Parliamentary Privilege First Report


Memorandum by the Parliament of Victoria

  We refer to your letter of 23 February in which you seek answers to a number of questions relating to Parliamentary Privilege in Victoria. We are pleased to furnish this reply on behalf of both Houses of the Victorian Parliament.

  Q1.   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?

  1.  The Victorian Parliament has not enacted separate legislation to define its privileges. Instead it relies upon the Constitution Act 1975 (section 19) which confers upon both Houses, their committees and members the privileges, immunities and powers which were held by the House of Commons as at 21 July 1855, provided that they are not inconsistent with any Act of the Victorian Parliament.

  Q2.   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?

  2.  As indicated in the answer to question 1, there is a close link between our privileges and those of the United Kingdom. However, if your Parliament was to now codify its privileges the Victorian Parliament would not be affected to any significant extent.

  Q3.   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?

  3.  Our Parliament has exclusive control over the buildings in which it meets and by virtue of the Parliamentary Officers Act 1975 exclusive control over its staffing and administration. All appointments except those of Department Heads are made by the Presiding Officers. The Department Heads are appointed by the Governor-in-Council on the recommendation of the Presiding Officers acting independently in relation to the Clerks and jointly in relation to the heads of the service Departments. In relation to budgetary matters the Parliament has its own annual Appropriation Bill but in practice it is still subject to Government budgetary constraints and the same processes as the remainder of the public sector when the budget is being determined, for example, the imposition of productivity savings.

  Q4.   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?

  4.  The general law usually applies within the Parliamentary precincts. However, freedom of information legislation has not been specifically applied to the Parliament but is in practice complied with by direction of the Presiding Officers. In addition, the Parliament is specifically exempted from the operations of the Liquor Control Act 1987.

  Parliamentary staff are appointed pursuant to the Parliamentary Officers Act 1975 and are employed on common law contracts. Unlike other public servants who are now subject to the Federal industrial relations jurisdiction, Parliamentary Officers in Victoria do not have access to any industrial tribunal. This problem is currently being addressed.

  Q5.   Can you punish a member of the public for a contempt of Parliament? Is there any appeal to a Court?

  5.  Members of the public can be punished for a contempt of Parliament and a list of cases where this has occurred is attached to this letter [Attachment A]. There is no appeal to a court.

  Q6.   Have you codified those offences which are considered to be contempt of Parliament? If not, can you give examples of cases where a member of the public has been punished for a contempt?

  6.  The Victorian Parliament has not codified those offences which are considered to be a contempt of Parliament. However, our Members of Parliament (Register of Interests) Act 1978 provides for the imposition of a fine and any other punishment that may be awarded by either House for any wilful contravention of that Act.

  Q7.   Is freedom of speech in debate or other proceedings asbolute? 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 Defamation Act 1996 (attached)?

  7.  Freedom of speech in debate or other proceedings is absolute and is derived from Article IX of the Bill of Rights. There are no derogations such as those in section 13 of the United Kingdom Defamation Act 1996.

  Q8.   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?

  8.  The question as to how Victorian courts interpret our Parliament's privilege of freedom of speech has not been tested since enactment of the Federal Act. There have, however, been two relatively recent cases concerning the privilege of freedom of speech which may be of interest to you and summaries are attached (Attachment B).

  Q9.   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)?

  9.  In our opinion, the proceedings of a Parliamentary Committee can be considered by a court in some circumstances, eg to test the facts of the matter in question. House documents have also been provided by officers following requests from courts to prove certain facts and documents. The circumstances where this could apply are limited, not only because of the provisions of section 19 of the Constitution Act 1975, but also because the Parliamentary Committees Act 1968 (section 4U) provides that the proceedings of a Joint Investigatory Committee or any recommendations or reports or any documents published by the committee, shall not give rise to any case of action in law or be made the subject of, or in any way be called into question in, any proceedings before a court.

  Q10.   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?

  10.  The relevant House could deal with bribery of a Member as a contempt of the Parliament. The Crimes Act 1958 (sections 176 and 177) contains broad provisions in relation to secret commissions which would most likely cover the offence of bribery of a Member. The Act defines secret commissions as indictable offences and as such any prosecutions would be authorised by the Director of Public Prosecutions. There are no circumstances in Victoria where a Court, Tribunal or Royal Commission can hear and examine evidence on what a Member has said or done in Parliament.

  Q11.   Is there any procedure for waiving privilege when a Member or Senator is charged with an offence relating to his or her parliamentary duties?

  11.  On the assumption that the phrase " an offence relating to his or her parliamentary duties" relates only to anything said or done by the Member in his capacity as a Member, in the House of which he is a Member, then he has absolute privilege. The position in relation to activities engaged in outside the House has not been tested to our knowledge. However, we have doubts as to the extent to which a Member can claim privilege in relation to the performance of his duties outside the House.

  We have no procedure for waiving privilege. In our opinion, there is doubt whether Parliamentary privilege can be waived either by a Member or the Parliament without statutory authority.

  Q12.   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 immumity 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?

  12.  In our opinion, a Member would not be immune from arrest on a criminal matter. To our knowledge there have been no such cases in Victoria. In relation to civil matters, a Member is immune from attendance before a court whilst the Parliament is sitting but no such immunities are confirmed in statute. No Member can be required to attend court on a sitting day. A Member can attend a Tribunal or Commission if he or she wishes to do so but permission must be obtained from the relevant House. Any Member seeking to exercise the right to immunity must first seek authorisation from the House which has first call on the Member's services. There have been some instances where Members have received summonses to attend court on a sitting day and the relevant Presiding Officer has written to the court indicating that their attendance is required at Parliament. On at least one occasion a court has arrived at a very broad interpretation of a "sitting" by ruling in effect that a Member's attendance is required from the time a Session is opened until it is prorogued irrespective of whether the House is actually sitting.

  Q13.   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?

  13.  No subpoenas can be served on a Member within the precincts of Parliament on a sitting day or a non-sitting day, except where the Member consents to such a service. Any attempt to serve a subpoena at Parliament House may be regarded as a contempt, but this has not been tested.

  Q14.   Can the House/Senate expel one of its members?

  14.  Either House has the power to expel one of its Members.

  Q15.   Has either House the power to fine? Has it used the power?

  15.  The power to fine Members is thought to be confined only to the circumstances prescribed by the Members of Parliament (Register of Interests) Act 1978 [see answer to question 6.] No Members have yet been fined.

  Q16.   Do you have provision for citizen's rights of reply to what is said in Parliament? If so how is it implemented?

  16.  There is no provision for citizens right of reply to what has been said in either House of the Parliament.

  Q17.   Do you have provisions in the Standing Orders or elsewhere for the protection of witnesses who appear before parliamentary committees?

  17.  Witnesses before Parliamentary Committees are protected by the provisions of the Constitution Act 1975, the Parliamentary Committees Act 1968 and the Standing Orders which prevent tampering with witnesses. Guidelines have also been adopted for the protection of witnesses and they are made available to all prospective witnesses. [Attachment C].

  Q18.   Are such witnesses protected against intimidation in respect of their evidence by statute? Or is this treated in a contempt of Parliament and soley punishable by the House concerned?

  18.  Witnesses are protected against intimidation by the Parliamentary Committees Act 1968 and the Standing Orders. Any instances of this nature are regarded as a contempt of Parliament and are punishable by the House concerned.

  Q19.   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?)

  19.  Perjury before a committee is regarded as a contempt of the Parliament and would be a matter for the House alone to determine. No proceedings in Parliament can be considered by a court, including allegations of perjury before a Parliamentary Committee.

  Q20.   Is there statutory provision to give privilege to papers published under the authority of Parliament? Do papers published by the Government without Parliament's authority enjoy such privilege?

  20.  The Constitution Act 1975 (sections 73, 74 and 74AA) provides a statutory extension of privilege in relation to the publication of Parliamentary proceedings, in both written and electronic form, which includes papers published under the authority of Parliament. Legal advice suggests that this privilege does not extend beyond Victoria. Any papers published by the Government without the Parliament's authority do not attract the protection of Parliamentary privilege.

A V Bray

Clerk of the Legislative Council

P J Mithen

Clerk of the Legislative Assembly



ATTACHMENT A

  Examples of cases where a member of the public has been punished for a contempt:
SessionName Punishment

LEGISLATIVE ASSEMBLY
1861-62DillFor publishing libellous article, committed to the custody of the Serjeant-at-Arms for one month
1866GeorgeFor publishing libellous article, committed to the custody of the Serjeant-at-Arms for 11 days and upon the payment of fees ordered by the House to be discharged
SessionName Punishment
1892-93ClarkFor publishing article imputing notorious impurity to members, ordered to attend bar of House where he was examined and admonished by the Speaker
1899-1900Packer and Ebsworth For publishing certain articles in newspapers, commentary on inquiry of a select committee, committed to gaol. On following day, after apologising to House, the House ordered that they be discharged out of custody upon the payment of fees
1906Rev WorralFor uttering unchristian libel against members, ordered to attend bar of House where he was examined and severely censured by the Speaker

LEGISLATIVE COUNCIL
1968-69Wilkie, Gordon For writing (Wilkie) and publishing (Gordon) a certain article insulting a public servant witness who had been required to give evidence to an inquiry of a select committee. Author and publisher ordered to attend bar to explain, found guilty of breach of privilege and reprimanded by President.



ATTACHMENT B

Holding v Jennings

  The case of Holding v Jennings (1979) held that the privilege declared in article 9 of the Bill of Rights 1688, has been extended by express statutory provision to the Parliament in Victoria. Privilege extends to the tabling or production by a Member of a House in the House of the Parliament of a written statement (in particular a personal explanation to the Parliament) which is not read aloud by the Member. It is within the absolute privilege attaching to every Member of Parliament for or in respect of anything said or done by the Member in their capacity as a Member, in the House of which he is a Member. The privilege also extends to publication by a Member to a typist or printer for the purpose of preparation of a statement for tabling or production in the House. Such a statement or publication accordingly cannot support an action for defamation against the Member. The privilege extended to publication to a typist in the case of a qualified privilege a fortiori to absolute privilege. VR 289.

Beitzel v Crabb

  The case of Beitzel v Crabb (1992) which related to whether alleged defamatory comments made in Parliament and repeated in a radio interview constituted publication of parliament proceedings. The defendant, a Member of Parliament, said certain words of the plaintiff in Parliament. These words, or a substantial part of the words, were reported by the media. The defendant subsequently answered questions in a radio interview in which he refused to apologize and said that he stood by what he had stated in Parliament. The plaintiff sued the defendant for defamation. The defendant sought to strike out the statement of claim as not disclosing a cause of action. The application was dismissed because—(1) the cause of action arose from the publication by the defendant, adoption and repetition outside Parliament of words spoken by him in Parliament and published by the media. Whether what was said outside Parliament amounted to a publication of defamatory words was a mixed question of fact and law. (2) Members of Parliament might be held liable afterwards publishing words spoken by them in Parliament, providing that the cause of action was founded on subsquent publication. (3) The words spoken in the radio interview did not constitute a "publication of . . . proceedings of the Houses of Parliament" within the meaning of section 73 of the Constitution Act 1975. [1992] 2 VR 121.



ATTACHMENT C

Guidelines for the Protection of Witnesses (As amended by the Chairmen's Panel 13 March 1992)

  In their dealings with witnesses, all Joint Investigatory Committees shall observe the following procedures:

  1.  A witness shall be invited to attend a committee meeting to give evidence. A witness shall be summoned to appear (whether or not the witness was previously invited to appear) only where the committee has made a decision that the circumstances warrant the issue of a summons.

  2.  A witness shall be given adequate notice of a meeting at which the witness is to appear, and shall be supplied with a copy of the committee's terms of reference, a statement of the matters expected to be dealt with during the witness' appearance, and a copy of these procedures. Where appropriate a witness shall be supplied with a transcript of relevant evidence already taken.

  3.  Where a committee desires that a witness produce documents relevant to the committee's inquiry, the witness shall be invited to do so, and an order that documents be produced shall be made (whether or not an invitation to produce documents has previously been made) only where the committee has made a decision that the circumstances warrant such an order.

  4.  Witnesses who do not attend in response to a committee's summons or fail to produce documents ordered to be produced to a committee may be reported to the Parliament which may order their attendance at the Bar of either House.

  5.  A witness not attending in obedience to an order may be censured or declared guilty of contempt.

  6.  A witness shall be given opportunity to make a submission in writing before appearing to give oral evidence.

  7.  Where appropriate, reasonable opportunity shall be given for a witness to raise any matters of concern to the witness relating to the witness' submission or the evidence the witness is to give before the witness appears at a meeting.

  8.  All evidence shall be taken in public, unless a committee otherwise resolves. Such evidence may also be given on oath or affirmation if required by the committee.

  9.  A witness shall be offered, before giving evidence, the opportunity to make application, before or during the hearing of the witness' evidence, for any or all of the witness' evidence to be heard in private session, and shall be given reasons for any such application. If the application is not granted, the witness shall be notified of the reasons for that decision.

  10.  A chairman of a committee shall take care to ensure that all questions put to witnesses are relevant to the committee's inquiry and that the information sought by those questions is necessary for the purpose of that inquiry. Where a member of a committee requests discussion of a ruling of the chairman on this matter the committee shall deliberate in private session and determine whether any question which is the subject of the ruling is to be permitted.

  11.  In general, a witness must answer all questions put, as fully and frankly as before a Court, Inquest, Royal Commission or Board of Inquiry. Any person giving false evidence may be declared guilty of contempt.

  12.  Where a witness objects to answering any question put to the witness on any ground, including the ground that the question is not relevant or that the answer may incriminate the witness, the witness shall be invited to state the ground upon which objection to answering the question is taken. Unless the committee determines immediately that the question should not be pressed, the committee shall then consider in private session whether it will insist upon an answer to the question, having regard to the relevance of the question to the committee's inquiry and the importance to the inquiry of the information sought by the question. If the committee determines that it requires an answer to the question, the witness shall be informed of that determination and the reasons for the determination, and shall be required to answer the question only in private session unless the committee determines that it is essential to the committee's inquiry that the question be answered in public session. Where a witness declines to answer a question to which a committee has required an answer, the committee shall report the facts to the Parliament.

  13.  Where a witness gives evidence reflecting adversely on a person and the committee is not satisfied that the evidence is relevant to the committee's inquiry, the committee shall give consideration to expunging that evidence from the transcript of evidence, and to forbidding the publication of that evidence.

  14.  Where evidence is given which reflects adversely on a person and action of the kind referred to in paragraph 13 is not taken in respect of the evidence, the committee shall provide reasonable opportunity for that person to have access to that evidence and to respond to that evidence by written submission and appearance before the committee.

  15.  A witness shall not be entitled to be represented by counsel or a solicitor at a public hearing, unless both Houses of the Parliament otherwise resolve in a particular case.

  16.  Any person who tampers with any witness in respect of his evidence, or directly or indirectly endeavours to deter or hinder any witness from appearing or giving evidence, may be declared guilty of contempt of the Parliament.

  17.  All evidence given before a Joint Investigatory Committee is subject to Parliamentary privilege and shall not give rise to any cause of action in law, or be made the subject of, or in any way called into question in, any proceedings before a court.

  18.  Officers in the Government service should not be asked questions that require them to comment upon or give opinions on matters of Government policy or which would genuinely jeopardize the necessary relationship of confidentiality between a Minister and Government officer. Reasonable opportunity should be given to such officers to refer such questions to superior officers or to a Minister.

  19.  Witnesses will be provided with a proof copy of their evidence as soon as practicable after it becomes available. They will have the opportunity to make alterations provided that those alterations are confined to the correction of inaccuracies in reporting or printing, or to the correction of matters of fact which do not materially alter the sense of the answer. Correction should be made in the handwriting of the witness.

  20.  Corrected evidence should be returned to the committee within four days. The committee may or may not accept the alterations. Corrected transcripts will be tabled with the committee's reports. If no transcript is returned, an uncorrected copy will be tabled.

16 April 1998


 
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Prepared 9 April 1999