Professor Enid Campbell, Consultant
Politics and Public Administration Group
27 July 2000
Vision in Hindsight
Vision in Hindsightis a Department of the Parliamentary
Library (DPL) project for the Centenary of Federation.
The Vision in Hindsight: Parliament and the
Constitution will be a collection of essays each of which
tells the story of how Parliament has fashioned and reworked the
intentions of those who crafted the Constitution. The unifying
theme is the importance of identifying Parliament's central role in
the development of the constitution. In the first stage, essays are
being commissioned and will be published, as IRS Research Papers,
of which this paper is the sixth.
Stage two will involve the selection of eight to
ten of the papers for inclusion in the final volume, to be launched
in conjunction with a seminar, in November 2001.
A Steering Committee comprising Professor
Geoffrey Lindell (Chair), the Hon. Peter Durack, the Hon. John
Bannon and Dr John Uhr assists DPL with the management of the
Centenary of Federation
Freedom of Speech and Debate
The Ambit of the Investigatory Power
Whither Parliamentary Privilege?
The framers of the Constitution of the
Commonwealth of Australia envisaged that the Federal Parliament
should, amongst its legislative powers, have power to enact
legislation on what the powers, privileges and immunities of its
Houses, members and committees were to be. But they considered it
appropriate that until such time as the Parliament enacted such
legislation, the Houses of the Federal Parliament, their members
and committees, should be endowed with the same powers, privileges
and immunities as were possessed by the House of Commons of the
United Kingdom Parliament, its members and committees, at the
establishment of the Commonwealth. Section 49 of the Federal
Constitution gave expression to that intent.
More than eighty years were, however, to pass
before the Federal Parliament enacted fairly comprehensive
legislation on the subject of parliamentary privileges. Its
enactment-the Parliamentary Privileges Act 1987-followed
an inquiry by a Joint Select Committee which had been commissioned
in 1982 to undertake a general inquiry into the matter. The
Committee presented its final Report in 1984.
The Act of 1987 is a most important document in
that it represents an attempt to reform the laws about
parliamentary privileges, having regard to difficulties and
uncertainties attending the laws which applied by virtue of section
49 of the Constitution, and also changes which had taken place in
the workings of parliamentary institutions since the establishment
of the Commonwealth of Australia (on 1 January 1901).
The Act of 1987 effected some major changes in
the laws concerning federal parliamentary privileges. It reduced
the time during which members are immune from arrest in civil
causes and requirements to attend before courts and tribunals. It
removed the power of the Houses to expel their members. It also
reduced the punitive powers of the Houses.
In 1955 the High Court, in the case of
Fitzpatrick and Browne, had held that, under section 49 of
the Constitution, the Houses had authority to order the
imprisonment of persons they adjudged in contempt of the House. The
Court's decision, however, revealed that if a House chose to
exercise this power it could be difficult for a court to assess
whether the conduct of the offender was capable of being regarded
as an offence against the House. The 1987 Act removes impediments
to judicial review, at least when a House has imposed a penalty of
imprisonment. It defines essential elements of offences punishable
by the Houses. It removes the power of the Houses to punish
contempt by defamation except in relation to words spoken in the
presence of a House or a parliamentary committee. It prescribes the
penalties which may be imposed.
There continue to be differences of opinion
about whether Houses of Parliament need to have punitive powers to
enable them to carry out their functions. A Joint Committee of the
Houses of the United Kingdom Parliament has recently recommended
that legislation be enacted to give the courts jurisdiction to try
offences now punishable as contempt of Parliament in those cases in
which the alleged offender is not a member of either House. This
recommendation may prompt reconsideration of the relevant
provisions of the Commonwealth Act of 1987.
One of the central provisions of the 1987 Act is
section 16. It affirms the application of Article 9 of the English
Bill of Rights 1689 to the Federal Parliament. Article 9 declares
that 'freedom of speech and debates or proceedings in parliament
ought not be impeached or questioned in any court or place out of
parliament'. Section 16 amplifies the meaning of the term
'proceedings in parliament' and it also imposes restrictions on the
uses which may be made of evidence of parliamentary proceedings in
cases before courts and tribunals. Section 16 has presented some
problems for the courts, including some relating to the
constitutionality of the subsection on admissibility of evidence of
parliamentary proceedings. The constitutional issues have yet to be
considered by the High Court.
The Act of 1987 is not an exhaustive code of the
law about federal parliamentary privileges and it allows for the
continued operation of some of the powers and privileges of the
House of Commons which apply by virtue of s. 49 of the
Constitution, among them the investigatory powers of the Houses and
their duly authorised committees. The Act does not, for example,
attempt to define what powers the Houses and their committees may
exercise in order to gather information or the grounds on which
persons may properly object to the provision of information which
is sought of them. One problem which the Act has not resolved is
whether the investigatory powers of the Houses are constrained by a
doctrine under which officers of the executive branch may properly
object that the provision of information sought by a House would be
contrary to the public interest. A Bill introduced in 1994 sought
to address this problem but was not passed into law.
In its eighty-seventh year the Parliament of the
Commonwealth of Australia enacted:
An Act to declare the powers, privileges and
immunities of each House of Parliament and the members and
committees of each House, and for related purposes.
The Act-the Parliamentary Privileges Act
1987-was 'the culmination of more than eighty years of
spasmodic enthusiasm to effect' such a declaration.(1)
It followed a comprehensive review of the law by the Joint Select
Committee on Parliamentary Privilege, appointed in
1982.(2) It was enacted principally in reliance on
section 49 of the Commonwealth of Australia Constitution, read
in conjunction with section 51(xxxvi).
Section 49 of the Constitution provides
The powers, privileges and immunities of the
Senate and the House of Representatives, and of the members and the
committees of each House, shall be such as are declared by the
Parliament, and until so declared shall be those of the Commons
House of Parliament of the United Kingdom, and of its members and
committees, at the establishment of the Commonwealth.
Section 51(xxxvi) gave the Parliament power
to make laws with respect to 'Matters in respect of which this
Constitution makes provision until the Parliament otherwise
provides'. Section 49 was one such provision.
The effect of section 49 was that, until
the enactment of the Parliamentary Privileges Act 1987,
the powers, privileges and immunities of the Houses of Australia's
Federal Parliament, their members and committees were co-extensive
with those of the House of Commons at Westminster as of
1 January 1901. Had the Constitution not included
section 49, these powers, privileges and immunities would have
been less extensive than those accorded to the House of Commons.
They would have been restricted to those reasonably necessary for
the discharge of the functions assigned to the Houses by the
Constitution and they would not have included a power to impose
penalties for breach of privilege or the offence known as contempt
The Parliamentary Privileges Act 1987
brought about some important changes in the law relating to the
Houses of the Federal Parliament, its members and committees.
Section 8 stripped the Houses of the power to expel their
members, a power which had been exercised only once in the history
of the Parliament.(4) This change did not, however,
detract from the power of the Houses to determine whether a
member's seat had become vacant for any of the disqualifying causes
listed in sections 44 and 45 of the Constitution.
Section 6 took away from the Houses their power to punish
contempts by defamation except when committed in the presence of a
House or committee.(5) The penal jurisdiction was
further limited by section 4. This specifies essential
elements of the offences punishable by the Houses. The periods of
time during which members, parliamentary officers and parliamentary
witnesses are immune from arrest or detention in civil causes, and
from requirements to attend before courts or tribunals were
abridged, having regard to modern means of transport.(6)
Section 16 confirmed the application to the Federal Parliament
of the freedom of speech and debate assured by Article 9 of
the English Bill of Rights 1689; it also sought to clarify the
effects of that important provision.
The Act of 1987 does not purport to be an
exhaustive code on the powers, privileges and immunities of the
Houses of the Federal Parliament, their members and committees.
This is made clear by section 5 of the Act which provides
Except to the extent that this Act expressly
provides otherwise, the powers, privileges and immunities of each
House, and of the members and committees of each House, as in force
under section 49 of the Constitution immediately before the
commencement of this Act, continue in force.
Powers which the Houses continue to possess by
virtue of section 49 of the Constitution include the power of
each House to suspend members from the service of the House; the
power of the Houses and their duly authorised committees to require
the attendance of persons before them to give evidence and to
produce documents; and the power to regulate their internal
proceedings. The last mentioned power is fortified by
section 50 of the Constitution.(7)
The Parliamentary Privileges Act 1987
was the model for the Northern Territory's Legislative Assembly
(Powers and Privileges) Act 1992 and for the Parliamentary
Privileges Bill introduced in New Zealand's House of
Representatives in 1994.(8) Section 24 of the
Australian Capital Territory (Self Government) Act 1988
(Cwlth) makes the federal Act definitive of the powers, privileges
and immunities of the Legislative Assembly of the Australian
Capital Territory, though it withholds from the Assembly a power to
impose penalties by fine or imprisonment. None of the Parliaments
of the Australian States has, to date, chosen to enact legislation
along the lines of the 1987 federal Act.(9)
The framers of Australia's Federal Constitution
clearly intended that the Federal Parliament should have power to
enact legislation which gave to the Houses, their members and
committees powers, privileges and immunities which might be
somewhat different from those possessed by the House of Commons,
its members and committees, and perhaps even greater than those
possessed by the House of Commons as of 1901.(10) They
did not, however, pause to consider whether the Constitution might
impose some constraints on the kind of legislation the Parliament
could validly enact pursuant to section 49, read in
conjunction with section 51(xxxvi). The Federal Parliament's
legislative powers were to be limited to enumerated subjects. Hence
section 49, read in conjunction with section 51(xxxvi),
could not be construed as giving the Parliament an unlimited
legislative power. The scope of that particular power could not but
be affected by contemporary understandings about what matters
pertained to parliamentary privilege,(11) and in
determining whether a federal law is one of a kind within this head
of power, a court of law would probably need to be satisfied that
the law is in aid of and ancillary to the performance of the
Parliament's functions under the Constitution.
Over the years the High Court of Australia was
to discover in the Federal Constitution certain implied limitations
on federal legislative powers, among them limitations on the
capacity of the Federal Parliament to make laws binding the States
and their instrumentalities, and to make laws which interfere with
judicial processes. In 1992 the High Court ruled that the
Constitution impliedly prohibits exercise of federal legislative
powers to make laws which are unduly restrictive of freedom of
political communication.(12) The High Court has not yet
had occasion to decide whether these implied limitations control
the exercise of the legislative power in respect of parliamentary
privileges, or for that matter the powers which are exercisable by
the Houses under section 49 itself. This constitutional issue
is considered later in the paper.
The paper, it needs be stressed at the outset,
does not attempt a comprehensive review of the federal laws of
parliamentary privilege and of the ways in which they have been
administered.(13) Rather it concentrates on those
aspects of this body of law which present particular problems: the
punitive powers of the Houses and the manner of their exercise;
freedom of speech and debate in Parliament and what it entails; and
the investigatory powers of the Houses and their duly authorised
committees. The last part of the paper raises some issues which may
merit further attention by the Parliament.
Prior to federation, legislation had been
enacted to invest the Houses of all of the Australian colonial
Parliaments, with the exception of those in New South Wales, with
extensive punitive powers.(14) In South Australia and
Victoria the legislation gave to the Houses the same penal
jurisdiction as was possessed by the House of Commons as of a
specified date.(15) The result was that the Houses of
Parliament in those colonies could order the imprisonment of
persons they found guilty of breach of privilege or contempt of the
House, for the duration of the current session of Parliament. In
Queensland, Tasmania and Western Australia the punitive powers of
the Houses were more limited since penalties could be imposed only
in respect of defined offences.(16) The framers of the
Australian Federal Constitution preferred the expedient which had
been adopted in South Australia and Victoria.
While there have been many occasions on which
the Houses of the Federal Parliament have adjudged conduct to be in
breach of their privileges or in contempt, there has been only one
occasion on which they have chosen to impose a penalty of
imprisonment.(17) This was in 1955 when the House of
Representatives committed Raymond Edward Fitzpatrick and Frank
Courtney Browne, the proprietor and editor respectively of the
Bankstown Observer, to prison.(18) These men
had been responsible for publishing a series of articles which
suggested that, before entering Parliament, a Member of the House
had been involved in an immigration racket. The House's Committee
of Privileges advised that Fitzpatrick and Browne had been guilty
of a serious breach of privilege.(19) In publishing the
articles they had 'intended to influence and intimidate a Member
... in his conduct in the House' and 'had deliberately attempted to
impute corrupt conduct as a Member against' the Member 'for the
express purpose of discrediting and silencing him'.(20)
The House accepted this advice and on 10 June 1955 resolved
that the two men be committed to and kept in custody until
10 September, or until earlier prorogation or dissolution,
unless the House should sooner order their
Fitzpatrick and Browne instituted court
proceedings against their gaoler, the Chief Commissioner of Police
in the Australian Capital Territory. They sought writs of habeas
corpus to secure their release from custody. The case was removed
into the High Court of Australia. On behalf of Fitzpatrick and
Browne it was argued, unsuccessfully, that the power exercised by
the House was essentially a judicial power and that under
Chapter III of the Constitution, the judicial powers of the
Commonwealth were exercisable only by the courts therein described.
In the opinion of the High Court, section 49 of the
Constitution established a clear exception to this general
principle.(22) And following English judicial
authority(23) the Court held that the Speaker's warrants
to the respondent gaoler were a sufficient answer to the
applications for habeas corpus. The warrants simply recited that
the House had resolved that Fitzpatrick and Browne had been guilty
of breach of privilege and that they be committed to custody. There
was no legal requirement that the warrants set out particulars of
the offence; nor could the Court look beyond the
The Parliamentary Privileges Act 1987
has altered the law which had been applied in the case of
Fitzpatrick and Browne. If their case were to arise today and the
House resolved that they be punished by imprisonment, the House
would, under section 9 of the Act, be required to sentence
them to imprisonment for a fixed term, not exceeding six months.
That penalty would not be affected by a prorogation of the
Parliament or the dissolution or expiration of the House. More
importantly, under section 11 the resolution of the House
imposing the penalty, and the warrants committing them to custody,
would need to 'set out particulars of the matters determined by the
House to constitute' a breach of privilege or contempt. The
significance of this requirement is that if the offenders sought
judicial review of the determination against them, a court would
have to decide whether the conduct particularised was capable of
being regarded as an offence against the House.(25) And
in deciding that question the court would have to consider whether
the essential elements of an offence, as declared in section 4
of the Act, had been satisfied. The court could not, however,
review the House's 'sentence'.
Section 4 of the Act provides that:
Conduct (including the use of words) does not
constitute an offence against a House unless it amounts, or is
intended or likely to amount to an improper interference with the
free exercise by a House or a Committee of its authority or
functions, or with the free performance by a member of the member's
duties as a member.(26)
Prior to the enactment of the Parliamentary
Privileges Act 1987 there was doubt about whether the Houses
could impose monetary fines.(27) The House of Commons
had not imposed such penalties since the eighteenth
century.(28) Section 7 of the Act authorises the
Houses to impose fines on those who commit parliamentary offences:
in the case of natural persons, a fine not exceeding $5000; in the
case of corporations, a fine not exceeding $25 000. But a natural
person cannot be both fined and imprisoned. A fine is declared to
be a debt due to the Commonwealth and is recoverable 'on behalf of
the Commonwealth in a court of competent jurisdiction by any person
appointed by a House for that purpose'.(29)
Curiously the Act does not require that a
resolution of the House which imposes a fine should set out
particulars of the matters determined by the House to constitute
the offence. In an action to recover a fine, the existence of the
alleged debt could not be proved otherwise than by production of
the House's resolution.(30) But what if that resolution
stated no more than that the House had adjudged the defendant
guilty of an offence? Could the court look beyond the resolution?
That question awaits judicial resolution but it is one which would
be more satisfactorily resolved by amendment of section 11 of
the Act. There can surely be no good reason why a House should be
required to particularise when it decides to impose a penalty of
imprisonment but not when it decides to impose a fine. Why, it may
be asked, should a House be required to give particulars when it
decides that a journalist be imprisoned for contempt, but not be
required to give particulars when it fines the journalist's
employer for the same offence?
There have been differences of opinion about
whether the Houses should retain their punitive powers and also
about whether their punitive powers should be limited to offences
defined by statute.(31) Some have taken the view that
the penal jurisdiction reposed in Houses of Parliament should be
transferred to the ordinary courts of law. Their objection is
principally that in exercising their penal jurisdiction, the Houses
are acting as judges in their own cause. Those who support the
maintenance of a parliamentary penal jurisdiction have, however,
pointed out that it is a jurisdiction akin to that which superior
courts of law themselves exercise when they impose penalties for
contempt of court. If courts are considered to be the best judges
of what conduct is prejudicial to the performance of their
functions, it is argued, should not it also be accepted that the
Houses of a Parliament are the best judges of what conduct is
prejudicial to the performance of parliamentary functions? Another
argument in favour of the maintenance of the penal jurisdiction of
the Houses is that transfer of the jurisdiction to the courts would
eliminate the large measure of discretion which the Houses exercise
in determining whether it is appropriate to impose penalties.
The Australian Parliaments whose Houses possess
a penal jurisdiction have not been disposed to relinquish that
jurisdiction entirely, though the federal Parliamentary
Privileges Act 1987 signified a preparedness on the part of
the Federal Parliament to remove from its Houses a part of their
former penal jurisdiction, and also to expose determinations in
exercise of the jurisdiction to judicial review.(32)
Moved no doubt by the advice of the Joint Select
Committee on Parliamentary Privilege in its 1984
Report,(33) the Federal Parliament chose not to include
in the Parliamentary Privileges Act 1987 definitions of
the conduct punishable by the Houses. The Parliament was prepared
to do no more than specify essential elements of the offences
punishable by them. The task of framing more precise statutory
provisions on what kinds of conduct are punishable by the Houses
was, it seems, perceived to be as difficult as that which would
attend any attempt to define by statute what conduct may be
punishable as contempt of court. Short of legislation which defines
the offences punishable by the Houses, the Houses can do little
more than provide guidance about the conduct they may adjudge to be
punishable by them, in the form of resolutions of the kind passed
by the Senate on 28 February 1988.(34) Those
resolutions are not, however, binding on the courts.
Since proceedings to determine whether an
offence against a House has occurred are essentially judicial in
character, it is important that the proceedings be conducted in
accordance with the principles of natural justice.(35)
There were some unsatisfactory aspects of the proceedings against
Fitzpatrick and Browne in 1955. The hearings of the Committee of
Privileges of the House of Representatives were held in camera. The
accused were compelled to answer questions under oath. They were
not allowed legal representation; nor were they afforded an
opportunity to cross-examine the Member who had made the complaint
against them. That Member had given his evidence in their absence.
After the Committee had presented its report, Fitzpatrick and
Browne were summoned to appear at the Bar of the House and were
given an opportunity to address the House. But once again they were
denied legal representation.
The Joint Select Committee on Parliamentary
Privilege reviewed the procedures for conduct of inquiries by the
Privileges Committees and in its Report of 1984 recommended that
they be revised in certain respects.(36) The recommended
changes are to a large extent reflected in the Senate's resolutions
of 1988 on parliamentary privilege.(37) The procedures
laid down in the resolutions, if followed, ensure that those
accused of breach of privileges or contempt of a House are treated
In reviewing decisions by a House to punish for
offences against the House, courts are unlikely to inquire whether
the procedures adopted by the House have fulfilled minimal
standards of procedural fairness. Such inquiry might well be
considered an impermissible intrusion into the internal proceedings
of the House and contrary to Article 9 of the Bill of Rights
1689. The only possible basis upon which a court might justify
inquiry by it into the fairness of the procedures adopted by a
House of the Federal Parliament is that the exercise by the House
of its penal jurisdiction involves the exercise of judicial power
and that the validity of any purported exercise of judicial power
is contingent on the observance of minimal standards of procedural
The occasions on which Houses of Parliament are
likely to impose penalties by way of fine or imprisonment for
offences against the House may be few. Federal parliamentary
experience suggests that even when an offence against a House is
found to have been committed, the House will often be content to
record that finding, with perhaps the addition of a reprimand or
admonition, exaction of an apology or an assurance that the
offender will take certain corrective action.(39) There
are some other sanctions which a House may think it appropriate to
apply, for example withdrawal of 'privileges' accorded to
representatives of the mass media in relation to facilities
afforded to them within parliamentary precincts.(40)
The Houses also possess disciplinary powers in
relation to their own members. As has been mentioned earlier, the
Parliamentary Privileges Act 1987 removed from the Houses
of the Federal Parliament their former power to expel their
members.(41) The Houses nevertheless retain their power
to suspend their members.(42) The extent to which, if at
all, the power of suspension is subject to constitutional
constraints is unclear.
In a series of cases, most of them emanating
from New South Wales, courts have recognised that a House which
does not possess punitive powers may nonetheless suspend its
members for self-protective purposes or to force a member to comply
with a valid command of the House.(43) Determination of
whether a power of suspension has been exercised for a permissible
self-protective or coercive purpose rather than for an
impermissible punitive purpose may not, however, be an easy matter.
And such a determination will nearly always involve investigation
of what has occurred in the course of parliamentary
The Parliamentary Privileges Act 1987
did not diminish the power already possessed by the Houses of the
Federal Parliament, by virtue of section 49 of the
Constitution, to suspend members from their service and to do so
even for punitive purposes. There could, however, be a question
whether the power of suspension can be employed to penalise a
member for exercise of the constitutionally protected freedom of
Freedom of Speech and Debate
One of the most important of the privileges of
Parliament is that expressed in Article 9 of England's Bill of
Rights 1689.(45) Article 9 provides:
That the freedom of speech, and debates or
proceedings in parliament, ought not be impeached or questioned in
any court or place out of parliament.
This Article applied to the Houses of the
Federal Parliament by force of section 49 of the Constitution
and this application has been confirmed by section 16(1) of
the Parliamentary Privileges Act 1987.
The primary object of Article 9 was to
protect members of the English Parliament against legal liabilities
for what they said or did in the course of debate.(46)
But it also established the right of the Houses to determine what
matters were to be considered by them. Article 9 was
instrumental in establishing the independence of the Houses of the
Crown and the supremacy of Parliament.
The protections accorded by Article 9
extend not only to members but also to parliamentary witnesses, to
those who have presented petitions to Parliament and to authors of
documents which have been tabled in a House. Article 9 has
also been interpreted as imposing restrictions on the reception and
use of evidence of parliamentary proceedings by courts and other
extra-parliamentary bodies, such as royal commissions of
Questions have arisen, both in the courts and in
parliaments, about what are to be regarded as proceedings in
parliament for the purposes of Article 9. In the courts there
may be a question about what are proceedings in parliament for the
purposes of the laws of defamation, including the rule that the
defendant to an action for defamation may plead in defence that the
publication alleged to be defamatory is a fair and accurate report
of parliamentary proceedings.(48) There is little doubt
that proceedings in parliament encompass proceedings at formal
sittings of Houses and of their committees. But what is the status
of communications of the following kinds?
- Communications between members and Ministers on matters which
might be raised in Parliament.(49)
- Communications between members of Parliament and members of the
public, again in relation to matters which might be raised in
- Communications in caucus.(51)
- Media releases in relation to matters which have already been
the subject of statements in a House or before a parliamentary
The Joint Select Committee on Parliamentary
Privilege recognised that there was uncertainty about what may be
regarded as proceedings in Parliament.(53) It proposed
enactment of legislation to define that concept.(54) The
definition it recommended was fairly detailed. The definition which
appears in section 16(2) of the Parliamentary Privileges
Act 1987 is much less detailed and it does not purport to be
an exhaustive definition. The sub-section provides that:
For the purposes of the provisions of
Article 9 of the Bill of Rights, 1689 as applying in relation
to the Parliament, and for the purposes of this section,
'proceedings in Parliament' means all words spoken and acts done in
the course of, or incidental to, the transacting of the business of
a House or of a committee, and, without limiting the generality of
the foregoing, includes:
(a) the giving of evidence before a House or a
committee, and the evidence so given
(b) the presentation or submission of a document
to a House or a committee
(c) the preparation of a document for purposes
of or incidental to the transacting any such business, and
(d) the formulation, making or publication of a
document, including a report, by or pursuant to an order of a House
or committee and the document so formulated, made or
This sub-section may well have extended the
concept of proceedings in Parliament, at least for the purposes of
Article 9 of the Bill of Rights.(56)
Paragraph (c), for example, would seem to cover many documents
generated by members preparatory to the formal transaction of
parliamentary business (e.g. draft questions on notice),
documents assembled by officers or employees of a House for use by
a parliamentary committee, draft petitions, and unsolicited
submissions to a parliamentary committee. Queensland's Court of
Appeal has held that paragraph (c) covers documents sent by
strangers to Members but only if the Member chooses to keep the
documents for the purpose of transacting parliamentary
business.(57) Paragraph (d) covers all documents
ordered to be printed and published by a House. To an extent it may
have displaced the Parliamentary Papers Act 1908.
Publications which are within the statutory
definition of proceedings in Parliament are absolutely privileged
for the purposes of the law of defamation. Section 16(3),
which is examined presently, restricts the use which may be made of
these publications in the courts. Article 9 of the Bill of
Rights 1689 forbids the impeachment or questioning of such
proceedings in any court or place out of Parliament. That can mean
that a court cannot order production of protected documents for
inspection by litigants.(58) The Senate's Committee of
Privileges has expressed concern about possible abuse of
section 16(2) of the Act. It has recognised that 'it is vital
for the proper functioning of a house of parliament that
information is produced to the maximum extent possible to enable
proper decision making'.(59) At the same time it has
If all information given to senators for the
purpose of speeches to the Senate is covered by privilege, there
may be some danger that Senate privilege could be used to protect
documents and files which may be required in court proceedings.
This is especially true of primary documents which do not exist in
any other form.(60)
There has never been any doubt that documents
tabled before a House become proceedings in Parliament, whatever
their source and whatever their content. For an
extra-parliamentary, governmental body to undertake inquiry into
the truth of statements contained in the tabled documents may be
held in breach of privilege. A House may even adjudge it an offence
for an extra-parliamentary body to undertake inquiry into the
circumstances which attended supply of documents which were
subsequently tabled before a House.(61) Nevertheless the
Senate's Committee of Privileges has drawn attention to 'the
gravity of senators' actions in placing on public record, under
parliamentary privilege, documents on behalf of or authored by
other persons'. It has said that: 'It is the duty of all senators
to read all aspects of material they are tabling and to take
responsibility for it'.(62)
The statutory definition of 'proceedings in
parliament' has, to an extent clarified the ambit of the protection
afforded by Article 9 of the Bill of Rights 1689. It does not,
however, resolve some of the uncertainties about the status of
members' correspondence. Some such correspondence may answer the
description of documents prepared for the purpose of or incidental
to the transacting of the business of a House or a parliamentary
committee. But much correspondence generated by members in
discharge of their functions will not fall into that category: for
example, representations made on behalf of constituents to
ministers and other agents of the executive. Correspondence of this
kind is generally regarded as outside the protection of Article 9
of the Bill of Rights 1689, though under the laws of defamation it
will usually be covered by the defence of qualified privilege.
Privilege in Court Proceedings
One of the most contentious provisions in the
Parliamentary Privileges Act 1987 is section 16(3).
This provision restricts the reception of evidence of proceedings
in Parliament and the uses which may be made of such evidence by
courts and tribunals. It applies to all Australian courts and
tribunals, tribunals being defined in section 3(1) as all
bodies having power to examine witnesses on oath.
Prior to 1987 a number of courts had construed
Article 9 of the Bill of Rights as imposing such
restrictions,(63) but in 1985 and 1986, judges of the
New South Wales Supreme Court ruled that Article 9, as applied
to the Federal Parliament, did not preclude reception by the Court
of evidence of what some of the witnesses before the Court had said
in evidence they had previously given before a parliamentary
committee, even though the purpose was to attack the credibility of
those witnesses.(64) Section 16(3) of the 1987 Act
was enacted to counteract those judicial rulings.(65) It
provides as follows:
In proceedings in any court or tribunal, it is
not lawful for evidence to be tendered or received, questions asked
or statements, submissions, or comments made, concerning
proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive,
intention or good faith of anything forming part of those
proceedings in Parliament
(b) otherwise questioning or establishing the
credibility, motive, intention or good faith of any person, or
(c) drawing, or inviting the drawing of,
inferences or conclusions wholly or partly from anything forming
part of those proceedings in Parliament.
Some general points to be made about
section 16(3) are these:
- it does not prohibit absolutely reception by courts and
tribunals of evidence of proceedings in the Federal Parliament. The
prohibition is expressed rather in terms of the purposes for which
that evidence may be received and used. The provision has been
interpreted by courts as not precluding reception of evidence to
prove simply an occurrence in the course of parliamentary
- there is no provision whereby a House or a member may waive the
- Section 16(5) makes exceptions in relation to proceedings
in courts and tribunals so far as they relate to questions arising
under section 57 of the Constitution or interpretation of
In Prebble v New Zealand Television
Ltd,(69) the Judicial Committee of the Privy
Council, on appeal from New Zealand, expressed the view that
section 16(3) is declaratory of one of the effects of
Article 9 of the Bill of Rights 1689.(70) But the
correctness of that pronouncement has been queried.(71)
The subsequent case of Laurance v Katter(72)
revealed some problems about the meaning and effect of
section 16(3) of the 1987 Act and also about its
The plaintiff in this case, Mr Laurance,
had brought an action for defamation against Mr Katter in
respect of remarks the latter had made in the course of a media
interview. The interview concerned statements Mr Katter had made
about Mr Laurance in the course of debate in the House. Those
statements were prima facie defamatory, but having been made under
parliamentary privilege they would not have exposed Mr Katter to
any legal liability. In answer to questions asked by the
interviewer, Mr Katter said no more than that he adhered to what he
had said in the House. That answer could have prompted interested
listeners to consult the Hansard record of what the Member had said
in Parliament. Had the interviewer simply read from that record he
or she would have been assured (by section 10 of the Act)
that no liability would be attracted by the mere reading of the
record. The interviewer's and broadcaster's defence to an action
for defamation against them would have been that of a fair and
accurate report of a parliamentary proceeding. That defence would
not, however, have been available to Mr Katter if it was possible
to adduce evidence to prove that his answers to the interviewer
incorporated his statements in the House. The question the court
had to decide was whether evidence of the Member's statements in
Parliament was admissible.(73)
A majority of the judges of the Queensland Court
of Appeal held that it was, but their reasons were different. J. A.
Pincus concluded that section 16(3) of the Parliamentary
Privileges Act 1987 'does not validly operate with respect to
the conduct of defamation suits'.(74) In coming to that
conclusion J. A. Pincus had regard to the implied constitutional
freedom of political communication and to the effect
section 16(3) would have on discussion of parliamentary
affairs. Unless read down, section 16(3), his Honour observed,
would 'inhibit legitimate attacks outside parliament on what is
said within it, by subjecting the critics to the risk of an unjust
liability for damages'.(75) It could 'interfere with
freedom to attack or analyse what happens in parliament by
distorting, to the point of absurdity, the way in which defamation
suits relating to that subject must be conducted'.(76)
It would do so simply by exclusion of evidence necessary to
establish defences such as truth and fair comment.
J. A. Davies also considered that
section 16(3) had to be read down, but in light of
section 16(1). The question was therefore whether admission of
evidence of what Mr Katter had said in Parliament would
involve the impeachment or questioning of parliamentary
proceedings. In the opinion of J. A. Davies it would not. What was
being questioned in the action for defamation was rather what the
Member had said outside the Parliament.(77)
The dissenting judge, P. Fitzgerald, thought
that section 16(3) was effective to preclude admission of
evidence of what Mr Katter had said in Parliament. He also rejected
the plaintiff's challenge of the constitutionality of
section 16(3). In his opinion the provision was one of a kind
authorised by section 49 of the Constitution. Moreover the
legislative power conferred by section 49 was not constrained
by implied constitutional limitations.(78) His Honour
failed to mention section 51(xxxvi) of the Constitution. The
legislative powers conferred by section 51 are clearly subject
to implied constitutional limitations. The constitutionality of
provisions in the Parliamentary Privileges Act 1987 cannot
therefore be determined simply by reference to section 49 of
Mr Katter sought and obtained special leave to
appeal to the High Court against the decision of the Queensland
court. In granting leave to appeal the High Court clearly
recognised that the case presented important constitutional
issues.(79) The Court lost the opportunity to pronounce
on those issues when Mr Katter discontinued his appeal. But there
will, no doubt, be occasion in the future for the constitutional
issues to be considered by the High Court. The issues are
- Is the legislative power conferred by section 49 of the
Constitution, read in conjunction with section 51(xxxvi),
constrained by implied constitutional limitations, and in
particular the implied freedom of political communication, the
implications found in Chapter III of the Constitution-the
Judicature chapter-and implied limitations on federal powers to
affect the operations of institutions of State government?
- If the relevant federal legislative power is subject to these
implied limitations, does section 16(3) of the
Parliamentary Privileges Act 1987 violate any of those
- If section 16(3) of the 1987 Act is invalid, what, if
anything, does section 49 of the Constitution mandate
regarding reception and use of evidence of federal parliamentary
proceedings in litigation before courts or proceedings before other
extra-parliamentary agencies of government which are empowered to
require the giving of evidence?
In considering the constitutionality of
section 16(3) the High Court will need to consider both the
legal and the practical effects of the
Courts are bound to recognise that in some cases
application of section 16(3) will require them to exclude
evidence which is both relevant and vital to the issues before
them. If they conclude that, without such evidence, they cannot do
justice according to law, they may consider that they are obliged
to order a stay of the proceedings.(81) An exclusionary
rule of evidence which forces such an outcome must surely raise a
question about whether the rule amounts to an illegitimate
interference with judicial processes, contrary to implications
found in Chapter III of the Constitution,(82) and
contrary also to the principle that federal legislative powers
cannot be used to interfere with the functioning of State courts as
organs of State government.(83)
In adjudging the constitutionality of
section 16(3) of the Parliamentary Privileges Act
1987, the High Court would not be concerned with the
desirability of such a provision. On the other hand, if the Court
were to accept that the validity of the provision depends, in part,
on whether it represents an impermissible interference with the
implied constitutional freedom of political communication, it would
have to consider not only the extent to which the provision may
inhibit commentary on proceedings in Parliament, but also whether
it is a provision reasonably necessary and appropriate to maintain
freedom of speech and debate in Parliament.(84)
Parliamentarians and judges may well differ on that
If section 16(3) were to be held invalid on
constitutional grounds there would still be a question about
whether section 49 of the Constitution itself ordains an
exclusionary rule of evidence. That is really a question about the
effect of Article 9 of the Bill of Rights 1689. Prior judicial
decisions on the meaning and effect of Article 9 are not
binding on the High Court of Australia and it would be open to the
Court to hold that Article 9 does not require courts to
exclude relevant evidence of parliamentary proceedings, except when
the object of those seeking to adduce the evidence is to fix some
legal liability on someone for what has been said or done in the
course of those proceedings. The High Court might nonetheless take
the view that, independently of Article 9, the public interest
may in some circumstances require a court to exclude evidence of
parliamentary proceedings. The public interest immunity doctrine is
one which has been developed largely by the courts. Its application
in individual cases requires a court to balance the public interest
to be served by exclusion of particular evidence (for example,
national security) against the public interest in the
administration of justice according to law and relevant evidence.
The High Court would undoubtedly recognise the importance of
sustaining the utmost freedom of speech in parliamentary forums but
it may not be prepared to accept that this freedom cannot be
assured without an exclusionary rule of evidence as wide and as
absolute as that expressed in section 16(3) of the
Parliamentary Privileges Act 1987, read in conjunction
with the definition of parliamentary proceedings in
section 16(2) of the Act.
In its consideration of what Article 9 of
the Bill of Rights 1689 means and requires, the High Court could
not ignore the fact that this Article is part of the law of all of
the Australian polities and is thus protective of freedom of speech
in State and Territory legislatures as well as in the Federal
Parliament. Nor could the Court overlook its prior rulings that the
implied constitutional freedom of political communication
constrains the powers of government at all levels and that it also
controls Australian common law. That implied constitutional freedom
may well inhibit powers to enact legislation which detracts from
freedom of speech in parliamentary forums. But equally it may
inhibit use of parliamentary powers (judicial as well as
legislative) in ways which are unduly restrictive of the freedom of
those who do not enjoy parliamentary privileges to criticise the
actions of persons who have acted under the protections those
While the Houses of the Australian Parliament
have, by the Parliamentary Privileges Act 1987,
substantially renounced their power to impose penalties for
defamation of them and their members, they have not come to grips
with the inequalities in relative freedoms to communicate on
matters political which are created, in a practical way, by
section 16 of that Act.
But what some may regard as the fundamental flaw
in section 16(3) of the Act is the potential of the exclusionary
rule of evidence it expresses to prevent courts from adjudicating
matters before them with reference to what is clearly relevant
During debate on the Bill for the 1987 Act some
Members of the Parliament indicated their concerns about the
proposed exclusionary rule, and in particular about the impact it
could have on the ability of persons charged with criminal offences
to question the credibility of witnesses on the ground that they
had made prior inconsistent statements before a parliamentary
committee.(86) That particular concern was addressed in
a Bill introduced by Duncan Kerr MP in 1992, but his Bill did not
proceed beyond the second reading stage.(87)
The Joint Committee on Parliamentary Privilege
of the United Kingdom Parliament has recommended enactment of
legislation similar to section 16 of the Australian Act,
though with some important qualifications. While the Committee
considered that the general principle that no one should incur
legal liability for things said or done in the course of
parliamentary proceedings should be maintained, it recommended that
evidence of parliamentary proceedings should be admissible in
proceedings before courts to test the validity of administrative
acts. The Committee also recommended that the Houses he authorised
to waive the exclusionary rule of evidence.(88)
Houses of Parliament have recognised that the
freedom of speech accorded to participants in parliamentary
proceedings is capable of being abused and that abuses can occasion
considerable damage to individual reputations.(89) The
potential for injury to reputational interests is compounded by the
legal protections afforded to those who publish fair and accurate
reports of parliamentary proceedings.(90) Defamatory
statements made under parliamentary privilege may attract wide
publicity in the mass media.
The Houses of the Federal Parliament have power
to deal with abuses of the privilege of free speech in several
ways. Members who abuse the privilege may be suspended from the
service of the House. Penalties may be imposed on witnesses who
have given false testimony. Parliamentary committees may be
appointed to inquire into the truth of accusations made under
parliamentary privilege. Since 1988 the Senate has, by resolution,
accorded what is termed a citizen's right to reply.(91)
The House of Representatives adopted a similar resolution in August
1997. When that right is accorded, after inquiry by the Committee
of Privileges, the reply may be incorporated in the parliamentary
There could be occasions on which accusations
made under parliamentary privilege are thought to be so serious as
to warrant inquiry by an extra-parliamentary body such as a royal
commission of inquiry. The House concerned may be fully supportive
of such an inquiry.
Federal royal commissions are formally brought
into being by Letters Patent under the hand of the
Governor-General, though they can also be established pursuant to
statute.(93) The Royal Commissions Act 1902
(Cwlth) equips federal royal commissions with powers to compel the
attendance of witnesses and the production of documents and to
require the giving of evidence under oath or affirmation. The Act
does not, however, allow reception of evidence of parliamentary
proceedings and section 16(3) of the Parliamentary
Privileges Act 1987 expressly prohibits inquiry by royal
commission into the truth of statements made under federal
parliamentary privilege.(94) If the Federal Government
wished to appoint a royal commission to inquire into the truth of
accusations made in the course of federal parliamentary
proceedings, it would therefore need to seek enactment of
legislation to authorise that inquiry.
The decision of the New South Wales Court of
Appeal in Arena v Nader,(95) and the High
Court's decision to refuse the application for special leave to
appeal against that decision,(96) suggest that
legislation to that end, if suitably framed, would survive
challenge on constitutional grounds. The legislation under
challenge in Arena v Nader was special State legislation
to enable inquiry to be made into whether there was any evidence to
support accusations a member of the State's Legislative Council had
made in Parliament about the conduct of the Premier and some
others.(97) The legislation made it clear that the
inquiry could not proceed without the consent of the Legislative
Council. Provision was also made to authorise the House to waive
privilege to the extent declared by it. Waiver by the House of
privilege did not, however, have the effect of depriving the
accusing member of her individual right to refuse to answer before
the extra-parliamentary commission of inquiry.
One of the grounds on which the
constitutionality of the New South Wales legislation was assailed
was that it violated the implied freedom of political
communication. The Court of Appeal and the High Court emphatically
rejected that contention. In so doing they signalled that MPs
cannot rely on what one author(98) has termed the 'arch
privilege' of freedom of speech in Parliament to resist inquiries
by extra-parliamentary bodies, commissioned pursuant to statute, to
inquire into and report on the truth of assertions they have made
under parliamentary privilege.
The powers with which the Houses of Australia's
Federal Parliament are endowed by force of section 49 of the
Federal Constitution include a power to initiate inquiries by their
members, armed with a range of coercive powers. The Houses have
power to command the attendance of persons before them to give
evidence and to produce documents. They also have power to order
the arrest of persons who defy such commands and to have brought
them, by force, before the House. The investigatory powers include
power to require that evidence be given under oath or affirmation.
Those who act in disobedience of a House's commands in these
respects may be penalised by the Houses.(99)
The regime brought into being by force of
section 49 of the Federal Constitution was one under which the
Houses could delegate their powers of inquiry to committees of
their members, though not their power to impose
The Houses of the Federal Parliament, and
especially the Senate, have made extensive use of their
investigatory powers. Typically the task of inquiry has been
assigned to committees. The committees may be select committees
appointed ad hoc or standing committees. Some of the committees
have a statutory basis.(101) The statutory committees
are generally joint committees whose members are drawn from both
Houses. While the investigatory powers of the Houses may be
assigned only to committees consisting of members of Parliament,
those committees may be assisted by non-members who are appointed
to act much like counsel assisting royal
Parliamentary investigations may be undertaken
for a variety of purposes, among them to consider proposed
legislation, to examine subordinate legislation, to review existing
statutes, to scrutinise a government's estimates of expenditure, to
determine whether there are grounds for removing a judge of a
federal court from office pursuant to section 72 of the
Constitution, to determine whether an offence against a House has
been committed, and to review action taken or proposed by the
executive branch of government. The conduct of some investigations
will necessarily involve the calling of witnesses and their
examination under oath or affirmation. Other inquiries may involve
no more than invitation of written submissions or comments.
The Ambit of the Investigatory
There is still uncertainty about whether the
Federal Constitution imposes restrictions on the matters which the
Houses of the Federal Parliament and their committees may
investigate. It could be argued that the federal investigatory
power is constrained by the limitations on federal legislative
powers and that therefore the Houses of the Federal Parliament and
their committees cannot investigate matters within the exclusive
legislative domain of the States.(103) It is doubtful
whether the High Court would accept this argument, having regard to
the fact that a federal parliamentary inquiry could, quite
properly, be undertaken to determine whether the Constitution
should be amended to enlarge federal legislative powers. The Court
might also have regard to the circumstance that the federal grants
power under section 96 of the Constitution permits the Federal
Parliament to grant financial assistance to States on conditions
and that these conditions may relate to matters within the
exclusive province of the States. The Federal Parliament clearly
has an interest in discovering whether States which have accepted
grants of financial assistance on conditions have complied with the
terms of those grants.
Constitutional issues of a different order may
arise when Houses of the Federal Parliament or their committees
purport to exercise their investigatory powers in ways which may
trespass on the powers, privileges and immunities of the Houses of
State Parliaments, their members and committees.(104) It
could be that section 49 of the Constitution would be held not
to authorise federal parliamentary inquiries in breach of
Article 9 of the Bill of Rights 1689 so far as it applies to
State Parliaments, or to authorise the federal Houses and their
committees to require the attendance before them of State
parliamentarians during sittings of the State Houses. Officers of
the federal Houses have certainly counselled against exercise of
federal investigatory powers in ways which might be seen as
intruding on State parliamentary privileges.(105)
From time to time the executive branch of the
Commonwealth has objected to the giving of evidence or production
of documents to Houses and parliamentary committees on the ground
that the evidence or material sought relates to matters which
cannot or should not be disclosed.(106) While such
objections have often been accepted, the Houses have not formally
acknowledged that their investigatory powers are limited by a
doctrine of executive privilege. Those supporting the existence of
an executive privilege have maintained that a certificate of the
responsible Minister asserting the privilege should be treated as
The Parliamentary Privileges Act 1987
does not clarify the law in this regard. The Joint Select Committee
on Parliamentary Privilege of 1982-84 considered the
matter(107) but thought it 'impossible to devise any
means of eliminating contention between the' parliamentary and
executive arms of government 'without one making major concessions
to the other'. In its view 'the wisest course is to leave to
Parliament and the Executive the resolution of clashes in this
quintessentially political field'.(108)
It is possible that a clash between the Senate
and the Executive in this 'political field' might arise for
judicial determination if the Senate were to adjudge the officer or
officers of the Executive who claimed executive privilege to be
guilty of contempt in refusing to provide information sought, and
were to resolve that they be imprisoned for their contempt. In that
event the officers might seek judicial review of the Senate's
action and the court would find it necessary to decide whether the
action of the officers was capable of being regarded as in contempt
of the House.(109)
Some intimation of the position the High Court
might take in such a case provided by its recent decision in
Egan v Willis,(110) on appeal from New South
Wales. In that case a State Minister sought review of a decision of
the State's Legislative Council to suspend him from the service of
the House. The suspension followed the Minister's failure to table
certain documents he had been ordered to table. Although the case
did not involve consideration of a claim of executive privilege,
the Court clearly recognised the right of the House to order the
tabling of documents by the Minister and to coerce compliance with
that order by suspension. That view was based largely on what were
seen to be principles of responsible government-principles
concerning the relationships between the executive and
parliamentary arms of government under a Westminster style of
In a subsequent case, arising from the same
course of events, the New South Wales Court of Appeal ruled that
the investigatory powers of the Houses of the State Parliament are
not subject to certain principles which constrain the powers of
courts in the exercise of their judicial functions. In the opinion
of the New South Wales Court, demands by a House for production or
giving of evidence cannot be resisted on the ground that the
evidence sought is protected by legal professional privilege or the
so-called public interest immunity. The one exception allowed by
the State court was in respect of proceedings in
This decision of the New South Wales Court is
not, of course, definitive of the ambit of the investigatory powers
of the Houses of the Federal Parliament. Nevertheless it is an
indication of the preparedness of the judicial branches of
government to accord extensive powers of discovery to the
legislative arms of government, and to do so by reference to
conceptions of the roles of representative and popularly elected
legislative Houses in political systems such as ours.
In 1994 a Bill was introduced in the Senate
which, if enacted, would have enabled disputes concerning the right
of the Houses to demand information to be determined by the Federal
Court of Australia. The Bill-The Parliamentary Privileges Amendment
(Enforcement of Lawful Orders) Bill-made provision for prosecutions
to be initiated, by authority of the Houses and their committees,
for the offence of failing to comply with a lawful order of a House
or a parliamentary committee, without reasonable excuse. It would
be a defence to a prosecution for this offence that the order in
question required the giving of evidence or disclosure of a
document and that disclosure of the information 'would be
substantially prejudicial to the public interest' and 'the
prejudice to the public interest would not be outweighed by the
public interest in ensuring that a House and its committees can
conduct inquiries freely.' The penalties the Federal Court might
impose for the statutory offence were to be the same as those the
Houses themselves might impose in exercise of their contempt
jurisdiction. But in addition the Court would have been authorised
to make such orders as were 'necessary to prevent a continuation or
recurrence of the offence and to ensure compliance with the lawful
order of the House or committee in respect of which the offence was
The Bill made special provision in relation to
officers and employees of the Commonwealth who committed the
statutory offence because of a direction of a minister. They could
not be convicted of or penalised for the offence. On the other hand
they could be subject to court orders to compel compliance with a
lawful parliamentary order.
Had the Bill been enacted it would not have
deprived the Houses of their jurisdiction to punish those who
failed to comply with their lawful orders. On the other hand, once
a prosecution for the statutory offence had been commenced in the
Federal Court, the Houses would have been deprived of power to
punish the accused for contempt of Parliament.
The Parliamentary Privileges Amendment
(Enforcement of Lawful Orders) Bill 1994 was referred to the Senate
Committee of Privileges. That Committee recommended that the Bill
not be proceeded with, principally on the ground that it was not
considered appropriate for courts to decide whether it was or was
not in the public interest that certain information be disclosed to
the Houses or their committees.(112)
The powers of the Houses to extract information
in documentary form from the executive branch have no doubt been
strengthened by the Freedom of Information Act 1982
(Cwlth). Agencies of the executive branch are now unlikely to claim
executive privilege in respect of documents which are accessible to
members of the public under this legislation.
of Parliamentary Witnesses
Persons who appear as witnesses before the
Houses of the Federal Parliament receive all of the protections
afforded by Article 9 of the Bill of Rights 1689 and
section 16 of the Parliamentary Privileges Act 1987.
They also receive protection under section 12 of the Act. This
section creates certain criminal offences triable in the ordinary
courts. Sub-section (1) provides that:
A person shall not by fraud, intimidation, force
or threat, by the offer or promise of any inducement or benefit, or
by other improper means, influence another person in respect of any
evidence given or to be given before a House or a committee, or
induce another person to refrain from giving any such evidence.
Sub-section (2) provides that:
A person shall not inflict any penalty or injury
upon a person, or deprive of any benefit, another person on account
(a) the giving or proposed giving of any
(b) any evidence given or to be given... .
These provisions could be invoked against
officers of the executive branch who have attempted to prevent
their subordinates from giving evidence or who have victimised them
on account of the evidence they have given.
The Act of 1987 does not specify what other
protections may be afforded to parliamentary witnesses.
Specifically it does not indicate whether they can rely on the
protections which would be available to them were they to be
witnesses before courts of law or tribunals. It has generally been
assumed that the Houses and their committees are not bound by
curial rules of evidence. But courts have taken the view that some
of these rules are of such a fundamental nature that they bind
extra-curial bodies which have statutory powers to coerce the
giving of evidence, unless clear statutory provision has been made
to exempt a body from the operation of the rules. The fundamental
rules include the privilege against self-incrimination and legal
professional privilege.(113) The federal Royal
Commissions Act 1902, as amended, modifies the law regarding
the privilege of self-incrimination so far as it would otherwise
apply to federal royal commissions.(114) Similar
modifications are contained in other federal Acts to do with
extra-parliamentary bodies of inquiry.(115)
There is nothing in the Australian Federal
Constitution which expressly guarantees to those who are summoned
to attend as witnesses before the Houses of the Federal Parliament
or their committees any minimal rights. It has, however, been
recognised that it is desirable that parliamentary inquiries be
conducted, as far as possible, in ways which conform with notions
of natural justice and which are attentive to some of the curial
rules of evidence. In 1984 the Joint Select Committee on
Parliamentary Privilege recommended that the Houses of the Federal
Parliament declare, by resolution, principles and practices
concerning the conduct of parliamentary inquiries.(116)
The Senate adopted that recommendation in a series of resolutions
passed on 25 February 1988.(117)
Australia has since March 1976 been a party to
the International Covenant on Civil and Political Rights (the
ICCPR). This instrument is not part of Australian domestic law,
though it is something courts may take into account in resolving
ambiguities in statutes and in developing the common law.
Australia's accession to the First Optional Protocol of the ICCPR
means that even if governmental acts are in accordance with
Australian law, they may be the subject of complaint to the United
Nations' Human Rights Committee on the ground that they violate the
There are several provisions in the ICCPR which
have a bearing on the law of parliamentary
privilege.(118) Article 14(1), for example,
provides that in the determination of criminal charges against
them, 'everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law'.
Charges of breach of parliamentary privilege and contempt of
Parliament are classifiable as criminal charges, but can it be said
that Houses of Parliament, in determining such charges, are acting
as independent and impartial tribunals? In Demicoli v
Malta(119) the European Court of Human Rights
considered whether Malta's House of Representatives had acted in
breach of Article 6 of the European Convention on Human
Rights-a provision similar to Article 14(1) of the ICCPR-when
it adjudged a journalist guilty of contempt and imposed a penalty
upon him. The European Court ruled that Article 6 had been
infringed, mainly because the two Members of the House who had been
defamed by the journalist had participated in the adjudicatory
proceedings before the House. The Court did not find it necessary
to decide whether the exercise of a penal jurisdiction by the House
in cases of alleged contempt was incompatible with Article 6,
though the European Commission of Human Rights seems to have
thought that it was. What the Court's decision suggests is that
Members of Parliament who are, in a sense, victims of alleged
offences against Parliament should not participate in adjudications
of those offences.
Article 14 of the ICCPR also prescribes
minimal requirements of due process for the determination of
criminal charges. The procedures for the protection of witnesses
before the Senate's Privileges Committee, set out in
resolution 2 of the resolutions on parliamentary privilege
agreed to by the Senate on 25 February 1988, appear to conform
with most of these requirements. There may, however, be a question
about whether Australian law regarding judicial review of
parliamentary convictions and sentences for offences against a
parliament conforms with Article 14(5). This provides that:
'Everyone convicted of a crime shall have the right to his
convictions and sentence being reviewed by a higher tribunal'.
Article 14(5) does not indicate what form this review must
take. Must it, for example, allow for review of the fact findings
of trial court or may reviews be limited to determination of
whether some error of law has occurred? Australian courts would
certainly be entitled to take Article 14(5) into account when
considering the scope of their jurisdiction to review parliamentary
convictions and sentences for parliamentary offences.
Prior to the enactment of the Parliamentary
Privileges Act 1987 there might have been doubts about whether
Australian federal law on parliamentary offences conformed with the
stipulation contained in Article 9(1) of the ICCPR that: 'No
one shall be deprived of his liberty except on such grounds and in
accordance with such procedures as are established by law'. The
1987 Act does not define parliamentary offences with precision, but
it at least specifies essential elements of such offences.
Nonetheless there may be a query about whether the procedures for
dealing with charges of such offences have been 'established by
Article 19 of the ICCPR declares that
'Everyone shall have the right to freedom of expression ...'. It
recognises that this right 'carries with it special duties and
responsibilities' and 'may therefore be subject to certain
restrictions ...'. But Article 19 declares that these
shall only be such as are provided by law and
(a) for respect of the rights and reputations of
(b) for the protection of national security or
of public order (ordre public), or of public health or
Domestic laws which immunise participants in
parliamentary proceedings against legal liabilities on account of
what they have said in the course of those proceedings cannot be
regarded as inconsistent with Article 19. On the other hand
domestic laws which operate so as to inhibit the freedom of members
of the public to express opinions on parliamentary affairs and
proceedings may be seen to be restrictive in ways not permitted by
Article 19. I have already drawn attention to the inhibitions
on freedom of expression which may have been created by
section 16(3) of the Parliamentary Privileges Act
1987.(121) The High Court of Australia has still to
resolve the question whether this provision violates the implied
constitutional freedom of political communication, or must be read
down in light of that freedom.
Whither Parliamentary Privilege?
The Parliamentary Privileges Act 1987
is essentially the handiwork of parliamentarians. It was enacted
following a comprehensive review of the law by a Joint Select
Committee of the Houses of the Federal Parliament and the Bill for
the Act was introduced by the Presiding Officers of the Houses
rather than by Ministers. The Act brought about some important
changes in the law though it left some aspects of the prior law
untouched, for example that relating to parliamentary
Under the Act the penal jurisdiction of the
Houses has been delimited and slightly reduced. It has been
delimited by prescription of essential elements of the offences
triable and punishable by the Houses(122) and by
prescription of the maximum penalties they may
impose.(123) It has been reduced by removal of their
jurisdiction to punish contempt by defamation, otherwise than in
the face of the Houses and their committees,(124) and by
conversion of some parliamentary offences into statutory offences
triable in the courts.(125) The Houses have not,
however, been prepared to surrender their penal jurisdiction to the
courts or to support legislation which defines with precision the
offences punishable by them. It is nonetheless conceivable that the
Houses might support legislation to extend the range of
parliamentary offences triable in the courts to include, say,
failure to attend before a House or committee on summons, without
reasonable cause; refusal on the part of a parliamentary witness to
be sworn or make affirmation, or to answer questions or produce
documents without good cause; or the giving of false
evidence.(126) Provisions to enable such offences to be
tried in the courts might be qualified by a requirement that
prosecutions not be initiated except by direction of the House
The Parliamentary Privileges Act 1987
does not attempt to define or delimit the investigatory powers of
the Houses and their committees. The investigatory powers of
standing parliamentary committees established by statute are
necessarily limited as regard the matters which may be the subject
of inquiry by those committees, but no good purpose would be served
by inclusion within the Parliamentary Privileges Act 1987
of provisions which would tie the hands of the Houses in relation
to other matters of inquiry. On the other hand there is something
to be said in favour of inclusion within a general Act such as the
1987 Act of provisions which make it known that the Houses and
their duly authorised committees have power to require the
attendance of persons and the production of documents, and the
giving of evidence under oath or affirmation, and to order the
arrest of persons who have defied summons to attend and have them
brought before the House or the relevant parliamentary committee.
Provisions of these kinds are contained in the Royal
Commissions Act 1902 (Cwlth) and have been so included
because, at common law, royal commissions have no coercive powers.
Members of the public may not always appreciate that, legally,
there is a distinction between inquiries by royal commission and
inquiries by Houses of Parliament and by parliamentary committees.
A statute declaratory of the powers of the Houses of a Parliament
could well incorporate provisions to give statutory expression to
powers which already exist under section 49 of the
Constitution. There could, however, be differences of opinion about
whether the grounds on which witnesses may decline to answer
questions should be specified in legislation.
Reference has already been made to the
constitutional issues which attend the exclusionary rule of
evidence contained in section 16(3) of the Parliamentary
Privileges Act 1987.(127) Should this provision
survive constitutional challenge there could be moves to have it
modified by addition of a clause to permit waiver of the rule in
certain circumstances. Section 13 of the United Kingdom's
Defamation Act 1996 permits the exclusionary rule to be
waived by individual participants in parliamentary proceedings but
only in relation to reception of evidence relevant to suits for
defamation. Those who exercise the right of waiver do not, however,
incur any legal liability for what they have said in the course of
parliamentary proceedings. The immediate object of section 13
was to make it possible for an MP to pursue an action for
defamation against a newspaper in respect of statements made about
the MP's conduct in Parliament. A court had stayed the action on
the ground that the defendant newspaper was effectively precluded
from defending the suit in that Article 9 of the Bill of
Rights 1689 rendered evidence of what had occurred in Parliament
inadmissible. Section 13 of the United Kingdom Act has been
criticised by a number of commentators(128) and it would
probably not be seen as a provision which should be emulated by
The United Kingdom Parliament's Joint Committee
on Parliamentary Privilege has recommended that section 13 of the
Defamation Act 1996 be repealed and be replaced by a provision
which authorises the Houses to waive the privilege, but not so as
to expose anyone to legal liability.(130)
A matter of continuing concern is the protection
which should be accorded to Members' correspondence and
records.(131) As has been mentioned,(132)
section 16 of the Parliamentary Privileges Act 1987
provides very limited protection in this regard. It also offers no
protection against searches and seizures pursuant to valid search
warrants or authorised interceptions of telecommunications In same
circumstances, however, a House might regard such activities as 'an
improper interference ... with the free performance by a member of
the member's duties as a member' and thus an offence against the
House within the meaning of section 4 of the
- G. S. Reid and Martyn Forrest, Australia's Commonwealth
Parliament 1901-1988, Chapter 6 of this work describes
proposals for legislation. Carlton, Vic., Melbourne University
Press, 1989, p. 249.
- The final Report of the Committee was presented in October
1984-PP No 219/1984. The background is described in Reid and
Forrest, op. cit., pp. 266-9 and H. Evans, 'Parliamentary
Privilege: Changes to the Law at Federal Level' (1988) 11
University of New South Wales Law Journal.
- Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225;
Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727.
- The member for Kalgoorlie, Hugh Mahon, was expelled by the
House of Representatives in 1920-V & P (HR-1920-1)
423, 425, 431-3; see Reid and Forrest, op. cit., (n 1) p. 271
and Gavin Souter, Acts of Parliament, Melbourne University
Press, Carlton, Vic., 1988, pp. 182-4.
- On contempt by defamation see Enid Campbell, Parliamentary
Privilege in Australia Melbourne University Press, 1966,
Chapter 8. Seditious libels in respect of the Federal
Parliament are still offences under the federal Crimes Act
1914-see sections 24A, 24D, 24E and 24F.
- Section 14.
- Section 50 provides that:
Each House of the Parliament may make rules and
orders with respect to:
(i) The mode in which its powers, privileges and
immunities may be exercised and upheld, and
(ii) The order and conduct of its business and
proceedings either separately or jointly with the other House.
- See M. Harris, 'Sharing the Privilege: Parliamentarians,
Defamation and Bills of Rights', Auckland Law Review 47,
1996, p. 8. A number of the recommendations of the United Kingdom's
Joint Committee on Parliamentary Privilege are based upon
provisions in the federal Act-HL Paper 43-I; HC Paper 214-I, 1999.
- Section 3 of Queensland's Parliamentary Papers Act
1992 contains a definition of proceedings in Parliament which
is based on the definition contained in section 16(2) of the
Parliamentary Privileges Act 1987 (Cwlth). The definition
is declared to be for the purposes of both this State Act and also
for the purposes of Article 9 of the Bill of Rights 1689.
- The debates at the Constitutional Conventions on what became
section 49 are summarised in Reid and Forrest, op. cit., pp. 250-2.
The debates reveal that the only question of much concern was
whether the Federal Parliament should have authority to endow its
Houses with powers greater than those possessed by the House of
Commons in 1901.
- In R v Richards; Ex parte Fitzpatrick and Browne,
1955, 92 CLR 157 at pp. 167-9, the High Court suggested that the
Parliamentary Papers Act 1908 (Cwlth) and the
Parliamentary Proceedings Broadcasting Act 1946 (Cwlth)
rest not on section 49 of the Constitution, but rather on
section 51(xxxix) of the Constitution, the provision which
empowers the Federal Parliament to make laws with respect to, inter
alia, 'Matters incidental to the execution of any power vested by
this Constitution in the Parliament or in either House thereof ...
or in the Federal Judicature ...'.
- The 1992 cases were Nationwide News Pty Ltd v Wills,
1992, 177 CLR 1 and Australian Capital Television Ltd v
Commonwealth, 1992, 177 CLR 106. See also Lange v
Australian Broadcasting Corporation, 1997, 189 CLR 520.
- The paper complements chapter 6 in Reid and Forrest, op. cit.,
pp. 249-302. That chapter examines the concept of parliamentary
privilege. It also surveys the history of attempts to produce a
statutory declaration of the privileges of the houses of the
Federal parliament, their members and committees. It presents an
analysis of cases of alleged breach of privilege and contempt
between 1901 and 1987.
- The Houses of the New South Wales Parliament were accorded
limited punitive powers by the Parliamentary Evidence Act
1901, an Act which consolidated provisions dating back to
- See Campbell, op. cit., p. 24.
- ibid., pp. 24-5.
- Information about federal cases up to 1987 is presented in
tabular form in Reid and Forrest, op. cit., in Chapter 6 of
- Chapter 6 of Reid and Forrest (op. cit., n 1) records
various commentaries on this case. See also Campbell, op. cit., pp.
- Mr Frank Green, then the Clerk to the House, advised that
no breach of privilege could be established: see Campbell, op.
cit., p. 159.
- PP 1954-5 (HR) No 2.
- The returns made to the applications for habeas corpus are set
out in (1955) 92 CLR 157.
- R v Richards; Ex parte Fitzpatrick and Browne (1955)
92 CLR 157 at 167. On this aspect of the case see A. Twomey,
'Reconciling Parliament's Contempt Power with the Constitutional
Separation of Powers' (1997) 8 Public Law Review 88.
Justice Kirby has signalled that the correctness of this ruling is
open to reconsideration by the High Court: Egan v Willis
(1998) 158 ALR 527 at para .
- Sheriff of Middlesex (1840) 11 A & E
273; 113 ER 419.
- (1955) 92 CLR 157 at pp. 162 & 164.
- ibid., p. 162.
- The term 'offence' is defined in section 3(3).
- Joint Select Committee on Parliamentary Privilege, Final
Report, October 1984 (PP No 219/1984)
- ibid., para 7.14.
- Section 7(6).
- Section 17 of the Act provides that a certificate signed
by or on behalf of the presiding officer of a House stating that a
specified fine has been imposed on a specified person by a House is
evidence of that matter.
- Arguments for an against a penal jurisdiction are set out in
H. Evans, ed, Odgers' Australian Senate Practice,
8th ed, Canberra, AGPS, 1995, pp. 58-61. See also chapter 6 of
the Report of the Joint Committee on Parliamentary Privilege, op.
- Section 12 and 13 of the Act create offences triable in
- Joint Select Committee on Parliamentary Privilege, Final
Report, October 1984 (PP No 219/1984), Ch. 7.
- Resolution 6. (The resolutions are reproduced in an
appendix to Evans, op. cit. The proposed resolutions and an
explanatory memorandum were presented to the Houses on the
introduction of the Bill for the 1987 Act: see CPD (Senate) 17
March 1987, pp 792-9; CPD (HR) 5 May 1987, pp 2629-34; 6 May 1987,
- The principles of natural justice require that a decision maker
should be above reasonable apprehension of bias and that persons
who stand to be affected by a decision should be afforded a
reasonable opportunity of being heard.
- Final Report (PP No 219/1984),
- Resolution 2.
- See Notes 22 and 109.
- For an example of corrective action see Senate Committee of
Privileges, 72nd Report, June 1988.
- See C. Lloyd, Parliament and the Press, Melbourne
University Press, Carlton, Vic., 1986, pp. 60-1, pp. 65-9,
pp. 149-50, 1988.
- See Note 4.
- See Campbell, op. cit., pp. 82-5.
- Doyle v Falconer (1866) LP 1 PC 328; Barton v
Taylor (1886) 11 AC 197; Egan v Willis (1998) 158 ALR
- Enid Campbell, 'Contempt of Parliament and the Implied Freedom
of Political Communication' 10 Public Law Review 196.
- According to the Julian calendar the Bill of Rights was enacted
in 1688, but according to the calendar inaugurated by the Calendar
(New Style) Act 1751 it was enacted in 1689.
- On the history of Article 9 see G. F. Lock, 'The 1689
Bill of Rights' (1989) 37 Political Studies 540 and
G Griffith, Parliamentary Privilege: Use, Misuse and
Proposals for Reform (NSW Parliamentary Library, Sydney,
Briefing Paper 4/97), pp. 12-14.
- The cases are summarised in Griffith, op. cit., pp. 24-8.
- This is a defence under the common law of defamation. It is
also a statutory defence, though sometimes with qualifications:
Parliamentary Privileges Act 1987 (Cwlth) section 10;
Defamation Act 1974 (NSW) sections 24, 26,
Schedule 2; Defamation Act 1889 (Qd)
section 13(1)(a); Wrongs Act 1936 (SA)
section 7(ab); Defamation Act 1957 (Tas),
section 13(1)(a); Criminal Code (WA)
section 354(1); Defamation Act 1938 (NT)
section 16(1)(ba). See also Burchett v Kane  2
NSWLR 266; James v John Fairfax & Sons Ltd  4
NSWLR 466; Baffsky v John Fairfax & Sons Ltd (1991)
106 FLR 21 at p. 40.
- See Report from the Select Committee on the Official Secrets
Act (HC 101 of 1938-9) para 4; Fifth Report from the
Committee of Privileges (HC 305 of 1956-7); 591 HC Deb
5s, col 334 (8 July 1958); GF Lock, 'Parliamentary
Privilege and the Courts: The Avoidance of Conflict' 
Public Law 64. English judicial decisions on whether such
communications are absolutely privileged for the purposes of the
law of defamation are conflicting: see Beach v Freeson
 1 QB 14; Rost v Edwards  2 QB 460;
Koolman-Darnley v Gunter, The Times 19 April
- Courts have held that under the laws of defamation such
communications are not absolutely privileged but are protected by
qualified privilege: R v Rule  2 KB 375;
Grassby (1991) 55 A Crim R 419 at pp. 430 &
- See R v Turnbull  Tas SR 80; D. McGee,
'Parliament and Caucus' New Zealand Law Journal, ,
- See Roman Corporation Ltd v Hudson's Bay Oil and Gas Co
Ltd (1972) 23 DLR (3d) 292 at 298; (1973) 36 DLR (3d) 413 at
419; Re Clark and Attorney-General of Canada (1978) 81 DLR
(3d) 33; Stopforth v Goyer (1978) 87 DLR (3d) 373 at 381;
Australian Broadcasting Corporation v Chatterton (1986) 46
SASR 1 at 33 and 36; Hutchinson v Proxmire, 99 S Ct
2675 (1979); Toyne v Everingham (1993) 91 NTR 1.
- PP No 219/1984, paras 5.5-5.28.
- ibid., para 5.29.
- Under section 17 of the Parliamentary Privileges Act
1987 (Cwlth) a certificate signed by or on behalf of a
presiding officer of a House, or a chairman of a committee, which
states that 'a particular document was prepared for the purpose of
submission, and submitted, to a House or committee' is evidence of
- The question of what is a proceeding in Parliament may arise in
contexts other than Article 9, for example when a defendant to
an action for defamation pleads the defence of fair and accurate
report of parliamentary proceedings.
- O'Chee v Rowley (1997) 150 ALR 199. See also Senate
Committee of Privileges, 67th Report (PP
- 150 ALR 199 at pp. 212 & 215, 1997.
- PP No 141/1997, para 2.12.
- ibid., para 2.46.
- See Senate Committee of Privileges, 72nd Report, June
- ibid., para 2.33.
- See 45 above.
- These rulings were made in the course of the first and second
trials of Justice Lionel Murphy of the High Court. The ruling of J.
Cantor in the first trial is described in Sir C. Harders,
'Parliamentary Privilege-Parliament versus the Courts:
Cross-examination of Committee Witnesses' (1993) 67 Australian
Law Journal 109. J. Hunt's ruling in the second trial is
reported: (1986) 5 NSWLR 18.
- See Second Reading speeches: CPD (Senate) 7 Oct 1986, pp 892-5;
CPD (HR) 19 March 1987, pp 1154-6.
- Amman Aviation Pty Ltd v Commonwealth, 81 ALR 710 at
p. 718, 1988.
- Hamsher v Swift, 33 FCR 545 at p. 564, 1992.
- Evidence of parliamentary proceedings may also be adduced to
establish the defence of fair and accurate report under
-  1 AC 321.
- ibid., p. 489.
- Laurance v Katter, 141 ALR 447 at p. 484 per J. A.
- (1996) 141 ALR 447.
- The case came before the Court of Appeal by way of a demurrer
to the defence.
- (1996) 141 ALR 447 at p. 486.
- ibid., p. 485.
- ibid., p. 486.
- ibid., pp. 490-1.
- ibid., pp. 478-81.
- 28 June 1997, transcript p. 5.
- Potential applications of section 16(3) are discussed in
E. Campbell, 'Parliamentary Privilege and the Admissibility of
Evidence', (1999) 27 Federal Law Review, p. 367.
- Prebble v New Zealand Television Ltd  1 AC 321
at p. 338.
- Chu Kheng Lim v Minister for Immigration, Local Government
and Ethnic Affairs (1992) 176 CLR 1; Nicholas v The
Queen (1998) 72 ALJR 456.
- Queensland Electricity Commission v Commonwealth
(1985) 159 CLR 192 at 217, 235; Re Tracey; Ex parte Ryan
(1989) 166 CLR 518; Re Education Union; Ex parte Victoria
(1995) 184 CLR 188 at p. 231; Victoria v Commonwealth
(1996) 187 CLR 416.
- Lange v Australian Broadcasting Corporation (1997) 189
CLR 520 at pp. 561-2.
- Section 16(3) was enacted to counteract the judicial
rulings in the case of Justice Murphy-see Note 64.
- CPD (Senate) 17 March 1987 at pp. 808 & 813; CPD (HR) 6 May
1987 at p. 2668.
- Parliamentary Privileges (Amendment) Bill, 1 R 17 Sept 1992; 2
R 8 Oct 1992.
- Report, HL Paper 43-I; HC Paper 214-I, 1999.
- See the resolutions agreed to by the Senate on 25 February
- See n 46 above.
- See Resolution 5 of Resolutions agreed to by the Senate on
25 February 1988.
- See Evans, op. cit., (n 29) 65-6; see also PP
Nos 108/1996; 48/1997; 89/1997; 158/1997; 183/1997.
- e.g. Royal Commissions Act 1954 (Cwlth).
- The term 'tribunal' is defined in section 3(1).
- (1997) 42 NSWLR 429.
- (1997) 71 ALJR 1604.
- The case is discussed in Enid Campbell, 'Investigating the
Truth of Statements made in Parliament: The Australian Experience'
 Public Law, p. 125.
- B. Walker, 'Has Lange Really Settled the Common Law?
(1997) 8 Public Law Review 216 at p. 218.
- See Campbell, op. cit., (n 5) Ch. 10.
- Committees to whom investigatory powers are delegated are
authorised to send for persons and papers.
- The statutory committees include the Australian Security
Intelligence Organization Committee, the Corporations and
Securities Committee, the National Crime Authority Committee, the
Public Accounts and Audit Committee and the Public Works Committee.
- See Evans, op. cit., (n 29) pp. 496 & 501.
- See Attorney-General for the Commonwealth v Colonial Sugar
Refining Co Ltd (1913) 15 CLR 182;  AC 237; Enid
Campbell, 'Commonwealth Powers and State Parliamentary Privileges',
20 University of Queensland Law Journal 201.
- See article referred to in n 102.
- See G. Lindell, 'Parliamentary Inquiries' (1995) 20
Melbourne University Law Review 383.
- Final Report, Oct 1984 (PP No 219/1984), pp.
- ibid., para 9.15.
- See Page 19 and Note 22 above.
- (1998) 158 ALR 527.
- Egan v Chadwick, 46 NSWLR 563, 1999.
- Senate, Committee of Privileges, 49th Report. For an analysis
of the Bill and constitutional issues raised by it see Lindell (n
104 above) pp. 404-8.
- S. McNicol, The Law of Privilege (Law Book Co,
Sydney, 1992) Chs. 2 & 3.
- Royal Commissions Act 1902.
- e.g. National Crime Authority Act 1984
- Final Report, Oct 1984 (PP No 219/1984)
- Resolution 1.
- See D. O'Brien, 'Parliamentary Privilege and the Implied
Freedom of Speech'  Queensland Law Society Journal
569 at p587; A. Twomey, 'Parliamentary Privilege: Who wants to
take this to Geneva?' (1995) 1 Constitutional Centenary
Foundation Newsletter 7; A. Twomey, 'Reconciling
Parliament's Contempt Power with the Constitutional Separation of
Powers' (1997) 8 Public Law Review 88 at pp. 102-3.
- (1991) 1 EHRR 47.
- Query: Can it be said that the procedures have been
'established by law' simply because they may have been prescribed
in the standing rules and orders of the Houses?
- See Note 44.
- Section 4.
- Section 7.
- Section 6.
- Sections 12 and 13.
- The United Kingdom Parliament's Joint Committee on
Parliamentary Privilege has recommended that jurisdiction to try
such offences should be transferred to the courts.
- See Page 13, Note 81 above.
- A. Sharland and I. Loveland, 'The Defamation Act 1996 and
Political Libels'  Public Law 113 and
K. Williams, 'Only Flattery is Safe: Political Speech and the
Defamation Act 1996' (1997) 60 Modern Law Review 388.
- The Western Australian Commission on Government recommended
that there be no power of waiver-Report No 1 p. 369,
- Report HL Paper 43-I; HC Paper 214-I (1999) paras 69 and 73.
- See Parliamentary Debate, House of Representatives, 29
June 1999, pp. 7698-9.
- See Parliamentary Debates House of Representatives, 29
June 1999, pp. 7697-9, 2939-40. The possibility that an offence
against a House may have been committed seems to have been
recognised by J. French in Crane v Gething (2000) 169 ALR
727. In this case his Honour concluded that the seizure of various
documents from a Senator's electoral and parliamentary offices,
pursuant to a search warrant issued by a magistrate, was not in
breach of section 16 of the Parliamentary Privileges Act
1987. The material which had been seized was not yet being
presented to a court as evidence of alleged criminal conduct.