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

Provision of information to members

A question often asked is whether other persons, in providing information to members, are covered by parliamentary privilege. The answer to this question would also depend on the circumstances of the particular case and whether the provision of the information is “for purposes of or incidental to” proceedings in a House or a committee. If a person requests a senator to raise a matter in the Senate or a committee, or if a senator has in fact used information in parliamentary proceedings, such facts could determine whether the provision of the information is covered by the statutory expression.

The provision of information to members may attract a qualified privilege under the common law interest and duty doctrine (the provider and the recipient of the information each have an interest or a duty in giving or receiving the information).

It may also be held that there is a public interest immunity attaching to the provision of information to members of Parliament.

These questions have not been adjudicated, although there is at least one British judgment suggesting that the provision of information to members may attract the interest and duty principle (R. v Rule 1937 2 KB 375). (See also ‘Protection of persons who provide information to members’, paper by the Clerk of the Senate, 27th Conference of Presiding Officers and Clerks, July 1996.)

In its 67th report, presented in September 1997 (PP 141/1997), the Privileges Committee found that a contempt had been committed by the taking of action for defamation against a person for provision of information by the person to a senator for use in proceedings in the Senate. The committee found that the legal action was taken primarily to punish the person for giving information to a senator for the purpose of its use in Senate proceedings. The report identified circumstances in which the provision of information to a senator may be protected by the Senate’s contempt jurisdiction. While the report provided an analysis of the relevant issues, it refrained from expressing any view about whether the provision of information to a senator, in these or other circumstances, is also protected against legal action by the law of parliamentary privilege, so that a court would dismiss such an action on the basis of that law. The committee did not recommend any penalty against the offender, but recommended that the Senate allow the legal proceedings to take their course. The Senate adopted the report on 22 September 1997 (J.2456). In April 2000 a judge of the Supreme Court of Queensland, in dismissing an application to terminate the legal proceedings on grounds of unreasonable delay and abuse of process, found that the provision of the information to the senator was not protected by parliamentary privilege, a finding unnecessary to the determination of the application. The confused reasoning of this judgment was criticised in advices provided by the Clerk of the Senate and a leading barrister which were reported to the Senate by the Privileges Committee (Rowley v Armstrong, 12/4/2000, not reported; 92nd report of the committee, 29/6/2000, PP 150/2000). In September 2000 the Senate, on the recommendation of the Privileges Committee (94th report, PP 198/2000), authorised the President to brief counsel to assist the court in the event of the action being pursued (4/9/2000, J.3192).

In its 72nd report, presented in June 1998 (PP 117/1998), the Privileges Committee found that a university had committed a contempt in taking disciplinary action against a staff member because of his provision of information to a senator, who had laid the information before the Senate. The Senate adopted the report on 1 December 1998 (J.225).

In August 2006 the Legislative Assembly of Victoria, adopting the report of its Privileges Committee, resolved that a particular communication of information to a member by a constituent was a proceeding in Parliament, and that a contempt was committed by a firm of solicitors threatening legal action against the constituent. The offenders apologised. (Votes and Proceedings of the Assembly, 23/8/2006, pp 1148-9.)

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