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

Is the 1987 Act too restrictive?

The bill for the 1987 Act having been presented in the terms outlined, some senators were concerned that it was too widely drafted, and might be unduly restrictive of the rights of litigants and defendants (see the speech by the then Minister for Resources and Energy, Senator Gareth Evans, QC, SD, 17/3/1987, p. 813, referring to the speech by Senator Cooney at p. 809).

The question was not whether the bill actually represented the traditional established interpretation of article 9, but whether that interpretation might itself be unduly restrictive. This concern soon focused on the question of whether litigants and defendants should be able to make limited use of evidence given before parliamentary committees for the purposes of their court proceedings. There was no thought of speeches by members in Parliament being subjected to any examination in court, but there was a concern that the particular circumstances of the Murphy trials, where the accused and the principal witnesses had given evidence before parliamentary committees on the same matters as in their court evidence, might recur. Consideration was given to including in the relevant clause of the bill an exception which would allow a person who had given evidence before a parliamentary committee to be cross‑examined in court on that evidence for the purpose of showing that the person’s parliamentary and court evidence was inconsistent and that the person’s court evidence was therefore unreliable. Such a use of parliamentary evidence, which would not involve questioning that evidence as such but merely comparing it with evidence given in court for the purpose of making submissions as to the reliability of the court evidence, might preserve the rights of litigants to the extent necessary and prevent any injustice which could be worked by the bill. Normally a witness can be cross‑examined in relation to inconsistent prior statements, and evidence of inconsistent prior statements can be tendered.

This question of whether an exception should be made in the coverage of clause 16 to allow limited examination of a person’s parliamentary evidence was considered during the bill’s passage, and the conclusion was reached that it would be impossible to make such an exception without undermining the whole principle of the bill. (See the remarks by Senator Evans, ibid.)

There are strong arguments in support of that conclusion. In the first place, such an amendment would draw a distinction between evidence given before a parliamentary committee and other proceedings in Parliament, such as speeches or questions by members. It would create an anomalous situation whereby parliamentary evidence would be subject to examination in court but other proceedings in Parliament would not.

Another difficulty with such an amendment has already been suggested. If one party in a civil or criminal action were allowed to seek to undermine the evidence of a witness by using the witness’s parliamentary evidence, as a matter of fairness the other party in the proceedings would have to be allowed to try to rebut that undermining of the witness’s evidence by further use of the parliamentary proceedings. For example, if the defence in a criminal case were allowed to try to demonstrate that a witness’s parliamentary evidence was inconsistent with the witness’s court evidence, the prosecution would have to be allowed to try to rebut that contention, perhaps by showing that the questioning of the witness before the parliamentary committee was misleading or biased, or that the witness was not given proper opportunity to respond to questions put in the committee. This would open the way to the very impeaching and questioning of parliamentary proceedings which it is the aim of article 9 and the legislation to prevent.

Whenever a witness in court proceedings has given evidence or made any statement on the same subject in another forum, it is possible for counsel to claim that the prior evidence or statement was inconsistent with the court evidence, and to attack the witness on that basis. The possibility of such an attack on a witness is often dependent on accidental circumstances, such as the witness having made comments to the press before the legal proceedings. The whole purpose of the legislation being to prevent people being attacked on the basis of their participation in proceedings in Parliament, it was considered neither just nor desirable that witnesses should be subject to attack because they had previously given evidence to a parliamentary committee, perhaps under compulsion.

Parliamentary committees are not bound by the rules of evidence. A parliamentary witness, perhaps under compulsion, may be asked to express the witness’s opinions, feelings, suspicions and doubts, and to give self‑incriminating evidence. It would be unfair to allow a witness subsequently to be attacked in court proceedings on the basis of this evidence, which would not otherwise be admissible in the court proceedings.

Statements made in the course of parliamentary proceedings should be considered to be in the same category as statements subject to other forms of privilege recognised by the law. An example is legal professional privilege. A person may have made an inconsistent statement in communication with the person’s legal adviser, but such a statement is privileged and the person cannot be cross‑examined on it. The rationale of this legal professional privilege has been stated as follows:

The unrestricted communication between parties and their professional advisers has been considered of such importance as to make it advisable to protect it even by the concealment of matter without the discovery of which the truth of the case cannot be ascertained. (Lord Langdale MR in Reece v Trye 1846 9 Beavan 316 at 319. The High Court has adopted this rationale, e.g., in Attorney-General v Maurice 1986 161 CLR 475, see particularly 490.)

Similar considerations apply in relation to what used to be called Crown or executive privilege. The freedom to speak frankly and freely in the course of parliamentary proceedings and the giving of parliamentary evidence should be considered of such importance as to give it the same absolute privilege.

Any injustice which might otherwise be caused by the exclusion of evidence protected by parliamentary privilege may be remedied by the court ordering a stay of proceedings. This has been clearly indicated by courts in Australia, New Zealand and the United Kingdom (Rann v Olsen 2000 172 ALR 395; Prebble v Television NZ Limited 1994 3 NZLR 1). (For a statutory reaction to the Prebble judgment in the UK, see below, under “Waiver” of privilege.) A criminal prosecution may be stayed if evidence is excluded because of public interest immunity (R. v Lappas and Dowling, ACT Supreme Court, ruling 26/11/2003, not reported), and the same principle would apply to evidence excluded because of parliamentary privilege.

The validity of section 16 of the 1987 Act was challenged in the Federal Court in Amann Aviation v Commonwealth 1988 19 FCR 223, but the judge found the Act to be a valid and clear declaration of the previous law. A similar challenge was rejected by the Supreme Court of South Australia in Rann v Olsen 2000 172 ALR 395. The latter judgment rejected the arguments, mooted in academic circles, that parliamentary privilege as explicated in the 1987 Act is inconsistent with the separation of the legislative and judicial powers or the implied right of freedom of political communication in the Constitution. (See also Hamsher v Swift 1992 33 FCR 545.) The Judicial Committee of the Privy Council of the United Kingdom, in a New Zealand case, also observed that the 1987 Act is a correct codification of the law (Prebble v Television NZ Limited 1994 3 NZLR 1). The interpretation of the immunity contained in the 1987 Act was expounded by the UK Court of Appeal in Hamilton v Al Fayed 1999 3 All ER 317 (see also the reasons for judgment of the House of Lords on appeal in the same case, 2000 2 WLR 609).

Contrary to academic misconception, findings by a court, on evidence lawfully before it, which indirectly call into question parliamentary proceedings (for example, a finding that a statement outside parliamentary proceedings was false, which would mean that a similar statement in the course of parliamentary proceedings was also false), are not prevented by parliamentary privilege (Mees v Roads Corporation 2003 FCA 306).

In a judgment in a defamation case, Laurance v Katter 1996 141 ALR 447, two judges of the Queensland Court of Appeal appeared to conclude that section 16 of the 1987 Act should be either read down or found invalid in order to allow a statement in the House of Representatives to be used to support an action for defamation. Settlement of this case in 1998 prevented a pending review by the High Court. This judgment is incoherent and not authoritative.

It has already been noted that, although the relevant provision in the United States Constitution is narrower in scope, it has been interpreted as conferring a wide immunity on the legislative activities of members. This supports the contention that the broad interpretation contained in the 1987 Act is appropriate for the protection of the legislative activities of the Australian Houses.

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