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Odgers' Australian Senate Practice Thirteenth Edition

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

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Immunities of the Houses

This chapter will now analyse the immunities of the Houses of the Parliament, the rationale of those immunities and the issues involved in the declaration of and changes to them which were made by the Parliamentary Privileges Act 1987 (hereafter referred to as "the 1987 Act").

Immunity of proceedings from impeachment and question

The immunity of parliamentary proceedings from impeachment and question in the courts is the only immunity of substance possessed by the Houses and their members and committees.

There are two aspects of the immunity. First, there is the immunity from civil or criminal action and examination in legal proceedings of members of the Houses and of witnesses and others taking part in proceedings in Parliament. This immunity is usually known as the right of freedom of speech in Parliament. Secondly, there is the immunity of parliamentary proceedings as such from impeachment or question in the courts.

This immunity is in essence a safeguard of the separation of powers: it prevents the other two branches of government, the executive and the judiciary, calling into question or inquiring into the proceedings of the legislature.[6]

Members of the Houses and other participants in proceedings in Parliament, such as witnesses giving evidence before committees, are immune from all impeachment or question in the courts for their contributions to proceedings in Parliament. As those contributions consist mainly of speaking in debate in the Houses and speaking in committee proceedings, this immunity has the significant effect that members and witnesses cannot be prosecuted or sued for anything they say in those forums. Thus the common designation of the immunity as freedom of speech. It has long been regarded as absolutely essential if the Houses of the Parliament are to be able to debate and to inquire utterly fearlessly for the public good. The immunity has a wider scope, however, and a question of interpretation of that wider scope led to the statutory declaration and codification of the immunity which is outlined below.

The other important effect of the immunity is that the courts may not inquire into or question proceedings in Parliament as such. The courts will not invalidate legislative or other decisions of the Houses on the grounds that the Houses did not properly adhere to their own procedures, nor will they grant relief to persons claiming to be disadvantaged by the improper application of those procedures. Even where a statutory provision relates to parliamentary procedure, such as the provisions for the disallowance of delegated legislation in Commonwealth statutes, the courts have held that specified procedural steps are not mandatory.[7] The two Houses are thus free to regulate their internal proceedings as they think fit.

The immunity is modified in Australia by constitutional law: where the Constitution provides that certain parliamentary procedures must take place for legislation to be validly enacted, as in section 57 of the Constitution, the High Court will inquire and determine whether those procedures have been properly carried out to determine the validity of the resulting legislation.[8]

The immunity of parliamentary proceedings from question in the courts is regarded as necessary for the two Houses to carry out their functions without the fear of their proceedings being restricted or regulated by actions in the courts.

In the United Kingdom the immunity was given a statutory form in the Bill of Rights of 1689, which has been interpreted and applied by the courts in a number of cases. That body of law became part of the law in Australia by virtue of section 49 of the Constitution.

The Constitution of the United States provides that "Senators and Representatives ... for any Speech or Debate in either House ... shall not be questioned in any other Place".[9] The immunity thus applies to members, not to proceedings, and only to speech or debate, and therefore appears at first sight to be much narrower than its United Kingdom equivalent. The provision has been interpreted, however, as conferring a wide immunity on members in respect of their participation in legislative activities.[10] The immunity, because it is expressed to apply to members, does not protect congressional witnesses in respect of their evidence, which is a difference from the Australian law. Congressional witnesses are granted certain immunities by legislation, but they may be prosecuted for perjury.

Immunity of parliamentary proceedings from scrutiny in the courts was formerly supported by a parliamentary practice of not allowing reference to the records of those proceedings in the courts without the approval of the House concerned. This practice was sometimes mistakenly regarded as the full extent of the immunity which it was designed to protect. Because in recent times the courts have usually been scrupulous to observe the law and to refrain from questioning parliamentary proceedings, the practice was unnecessary, and was abolished by the Senate in 1988 (see below). As a residual safeguard, however, senators and Senate officers are required to seek the approval of the Senate before giving evidence in respect of proceedings of the Senate or a Senate committee.[11]

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.[12]

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,[13] 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.[14] 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".[15]

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[16] 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[17] 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; 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[18] 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".[19]

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 WALR 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.[20] 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 (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.[21] In a South Australian case, Australian Broadcasting Corporation 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.[22]

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. (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:

  1. (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 —
  1. (a) the giving of evidence before a House or a committee, and evidence so given;
  2. (b) the presentation or submission of a document to a House or a committee;
  3. (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
  4. (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:

  1. (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 —
  1. (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
  2. (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
  3. (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. This provision is not infringed by the tendering of committee evidence to a court where no inferences are to be drawn from that evidence. In any case, it is permitted for the purpose of proving that a report of the proceedings is a fair and accurate report.[23]

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:

  1. (4) A court or tribunal shall not —
  1. (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
  2. (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,[24] 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:

  1. (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.

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.[25]

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.[26]

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.[27]

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.[28] A criminal prosecution may be stayed if evidence is excluded because of public interest immunity,[29] 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 Pty Ltd 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) 72 SASR 450. 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.[30] 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.[31] 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.[32]

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.[33]

In a judgment in a defamation case, Laurance v Katter [2000] 1 Qd R 147, 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.

(SEE SUPPLEMENT)

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.

Activities incidental to proceedings

The 1987 Act did not explicitly extend the immunity of freedom of speech to activities of members not related to their participation in proceedings of the Houses and committees. This reflected a considered view that the extension of the immunity to such matters is not warranted. In relation to correspondence of members, it also conformed with the decision of the British House of Commons in the Strauss case, in which the House, contrary to the finding of its Privileges Committee, declared that members' correspondence with ministers is not part of proceedings in Parliament.[34]

Members' activities may, however, be held to be part of proceedings in Parliament, and therefore absolutely privileged, if it can be shown that they are "for purposes of or incidental to" proceedings in a House or a committee, within the meaning of section 16 of the 1987 Act. For example, if a senator writes a letter seeking information for the purposes of a debate in the Senate, the writing of the letter could well be covered by that provision. The particular circumstances would probably determine the result. There are as yet no definitive court judgments.

It has been noted that in the United States the equivalent of parliamentary privilege has been held to cover the legislative activities of members, and this principle is followed where such activities are not actually part of proceedings in a house or a committee. Australian courts could, if the question arose, adopt similar reasoning.

In 1995 the Western Australian government appointed a royal commission to inquire into the circumstances surrounding the presentation of a petition to the Legislative Council of that state.[35] At least some of the matters inquired into by the commission were incidental to the presentation of the petition and therefore protected by parliamentary privilege.[36] Unfortunately this aspect was not properly considered either by the commission or by the courts before which the commission's powers were challenged.[37]

Repetition of parliamentary statements

While statements made in the course of, or for purposes of or incidental to, parliamentary proceedings are protected by parliamentary privilege, the repetition of such statements not in those contexts is not so protected. Questions have arisen about what constitutes repetition, and the extent to which reference may be made to a protected statement to establish the meaning of an unprotected statement. The latter course is clearly prohibited by the law as elucidated by the 1987 Act. In the only relevant case in the federal sphere, two state judges appeared to think that the 1987 Act had to be either read down or held invalid to allow this to occur.[38] In other jurisdictions courts have held, wrongly, that such reference to protected statements may be made.[39]

The Senate Committee of Privileges presented a comprehensive report on this matter in June 2008, suggesting an amendment that could be made to the Parliamentary Privileges Act if the problem persisted and subject to a consideration of the issue across other jurisdictions.[40] No further action has been taken in any Australian jurisdiction.

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.[41]

In its 67th report, presented in September 1997,[42] 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.[43] 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.[44] In September 2000 the Senate, on the recommendation of the Privileges Committee,[45] authorised the President to brief counsel to assist the court in the event of the action being pursued.[46]

In its 72nd report, presented in June 1998,[47] 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.[48]

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.[49]

Subpoenas, search warrants and members

Members have no explicit immunity as such against subpoenas or orders for discovery of documents issued by courts or tribunals or search warrants, which may be used to obtain access to documents held by members.[50] The use before a court or tribunal of material obtained by subpoena, discovery or search warrant is of course restricted by the law of parliamentary privilege as has been indicated above.

There may be, however, an effective immunity from such processes for compulsory production of documents where the documents are so closely connected with proceedings in Parliament that their compulsory disclosure would involve impermissible inquiry into those proceedings.

In O'Chee v Rowley (1997) 150 ALR 199, the court, influenced by an American precedent, Brown and Williamson Tobacco Corp v Williams 1995 62 F 3d 408, in effect held that documents created for purposes of or incidental to parliamentary proceedings could be immune from orders for discovery of documents, although there was some uncertainty about whether this extended to documents created by persons other than the senator concerned. This case was referred to in the 75th Report of the Committee of Privileges.[51]

In National Tertiary Education Industry Union v Commonwealth[52] the Federal Court accepted submissions on behalf of the Senate and by the Australian Government Solicitor to the effect that certain documents were immune from production because they were matters done for purposes of and incidental to parliamentary proceedings. Similarly, in Australian Communications Authority v Bedford, the Federal Magistrates Court held that briefs prepared for Senate estimates hearings are immune from production in a criminal matter.[53] In Community and Public Sector Union v Commonwealth a claim by the Commonwealth that a document prepared for Senate estimates hearings should not have been admitted into evidence in the Federal Court was not contested, and orders were made by consent to strike out references to the document in the evidence.[54] In Niyonsaba v Commonwealth the Commonwealth claimed immunity from production in the Federal Court for briefing notes for Senate question time and estimates hearings, and this claim was not contested.[55]

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.[56]

In Crane v Gething (2000) 97 FCR 9, a case involving the seizure of documents under search warrant in the offices of a senator, a judge of the Federal Court found that the court did not have jurisdiction to determine whether parliamentary privilege prevented such a seizure, as the issue of search warrants is an executive act and not a judicial proceeding, and that only the House concerned and the executive may resolve such an issue. This finding was contrary to a submission made by the Senate, to the effect that parliamentary privilege protected from seizure only documents closely connected with proceedings in the Senate, and that the court could determine whether particular documents were so protected.[57] This aspect of the judgment was not appealed and is unlikely to be regarded as authoritative. The documents in question were forwarded to the Clerk of the Senate in accordance with the order of the court.[58] The Senate appointed a person to examine the documents to determine whether any were protected from seizure by parliamentary privilege, to return any so protected to the senator, and to provide the remainder to the police.[59]

In 2002 the Privileges Committee reported on the execution of a search warrant by state police in the state office of a senator. The committee found that the police had taken appropriate steps to allow the senator to claim that any of the material seized was immune from seizure by virtue of parliamentary privilege.[60] The committee subsequently reported that, following continuing disagreement between the senator and the police about the treatment of documents for which privilege was claimed, the same arrangement had been made to settle the matter as in the 2000 case.[61] The result of the examination of the documents was that they were all returned to the senator, as none were found to be within the scope of the search warrant.[62]

A memorandum of understanding and Australian Federal Police Guidelines agreed to by the President, the Speaker, the Attorney-General and the Minister for Justice and Customs, governing the execution of search warrants in the premises of senators and members, were tabled and debated in March 2005. The documents provide that any executions of search warrants in the premises of senators and members are to be carried out in such a way as to allow claims to be made that documents are immune from seizure by virtue of parliamentary privilege and to allow such claims to be determined by the House concerned. The agreement underlying these documents was the result of several years of effort by the Senate, successive Presidents and the Privileges Committee, arising from the committee's consideration of the cases referred to above.[63] An agreement of the same kind was entered into with the Tasmanian government in 2006.[64]

In the United Kingdom, a Speaker's Protocol, dated 8 December 2008, makes clear the requirement for a judge's search warrant for searches on the Parliamentary Estate, and the Speaker's responsibility, on behalf of the House of Commons, to ensure that any search warrant is executed with proper respect for the functioning of parliament. The existence of the protocol was apparently not known to officers who permitted the police to search a member's office without a warrant in the Damian Green case.[65]

The US Court of Appeals ordered a similar arrangement for resolving claims of legislative immunity in a case involving documents seized in the office of a member of the House of Representatives under search warrant. In a subsequent judgment the court held that the search and seizure violated the legislative immunity, that the congressman should have been allowed to claim immunity for particular documents before they were seized, and that that claim should have been determined by the court so that immune documents would not fall into the hands of the law enforcement agencies. The court thereby came to a position identical to that argued by the Australian Senate in its submissions to the Australian Federal Court in 2000.[66]

Documents would not have to be in the possession of a senator to attract the immunity. For example, documents such as briefing notes provided by an adviser to a senator for the purposes of proceedings in the Senate or a committee and in the possession of the adviser would be immune from seizure from the adviser.

The "dominant purpose" test applied by the courts in respect of legal professional privilege would probably also be applied to documents to determine their immunity under parliamentary privilege. [67]

Not only may members of Congress not be compelled to produce documents within the sphere of their legislative activities, or to undertake searches of their files containing protected material, but even when it is known or conceded that an order will turn up non-protected documents, members may not be required to search their files simply on that basis.[68] In United States v Arthur Andersen LLP,[69] a subpoena directed by the defence in a criminal case to a House of Representatives committee was quashed on the same basis.

The New South Wales Legislative Council has asserted the immunity.[70]

Prosecution of members

The words and actions of members are immune from impeachment and question by way of legal proceedings only in so far as they are part of proceedings in Parliament or are for purposes of or incidental to such proceedings. Members may be prosecuted for actions constituting criminal offences and falling outside this protected area.

This is so even where the actions concerned are clearly performed in the capacity of a member and are linked to the actions of a member in the course of proceedings in Parliament. For example, section 73A of the Crimes Act 1914 made it an offence for a member to ask for or obtain a bribe in return for exercising the functions of a member in a particular way. If there were to be a prosecution of a member for this offence, say for receiving a bribe in return for asking certain questions in Parliament, the act prosecuted would be the receipt of the bribe; it would be neither lawful nor necessary for the prosecution to tender evidence of what the member said or did in the course of proceedings in Parliament. This was confirmed by section 15E of the Act, which explicitly provides that parliamentary privilege is not affected by the Act.[71]

For the unlawful admission in evidence before a court of evidence given before a parliamentary committee, leading to the setting aside of an initial judgment, see Commonwealth v Vance (2005) 157 ACTCA 47.

For the unlawful cross-examination of a member of the House of Representatives, a defendant in a criminal case, on his statements in the House, which did not, however, change the outcome of the case, see R v Theophanous (2003) 141 A Crim R 216.

A member may be prosecuted for an offence which has also been dealt with as a contempt of a House.[72]

Circulation of petitions

Section 16 of the Act explicitly declares that the submission of a document to a House or a committee is part of proceedings in Parliament. In 1988 the Committee of Privileges considered the question of whether the circulation of a petition before its presentation to the Senate falls within the definition of proceedings in Parliament. The committee concluded that it did not. An influential factor in this conclusion was the fact that it is open to any petitioner to present a petition signed only by the petitioner, and the circulation of a petition is not essential for its presentation.[73]

Freedom of speech in state parliaments

In 1985 the Senate Standing Committee on Constitutional and Legal Affairs examined an opinion of the Commonwealth Solicitor-General which suggested that a valid Commonwealth statute, by express provision, could override the privilege of freedom of speech in state parliaments. The committee rejected this opinion, and expressed the view that freedom of speech in state parliaments is an essential part of a state constitution and cannot be overridden by a Commonwealth law.[74]

Other tribunals

The immunity of parliamentary proceedings from any impeachment or question applies in respect of other tribunals as well as the ordinary courts. This is expressly declared by the 1987 Act, which in section 16 refers to "any court or tribunal". Section 3 of the Act defines "tribunal" to include any person or body having the power to examine witnesses on oath, including a royal commission or other commission of inquiry. This reflects the terms of article 9 of the Bill of Rights of 1689, which refers to "any court or place out of Parliament".

Just as the wide definition of "impeached or questioned" does not exhaust the meaning of that phrase, the definition of "tribunal" does not exhaust the category of bodies before which parliamentary proceedings must not be impeached or questioned. This is because section 16 provides that article 9 has the effect of the provisions of the section "in addition to any other operation" (emphasis added). This means that it is open to a court to find that other activities, possibly not covered by the Act in itself, before other bodies, not included in the Act's definition of tribunal, are contrary to the law of parliamentary privilege as embodied in article 9. If, for example, a member's participation in parliamentary proceedings is used against the member in some sense before some body which, though not a tribunal within the statutory definition, has the power to impose some detriment on the member, a court could well hold that this is unlawful. The question would be determined by the nature of the body, of its proceedings and of the detriment imposed on the member. The court would have to distinguish between mere withdrawal of political support, which would not be unlawful, from anything in the nature of a penalty imposed on the member.

In this connection it should be noted that some procedures by which political parties impose party discipline on their members may well be unlawful when imposed because of the members' activities in Parliament, although this is generally accepted as part of the party system.

In 2002 the Privileges Committee reported on a case in which a senator's party had withdrawn his endorsement because he did not follow a party instruction on how he should cast his vote in the Senate. The senator had taken legal action against his party, and had settled this action after the party took certain steps required by him. The committee found that the actions of the party had been reckless and ill-judged, but in view of the settlement did not find a contempt of the Senate.[75]

In 1919 the Presiding Officers made statements in each House rejecting any attempt by a royal commission to inquire into the internal affairs of the Houses.[76] Although the matters into which it was apprehended the commission might inquire were not proceedings in the Houses as such, the case illustrates the extension of the principle to executive government-appointed commissions of inquiry.[77]

In 1983 the Royal Commission on Australia's Security and Intelligence Agencies accepted, in the course of its proceedings, that it did not have the power to inquire into statements made in Parliament.[78]

The question has been raised whether the immunity operates in respect of private arbitration tribunals, which are usually established under a law of a state or territory and which operate by the parties contracting to be bound by their decisions. Most such bodies appear to fall within the definition of tribunal in the 1987 Act, in that they have the power to take evidence on oath, and therefore section 16 of the Act would apply. It would also appear not to be possible for the immunity as a matter of law to be negated by a contract.

Parliamentary privilege and statutory secrecy provisions

Parliamentary privilege is not affected by provisions in statutes which prohibit in general terms the disclosure of categories of information.

There are many statutory provisions, here generically designated as secrecy provisions, which prevent the disclosure of information thought to require special protection from disclosure. Usually these provisions create criminal offences for the disclosure of information obtained under the statute by officers who have access to that information in the course of duties performed in accordance with the statute.

Statutory provisions of this type do not prevent the disclosure of information covered by the provisions to a House of the Parliament or to a parliamentary committee in the course of a parliamentary inquiry. They have no effect on the powers of the Houses and their committees to conduct inquiries, and do not prevent committees seeking the information covered by such provisions or persons who have that information providing it to committees.

The basis of this principle is that the law of parliamentary privilege provides absolute immunity to the giving of evidence before a House or a committee. That law was made clear by section 16 of the 1987 Act, which declares that the submission of a document or the giving of evidence to a House or a committee is part of proceedings in Parliament and attracts the wide immunity from all impeachment and question which is also clarified by the Act. It is also a fundamental principle that the law of parliamentary privilege is not affected by a statutory provision unless the provision alters that law by express words. Section 49 of the Constitution provides that the law of parliamentary privilege can be altered only by a statutory declaration by the Parliament. These principles were set out in 1985 in a joint opinion of the then Attorney-General and the then Solicitor-General:

Whatever may be the constitutional position, it is clear that parliamentary privilege is considered to be so valuable and essential to the workings of responsible government that express words in a statute are necessary before it may be taken away .......... In the case of the Parliament of the Commonwealth, s. 49 of the Constitution requires an express declaration.[79]

These principles were called into question by advice given to the executive government by its legal advisers late in 1990. The context of the advice was the operations of the Parliamentary Joint Committee on the National Crime Authority. The National Crime Authority Act 1984 established a National Crime Authority with power to inquire into matters relating to organised crime. The Act also established a Joint Parliamentary Committee to oversee the Authority on behalf of the Parliament. The provisions establishing the committee were not initiated by the government, but were inserted into the act by an amendment made in the Senate. In the part of the Act establishing the committee there was a provision which limited the powers of inquiry of the committee, by providing that the committee was not to investigate a particular criminal activity or to reconsider the findings of the Authority in relation to a particular investigation. In another part of the Act there was a general secrecy provision, making it an offence for officers of the Authority to disclose information obtained in the course of their duties except in accordance with those duties. Members of the Authority claimed that the general secrecy provision prevented them providing information to the committee. They claimed that they could be prosecuted for providing information to the committee contrary to that provision, and at one stage they sought from the executive government immunities from prosecution under the section.

The committee sought advice from the Clerk of the Senate on this question. The advice was that the secrecy provision had nothing to do with the provision of information to the committee. Apart from the principles already enunciated, there were additional reasons for that advice. The general secrecy provision contained nothing to indicate that it had any application to the committee, and was not placed in the part of the act dealing with the committee. Moreover, the provision allowed the disclosure of information in accordance with the duty of officers, and it could readily be concluded that officers had a duty to cooperate with the committee which was statutorily charged with the task of overseeing the activities of the Authority.

Notwithstanding the cogency of these arguments, the government and its legal advisers came to the support of the Authority. An opinion of the Solicitor-General asserted that the secrecy provision prevented the provision of information to the committee. The opinion did not make it clear how the secrecy provision operated in relation to the committee's inquiries. It appeared to contemplate that the secrecy provision had no application while the committee was operating within its statutory charter, but that should the committee stray outside its statutory bounds the secrecy provision operated in some way to stop the committee's inquiries.

The great weakness of this argument was revealed by the question: If an officer of the Authority gave information to the committee, could the officer then be prosecuted under the secrecy provision? In the opinion, and in the subsequent government opinions to which reference will be made, this question was not answered. The government's advisers stopped short of claiming that a person could be prosecuted for presenting information to a parliamentary committee. Such a claim could not be maintained in the face of the law of parliamentary privilege, but if a prosecution could not be undertaken, how could the secrecy provision operate? As has been indicated, the secrecy provision, like most such provisions, worked by creating a criminal offence for the disclosure of information. If there is no offence for disclosing information to a parliamentary committee, the provision could not operate in relation to such a committee. It was also pointed out that if the Joint Committee strayed outside its statutory terms of reference, the legal remedy would be to restrain it directly, not to invoke the secrecy provision in some unspecified way. The Solicitor-General's advice appeared to contemplate that the remedy for a committee going beyond its terms of reference was that its proceedings would be deprived of the protection of parliamentary privilege. This is analogous to saying if the Parliament passes a bill which is later found to be beyond its constitutional powers, its proceedings on the bill would be retrospectively stripped of their privileged status. Alternatively, if the presentation of evidence to the committee contrary to the secrecy provision remained privileged, would this mean that the provision could not be enforced against an officer who gave such evidence voluntarily, but operated only to restrain the committee where an officer objected to giving such evidence? These difficulties with the Solicitor-General's opinion were pointed out in a further advice to the committee.

In spite of all these considerations, the government expressed an intention of adhering to the advice of the Solicitor-General. The reaction in the Senate to this was that one of the Senate members of the committee introduced a bill to amend the National Crime Authority Act to make it clear that the secrecy provision had no application to inquiries by the committee (National Crime Authority (Powers of Parliamentary Joint Committee) Amendment Bill 1990).

In the advice to the committee it was pointed out that there are many general secrecy provisions in federal statutes, and the apprehension was expressed that if the Solicitor-General's opinion were to go unchallenged all of these provisions could be invoked to prevent inquiries by the Houses and their committees into a wide range of information collected by government and its agencies. It was also pointed out that not only secrecy provisions could be so invoked: once the principle that parliamentary privilege is not affected by a statute except by express words is abandoned, there is no end to the provisions which may be interpreted as inhibiting the powers of the Houses and their committees.

This apprehension soon proved to be only too well founded. Early in 1991 another government opinion, composed in the Attorney-General's Department, was presented to the Senate. This opinion contended that another general statutory secrecy provision inhibited the provision of information to a parliamentary committee. The opinion conceded that a person "probably" could not be prosecuted for giving information to a parliamentary committee contrary to the secrecy provision, without explaining how, if there could be no prosecution, the provision could operate. The opinion appeared to indicate that secrecy provisions are simply an excuse for officers who do not wish to answer questions before committees, but cannot be enforced if information is voluntarily provided.

Before there was time for the dispute to progress much further, yet another opinion of the Attorney-General's Department was produced in the Senate. This opinion related to another statutory secrecy provision, but came to the opposite conclusion. Contrary to the other government opinions, it asserted that the Senate could require the disclosure of information to one of its committees notwithstanding that that information was covered by a secrecy provision.

All of the opinions and advices were then drawn to the attention of the Senate, and the government was called upon to determine exactly where it stood on the question. In due course a second opinion of the Solicitor-General was produced. This opinion conceded that a general statutory secrecy provision does not apply to inquiries by the Houses or their committees unless the provision in question is so framed as to have such an application. The opinion contended that a secrecy provision could apply to parliamentary inquiries by force not only of express words in the provision but by a "necessary implication" drawn from the statute. It was just such a "necessary implication" which was found by the Solicitor-General in the National Crime Authority Act to give the secrecy provision in that act an application to inquiries by the Joint Committee.

In an advice to the Senate by its Clerk on this opinion, it was pointed out that the doctrine of "necessary implication" still posed a residual threat to the powers and immunities of the Houses and their committees, because the government's legal advisers could find "necessary implications" when there was a desire to invoke a particular secrecy provision to inhibit a parliamentary inquiry. This is well illustrated by the "necessary implication" drawn from the National Crime Authority Act, which would not necessarily be drawn by any conscientious reader of the statute.

As an indication of lack of acceptance of the final government opinion, a private senator's bill was introduced into the Senate to declare, for the avoidance of doubt, that statutory provisions do not affect the law of parliamentary privilege except by express words. This residual question has not been resolved. The various opinions given on this matter were included in the explanatory memoranda accompanying the National Crime Authority (Powers of Parliamentary Joint Committee) Amendment Bill 1990, presented on 8 November 1990, and the Parliamentary Privileges Amendment (Effect of Other Laws) Bill 1991, presented on 9 September 1991.[80]

In 1995 the government's advisers claimed that a clause in the Auditor-General Bill 1994 which would prevent the Auditor-General releasing certain information would be an implied restriction on the powers of the Senate and would prevent the provision of such information in response to an order of the Senate. It was also claimed that it would be unconstitutional for the Parliament to enact a provision to the effect that parliamentary powers and immunities are not affected by a statute except by express words. This claim was rejected by advice provided by the Clerk of the Senate.[81] A revised version of the bill introduced in 1996 overcame this issue by explicitly providing for the effect of the clause on parliamentary inquiries.

Since 1991 the government has generally adhered to the view that a generic statutory secrecy provision does not affect parliamentary inquiries, with only occasional episodes of confusion on the point.[82]

In estimates hearings in 2006 and 2007, officers of the Department of Employment and Workplace Relations attempted to suggest that a provision in the Public Service Act requiring officers to maintain confidentiality could be breached by the giving of evidence, but this position was rejected by the committee.[83]

For an episode of confusion, see the 144th report of the Committee of Privileges, Statutory secrecy provisions and parliamentary privilege – an examination of certain provisions of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009).[84] In drawing together and standardising various secrecy provisions across the taxation legislation, the bill purported to criminalise the giving of evidence to a parliamentary committee in certain circumstances. The committee pointed out the flaws in this approach, including the direct contradiction of offences in the Parliamentary Privileges Act. Although the bill was not dealt with before the conclusion of the 42nd Parliament in 2010, the government had circulated amendments in accordance with the committee's recommendation to address the problems created by the bill. The amendments were incorporated in a new version of the bill reintroduced and passed later in 2010 in the following Parliament.

For an application of the principle that Parliament cannot be assumed to have indirectly surrendered by implication in a statute part of the privilege attaching to its proceedings, see Criminal Justice Commission v Parliamentary Criminal Justice Commissioner 2002 2 Qd R 8.

It is notable that in the United States the courts have consistently held that a statutory secrecy provision does not prevent the Houses of Congress or their committees requiring the production of the protected information.[85]

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.[86]

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.[87] Also see tabled correspondence between the Auditor-General, the Committee of Privileges and the Clerk of the Senate on the application of parliamentary privilege to working papers and reports of the Audit Office.[88]

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.[89]

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.[90]

Qualified privilege

The immunity of parliamentary proceedings from question or impeachment in the courts is absolute. This means that the immunity of a member from action for defamation in respect of what was said in parliamentary debate remains regardless of the motives in making the remarks in question.

Reports of parliamentary proceedings in newspapers and elsewhere may attract what the law knows as qualified privilege, that is, a privilege which may be lost on proof of malice or other improper motive in making the publication.

Qualified privilege is not a diluted extension of the absolute parliamentary immunity. The law relating to qualified privilege is a completely separate branch of the law, related to parliamentary immunities only because it has application in respect of reports of proceedings in Parliament. It also applies to other transactions totally unrelated to parliamentary matters, for example, relations between private societies and their members.

The law relating to qualified privilege is determined by the ordinary law of defamation of states or territories. Reports of parliamentary proceedings may also attract the implied freedom of political communication found by the High Court in the Constitution.[91]

The 1987 Act, however, provides in section 10 a defence against defamation actions for all fair and accurate reports of proceedings in the Houses of the Commonwealth Parliament and their committees.

The privilege attaching to reports of parliamentary proceedings, including radio and television reports, is further discussed in Chapter 3 on the publication of proceedings.

Minor immunities

There are three minor immunities of members of the Houses of the Parliament and of witnesses and parliamentary officers. One of these is of virtually no significance, and the other two seldom arise. These are:

  • immunity from arrest in civil causes
  • exemption from service as a juror
  • exemption from compulsory attendance in a court or tribunal.

The immunity from arrest in a civil cause is now of little significance. The potential for a person to be arrested and imprisoned by a civil, as distinct from a criminal, process is now extremely small, due to changes in the law and the narrow compass which the courts have given to purely civil causes by interpretation. The immunity extends to witnesses required to attend on parliamentary committees and to officers required to attend on the Houses or their committees.

In some countries the immunity extends to criminal matters, and a member may not be arrested or prosecuted without the consent of the relevant house. This may be regarded as a security against the obstruction of members by abuse of the processes of law, but in view of the general integrity of the criminal process in Australia, it would not seem to be appropriate here.

The other two minor immunities seldom arise in practice. There is good ground for retaining them, however: the principle that the Houses should have first right to the services of their members, witnesses and officers, and that those services should not be impeded by the requirements of legal proceedings before a court.

Section 14 of the 1987 Act codifies the immunities from arrest in a civil cause and from compulsory attendance before a court or tribunal. The Act restricts the immunities to five days before and five days after a meeting of a House or committee. Before the Act was passed these immunities operated for 40 days before and after a session, that is, in modern times, virtually permanently.

The immunity from being compelled to attend before a court or tribunal does not prevent a member, witness or officer attending voluntarily when requested to do so. [92]

The exemption from jury service of members and officers of the Houses is regulated by the Jury Exemption Act 1965.

Detention of senators

While the immunity from arrest in a civil cause is of little significance, the Senate has insisted upon its right to be notified of the detention of a Senator in any cause.

In 1979 the Committee of Privileges considered a case in which a senator had been arrested and detained without any notification being given to the President. The committee reported that it was the right of the Senate to receive notification of the detention of any of its members, and recommended that the Senate pass a resolution asserting this right and setting out when notification is to be given.[93] The Senate passed the recommended resolution on 26 February 1980.[94] The resolution requires any court, pursuant to the order of which a senator is detained in custody, to notify the President of the fact and the cause of the senator's detention.

In 1986 the committee considered a case in which a senator had been detained by police for a considerable period without being brought before a court. The committee recommended that the 1980 resolution be modified to impose an obligation upon police to notify the President of the fact and the cause of a senator's arrest where the identity of the senator is known.[95] The Senate passed the recommended resolution on 18 March 1987.[96]


6. Compare United States v Johnson 383 US 169 (1966); Hamilton v Al Fayed [1999] 3 All ER 317.
7. Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188.
8. Victoria v Commonwealth (1975) 134 CLR 81.
9. Article I, s. 6.
10. United States v Johnson 383 US 169 (1966); United States v Brewster 408 US 501 (1972); Gravel v United States 408 US 606 (1972).
11. SO 183.
12. I Will. & Mar., Sess. 2, c.2, spelling and capitalisation modernised. The commas which appear in some versions are not in the original text.
13. The first judgment was not reported; the second is in (1986) 5 NSWLR 18.
14. See Chapter 20 for an account of this case.
15. Commentaries on the Laws of England, 1765, pp. 58-9.
16. Dingle v Associated Newspapers Ltd [1960] 2 QB 405.
17. Church of Scientology of California v Johnson-Smith [1972] 1 QB 522.
18. Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1.
19. Sankey v Whitlam (1978) 142 CLR 1 at 35.
20. 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.
21. Reasons for judgment in relation to a subpoena directed to the chairman of the National Crime Authority; Unreported, District Court of New South Wales, 21 August 1987.
22. For a judicial refutation of this misconception, see Hamilton v Al Fayed [1999] 3 All ER 317.
23. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2009) NSWLR 612; and, see under Qualified privilege.
24. Including, for example, statutes establishing parliamentary joint committees.
25. 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.
26. See the remarks by Senator Evans, op.cit.
27. Lord Langdale MR in Reece v Trye (1846) 9 Beav 316 at 319. The High Court has adopted this rationale, e.g., in Attorney-General (NT) v Maurice (1986) 161 CLR 475, see particularly 490.
28. Rann v Olsen (2000) 76 SASR 450; Prebble v Television New Zealand Ltd [1994] 3 NZLR 1. For a statutory reaction to the Prebble judgment in the UK, see below, under "Waiver" of privilege.
29. R v Lappas (Unreported, Supreme Court of the Australian Capital Territory, 26 November 2003).
30. See also Hamsher v Swift (1992) 33 FCR 545.
31. Prebble v Television New Zealand Ltd [1994] 3 NZLR 1.
32. See also the reasons for judgment of the House of Lords on appeal in the same case, [2001] 1 AC 395.
33. Mees v Roads Corporation (2003) 128 FCR 418.
34. This case was discussed in the Senate in 1958: SD, 16/9/1958, pp. 322-4.
35. Royal Commission into Use of Executive Power.
36. See under Other tribunals, below.
37. See advices to the President of the Senate by the Clerk, presented to the Senate on 29/11/1995, J.4287.
38. Laurance v Katter [2000] 1 Qd R 147; for a further reference to this case, see above, under Is the 1987 Act too restrictive?
39. Beitzel v Crabb [1992] 2 VR 121; Buchanan v Jennings [2002] 3 NZLR 145; Erglis v Buckley [2004] 2 Qd R 599; Toussaint v Attorney-General (St Vincent and the Grenadines) [2007] 1 WLR 2825.
40. 134th Report, PP 275/2008.
41. 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.
42. PP 141/1997.
43. J.2456.
44. Rowley v Armstrong (Unreported, Supreme Court of Queensland, 12 April 2000); 92nd report of the committee, 29/6/2000, PP 150/2000.
45. 94th report, PP 198/2000.
46. 4/9/2000, J.3192.
47. PP 117/1998.
48. J.225.
49. Votes and Proceedings of the Assembly, 23/8/2006, pp. 1148-9.
50. For the service of subpoenas in the precincts, see under Matters constituting contempts, below; for the execution of search warrants in the precincts, see under Police powers in the precincts, below.
51. PP 52/1999.
52. Unreported, Federal Court of Australia, 19 April 2001.
53. Unreported, Federal Magistrates Court, 28 March 2006.
54. Unreported, Federal Court of Australia, 11 July 2007.
55. Unreported, Federal Court of Australia, 2007.
56. 12/11/2002, J.1026; 14/6/2005, J.656.
57. The submission was tabled in the Senate: 13/3/2000, J.2423-4.
58. 3/10/2000, J.3267.
59. 5/12/2000, J.3726-7; 8/8/2001, J.4617; 27/8/2001, J.4761.
60. 105th report of the committee, PP 310/2002.
61. 5/2/2003, J.1457; SD, pp. 8573-4.
62. 114th report of the committee, 20/8/2003, PP 175/2003.
63. 9/3/2005, J.451, SD, pp. 91-2.
64. 15/8/2006, J.2496.
65. See Committee on Issue of Privilege, First Report, Police Searches on the Parliamentary Estate, March 2010, HC 62.
66. United States v Rayburn House Office Building [Jefferson case], 497 F 3d 654 (DC Cir, 2007) not reported; the Supreme Court declined to review this judgment on 1 April 2008.
67. Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
68. Adams v Federal Election Commission (D DC, Civ No 02-877, 9 October 2002).
69. SD Tex, Crim No H-02-0121, 9 April 2002.
70. Standing Committee on Parliamentary Privilege and Ethics, Report No. 28, 2004; Minutes of Proceedings, 4/12/2003, pp. 493-5, 501; 24/2/2004, pp. 520-1.
71. This provision was subsumed by a provision of more general application in section 141.1 of the Criminal Code Act. In this connection see United States v Brewster 408 US 501 (1972); R v Greenaway (Unreported, Central Criminal Court, United Kingdom, 25 June 1992) Public Law, Autumn 1998, pp. 356-63; United States v Jefferson, (4th Cir, No 08-4215, 12 November 2008) (mere incidental reference to legislative acts does not amount to using them to support a prosecution).
72. Compare United States v Traficant 368 F 3d 646 (6th Cir, 2004); Supreme Court declined to hear appeal, 10/1/2005.
73. 11th report, PP 46/1988.
74. Report on Commonwealth Law Making Power and the Privilege of Freedom of Speech in State Parliaments, PP 235/1985.
75. Case of Senator Tambling, 103rd report of the committee, PP 308/2002.
76. For the terms of these statements, see ASP, 6th ed., at pp. 1043-4.
77. See also documents tabled by the President, 4/5/1993, J.45, concerning an inquiry by a person appointed by the Attorney-General into matters the responsibility of a parliamentary department.
78. Report of the Commission, 6/12/1983, PP 323/1983, p. 9.
79. Quoted in a Report by the Senate Standing Committee on Constitutional and Legal Affairs, Commonwealth Law Making Power and the Privilege of Freedom of Speech in State Parliaments, PP 235/1985, p. 2.
80. See also 36th report of Committee of Privileges, PP 194/1992.
81. See the 12th and 14th reports of 1995 of the Scrutiny of Bills Committee, PP 493/1995.
82. For a statement by the government of the principle, see SD, 4/12/2003, pp. 194423, in relation to the ASIO Legislation Amendment Bill 2003.
83. Reports of the Employment, Workplace Relations and Education Legislation Committee, Budget Estimates 2006-07, p. 3 and Appendix A, PP 144/2006; Additional Estimates 2006-07, pp. 14-15, PP 64/2007.
84. PP No. 127/2010.
85. For example, Federal Trade Commission v Owens-Corning Fiberglas Corporation, 626 F 2d 966 (DC Cir, 1980).
86. For an application of this principle, see Szwarcbord v Gallop (2002) 167 FLR 262. For a statement by President Hogg on this point, see SD, 28/8/2008, p. 3981.
87. 12/11/2002, J.1026; 14/6/2005, J.656.
88. 16/6/2011, J.1019.
89. For applications of this principle, see R v Parliamentary Commissioner for Standards; Ex parte Al Fayed [1998] 1 Al l ER 93; Hamilton v Al Fayed [1999] 3 All ER 317; Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8.
90. 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.
91. Australian Capital Television v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997)189 CLR 520.
92. See advice and correspondence tabled on 22/2/2010, J.3163.
93. 5th report, PP 273/1979.
94. J.1153.
95. 10th report, PP 433/1986.
96. J.1693-4.