person is liable to imprisonment for seven years.

  (3) For the purposes of subsection (1), where a benefit is received or solicited by anyone with the consent or at the request of an agent, the agent shall be deemed to have received or solicited the benefit.

Misleading documents or statements used or made by agents

  249C. (1) Any agent who uses, or gives to the agent's principal, a document which contains anything that is false or misleading in any material respect, with intent to defraud the agent's principal, is liable to imprisonment for seven years.

  (2) Any agent who makes a statement to the agent's principal which is false or misleading in any material respect, with intent to defraud the principal, is liable to imprisonment for seven years.

Corrupt inducements for advice

  249D. (1) If a person corruptly gives a benefit to another person for giving advice to a third person, being advice which the person giving the benefit intends will influence the third person:

    (a) to enter into a contract with the person who gives the benefit; or

    (b) to appoint the person who gives the benefit to any office, and, at the time the benefit is given, the person who gives the benefit intends the giving of the benefit not be made known to the person advised, the person who gives the benefit is liable to imprisonment for seven years.

  (2) If a person corruptly receives a benefit for giving advice to another person, being advice which is likely to influence the other person:

    (a)  to enter into a contract with the person who gave the benefit; or

    (b)  to appoint the person who gave the benefit to any office, and, at the time the benefit is received, the person who receives the benefit intends the giving of the benefit not to be made known to the person to be advised, the person who receives the benefit is liable to imprisonment for seven years.

  (3)  For the purposes of subsections (1) and (2), where a benefit is given or received by anyone with the consent or at the request of another person, the other person shall be deemed to have given or received the benefit.

  (4)  If any person corruptly offers or solicits a benefit for the giving of advice by one person to another:

    (a)  intending that the advice will influence the person advised:

      (i)  to enter into a contract with anyone; or

      (ii)  to appoint anyone to any office; and

    (b)  intending that the giving or receipt of the benefit not be made known to the person advised, the firstmentioned person is liable to imprisonment for seven years.

  (5)  In this section:

    (a)  a reference to the giving of advice includes a reference to the providing of information orally or in writing;

    (b)  a reference to entering into a contract includes a reference to offering to enter into a contract; and

    (c)  a reference to the appointment of a person includes a reference to:

      (i)  joining in the appointment of the person; and

      (ii)  voting for or assisting in the election or appointment of the person.

Corrupt benefits for trustees and others

  249E.  (1)  In this section, a reference to a person entrusted with property is a reference to:

    (a)  a trustee of the property;

    (b)  an executor or administrator appointed for the purpose of dealing with the property;

    (c)  a person who, because of a power of attorney or a power of appointment, has authority over the property; and

    (d)  a person or a member of a committee managing or administering the property (or appointed or employed to manage or administer the property) under the Mental Health Act 1958 or Protected Estates Act 1983.

  (2)  Any person who offers or gives a benefit to a person entrusted with property, and any person entrusted with property who receives or solicits a benefit for anyone, without the consent:

    (a)  of each person beneficially entitled to the property; or

    (b)  of the Supreme Court, as an inducement or reward for the appointment of any person to be a person entrusted with the property, are each liable to imprisonment for seven years.

  (3)  In this section, a reference to the appointment of a person includes a reference to:

    (a)  joining in the appointment of the person; and

    (b)  assisting in the appointment of the person.

  (4)  Proceedings for an offence under this section shall not be commenced without the consent of the Attorney General.

  (5)  A consent to commence any such proceedings purporting to have been signed by the Attorney General is evidence of that consent without proof of the signature of the Attorney General.

Aiding, abetting etc

  249F.  (1)  A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Part is guilty of an offence and is liable to imprisonment for seven years.

  (2)  A person who, in New South Wales, aids, abets, counsels or procures the commission of an offence in any place outside New South Wales, being an offence punishable under the provisions of a law in force in that place which corresponds to a provision of this Part, is guilty of an offence and is liable to imprisonment for seven years.

Repayment of value of gift etc

  249G.  (1)  If a person is convicted of an offence under this Part, the court may (as well as imposing a penalty for the offence) order the person to pay to such other person as the court directs the whole or part of the amount or the value, assessed by the court, of any benefit received or given by the person.

  (2)  Any money payable to a person under this section may be recovered in a court of competent jurisdiction as a debt due to the person.

Disqualification for office

  249H.  If a person is convicted of an offence under this Part, the person is disqualified from holding civic office for the purposes of the Local Government Act 1993, for the period of seven years from the conviction or such lesser period as the court may order.

Dismissal of trivial case

  249I.  If, in any proceedings for an offence under this Part, it appears to the court that the offence is of a trivial or merely technical nature, the court may in its discretion dismiss the case.

Custom not a defence

  249J.  In any proceedings for an offence under this Part, it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling.



Appendix B

ROYAL COMMISSIONS ACT 1923

Division 2—Special Powers

Application of Division

  15.(1) If the chairperson of a commission or the sole commissioner is a Judge of the Supreme Court the provisions of this Division shall have effect.

  (2) The provisions of this Division shall also have effect if:

    (a) the chairperson of a commission or the sole commissioner is a Judge of the High Court, the Supreme Court of another State or a Territory or the Federal Court; and

    (b) in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the provisions of this Division are to have effect in relation to this commission.

  (3) The provisions of this Division shall also have effect if:

    (a) the chairperson of a commission or the sole commissioner is a legal practitioner of at least seven years' standing; and

    (b) in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the provisions of this Division are to have effect in relation to the commission.

  (4) In this Division:

  "commissioner" means such a Judge or legal practitioner as chairperson or sole commissioner.

Answers and documents

  17.(1) A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege or on any other ground.

  (2) An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

  (4) This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.

  (5) A declaration under section 15 that the provisions of this Division are to have effect is not sufficient to apply this section unless the declaration specifically states that this section shall apply to and with respect to the inquiry.

SPECIAL COMMISSIONS OF INQUIRY ACT 1983

9.   Limitation as to evidence

  (1) As far as practicable, a Commissioner shall, in the course of a hearing in public, only receive evidence in accordance with this section.

  . . .

  (3) The Commissioner shall only receive as evidence, and (as far as practicable) only permit to be given in evidence, matter that, in the opinion of the Commissioner, would be likely to be admissible in evidence in civil proceedings.

  (4) Despite subsection (3), the Commissioner is required, when preparing a report in connection with the subject-matter of the commission, to disregard (in the context of dealing under section 10 with offences that may or may not have been committed) evidence that, in the opinion of the Commissioner, would not be likely to be admissible in evidence in relevant criminal proceedings.

  (5) For the purposes of this section, in determining whether evidence is admissible, regard is not to be had to parliamentary privilege to the extent that that privilege is waived by or under this Act or otherwise.

23.   Answers and documents

  (1) A witness summoned to attend or appearing before a Special Commission shall not be excused from answering any question or producing any book, document or writing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege or on any other ground.

  (2) An answer made, or book, document or writing produced, by a witness to or before a Special Commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

PART 4A INQUIRIES CONCERNING PARLIAMENTARY PROCEEDINGS

33A Definitions

  (1) In this Part:

    parliamentary privilege means parliamentary privilege however arising, whether by statute or otherwise.

    parliamentary proceedings means any debates or proceedings in Parliament or in a parliamentary committee, and includes all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of either House of Parliament or any parliamentary committee.

    relevant House means the House of Parliament that passes a resolution under this Part and, in the case of a resolution that is passed by each House of Parliament, each such House.

  (2) A reference in this Part to any act, matter or thing as specified in a resolution includes a reference to any act, matter or thing that is of a class or description as specified in the resolution.

33B  Parliamentary resolution for issue of commission

  (1)  A House of Parliament may, by resolution, authorise the Governor to issue a commission undersection 4 authorising or requiring a person to inquire into and report to the Governor and the House on such matter relating to parliamentary proceedings within or before the House or one of its committees as is specified in the resolution.

  (2)  Each House of Parliament may, by resolution, authorise the Governor to issue a commission under section 4 authorising or requiring a person to inquire into and report to the Governor and the House on such matter relating to parliamentary proceedings within or before a joint committee of both Houses as is specified in the resolution.

  (3)  A resolution referred to in this section applies to the parliamentary proceedings specified in the resolution.

  (4)  A resolution under this section authorises but does not require the issue of a commission, as contemplated by the resolution, under section 4 by the Governor on the recommendation of the Minister.

  (5)  Without affecting the operation of any other provision of this Part, but subject to subsection (4), a resolution referred to in this section is effective to authorise the issue of the commission concerned.

33C  Parliamentary resolution for existing commission

  (1)  A House of Parliament may, by resolution, authorise a Special Commission, already established, to inquire into and report to the Governor and the House on such matter relating to parliamentary proceedings within or before the House or one of its committees as is specified in the resolution.

  (2)  Each House of Parliament may, by resolution, authorise a Special Commission, already established, to inquire into and report to the Governor and the House on such matter relating to parliamentary proceedings within or before a joint committee of both Houses as is specified in the resolution.

  (3)  A resolution referred to in this section applies to the parliamentary proceedings specified in the resolution.

  (4)  This section applies to a Special Commission, already established, whether or not a resolution under section 33B was passed in connection with it before it was established.

33D  Parliamentary resolution for waiver of parliamentary privilege

  (1)  A House of Parliament that passes a resolution under section 33B or 33C may, by the same or any later resolution, declare that parliamentary privilege is waived in connection with the Special Commission to such extent as is specified in the declaration.

  (2)  Without affecting the operation of any other provision of this Part, a declaration by a House of Parliament under this section is effective to waive parliamentary privilege to the extent specified in the resolution concerned, and neither the Commissioner nor any other person is in contempt of Parliament in doing anything when relying on that waiver for the purposes of or in connection with the Special Commission.

  (3)  However, a declaration by a House of Parliament under this section waiving parliamentary privilege:

    (a)  does not operate to waive parliamentary privilege to the extent that it can be asserted by a member of either House of Parliament in relation to anything said or done by the member in parliamentary proceedings within or before a House of Parliament or a parliamentary committee, but

    (b)  operates to authorise the member to give evidence before the Special Commission if the member chooses to do so, unless the declaration provides otherwise.

  (4)  Section 23(1) cannot apply to a member in relation to parliamentary privilege, but the provisions of section 23(2) and (3) apply to any evidence given by the member pursuant to subsection (3)(b) whether or not section 23 applies in relation to the Special Commission.

  (5)  A reference in this section to the giving of evidence includes a reference to the giving of an answer to a question and the production of a book, document or writing.

33E  Powers of Special Commission

  (1)  This section applies to the extent that a commission is issued in conformity with a resolution under section 33B or a Special Commission already established is the subject of a resolution under section 33C.

  (2)  The Commissioner is required to furnish a report on the subject-matter of the commission to the relevant House (in addition to the Governor). The report may be furnished to the Clerk of the House for this purpose.

  (3)  The Commissioner is empowered:

    (a)  to inquire into and report to the Governor and the relevant House as authorised or required by the commission, and

    (b)  to exercise and perform any other powers, authorities, duties and functions under this Act in connection with the inquiry and report, and

    (c)  to take any other steps that are necessary or convenient to be taken in connection with the inquiry and report.

33F  Provisions relating to resolutions

  (1)  A resolution of a House of Parliament does not have effect for the purposes of this Part unless it has been passed by at least two-thirds of the members of the House present and voting.

  (2)  A resolution under this Part is not affected by the prorogation, dissolution or expiry of either or both of the Houses of Parliament.

  (3)  A resolution may be amended or revoked by a subsequent resolution, but without affecting the validity of anything already done.

33G  Operation of Part

  (1)  This Part has effect despite any other Act, any Imperial Act or any other law.

  (2)  This Part does not limit any power that the Governor might have to issue a commission undersection 4 apart from this Part.

  (3)  This Part does not limit any power that a Special Commission might have apart from this Part.

  (4)  This Part does not limit any power of Parliament, a House of Parliament or a member of either House to waive parliamentary privilege apart from this Part.

  (5)  This Part extends to parliamentary proceedings occuring before the commencement of this Part.

33H  Expiry of Part

  This Part expires at the end of the period of six months commencing on the date on which this Part commences.



Appendix C

Citizen's Right of Reply, Resolution in the Legislative Council

  1.  Any person who has been referred to in the House by name, or in such a way as to be readily identified, may make a submission in writing to the President, on any one or more of the following grounds, claiming:

    (a)  that they have been adversely affected:

      (i)  in reputation;

      (ii)  in respect of dealings or associations with others;

    (b)  that they have been injured in occupation, trade, office or financial credit; or

    (c)  that their privacy has been unreasonably invaded, and requesting that they should be able to include an appropriate response in the parliamentary record.

  2.—(1)  Where a person makes a submission to the President, the President must, as soon as practicable, consider the submission and decide whether:

    (a)  to refer the submission to the Standing Committee on Parliamentary Privileges and Ethics (referred to as "the Committee") for inquiry and report; or

    (b)  it is inappropriate to be considered by the Committee on the grounds that the subject matter of the submission is trivial, frivolous, vexatious or offensive in character.

  (2) The President must inform the person in writing of the decision.

  3.  Where a submission is referred to the Committee, the Committee may decide not to consider a submission referred to it if, in the opinion of the Committee, the subject matter of the submission is not sufficiently serious or is frivolous, vexatious or offensive in character. The Committee must report its decision to the House.

  4.—(1)  Where the Committee decides to consider a submission, the Committee may confer with, but not take evidence from any person, including:

    (a)  the person who made the submission; and

    (b)  any Member who referred to the person in the House.

  (2)  In considering any submission, the Committee:

    (a)  must meet in private;

    (b)  must not consider or judge the truth of any statements made in the House or in the submission;

    (c)  must not make public:

      (i)  any minutes of proceedings;

      (ii)  any evidence; or

      (iii)  any submissions, either in whole or in part, except in its report to the House.

  5.  In reporting to the House on a submission, the Committee may recommend:

    (a)  that no further action be taken by the House or by the Committee in relation to the submission; or

    (b)  that a response by the person who made the submission, in a form of words agreed to by the person and the Committee and specified in the report of the Committee, be published in the Minutes of the Proceedings or incorporated in Hansard, and must not make any other recommendation.

  6.  Any response by a person who made a submission and which is included in a report to the House:

    (a)  must be succinct and strictly relevant to the questions in issue;

    (b)  must not contain anything offensive in character;

    (c)  must not contain any matter where publication would have the effect of:

      (i)  unreasonably adversely affecting or injuring a person, or unreasonably invading a person's privacy, in the manner referred to in paragraph 1; or

      (ii)  unreasonably adding to or aggravating any adverse effect, injury or invasion of privacy suffered by a person.

  7.  In this resolution, person includes an unincorporated association, a corporation and a body corporate.

  8.  This resolution has continuing effect unless and until amended or rescinded by resolution of the House.



Appendix D

Citizen's Right to Reply, Sessional Order in the Legislative Assembly

  (1)  That where a submission is made in writing to the Speaker by a person who has been referred to in the Legislative Assembly by name, or in such a way as to be readily identified:

    (a)  claiming that the person or corporation has been adversely affected in reputation or in respect of dealings or associations with others, or injured in occupation, trade, office or financial credit, or that the person's privacy has been unreasonably invaded, by reason of that reference to the person or corporation; and

    (b)  requesting that the person be able to incorporate an appropriate response in Hansard,

  and the Speaker is satisfied:

    (c)  that the subject of the submission is not so obviously trivial or the submission so frivolous, vexatious or offensive in character as to make it inappropriate that it be considered by the Standing Orders and Procedure Committee; and

    (d)  that it is practicable for the Committee to consider the submission under this resolution,

  the Speaker shall refer the submission to that Committee.

  (2)  The Committee may decide not to consider a submission referred to it under this resolution if the Committee considers that the subject of the submission is not sufficiently serious or the submission is frivolous, vexatious or offensive in character, and such a decision shall be reported to the Legislative Assembly.

  (3)  If the Committee decides to consider a submission under this resolution, the Committee may confer with the person who made the submission and any Member who referred in the Legislative Assembly to that person or corporation.

  (4)  In considering a submission under this resolution, the Committee shall meet in private session.

  (5)  The Committee shall not publish a submission referred to it under this resolution of its proceedings in relation to such a submission, but may present minutes of its proceedings and all or part of such a submission to the Legislative Assembly.

  (6)  In considering a submission under this resolution and reporting to the Legislative Assembly the Committee shall not consider or judge the truth of any statements made in the Legislative Assembly or the submission.

  (7)  In its report to the Legislative Assembly on a submission under this resolution, the Committee may make either of the following recommendations:

    (a)  that no further action be taken by the Committee for the Legislative Assembly in relation to the submission; or

    (b)  that a response by the person who made the submission, in terms specified in the report and agreed to by the person or corporation and the Committee, be published by the Legislative Assembly or incorprated in Hansard,

  and shall not make any other recommendations.

  (8)  A document presented to the Legislative Assembly under paragraph (5) or (7):

    (a)  in the case of a reponse by a person or corporation who made a submission, shall be succinct and strictly relevant to the questions in issue and shall not contain anything offensive in character; and

    (b)  shall not contain any matter the publication of which would have the effect of:

      (i)  unreasonably adversely affecting or injuring a person or corporation, or unreasonably invading a person's privacy, in the manner referred to in paragraph (1); or

      (ii)  unreasonably adding to or aggravating any such adverse effect, injury or invasion of privacy suffered by a person.

  (9)  A corporation making a submission under this resolution is required to make it under their common seal.

  Under sections 21 and 22, for the purposes of an investigation, the ICAC may require a "public official" to produce a statement of information or to attend and produce documents. "Public official" as defined in section 3(1) includes Member of Parliament and a Minister of the Crown. However under section 25, the ICAC must set aside a requirement under sections 21 or 22 if it appears that any person has a ground of privilege whereby, in proceedings in a court of law, the person might resist a like requirement and it does not appear to the ICAC that the person consents to compliance with the requirement.


46   Parliamentary Privilege in New South Wales, 1984-85 Parliament of New South Wales Report of the Joint Select Committee upon Parliamentary Privilege, p 17. Back

47   ibid p 20. Back

48   ibid p 18. Back

49   Gleeson CJ of the Supreme Court said in Egan v Willis (1996) 40 NSWLR 650 "It has long been established that the New South Wales Parliament did not, as a matter of common law, inherit the powers and privileges of the United Kingdom Parliament."; Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592; Armstrong v Budd (1969) 71 SR(NSW) 386. Back

50   For a discussion of the circumstances surrounding Part 4A, see Enid Campbell, "Investigating the Truth of Statement Made in Parliament. The Australian Experience", Public Law [1998], p 125. Back

51   Parliamentary Privilege in Australia, Enid Campbell, Melbourne Univeristy Press, 1966, p 59. Back

52   Ibid. Back

53   Kielley v Carson (1842) 4 Moo. P.C. 63 at 88. Back

54   Barton v Taylor (1886) 11 AC 197. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999
Prepared 9 April 1999