Parliamentary Privilege First Report


Memorandum the Parliament of Tasmania

JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE

  We are pleased to provide you with responses to those questions raised in your letter of 23 February 1998, as they apply to the Tasmanian Parliament. Included also are relevant Statutes and Standing Orders at Attachments "A" to "K". Those attachments contain the following documents:

    A—Parliamentary Privilege Act 1858, 1885, 1898 and 1957

    B—House of Assembly Standing Orders

    C—Legislative Council Standing Orders

    D—Parliament House Act 1962

    E—Criminal Code Act 1924

    F—Jury Act 1899

    G—Defamation Act 1957

    H—Subordinate Legislation Committee Act 1969

    I—Public Works Committee Act 1914

    J—Public Accounts Committee Act 1970

    K—Evidence Act 1910

  Our response to your questions one to twenty are as follows:

  Question 1  We understand that you have enacted legislation to define your privileges. May we have a copy of the relevant legislation? Was the decision to legislate based on your experience of not having codification of your privileges, or is there a tradition of statutory enactment?

  There is a tradition of statutory enactment, with the Parliamentary Privilege Act 1858 put in place soon after the establishment of the bicameral Parliament in 1856.

  Question 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?

  The links are close between the House of Commons and the Tasmanian Act especially clause 11 and less explicitly clause 12.

  Question 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.

  Yes, the Parliament has control over staffing and administration under the Parliamentary Privilege Act 1898 and its grounds under the Parliament House Act of 1962.

  Question 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?

  The general law on these issues only applies to the extent accepted by Parliament or provided for in statute.

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

  Yes, a member of the public can be punished for contempt of Parliamentary Privilege Act 1858 clauses 5, 6. No, the courts cannot overturn, or even examine a warrant issued under this Act Clause 10.

  Question 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?

  Yes, some of the offences that constitute a contempt of Parliament are codified in the Parliamentary Privilege Act 1858, clause 3. The Criminal Code is used in preference to prosecute offences. In practice the privileges committee tends to only admonish. See also answer 10.

  Question 7  Is freedom of speech in debate or other proceedings absolute? Does freedom of speech derive from Article IX of the Bill of Rights or another source? Are there any derogations such as those in Section 13 of the United Kingdom Defamtion Act 1966 (attached)?

  Yes, freedom of speech is absolute for speeches in the Parliament, it is derived from Article 9 of the Bill of Rights. The scope of this has not been tested. Covered in the Defamation Act 1957 Clause 10, 11.

  Question 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 court case that we are aware of has tested this. See answer to 7.

  Question 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)?

  Yes, it is true for the three statutory Committees, Public Accounts, Public Works and Subordinate Legislation Committees. In 1990 Dr Gerry Bates went to court over road works on the West Coast of Tasmania that had previously been approved by the Public Works Committee.

  Question 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?

    —  who authorises prosecution?

    —  are there circumstances where the Court can hear and examine evidence on what a Member or Senator has said or done in Parliament?

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

  Yes, there is an offence relating to bribery of a member of either house in the Criminal Code (Chapter VII, Clauses 69, 70, 71, 72). Prosecution authorised by the Director of Public Prosecutions. It is also a contempt under Clause 3(d) of the Parliamentary Privilege Act 1858. Examination of evidence on what a member did or said in the house can only be done to establish matters of fact, not to question it. The same applies to a Royal Commission or a tribunal.

  Question 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?

  Issue has not arisen as far as we are aware. There are currently no established procedures to allow waiving of privilege. It is doubtful that the same level of privilege applies to Tasmanian MPs as would apply to a member of the House of Commons.

  Question 12  To what extent does privilege provide for immunity from arrest or from attendance, as a witness, or as a defendant in a civil suit, before a Court? Are any such immunities confirmed in statute? Does any immunity extend to attendance before tribunals or Royal Commissions? What limitations are placed on any immunity? Can a Member or Senator be served with a subpoena which requires him/her to appear in Court on a sitting day? Is any right of immunity exercised by the Member or Senator without reference to the House or its Presiding Officer, or is authorisation required?

  There are no immunities from arrest etc. It is not possible to compel a member to be a witness in court on a sitting day (although generally it can happen via a pair if necessary). To serve a warrant in Parliament House on a sitting day would be a contempt. A warrant could be served in Parliament on a non-sitting day. The right of immunity does not require authorisation. MPs and parliamentary staff are exempt from jury duty under the Jury Act 1899.

  Question 13  Can a Member or a Senator be served with a subpoena in the precincts of Parliament on a sitting day? On a non-sitting day? Or would such service be regarded as a contempt?

  No, a subpoena cannot be served in the precincts of Parliament on a sitting day. It would be a contempt to serve a subpoena on a sitting day. A subpoena could be served in the Parliamentary precincts on a non-sitting day.

  Question 14  Can the House/Senate expel one of its members?

  No.

  Question 15  Has either House the power to fine? Has it used the power?

  Yes, the Parliament can impose fines under Clause 11. This is done by directing the Attorney-General to prosecute certain offences. Fines can also be imposed under Standing Orders, section 424 in House of Assembly, fine on MPs in Legislative Council under section 415 and a stranger under section 418.

  Question 16  Do you have provision for citizen's rights of reply to what is said in Parliament? If so how is it implemented?

  There is no right of reply for citizens to what is said in Parliament.

  Question 17  Do you have provisions in the Standing Orders or elsewhere for the protection of witnesses who appear before parliamentary committees?

  Yes there are provisions. They are included in the Parliamentary Privilege Act, specific acts and standing orders. Individual Acts include Public Accounts Act (c 7), Public Works Act (c 25) and Subordinate Legislation Act (c 11).

  Question 18  Are such witnesses protected against intimidation in respect of their evidence by statute? Or is this treated on a contempt of Parliament and solely punishable by the House concerned?

  Yes it would be a contempt to interfere with a witness under clause 12 of the Parliamentary Privilege Act 1858. It is also covered by various acts, Public Works Act (c 26), Public Accounts Act (c 7), Subordinate Legislation Act (c 11).

  Question 19  Is perjury before a Committee punished by the Courts or as a contempt? (Could "proceedings in Parliament" be considered in any case tried in a Court relating to perjury before a parliamentary committee)?

  Yes, covered in the Evidence Act 1910 clause 23 and 24.

  Question 20  Is there statutory provision to give absolute privilege to papers published under the authority of Parliament? Do papers published by the Government without Parliament's authority enjoy such privilege?

  No, there is no act to give such privilege to published papers. No; papers published by the Government Printer without Parliament's authority do not have privilege.

  We are happy to provide additional information should any of the above responses require further elaboration.

R J S McKenzie

Clerk of the Council

P T McKay

Clerk of the House

9 April 1998


 
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Prepared 9 April 1999