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

Preparation and publication of documents

Each House of the Parliament and its committees possesses the power to prepare and publish documents, with absolute privilege attaching to the publication of the document and to the contents of the document. Paragraph 16(2)(d) of the 1987 Act provides that the formulation and publication of a document, and the document so formulated or published, by or pursuant to an order of a House or a committee is included in proceedings in Parliament and attracts the immunity declared by section 16 of the Act.

The Houses possessed this power under section 49 of the Constitution, which attracted to the Houses the provisions of the United Kingdom Parliamentary Papers Act 1840. This statute was passed in consequence of the decision of the Court of Queen’s Bench in Stockdale v Hansard 1837 173 ER 319, 1839 112 ER 1112, which found that the British Houses did not have that power. In order to provide the machinery for the publication of documents by the Australian Houses, the Parliamentary Papers Act 1908 provided for the privilege of documents ordered to be published by either House or a committee. That Act was superseded by the 1987 Act, which, unlike the 1908 Act, does not refer to a particular mode of publication, and which clarifies the extent of the privilege.

The prior publication by other means of a document which is subsequently published by order of a House or a committee is not protected by parliamentary privilege. Similarly the content of a document which has come into existence independently of proceedings in Parliament, for example, a report or letter which is exchanged between two or more parties and is subsequently submitted to a House or a committee, is not protected by parliamentary privilege. (For an application of this principle, see Szwarcbord v Gallop 2002 167 FLR 262.) (See Supplement)

For a claim by the Auditor-General, uncontested, that draft Audit Office reports, prepared for the purpose of presentation to Parliament, are immune from discovery because of parliamentary privilege, see tabled letters from the Audit Office and the Clerk of the Senate, 12/11/2002, J.1026; 14/6/2005, J.656.

The preparation and publication of a document by or pursuant to an order of a House includes such preparation or publication by a person other than a member of the House in accordance with such an order (for applications of this principle, see R. v Parliamentary Commissioner for Standards, ex parte Al Fayed 1998 1 All ER 93; Hamilton v Al Fayed 1999 3 All ER 317; Criminal Justice Commission v Parliamentary Criminal Justice Commissioner 2002 2 Qd R 8).

In 1992 the Attorney-General’s Department provided an opinion which suggested that the reference to publication in paragraph 16(2)(d) of the 1987 Act covered only “internal” publication for the purposes of proceedings in Parliament. This opinion was contested by the Clerk of the Senate and was subsequently repudiated by an opinion of the acting Solicitor-General. The latter opinion accepted that “publication” in the section includes publication to the public, and covers any subsequent publication of a document ordered to be published by a House or a committee.

In 2001 the government suggested that the Senate did not have power to order the publication on the Internet of a list of government contracts which it had ordered to be produced, a suggestion rejected, in effect, by the Senate and later tacitly abandoned (26/9/2001, J.4976; report of the Finance and Public Administration References Committee on accountability to the Senate in relation to government contracts, PP 212/2001; PP 367/2002; PP 610/2002; PP 23/2003; 27/9/2001, J.4994-5; 18/6/2003, J.1881-2).

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