Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
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. (I Will. & Mar., Sess. 2, c.2, spelling
and capitalisation modernised. The commas which appear in some versions are not
in the original text.)
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 (the first judgment was not reported; the
second is in 64 ALR 498), 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 (see Chapter 20 for an account of this case).
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” (Commentaries
on the Laws of England, 1765, pp 58-9).
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 (Dingle v Associated Newspapers Ltd. 1960 2 QB 405) 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 (Church of
Scientology of California v Johnson-Smith 1972 1 QB 522) 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 and others, 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 (Comalco Ltd. v Australian Broadcasting Corporation 1983 50 ACTR 1) 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” (Sankey v Whitlam 1978 142 CLR 1 at
35).
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 WAR 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. (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.) 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 and others 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 (reasons for judgment in relation to a subpoena directed to the
chairman of the National Crime Authority, 21 August 1987, not reported). In
a South Australian case, Australian Broadcasting Corporation and another 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 (for a judicial refutation of this misconception, see
Hamilton v Al Fayed 1999 3 All ER 317).
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