Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
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) 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:
(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 —
(a) the giving of evidence
before a House or a committee, and evidence so given;
(b) the presentation or
submission of a document to a House or a committee;
(c) the preparation of a
document for purposes of or incidental to the transacting of any such business;
and
(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:
(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 —
(a) questioning
or relying on the truth, motive, intention or good faith of anything forming
part of those proceedings in Parliament;
(b) otherwise
questioning or establishing the credibility, motive, intention or good faith of
any person; or
(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.
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:
(4) A
court or tribunal shall not —
(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
(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, 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:
(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.
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