Chapter 2 - Parliamentary Privilege: immunities and powers of the Senate

Statutory declaration of freedom of speech: background of the 1987 Act

The Parliamentary Privileges Act 1987 was enacted primarily to settle a disagreement between the Senate and the Supreme Court of New South Wales over the scope of freedom of speech in Parliament as provided by article 9 of the Bill of Rights of 1689.

Article 9 is part of the law of Australia and applies to the Houses of the Commonwealth Parliament by virtue of section 49 of the Constitution. The famous article declares:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. (I Will. & Mar., Sess. 2, c.2, spelling and capitalisation modernised. The commas which appear in some versions are not in the original text.)

Two judgments by the Supreme Court of New South Wales in 1985 and 1986 interpreted and applied the article in a manner unacceptable to the Parliament.

The question which gave rise to these judgments was whether witnesses who gave evidence before a parliamentary committee could subsequently be examined on that evidence in the course of a criminal trial. The case in question was R. v Murphy (the first judgment was not reported; the second is in 64 ALR 498), involving the prosecution of a justice of the High Court for attempting to pervert the course of justice. The principal prosecution witnesses in the two trials had given evidence before select committees of the Senate, which had conducted inquiries to ascertain whether the justice should be removed from office by parliamentary address under section 72 of the Constitution (see Chapter 20 for an account of this case). The accused justice had also given evidence, in the form of a written statement, to one of the committees.

The view taken by the Senate, which submitted its claim to the trial judges, was as follows. Evidence as to what the witnesses or the accused said before the Senate committees could be admitted for the purpose of establishing some material fact, such as the fact that a person gave evidence before a committee at a particular time, if that fact were relevant in the trials. The evidence put before the committees could not be used in the trials for the purpose of supporting the prosecution or the defence, nor particularly for attacking the evidence of the witnesses or the accused whether given before the committees or before the court.

This view of the effect of article 9 was based upon history and judicial authority. The history of the establishment of freedom of speech makes it clear that the parliamentary intention was to exclude examination by the courts of parliamentary proceedings; in the words of Blackstone, that “whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates and not elsewhere” (Commentaries on the Laws of England, 1765, pp 58-9).

The claim of Parliament to exclude the courts from examination of parliamentary proceedings was historically closely linked with another claim, namely, that the courts should have no jurisdiction over that part of the law relating to parliamentary privilege. That claim has long since been abandoned by the British Parliament, and constitutionally could not even be pretended by the Australian Houses, but it is not the same immunity as is asserted in article 9 and is not an essential foundation of the article, which establishes a very broad immunity of parliamentary proceedings from examination in the courts.

The Senate’s interpretation of article 9 was supported by a number of judgments which, while not dealing explicitly with the question of the examination of witnesses on their parliamentary evidence, gave weight to the interpretation urged by the Senate. The judgments in Britain and in Australia were consistent.

In Dingle’s case (Dingle v Associated Newspapers Ltd. 1960 2 QB 405) it was held that it was not permissible to impugn the validity of the report of a select committee in court proceedings. In the Scientology case (Church of Scientology of California v Johnson-Smith 1972 1 QB 522) it was held that the privilege of freedom of speech was not limited to the exclusion of any cause of action in respect of what was said or done in Parliament, but prohibited the examination of parliamentary proceedings for the purpose of supporting a cause of action arising from something outside of those proceedings. In R. v Secretary of State for Trade and others, ex parte Anderson Strathclyde plc 1983 2 All ER 233 it was held that what was said in Parliament could not be used to support an application for relief in respect of something done outside Parliament. In the Comalco case (Comalco Ltd. v Australian Broadcasting Corporation 1983 50 ACTR 1) it was held that, while evidence of what occurred in Parliament is not inadmissible as such, a court has a duty to ensure that the substance of what was said in Parliament is not the subject of any submission or inference.

These judgments, and others, indicated that article 9 prevents proceedings in Parliament being used to support an action or being questioned in a very wide sense. The Australian Houses were confident of the correctness of their view of article 9, not only as a matter of law, but because this wide protection is necessary for proceedings in Parliament to be genuinely free; as was stated by the Chief Justice in a judgment of the High Court, “a member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences” (Sankey v Whitlam 1978 142 CLR 1 at 35).

There were two questions which might have been thought to be still unanswered in the interpretation of article 9. The first was whether evidence given by witnesses before a parliamentary committee receives the same protection as statements made by members in debate in Parliament. It has always been thought that evidence before a committee is as much a part of “proceedings in Parliament” as debates in the Houses, and this view was supported by older British and Australian cases. In R. v Wainscot 1899 1 WAR 77 it was held that a witness’s evidence before a committee is not admissible against the witness in subsequent proceedings, and in Goffin v Donnelly 1881 6 QBD 307 it was held that an action for slander could not lie in respect of statements made in evidence before a committee. This question was not raised in the proceedings in R. v Murphy; the parliamentary claim that the evidence of witnesses is part of parliamentary proceedings was not questioned in the submissions or in the judgments.

The other question was whether some distinction could be drawn between evidence given by a defendant and the evidence given by witnesses. It might have been thought that a defendant, being the person in peril, civilly or criminally, in court proceedings, was perhaps more entitled to the protection of not having statements made before a committee used by the plaintiff or prosecution than those who were merely witnesses in the court proceedings. This interpretation was put forward by the defendant in both trials: it was claimed that the defence could examine prosecution witnesses on their parliamentary evidence for the purpose of attacking their court evidence, but that the parliamentary evidence could not be used against the defendant. This interpretation was rejected not only by the Houses but by the judges in both judgments, and no such distinction was drawn.

The effect of both judgments in R. v Murphy was that the prosecution and the defence made free use of the evidence given before the Senate committees for their respective purposes. The defendant and the prosecution witnesses were subjected to severe attacks using their committee evidence, attacks not only on their court evidence, but on the truthfulness of, and the motives underlying, their committee evidence. In this process the prosecution and the defence made use of evidence given in camera (that is, not in public) before the Senate committees, evidence which neither the committees nor the Senate had published or disclosed to them, and which, in the view of the Senate, they had no right even to possess. This use of the parliamentary evidence was allowed by both judgments.

In the first judgment Mr Justice Cantor proposed that the rationale of article 9 was to prevent harm being done to Parliament and its proceedings, and that this rationale provided a test to determine the use which could be made of evidence of parliamentary proceedings. He also appeared to consider that, in the application of this test, the importance of the evidence to the court proceedings should be weighed against the privilege of freedom of speech, so that the latter would not be an absolute prohibition but a consideration to be balanced against the requirements of the court proceedings. He also appeared to consider that this reasoning was not inconsistent with the previous judgments.

In the second judgment Mr Justice Hunt held that article 9 was restricted to preventing parliamentary proceedings being the actual cause of an action, but did not prevent evidence of those proceedings being used to support an action, either in providing primary evidence of an offence or a civil wrong, or in providing a basis for attacking the evidence of a witness or a defendant in the court proceedings. This reasoning was based upon an interpretation of the legislative purpose of article 9 and on a finding of the proper scope of parliamentary privilege as it relates to court proceedings, and explicitly declined to follow the earlier judgments cited.

The reasoning of the judges was not accepted by the Senate, and was criticised in documents laid before that House by its President. (These papers were later published: ‘Parliamentary Privilege: Reasons of Mr Justice Cantor: an analysis’ in Legislative Studies, Autumn 1986; ‘Parliamentary Privilege: Reasons of Mr Justice Hunt: an analysis’ in Legislative Studies, Autumn 1987.) It was pointed out that the second judgment would allow members of Parliament, as well as witnesses, to be called to account in court for their parliamentary speeches and actions and to be attacked and damaged for their participation in parliamentary proceedings, provided only that those proceedings were not the formal cause of the action.

The judgments, even in the absence of statutory correction, did not represent the law. It was unlikely that they would be followed by other courts, and subsequently there were contradictory judgments, including one by another judge of the Supreme Court of New South Wales.

In R. v Jackson and others 1987 8 NSWLR 116 a former New South Wales minister was charged with receiving bribes. Remarks made by him in the New South Wales Parliament were highly relevant to the case and the prosecution attempted to use them to assist in establishing his guilty motive and intention. The question of parliamentary privilege was argued again by the New South Wales Legislative Assembly, and the judge upheld the previously established interpretation of freedom of speech and declined to allow the admission of the statements made in Parliament. In doing so he explicitly rejected the reasons of Hunt J. which, as he said, pared article 9 down to the bare bone. In R. v Saffron, however, the District Court allowed in camera evidence of a select committee of the NSW Legislative Assembly to be subpoenaed and made available for the use of the defence (reasons for judgment in relation to a subpoena directed to the chairman of the National Crime Authority, 21 August 1987, not reported). In a South Australian case, Australian Broadcasting Corporation and another v Chatterton 1986 46 SASR 1, a judge of the Supreme Court of that state also upheld the traditional interpretation by not allowing a member’s statements in Parliament to be used to support a submission on the intention of statements made outside the Parliament. The judge went so far as to suggest that the repetition outside Parliament by a member of the member’s statements in Parliament was also privileged.

The erroneous New South Wales judgments were partly founded on several misconceptions about the nature of parliamentary privilege, for example, that the traditional interpretation would have it restrict any public criticism of parliamentary proceedings (for a judicial refutation of this misconception, see Hamilton v Al Fayed 1999 3 All ER 317).

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