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

Effect of the 1987 Act

The Parliamentary Privileges Act 1987, unprecedented in being introduced by the President of the Senate, was enacted for the express purpose of overturning the adverse court judgments. It made use of the legislative power under section 49 of the Constitution to enact the traditional interpretation of article 9.

The statutory declaration of the formerly established scope of freedom of speech was accomplished, in section 16 of the Act, in several stages. The first stage made it clear that the Australian Houses possessed the privilege of freedom of speech in the terms of the Bill of Rights:

(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

These terms were used because the Parliament was not legislating to provide for its freedom of speech in the future, but declaring what its freedom of speech had always been. The Houses did not wish to give any credence to the reading down of article 9, especially as the article is part of the law of other jurisdictions, including the Australian states. The provision is thus intended to cover past proceedings in Parliament, although, as will be seen, any intention to legislate with retrospective effect for court proceedings already commenced was disclaimed.

The next stage was to define what is covered by article 9 and protected by it, in other words, to define the scope of the expression “proceedings in Parliament”, which had never been authoritatively expounded. This was done in the following terms:

(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 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 for purposes 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 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 of 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 a committee and the document so formulated, made or published.

This provision, while in general terms, clarifies several uncertainties about the scope of “proceedings in Parliament”, particularly in relation to the status of parliamentary evidence and documents presented to a House or a committee.

The most important provision defines the meaning of “impeached or questioned”. The relevant provision does not explicitly declare that members or witnesses may not be prosecuted or sued for their participation in parliamentary proceedings: that was regarded as beyond doubt and clearly provided by the terms of article 9. By its terms, however, the provision effectively prevents prosecution or suit for proceedings in Parliament. The provision indicates the wider operation of the article and draws the line between the proper and improper admission of evidence of parliamentary proceedings, in accordance with the principles set out above:

(3) 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.

The explanatory memorandum accompanying the bill explains that each of the three paragraphs contains a refinement of the meaning of “impeached or questioned”. Paragraph (a) expresses the principal prohibition contained in article 9. It prevents, for example, a statement in debate by a member of Parliament or the evidence of a parliamentary witness being directly attacked for the purpose of court proceedings, or the motives of the member or the witness in speaking in Parliament or giving evidence being impugned. Thus, it cannot be submitted that a member’s statements in Parliament were not true, or reckless, to support a submission that the member is an untruthful, or reckless, person.

Paragraph (b) prevents the use of proceedings in Parliament to attack the credibility, motives or intentions of a person even where this does not directly call into question those proceedings. This would prevent, for example, members’ speeches in debate or parliamentary witnesses’ evidence being used to establish their motives or intention for the purpose of supporting a criminal or civil action against them, or against another person. Thus a member’s statements outside Parliament cannot be shown to be motivated by malice by reference to a member’s statements in Parliament.

Paragraph (c) is intended to prevent the indirect or circuitous use of parliamentary proceedings to support a cause of action. This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member’s speech in Parliament cannot be used to support an inference that the member’s conduct outside Parliament was part of some illegal activity. It is intended that this would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes that fact, for example, the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day. (See Supplement)

The provision also prevents relying on parliamentary proceedings for the prohibited purposes. This was thought to follow necessarily from the principle that parliamentary proceedings cannot be used to support a cause of action.

The next provision prevents absolutely the admission in court proceedings of any evidence relating to parliamentary evidence taken in camera:

(4) A court or tribunal shall not —

(a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

(b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence, unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

This provision arises from the use by the prosecution and the defence in R. v Murphy of transcripts of evidence taken in camera before one of the Senate committees and not subsequently published by the committee or the Senate.

Subsection (5) provides that in relation to proceedings in a court or tribunal so far as they relate to a question arising under section 57 of the Constitution or the interpretation of a statute, neither the Act nor the Bill of Rights shall be taken to restrict the admission in evidence of an authorised record of proceedings in Parliament or the making of statements, submissions or comments based on that record. This provision ensures that the section does not prevent courts examining parliamentary proceedings for the purposes of ascertaining the parliamentary intention in relation to the interpretation of a statute or of determining constitutional questions arising from disagreements between the two Houses.

Subsection (6) provides that parliamentary proceedings may be examined in court proceedings in relation to an offence concerning parliamentary proceedings. The Parliamentary Privileges Act itself, and some other Commonwealth statutes, create criminal offences, which may be prosecuted through the courts, for improper activities in relation to parliamentary proceedings, offences which, in the absence of the statutory provisions, could be dealt with only by the Houses as contempts of Parliament. Penalties are provided for such offences as the unauthorised publication of in camera evidence and improper influencing of parliamentary witnesses. Because the successful prosecution of such offences may well require the examination of proceedings in Parliament, it was necessary to make another exception in respect of them.

This provision illustrates a difficulty. By enacting criminal remedies to protect its proceedings, the Parliament, in effect, and, it may be said, unwittingly, has made an inroad on the immunity of its proceedings from question in the courts. The first such inroad was made by the British Parliament with a statute of 1892 for the protection of its witnesses. Thus, in order to prosecute successfully the offence of tampering with a witness, it may well be necessary to adduce the witness’s evidence and to draw an inference from that evidence as to whether the witness was improperly influenced. As a matter of fairness, it may then be necessary to allow the defence to examine the witness’s evidence and to call it into question for the purposes of the defence. This is a significant modification of the immunity as it had previously been understood.

Finally, the Houses disclaimed the intention of legislating retrospectively for proceedings on foot:

(7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.

The effect of this provision was that, if some courts had persisted in interpreting article 9 narrowly, the Act applied only to future court proceedings, but to any use of any parliamentary proceedings.

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