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| Print this chapter (PDF 301KB) | < - Contents < - Chapter 18 : Appendix 1 - > |
The term parliamentary privilege refers to the special rights and immunities which belong to the Houses, their committees and their Members, and which are considered essential for the proper operation of the Parliament. These rights and immunities allow the Houses to meet and carry out their proper constitutional roles, for committees to operate effectively, for Members to discharge their responsibilities to their constituents, and for others properly involved in the parliamentary processes to carry out their duties and responsibilities without obstruction or fear of prosecution.
Privileges are not the prerogative of Members in their personal capacities:
In so far as the House claims and Members enjoy those rights and immunities which are grouped under the general description of ‘‘privileges’’, they are claimed and enjoyed by the House in its corporate capacity and by its Members on behalf of the citizens whom they represent.1
Despite the immunity from suit or prosecution which Members have in respect of what they say in the Parliament in carrying out their duties, ultimately they are still accountable to the House itself in respect of their statements and actions. It is within the power of the House to take action to punish or penalise Members, for example, for some form of extreme obstruction of the business of the House.
‘Contempt’ and ‘breach of privilege’ are not synonymous terms although they are often used as such. May has this to say in respect of contempt:
Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence. It is therefore impossible to list every act which might be considered to amount to a contempt, the power to punish for such an offence being of its nature discretionary.2
The distinction is made clearer in Halsbury’s Laws of England:
The power of both Houses to punish for contempt is a general power similar to that possessed by the superior courts of law and is not restricted to the punishment of breaches of their acknowledged privileges . . . Certain offences which were formerly described as contempts are now commonly designated as breaches of privilege, although that term more properly applies only to an infringement of the collective or individual rights or immunities, of one of the Houses of Parliament.3
It has been said that ‘All breaches of privilege amount to contempt; contempt does not necessarily amount to a breach of privilege’.4 In other words a breach of privilege (an infringement of one of the special rights or immunities of a House or a Member) is by its very nature a contempt (an act or omission which obstructs or impedes a House, a Member or an employee of the House, or threatens or has a tendency so to do), but an action can constitute a contempt without breaching any particular right or immunity.
This chapter does not attempt to record the history of the development of the law, practice and procedure of privilege, nor does it attempt to treat in detail all questions of privilege that may arise. It is limited to a general description and a summary of the more important aspects of the subject.5
The Commonwealth Parliament derives its privilege powers from section 49 of the Constitution which provides that:
The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.
In addition, section 50 of the Constitution provides that:
Each House of the Parliament may make rules and orders with respect to—
(i) The mode in which its powers, privileges, and immunities may be exercised and upheld.
(ii) The order and conduct of its business and proceedings either separately or jointly with the other House.
Whilst the Commonwealth Parliament has passed legislation in this area, and although the House of Representatives has developed its own practice and created its own precedents in respect of most of its operations, in the area of parliamentary privilege6 the practice and precedents of the House of Commons are of continuing interest.
Statutory provisions
The Parliamentary Privileges Act 1987 is an enactment under the head of power constituted by section 49. It provides that, except to the extent that the Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the Members and the committees of each House, as in force under section 49 of the Constitution immediately before the commencement of the Act, continue in force. The provisions of the Act are described in detail in this chapter.
In addition, the Parliament has enacted a number of other laws in connection with some specific aspects of its operations,7 although it has been said that certain of these may be ‘more properly . . . referred’ to section 51(xxxix) of the Constitution, which deals with the power to make laws with respect to matters which are incidental to the execution of any power vested, inter alia, in the Parliament or either House.8
The original privilege powers of the Commonwealth Parliament were tested and confirmed in a significant High Court judgment arising from the case of Browne and Fitzpatrick. On 10 June 1955 the House of Representatives judged Mr F. C. Browne and Mr R. E. Fitzpatrick guilty of a serious breach of privilege9 (see p. 731 for details of this case). On the warrant of the Speaker the two men were committed to gaol for three months. Subsequently, action was taken by the legal representatives of the offenders to apply to the High Court for writs of habeas corpus. The High Court heard the argument between 22 and 24 June and delivered its judgment on 24 June.10
The Chief Justice first dealt with the question of whether the warrants issued by the Speaker were a sufficient return to the writs of habeas corpus. He held that such warrants if issued in England by the Speaker of the House of Commons would have constituted sufficient answer, being drawn up in accordance with the law there which was finally established in the case of the Sheriff of Middlesex in 1840.11 The law was established authoritatively by the decisions of the Privy Council in Dill v. Murphy in 1864,12 and in the Speaker of the Legislative Assembly of Victoria v. Glass in 1871.13
The Court stated that:
. . . it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. The judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms.14
The warrants issued by the Speaker stated the contempt or breach of privilege in general terms and not in particular terms but accorded with the law, as each stated that the person concerned had been guilty of a serious breach of privilege, recited the resolution of the House to that effect and stated the terms of committal.
Having established that it was not necessary to go behind the warrant, it remained for the court to determine whether the law as stated above was applicable to the Commonwealth Parliament through section 49 of the Constitution.
Arguments advanced by counsel for Browne and Fitzpatrick urging a restrictive construction or modified meaning of the words of section 49 were, broadly:
The High Court rejected, in turn, each of these arguments. In relation to the first proposition, the court declared:
The answer, in our opinion, lies in the very plain words of s. 49 itself. The words are incapable of a restricted meaning . . . It is quite incredible that the framers of s. 49 were not completely aware of the state of the law in Great Britain and, when they adopted the language of s. 49, were not quite conscious of the consequences which followed from it.15
In relation to the second argument on the separation of powers, the court stated that:
. . . in unequivocal terms the powers of the House of Commons have been bestowed upon the House of Representatives. It should be added to that very simple statement that throughout the course of English history there has been a tendency to regard those powers as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate, proper for its protection . . . It is sufficient to say that they were regarded by many authorities as proper incidents of the legislative function, notwithstanding the fact that considered more theoretically perhaps one might even say, scientifically they belong to the judicial sphere.16
Then, in relation to the third contention, the court made it clear that it did not regard the Parliamentary Papers Act and the Broadcasting of Parliamentary Proceedings Act as affecting the operation of section 49. The court held that section 49:
. . . contemplates not a single enactment dealing with some very minor and subsidiary matter as an addition to the powers or privileges; it is concerned with the totality of what the legislature thinks fit to provide for both Houses as powers, privileges and immunities.17
Finally, in relation to the argument on the interrelationship of sections 49 and 50, the court declared that it was clear that section 49 had an operation independent of the exercise of the power of section 50. In a final summing-up, the court declared:
. . . all the arguments which have been advanced for giving to the words of s. 49 a modified meaning, and the particular argument for treating them as not operating, fail.18
Browne and Fitzpatrick petitioned the Judicial Committee of the Privy Council for special leave to appeal against the decision of the High Court. However, the decision of the Privy Council was that the judgment of the Chief Justice of Australia was unimpeachable and leave to appeal was refused.19
The rights and immunities of the Houses, their committees and Members are part of the law of the Commonwealth, and the law may only be changed by the passage of legislation by the three component parts of the Parliament. Subject to the constraints imposed by the Constitution, it would however be possible for the Commonwealth Parliament to enact legislation which varied an existing right or immunity or created a new one.
Within the framework set by the Constitution and relevant legislation it is within the competence of each House to expound the law of privilege and apply that law to the circumstances of each case as it arises.20 To suggest, as has on occasions been done, that the existing privileges of the Parliament have been extended in some particular case, is incorrect.
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In the following sections, the principal rights and immunities of the House are described. While they have been enjoyed since Federation by virtue of the provisions of section 49,21 the Parliamentary Privileges Act 1987 has modified the detail or provided amplification in some respects so that the provisions better meet the needs of the modern Houses.
By the 9th Article of the Bill of Rights 1688 it was declared:
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.22
The provisions of Article 9 became part of the law applying to the Commonwealth Parliament by virtue of section 49 of the Constitution.23
The privilege has been variously described as one which has always been regarded as most valuable and most essential,24and as the only privilege of substance enjoyed by Members of Parliament.25 Unquestionably, freedom of speech is by far the most important privilege of Members.
Members are absolutely privileged from suit or prosecution in respect of anything they might say in the course of proceedings in Parliament. Provided their statements are in accord with the rules and practices of the House, Members are able to express themselves as they judge fit. It is, however, incumbent upon Members not to abuse the privilege. The House itself, by its rules of debate and disciplinary powers, has the ability to deal with abuse (see Chapter on ‘Control and conduct of debate’, and see p. 753).
The Committee of Privileges has stated:
Allegations of wrongdoing are often made to Members of Parliament. Members enjoy very special rights—rights greater than those enjoyed by ordinary citizens. The privilege of freedom of speech is the greatest of these, but its very significance is such, where the reputation or welfare of persons may be an issue, that it should be used judiciously. If a Member is of the opinion that it is in the public interest to disclose such allegations, he or she should make all reasonable inquiries as to the truth of the allegations. The raising of a matter, in full detail, in the House is only one of the options available to Members . . . It is for the Member to resolve whether or not it is in the public interest to raise a matter in the House, and his or her actions will be judged accordingly.26
In 1989 the Committee of Privileges reported on a reference concerning an allegation made in the House by one Member against another. While it did not find that a contempt had been committed, it concluded that having regard to the experience of the Member who had made the allegation he had offended against the rules of the House. It recommended that he be required to apologise and withdraw.27 The House agreed to a motion calling on the Member to withdraw and apologise, but he declined to do so and was subsequently suspended by the House for two sitting days.28
While there is no doubt that, ultimately, Members can be called to account by the House for their actions and statements, the cases cited above show the difficulties that can arise.29 The Joint Select Committee on Parliamentary Privilege considered the issue of misuse of privilege. It commented that if it became the practice to examine formally—as by a reference to the Committee of Privileges—what Members say in the House, the essential freedom could be endangered. It acknowledged the danger of misuse, but concluded that the only practical solution consistent with the maintenance of freedom of speech could lie in allowing persons who had been subject to criticism or attack in either House to apply to have a response incorporated in Hansard.30 (See p. 751 for details of the procedure adopted).
Absolute privilege does not attach to words spoken by Members other than when participating in ‘proceedings in Parliament’ (see below).
A statement is said to be privileged if the person making it is protected from legal action. Generally, qualified privilege exists where a person is not liable to a successful action for defamation if certain conditions are fulfilled, for example, if the statement is not made with malicious intention. Absolute privilege exists where no action may lie for a statement, even, for example, if made with malice; it is not limited to action for defamation but extends also to matters such as infringement of copyright or other matters which could otherwise be punished as crimes (for example, contempt of court or breach of a secrecy provision).
Article 9 of the Bill of Rights refers to ‘debates and proceedings in Parliament’. Section 16 of the Parliamentary Privileges Act re-asserts that the provisions of Article 9 of the Bill of Rights apply in relation to the Commonwealth Parliament, but it goes on to provide that for the purposes of the provisions of Article 9, and for the purposes of that section, the term ‘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.
The enactment of this provision gave some precision to the term.
It is clear that the ambit of the term, and so the extent of absolute privilege, is limited. The repetition by Members out of the House of statements they have made in the House has not been found to be protected by absolute privilege.31 It has been also observed that, for instance, conversations or comments among Members, or between Members and other persons, which are not part of a ‘proceeding in Parliament’ as such would not enjoy absolute privilege,32 and that citizens communicating with a Member in normal correspondence would not enjoy absolute privilege in this matter.33
The use of the term ‘for purposes of or incidental to’ the transacting of the business of a House or a committee in s. 16 is, however, to be noted. Sometimes it will be clear whether a particular act forms part of ‘proceedings in Parliament’, but on other occasions a judgment may be necessary, for example as to whether a particular act was done ‘for purposes of or incidental to’ the transacting of the business of the House. In 1997 the Court of Appeal of the Supreme Court of Queensland was required to consider the application of subsection 16(2). Its decision recognised a claim that a number of documents obtained by or provided to a Senator which related to a subject he had raised in the Senate did not need to be produced in response to an order because of the protection of subsection 16(2).34
On two occasions the Committee of Privileges has considered complaints arising from action, or threatened action, against Members following letters the Members had written to Ministers. In each case it accepted that such correspondence did not form part of ‘proceedings in Parliament’.35 In 1994 the committee considered action taken against a person who had sworn a statutory declaration and given it to a Member. The Member later used the material in a speech in the House. The committee was required to report on the Member’s complaint that the action against his informant would interfere improperly with his ability to perform his duties as a Member. It commented that whether the informant’s actions fell within the scope of s. 16 of the Parliamentary Privileges Act would be determined in the course of court proceedings. An opinion appended to the report discussed the issue of whether the informant’s actions might be protected36 (and see p. 733).
In a 2000 report on the status of the records and correspondence of Members, the Committee recommended that there should be no additional protection, beyond that provided by the current law, given to the records and correspondence of Members. It recommended, however, that, at the discretion of the Speaker, the House may intervene to assert the protection of parliamentary privilege in court proceedings in which records and correspondence might reasonably be argued to fall within the definition of proceedings in Parliament. It also recommended that a memorandum of understanding be concluded between the Presiding Officers and the Minister for Justice on the execution of search warrants on Members, their employed staff and their offices—not so as to create any new immunity or to change the law but to enable ground rules to be agreed. Memoranda with State and Territory Attorneys-General in respect of electorate offices were also recommended.37 The Government agreed with the substance of the recommendations, and a memorandum was negotiated between the Parliament and the Commonwealth.38
In the case Crane v. Gething the Federal Court held that it should not decide whether certain documents were in fact protected by privilege, and the documents were sent to the Senate for determination of that matter. The Senate, by resolution, appointed a retired public servant with legal qualifications to determine whether any of the documents were immune from seizure. The view of the court was contrary to arguments that it was indeed the court’s responsibility to decide the matter.39
Although, as stated above, the House of Commons has not to date adopted a detailed definition of the term ‘proceedings in Parliament’, it has considered the meaning and scope of the term. In the London Electricity Board case in 1957 (more generally known as the Strauss Case), the House of Commons Committee of Privileges found that Mr Strauss in writing a letter to a Minister criticising certain alleged practices of the Board, was engaged in a ‘proceeding in Parliament’. The committee also found that, in threatening a libel action against the Member, both the Board and its solicitors had acted in breach of the privilege of Parliament.40 By a narrow margin of 218 votes to 213 votes, the House of Commons rejected a motion agreeing with the committee’s report. An amendment declaring that Mr Strauss’ letter was not a proceeding in Parliament and that no breach of privilege had been committed was carried on a non-party vote.41 In 1999 a joint committee of the British Parliament which had reviewed the law and practice in relation to privilege recommended against any extension of privilege to cover communications between Members and Ministers.42 In an important decision in 1939, the House of Commons agreed that notice in writing of a question to be asked in the House was ‘protected by privilege’.43
Hansard reports of the proceedings are absolutely privileged.44 However, it is considered that parliamentary privilege does not protect individual Members publishing their own speeches apart from the rest of a debate. If a Member publishes his or her speech, this printed statement becomes a separate publication,45 a step removed from actual proceedings in Parliament and this is also the case in respect of the publication of Hansard extracts, or pamphlet reprints, of a Member’s parliamentary speeches. In respect of an action for defamation, regard would also be had to the particular law applying in the State or Territory in which the action is taken or contemplated. Even qualified privilege may not be available unless the publication is for the information of the Member’s constituents.46 In any case arising in the future, reference would need to be had to the provisions of the Parliamentary Privileges Act which could be relevant.
Under section 10 of the Parliamentary Privileges Act it is a defence to an action for defamation that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter, and that the defamatory matter was contained in a fair and accurate report of proceedings at a meeting of a House or a committee. This defence does not apply in respect of matter published in contravention of section 13 of the Act, and it does not deprive a person of any defence that would have been available to that person if the section had not been enacted.
Two particular issues arise in this area: first, the restrictions on the actual use of, or reference to, parliamentary records in courts or other tribunals, and secondly, the arrangements for the production of such records.
Article 9 of the Bill of Rights 1688 prevents proceedings from being examined or questioned or used to support a cause of action.47 Apart from court proceedings in respect of civil48 and criminal49 matters, the issue of references to parliamentary records has also arisen in respect of Royal Commissions,50 and the documents involved have included the Votes and Proceedings,51 the Hansard report of proceedings,52 documents presented in the House,53 a committee report,54 the transcript of committee evidence,55 documents submitted to parliamentary committees,56 and documents related to a speech in the Senate.57
It has long been held that Article 9 protects Members, but also other participants in ‘proceedings in Parliament’, for example, witnesses who give evidence to parliamentary committees. The resolution of the House of Commons of 26 May 1818 stated:
That all witnesses examined before this House, or any committee thereof, are entitled to the protection of this House, in respect of anything that may be said by them in their evidence.
This resolution reflected the attitude of the House of Commons on this aspect, and this attitude is in turn reflected in House of Representatives standing order 256.
Section 3 of the Parliamentary Privileges Act defines the terms ‘court’ (a federal state or territory court) and ‘tribunal’ (essentially a person or body having power to examine witnesses on oath). The law restricting the use of parliamentary material in court proceedings is sometimes referred to as an exclusionary rule of evidence or an exclusionary principle.58
Following judgments which had the effect of permitting participants in proceedings in Parliament (in this case witnesses before committees—see p. 721) to be examined and cross-examined in court in respect of committee evidence, in 1987 the Parliament enacted legislation to restore and enshrine the traditional interpretation of Article 9, which it believed should be upheld in the interests of the Parliament. Section 16 of the Parliamentary Privileges Act provides, inter alia:
(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.
(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.
In 1988 the application of section 16 was considered by the Federal Court. An application to tender an extract from Hansard was rejected, being seen as ‘. . . by way of or for the purpose of questioning the motive, intention or good faith of the Senator . . .’ and as ‘. . . by way of, or for the purpose of, inviting the drawing of inferences or conclusions from what was said in the Senate . . .’.59 In 1992 the Federal Court held that an answer by a Minister to a question without notice could not be used in court proceedings in support of an argument as to the Minister’s disposition on the matter in dispute. This was held to be contrary to paragraphs 16(3)(b) and (c) of the Act.60 In 1994 the Privy Council gave an interpretation of Article 9 of the Bill of Rights consistent with the articulation of Article 9 in section 16 of the Act.61
The effect of the Queensland Court of Appeal decision in O’Chee v. Rowley was that a Senator was not required to comply with an order to disclose certain documents which the Senator had claimed were created, brought into existence or had come into his possession for purposes of or incidental to the transacting of the business of the Senate—that is, in this case the Court held that the privilege articulated in section 16 had the effect that the documents did not need to be produced.62
In Laurance v. Katter the Queensland Court of Appeal considered the application of subsection 16(3). The Court held that subsection 16(3) did not prevent Mr Laurance from relying on statements Mr Katter had made in the House in an action for defamation in connection with statements Mr Katter had allegedly made in the course of an interview. (In the interview Mr Katter had referred to his statements in the House, but had not repeated them.) It was argued that the statements could not support an action for defamation unless they could be understood in the context of the statements in the House.63 The decision was appealed to the High Court, but the case was settled before it was decided.64 The Privy Council has held that a Member may be held liable in respect of a statement made out of the House in which the Member affirmed, but did not repeat, a defamatory statement the Member had made in the House.65
In Rann v. Olsen the South Australian Supreme Court held that subsection 16(3) would prevent Mr Olsen from maintaining and supporting certain defences in a defamation action and it rejected submissions to the effect that the Act was invalid because it impermissibly infringed the implied constitutional guarantee of freedom of political communication.66 In R v Theophanous the Victorian Court of Appeal held that subsection 16(3) had been breached when Dr Theophanous had been questioned about statements he had made in the House, even though he had tendered the records. The Appeal Court held however that the infringement was not such as to justify reversal of his conviction.67
For discussion of constitutional issues possibly arising in connection with subsection 16(3) see Campbell, Parliamentary Privilege (2003).68
The Parliamentary Privileges Act provides that in relation to proceedings that relate to a question arising under section 57 of the Constitution or the interpretation of an Act, neither the Parliamentary Privileges Act nor the Bill of Rights shall be taken to prevent or restrict the admission in evidence of a record of proceedings published by or with the authority of the House or a committee, or the making of statements, submissions or comments based on that record. Similar provisions apply in relation to a prosecution for an offence against the Parliamentary Privileges Act or an Act establishing a committee.
In a second resolution of 26 May 1818 the House of Commons resolved:
That no Clerk, or officer of this House, or short-hand writer employed to take minutes of evidence before this House or any committee thereof do give evidence elsewhere in respect of any proceedings or examination had at the bar, or before any committee of this House, without the special leave of the House.
The terms of the resolution limited it to the question of the attendance of officials. However, until 1980 the House of Commons had followed the practice of requiring leave to be granted both for the attendance of employees and for the production of parliamentary records, although it appears that the usual practice was for leave to be granted without any conditions being attached, presumably in the belief that the requirements of the Bill of Rights would always be observed.69
The terms of the House of Commons’ resolution of 1818 are applied, in more modern language, by standing order 253:
Only if the House grants permission, may an employee of the House, or other staff employed to record evidence before the House or one of its committees, give evidence relating to proceedings or give evidence relating to the examination of a witness.
As was previously the case in the House of Commons, in the House of Representatives the usual practice has been to grant permission (formerly referred to as ‘leave’) for the production of parliamentary records as well as for the attendance of House employees, although technically the standing order is limited to the attendance of employees. Previously petitions have been presented from, or on behalf of, parties asking the House to grant the leave sought,70 although in some cases motions have been moved in the House without a petition having been presented. In such cases it has been usual for a brief explanation to be made.71 The Speaker has presented a letter conveying a request,72 and when a motion was moved to grant the request, the Leader of the House made a brief explanation.73
In deciding to grant permission, the House has not necessarily granted all that has been requested in a petition; for example, one petition, as well as seeking leave for subpoenas to be served for the production of records, for them to be adduced into evidence, and for the attendance of appropriate officers, also sought leave to interview and obtain proofs of evidence from employees of the Parliamentary Reporting Staff. The House did not grant leave for the employees to be interviewed.74 In some cases no action has been taken on petitions.75
In 1980 the House of Commons discontinued the practice of requiring petitions for leave to refer to parliamentary papers, and gave leave for reference to be made in future court proceedings to the official report of debate and to the published reports and evidence of committees. The adoption of similar provisions for the Commonwealth Parliament was recommended by the Joint Select Committee on Parliamentary Privilege in its 1984 report. Although resolutions to give effect to the recommendations of the committee were presented, the recommendations were not implemented. The House therefore did not decide that the practice of granting permission should be discontinued. It has, however, been held by some authorities that the granting of permission is not required as a matter of law76 and the Senate has agreed to a resolution to the effect that leave of the Senate is not required.77 It should also be noted that the adduction into evidence of evidence taken in private is expressly prohibited by the Parliamentary Privileges Act.78
The immunity conferred on participants in proceedings in Parliament, and the laws on the use of or reference to records of, or documents concerning, parliamentary proceedings are part of the law of the Commonwealth79 and, as such, cannot be waived or suspended by either House acting on its own. The Committee of Privileges of the House has expressed the view that ‘as a matter of law there is no such thing as a waiver of Parliamentary Privilege’.80 In relation to the Prebble v. Television New Zealand case the New Zealand House of Representatives maintained that ‘article 9, as a rule of statute law, cannot be waived collectively by the House or individually by members (or others)’.81 The Senate has resolved not to accede to a request in a petition that it ‘waive privilege’ in relation to a submission made to a committee.82
The Defamation Act 1996 (UK) enabled a person effectively to waive, in so far as it concerns that person, the immunity preventing ‘proceedings in Parliament’ from being impeached or questioned in court where the person’s conduct in relation to proceedings is an issue in defamation proceedings. The UK Act does not alter the law in respect of the Commonwealth Parliament. (A committee of the British Parliament has recommended that the UK law be changed to enable the House, and not any individual, to waive the privilege in court proceedings.83)
When the House has not been sitting and the production of parliamentary records has been desired, the Speaker has granted permission, but has noted that it was given on the understanding that proper regard will be had to the law based on Article 9 of the Bill of Rights. The Leader of the House, the Manager of Opposition Business and the Attorney-General have been advised of the decision, and it has been reported to the House as soon as practicable.84
The more important cases which have arisen are described in the following pages. It should be noted that most pre-date the enactment of the Parliamentary Privileges Act.
On 7 May 1963 the House authorised two Hansard reporters to attend in the Supreme Court of the Australian Capital Territory to give evidence in relation to a proceeding in the House (produce shorthand notebooks to prove the accuracy of a newspaper report of a particular proceeding).85 No petition was presented to the House in this instance.
In 1943 a royal commission was established to inquire, inter alia, into a statement made in the House by a Minister (Mr Ward), that ‘I am most reliably informed that one important report is now missing from the official files’, in the course of debate concerning the matter known as ‘The Brisbane Line’ (an alleged plan for the defence of Australia).86 The Royal Commissioner held that Mr Ward was protected by the privilege of Parliament and could not be questioned in regard to his statement or his sources of information, stating:
. . . I have no power, sitting here as a Royal Commissioner, to direct the Minister . . . to attend before me and give evidence . .
However, the Commissioner rejected argument that privilege prevented him from investigating the matter raised by the Minister’s statement—that is, whether any such document was in fact missing.87
In October 1975 a petition was presented from Mr Danny Sankey seeking leave to issue and serve subpoenas for the production of certain official records of the proceedings of the House held on 9 July 1975 and of documents tabled therein, and further to issue and serve subpoena for the attendance in court of those persons who took the record of such proceedings. The petition stated that Mr Sankey wished to institute proceedings against three Ministers and a former Senate Minister and the records sought were intended to be adduced in evidence in the prosecution.88 In February 1976 a further petition from Mr Sankey sought leave for the petitioner and his legal representatives to inspect the documents tabled during the proceedings of 9 July 1975, together with the other matters sought in the previous petition.89
On 4 June 1976, the House granted leave for the inspection of the tabled documents in question, for a subpoena to be issued and served for the production of the documents and for an appropriate staff member to attend at court and produce the documents.90 It should be noted that the House did not grant leave for the Hansard report to be used in the proceedings nor for the reporters who took the report to appear in the court in connection with the proceedings.
Two further petitions were presented on behalf of Mr Sankey, in December 1976 and March 1977.91 No action was taken by the House in respect of either.
In 1979 an order was made by a judge of the Supreme Court of New South Wales in a case in which a Member had commenced an action for defamation against the publishers of a newspaper. On 11 September 1979, the order having been raised as a matter of privilege, the House referred the following matter to the Committee of Privileges:
The extent to which the House might facilitate the administration of justice with respect to the use of or reference to the records of proceedings of the House in the Courts without derogation from the Privileges of the House, or of its Members.92
The judge’s order was to the effect that certain interrogatories should be answered and verified by the Member, requiring him to agree that certain speeches in the Parliament shown in photostat copies of Hansard as having been made by him and two other persons were in fact made by him or them. The judge accepted the submission by counsel to the effect that what the defendant was seeking to do did not infringe the privilege of a House of Parliament in relation to proceedings before it, but sought merely to prove as a matter of fact that the plaintiff and others had made certain speeches in the House, not in any way to criticise them nor call them into question in court proceedings, but to prove them as facts upon which the defendants’ alleged comments were made in the publication sued upon by the plaintiff. The judge ruled that this use of the fact of what was said in Parliament would not be a breach of the privilege of Parliament.
The Committee of Privileges examined the order and concluded that His Honour was in error. (The judge had expressed views to the effect that the broadcast of proceedings and the publication of those proceedings in Hansard amounted to a waiver of privilege.) The committee expressed concern that, as a consequence of his order, the answers to the interrogatories may have been used by counsel in cross-examination had the case (which was settled out of court) come to trial. Such a course, if allowed, may have been used for questioning the motives of the Member when he made his speech in the House, a violation of the privilege enshrined in Article 9 of the Bill of Rights. As well as commenting on the judge’s order, the committee recommended, inter alia, that the petitioning process be continued and that petitions be referred to the Committee of Privileges,93 but the recommendations were not implemented.
In June 1983 during the winter adjournment the Speaker approved a request for the adduction into evidence before a Royal Commission of Inquiry into Australia’s Security and Intelligence Agencies of certain Hansard reports, subject to the condition that proper regard be had to the provisions of Article 9. During the course of its proceedings the Royal Commission produced a statement of issues requiring resolution. Concern was expressed that a breach of privilege could arise in connection with two of the issues which could have involved the questioning of statements of Ministers in the House. Although some modifications of the issues in question were made, it was considered that there was still a risk to Parliament’s interests, and counsel representing the Speaker, joined by the Deputy President of the Senate, was given leave to appear before the Royal Commission. Counsel addressed the Royal Commission on the law of parliamentary privilege, and junior counsel remained and represented the interests of the Speaker and the President, as necessary, in so far as the issue of privilege was concerned. The Speaker’s actions were endorsed when reported to the House when sittings resumed on 23 August 1983.94
In 1985 and 1986 issues of parliamentary privilege arose during trials which followed Senate committee inquiries concerning Mr Justice Murphy. Although the matters concerned the Senate in an immediate sense, the principles involved were considered to be of equal importance to the House of Representatives.
In the first trial of Mr Justice Murphy arguments put by counsel representing the President of the Senate in favour of the traditional parliamentary view of the meaning of Article 9, and to the effect that the presiding judge should intervene of his own volition to ensure the provisions were observed, were rejected.
The judge favoured a narrower view of the term ‘impeached or questioned’, indicating that there needed to be an adverse effect on freedom of speech or debates or proceedings in Parliament for Article 9 to be breached. The judge stressed the importance of cross-examination of witnesses with regard to previous statements, and referred to the competing interests involved. The judge held that ‘questioning of witnesses . . . as to what they said before a committee of the Senate, does not necessarily amount to a breach of privilege as being necessarily contrary to the Bill of Rights’.95 The cross-examination permitted extended to evidence given in private and not authorised for publication. In a later trial, R v. Foord, witnesses were also cross-examined on their committee evidence.96
In the second trial of Mr Justice Murphy a different view again was taken of the proper interpretation of the provisions of Article 9, although the result was similar. The judge held that what was meant by the declaration in Article 9 was that no court proceedings having legal consequences against a Member, or a witness, were permissible which would have the effect of preventing a Member or witness exercising his or her freedom of speech in Parliament or before a committee or of punishing him or her for having done so. It was held that statements to the committees could, without breach, be the subject of comment, used to draw inferences or conclusions, analysed and made the basis of cross-examination or submissions and comparisons made between such statements and statements by the same person outside Parliament.97 The trial proceeded in light of these decisions.
Members and Senators were informed of these matters and, in due course, it was concluded that only by legislation could the preferred interpretation of Article 9 of the Bill of Rights be guaranteed, and this was one of the principal objects of the Parliamentary Privileges Bill sponsored by the President of the Senate and the Speaker.98
During the course of an inquiry in the 33rd Parliament into the effects of asbestos mining on the Baryulgil community the Standing Committee on Aboriginal Affairs received a number of documents from a person formerly employed as manager of the asbestos mine in question and some from the New South Wales Aboriginal Legal Service. The committee published some of the documents and others were retained as exhibits and confidential exhibits. On 15 November 1985, in the 34th Parliament, a petition was presented from a solicitor for the Aboriginal Legal Service seeking leave to take possession of photographs, letters and plans tendered by the Aboriginal Legal Service, to take possession of documents tendered or presented by the former mine manager and seeking leave for persons seeking compensation for injuries and damages resulting from employment in or residence near the mine to refer to the committee’s report in court proceedings. It also sought to have an appropriate officer or officers attend in court to produce the committee report and to give evidence in relation to the inquiry that led to the report.
Not having direct knowledge of the documents or matters in question, the House referred to the Standing Committee on Aboriginal Affairs the question of whether the documents should be presented to the House by the committee for the purpose of the House granting leave for a subpoena to be issued and served for the production of the documents in court.
Before the committee reported on the matter a second petition was received seeking leave to serve a subpoena requiring the production of various photographs, letters and documents received from the former mine manager and seeking leave for the documents to be released into the custody of the Supreme Court of New South Wales. The petition related to litigation commenced to determine the rights to possession and ownership of documents.
The committee received advice from the Attorney-General and gave the witnesses involved an opportunity to comment. It concluded that there was significant public interest in the documents being available for use in the courts, which it did not want to disrupt, and noted that the witnesses consented to the release of the documents, so the question of protection of the witnesses did not affect any decision. The committee recommended that leave should be granted as requested. The House granted leave to the petitioners to issue subpoenas for the production of the documents and for the appropriate officer or officers to attend in court and produce the documents and the official report and give evidence concerning the inquiry ‘with the intention that the said documents be available for production in all proceedings to which they are relevant’.99
In November 1988 a petition was presented from seeking, inter alia, leave for the petitioners to take possession of the transcript of proceedings of a Road Safety Committee inquiry and all documents tendered by parties appearing and giving evidence and, in particular, certain exhibits referred to in an appendix to the report, and for the production and admission into evidence of such documents. The House granted leave in respect of the published records of proceedings and the report of the committee, but not in respect of the confidential exhibits. When the petition was presented the Road Safety Committee had ceased to exist, but the Standing Committee on Transport, Communications and Infrastructure had responsibilities in that area, and so the House referred to that committee the question of whether the confidential exhibits should be presented to the House for the purpose of the House granting leave. In April 1989 the committee reported, having contacted those who had lodged the confidential exhibits. The committee evaluated the arguments for and against the release sought. It noted that the documents had been provided on the basis that they would be treated as confidential. In recommending against release, the committee stated that the House had a strong moral obligation to protect the arrangements made in obtaining information and stated that to authorise release of the documents for use in a court could seriously impair the future effectiveness of the working of parliamentary committees because witnesses could refuse to be forthcoming in what they said or provided, knowing that they could be disadvantaged in court proceedings by the release of evidence. It noted that the word of Parliament and the integrity of the institution could be called into question. The committee advised that the exhibits should not be presented to the House for the purposes sought and that in future the House should ask committees, when making such a decision, to take into consideration the concepts and propositions it had enunciated. In the event the matter was settled and the case did not proceed.100
In 1999 the Speaker presented a request from the National Crime Authority seeking permission for the Votes and Proceedings for 10 November 1998 (the first sitting day of the 39th Parliament) to be produced in committal proceedings against a Member in the Melbourne Magistrates Court, and in any subsequent proceedings.101 The House gave leave for the Votes and Proceedings to be produced.102 It was understood that the objective was to establish that the Member in question had in fact been elected, and taken the oath or affirmation of allegiance, as a Member.
Section 46 of the Freedom of Information Act 1982 states:
A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown . . . :
(a) be in contempt of court;
(b) be contrary to an order made or direction given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath; or
(c) infringe the privileges of the Parliament of the Commonwealth or of a State or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory or of Norfolk Island.
The Department of the House of Representatives, along with the other parliamentary departments, is excluded from the operation of the Act, being neither a department of state nor a ‘prescribed authority’ as defined in the Act.103 It seeks, however, to comply with the intent of the Act where practicable in relation to the release of administrative information. The Department has released documents unless they would have fallen within an exemption under the Act or where a request would have been refused under the Act.
Section 14 of the Parliamentary Privileges Act provides that a Member of either House shall not be arrested or detained in a civil cause on any day on which the House of which he or she is a Member meets, on any day on which a committee of which he or she is a member meets or on any day within five days before or after such days.
The following comment has been made about the retention of such an immunity:
The justification . . . is the need of Parliament to the first claim on the services of its Members, even to the detriment of civil rights of third parties.104
Freedom from arrest in civil matters is one of the earliest privileges. The immunity is confined to civil arrest; there is no immunity from arrest for crime.
The imprisonment of a Member of the House of Representatives was the subject of an inquiry by the Committee of Privileges in 1971. In April 1971 Mr T. Uren, MP was committed for 40 days after his failure to pay costs awarded against him in respect of an unsuccessful action he had brought against a policeman for alleged assault. He was released after serving only a short period when the balance of the costs was paid by another person. The particular question for determination by the Committee of Privileges was whether the commitment of Mr Uren was one in a case which was of a civil or criminal character. Clearly, if the commitment was one in a case which was of a civil character, a breach of parliamentary privilege had occurred. However, if the commitment arose out of a case of a criminal character or which was more of a criminal than a civil character, the Member enjoyed no immunity and no breach of parliamentary privilege had occurred.
The committee received conflicting legal advice, but reported to the House on 7 May 1971 (a.m.) that it had found that the commitment to prison of Mr Uren constituted a breach of parliamentary privilege but recommended that:
. . . having regard to the complexities and circumstances of the case . . . the House would best consult its own dignity by taking no action in regard to the breach of Parliamentary Privilege which had occurred.105
On 23 August 1971 the House agreed to take note of the report. During the course of the debate the Minister representing the Attorney-General presented correspondence from the New South Wales Premier and the New South Wales Attorney-General which expressed the strong view that the committee’s finding was inconsistent with decisions of New South Wales courts which held that imprisonment for costs is ‘criminal in nature’.106
The committal of a Member for any criminal offence, or in any civil matter, including contempt of court, should be notified to the Speaker by the committing judge or magistrate or some other competent authority. When Mr Uren was committed for 40 days for his failure to pay court costs (see above), advice of his imprisonment (and subsequent release) was conveyed to the Speaker and reported to the House at its next sitting.
On 26 February 1980 the Senate agreed to a resolution relating to the right of the Senate to receive notification of the detention of its members. A resolution reaffirming the resolution of February 1980 was agreed to by the Senate on 18 March 1987. The resolution was communicated to the Presiding Officers of the Parliaments of the States, the Attorneys-General of the States and the Speaker of the House of Representatives.107
In 1984 the Joint Select Committee on Parliamentary Privilege recommended that the court or officer having charge of a detained Member should inform the relevant Presiding Officer but no specific action was taken by the House on this recommendation.108
Section 14 of the Parliamentary Privileges Act also extends the immunity from arrest in civil causes to employees and witnesses in the following terms:
(2) An officer of a House:
. . .
(b) shall not be arrested or detained in a civil cause;
on any day:
(c) on which a House or a committee upon which that officer is required to attend meets; or
(d) which is within 5 days before or 5 days after a day referred to in paragraph (c).
(3) A person who is required to attend before a House or a committee on a day:
. . .
(b) shall not be arrested or detained in a civil cause;
on that day.
Based on the House’s prior claim to the services of its Members, they are excused from service on juries. This exemption has been incorporated in the Jury Exemption Act 1965, which provides that Members of Parliament are not liable, and may not be summoned, to serve as jurors in any Federal, State or Territory court.109
Certain employees of the Parliament are also exempted from attendance as jurors in Federal, State and Territory courts by regulations made under the Act.110
Section 14 of the Parliamentary Privileges Act provides that Members shall not be required to attend before a court or tribunal on any day on which the House of which the Member is a member meets, on any day on which a committee of which he or she is a member meets or on any day within five days before or after such days. The exemption is also extended to employees of the House required to attend upon the House or a committee and applies on days on which the House or the committee upon which the officer is required to attend meets, or on days within five days before or after such days. Witnesses, that is, ‘persons required to attend before a house or a committee on a day’, shall not be required to attend before a court or tribunal on that day.
The Parliament claims the right of the service of its Members and employees in priority to a subpoena to attend as a witness in court ‘. . . upon the same principle as other personal privileges, viz, the paramount right of Parliament to the attendance and service of its Members’.111 In the House of Representatives, when a Member has received a subpoena requiring his or her attendance in court on a day on which a Member could not be compelled to attend, it has been common for the Speaker to write to the court authorities asking that the Member be excused.
In 1966 the Treasurer was served with a subpoena requiring his attendance before the Supreme Court of Victoria. The Speaker wrote to the court drawing attention to the claims of the House concerning the attendance of Members. The judge ruled in accordance with the Speaker’s representations, and excused the Treasurer from attendance.112
Subsection 15(2) of the Evidence Act 1995 provides that a Member of a House of an Australian Parliament is not compellable to give evidence if this would prevent the Member from attending a sitting of his or her House, or a joint sitting, or a meeting of a committee of which he or she is a member.
By virtue of section 49 of the Constitution, the House has the ability to treat as a contempt:
. . . any act or omission which obstructs or impedes . . . (it) . . . in the performance of its functions, or which obstructs or impedes any Member or officer . . . in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results . . . even though there is no precedent of the offence.113
Whilst the House thus has a degree of flexibility in this area, section 4 of the Parliamentary Privileges Act imposes a significant qualification:
Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.
This provision should be taken into account at all stages in the consideration of possible contempts. It is important also to recognise that the Act does not codify or enumerate acts or omissions that may be held to constitute contempts.114
Section 6 of the Act provides that words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee or a Member, thus abolishing a previous category of contempt. This provision does not apply to words spoken or acts done in the presence of a House or a committee. The Act also contains specific provisions dealing with the protection of witnesses (see p. 734) and the unauthorised disclosure of evidence (see p. 735).
In 1984 the Joint Select Committee on Parliamentary Privilege recommended the adoption, by resolution, of detailed guidelines which, whilst they would not prevent the House from pursuing a matter not covered by their provisions, would indicate matters that may be treated as contempts. Whilst draft guidelines were presented in the House in 1987,115 action was not taken to adopt them. The committee also recommended the adoption of a policy of restraint in the exercise of the penal jurisdiction, proposing that each House should exercise its powers in this area only when satisfied that to do so was essential in order to provide reasonable protection for the House, its Members, its committees or its officers from such improper obstruction, or attempt at or threat of obstruction such as was causing, or likely to cause, substantial interference with their respective functions.116 Although no explicit action was taken by the House to implement this recommendation, successive Speakers, in giving decisions on complaints raised, have had regard to the policy of restraint and have indicated support for it.117
The following paragraphs are confined mainly to a note of matters highlighted in May and a record of those matters which the House of Representatives has determined to be acts or conduct constituting breaches of privilege or contempt, some occurring before enactment of the Parliamentary Privileges Act. The experience of the House is limited and for guidance as to precedents of other acts found to constitute contempt by the House of Commons, reference is made to the experience of that as recorded in May.118 In assessing the relevance to future cases of the precedents which do exist in the Commonwealth Parliament (and in the House of Commons), regard must be had to the provisions of the Parliamentary Privileges Act and, in particular, to section 4, which appears above. Appendix 25 contains a full listing of complaints raised in the House.
May states:
Any disorderly, contumacious or disrespectful conduct in the presence of either House or a committee will constitute a contempt, which may be committed by strangers, parties or witnesses.119
The most frequent example of disorderly conduct on the part of strangers is the interruption or disturbance of the proceedings of the House by visitors in the galleries, generally seeking to publicise some political cause. In practice, disorderly conduct of this nature would not normally be pursued as a possible contempt but rather dealt with by other means (see Chapter on ‘Parliament House and access to proceedings’).
It should also be noted that section 15 of the Parliamentary Privileges Act provides:
. . . for the avoidance of doubt, that, subject to the provisions of section 49 of the Constitution and this Act, a law in force in the Australian Capital Territory applies according to its tenor (except as otherwise provided by that or any other law) in relation to:
(a) any building in the Territory in which a House meets; and
(b) any part of the precincts as defined by subsection (3) (1) of the Parliamentary Precincts Act 1988.
Section 11 of the Parliamentary Precincts Act 1988 provides that the Public Order (Protection of Persons and Property) Act 1971 applies to the precincts as if they were Commonwealth premises within the meaning of that Act.
Examples of this type of contempt include the refusal of a witness or other person to attend the House or a committee after having been summoned to attend and refusing to leave the House or a committee when directed to do so. ‘To prevent, delay, obstruct or interfere with the execution of the orders of either House or its committees is also a contempt’.120
Curtin Case (1953): On 17 March 1953 the House resolved that contempt of its ruling and authority had taken place by a Member who had failed to observe an order for his exclusion from the Parliament building following his suspension from the House for using an unparliamentary expression. Following the resolution the Member made an apology to the House which the House resolved to accept and no further action was taken.121
May states ‘Any abuse of the right of petition may be treated as a contempt by either House’.122 Precedents in this area include:
The presenting of a forged, falsified or fabricated document to either House or to a committee, with intent to deceive, has been treated as a contempt.124
In 1907 a committee of the House of Representatives reported that signatures to a petition were found to be forgeries and the House requested the Crown law authorities to take action with a view to criminal prosecution. The House was later advised, however, that prosecution for forgery would be unsuccessful.125 In 1974 a letter published in a newspaper in the name of a Member was found by the Committee of Privileges to be a forgery and therefore appeared to constitute a criminal offence. As the author of the letter was unknown, no legal action could be taken.126
To conspire to deceive either House or a committee of either House could be punished as a contempt. The abuse of the right of petition and forging or falsifying documents could be examples of this type of contempt.
May states:
The Commons may treat the making of a deliberately misleading statement as a contempt. In 1963 the House resolved that in making a personal statement which contained words which he later admitted not to be true, a former Member had been guilty of a grave contempt.127 (Profumo’s Case, CJ (1962–63) 246)
The circumstances surrounding the decision of the House of Commons in Profumo’s Case are of importance because of the guidance provided in cases of alleged misrepresentation by Members. Mr Profumo had sought the opportunity of making a personal statement to the House of Commons to deny the truth of allegations currently being made against him. Later he was forced to admit that in making his personal statement of denial to the House, he had deliberately misled the House. As a consequence of his actions, he resigned from the House which subsequently agreed to a resolution declaring him guilty of a grave contempt.
Whilst claims that Members have deliberately misled the House have been raised as matters of privilege or contempt, the Speaker has not, to date, accepted such a claim.
On 16 September 1986 Speaker Child advised the House that she had appraised a statement to the House on 22 August by a Member, following her reference to remarks critical of her attributed to the Member. The Speaker, having examined the transcripts of the remarks in question, and comparing them to the Member’s statement to the House, claimed that he had misled the House and this action, in her opinion, constituted a contempt of the House. The Member then addressed the House on the matter. The Chairman of Committees then moved a motion to the effect, inter alia, that the Member’s statement to the House on 22 August ‘being clearly at odds with his original comments, misled the House, and thus constitutes a contempt of the House . . .’ After debate, and the Member having again withdrawn the remarks to which attention had been drawn, and having again apologised, the motion was withdrawn, by leave128 (and see Chapters on ‘The Speaker, Deputy Speakers and officers’ and ‘Motions’).
Section 141.1 of the Criminal Code deals with the offences of bribery of Commonwealth public officials. It provides for penalties of 10 years imprisonment for both giving and receiving bribes, and Members of Parliament are encompassed by the term ‘Commonwealth public official’.129
As well as being a crime, corruption in connection with the performance of a Member’s duties as a Member could also be punished as a contempt.
May states:
The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to either House, or to a committee is a contempt.130
Section 45 of the Constitution also applies—see ‘Qualifications and disqualifications’ in Chapter on ‘Members’.
May records that in 1995 the House of Commons, adding to a 1947 resolution, resolved that
no Member . . . shall, in consideration of any remuneration, fee, payment, reward or benefit in kind, direct or indirect, . . . advocate or initiate any cause or matter on behalf of any outside body or individual; or urge any Member of either House of Parliament, including Ministers, to do so, by means of any speech, Question, Motion, introduction of a bill, or amendment to a Motion or Bill.131
In Australia section 45 of the Constitution also applies—see ‘Qualifications and disqualifications’ in Chapter on ‘Members’.
To cause or effect the arrest of a Member in a civil cause during periods when the immunity conferred by the Parliamentary Privileges Act applies could be pursued as a contempt (see p. 724); so too could molestation of a Member while attending, coming to, or going from the House.
In 1986 the Committee of Privileges considered a case in which the work of a Member’s electorate office had been disrupted as a result of a considerable number of telephone calls received in response to false advertisements in a newspaper. The committee’s report stated that the actions in question were to be deprecated; that in all the circumstances it did not believe that further action should be taken; but that harassment of a Member in the performance of his or her work by means of repeated or nuisance or orchestrated telephone calls could be judged a contempt.132
The Committee of Privileges has also considered the effect of industrial action which involved bans on the delivery of mail to, and the despatch of mail from, Members’ electorate offices. It found that the actions had disrupted the work of electorate offices, and impeded the ability of constituents to communicate with Members, but that as the actions were not taken with any specific intention to infringe the law concerning the protection of Parliament an adverse finding should not be made.133
In 1995 the committee reported on a complaint following the execution, by officers of the Australian Federal Police, of a search warrant on the electorate office of a Member. The committee concluded that, although the work of the Member’s electorate office had undoubtedly been disrupted, and that although the actions complained of amounted to interference in the free performance by the Member of his duties as a Member, the interference could not be regarded as improper interference as required by section 4 of the Act and so no contempt had been committed.134
The Parliamentary Privileges Act also confers, by section 14, immunity from arrest in civil causes of officers required to attend on a House or a committee for certain periods (see p. 725). The obstruction of House employees in the execution of their duty, or other people entrusted with the execution of its orders, or the molestation of those people on account of their having carried out their duties, could be found to be a contempt. To commence proceedings against such people for their conduct in obedience to the orders of the House could be pursued as a possible contempt.
As well as being a criminal offence,135 punishable by 10 years imprisonment, the offering of bribes to Members to influence them in their parliamentary conduct is equally a contempt.
To attempt to influence a Member in his or her conduct as a Member by threats, or to molest any Member on account of his or her conduct in the Parliament, is a contempt. So too is any conduct having a tendency to impair a Member’s independence in the future performance of his or her duty, subject, since 1987, to the provisions of the Parliamentary Privileges Act.
On 8 June 1955 the Committee of Privileges reported to the House that it had found:
The committee’s inquiry and report followed a complaint made by a Member (Mr Morgan) on 3 May 1955 that an article published on 28 April 1955 in a weekly newspaper known as the Bankstown Observer, circulating in his electorate, had impugned his personal honour as a Member of Parliament and was a direct attack on his integrity and conduct as a Member of the House.137
The committee’s report and findings were considered by the House on 9 June 1955 and a motion moved by the Prime Minister ‘That the House agrees with the Committee in its Report’ was agreed to without division. On a further motion of the Prime Minister it was resolved that Messrs Browne and Fitzpatrick be notified that at 10 a.m. the following day the House would hear them at the Bar before proceeding to decide what action it would take in respect of their breaches of privilege.138
On being brought to the Bar of the House the following morning139 Mr Fitzpatrick sought permission for his counsel to act on his behalf. The request was refused by the Speaker and Mr Fitzpatrick apologised to the House for his actions and withdrew. Mr Browne was then brought to the Bar and addressed the House at some length without apologising and withdrew.
Following a suspension of 51 minutes, the House resumed and the Prime Minister moved motions in respect of Messrs Fitzpatrick and Browne to the effect that, being guilty of a serious breach of privilege, they should be imprisoned for three months and that the Speaker should issue warrants accordingly. The Leader of the Opposition moved, as an amendment, that both motions be amended to read:
That this House is of opinion that the appropriate action to be taken in these cases is the imposition of substantial fines and that the amount of such fines and the procedure of enforcing them be determined by the House forthwith.
Following considerable debate, the amendment was defeated, on division, and the motions of the Prime Minister agreed to, on division.
The action taken by the legal representatives of Messrs Browne and Fitzpatrick to apply to the High Court for writs of habeas corpus and their subsequent petition to the Judicial Committee of the Privy Council for special leave to appeal against the decision of the High Court is referred to earlier (see p. 709).
In 1990 the Committee of Privileges reported on actions taken by a solicitor in respect of the Hon. G. G. D. Scholes, MP. Mr Scholes had distributed certain information within his electorate, and had subsequently received a letter from a solicitor acting on behalf of a client affected by the information. The letter, inter alia, asked that Mr Scholes refrain from making such statements in the future, and stated that if assurances sought were not forthcoming, the solicitor would advise his client to initiate proceedings. Mr Scholes argued that the threat would inhibit him in carrying out his duties as a Member, but the committee found that there was not sufficient evidence to lead it to a conclusion that the statement should be found to constitute an attempt by improper means to influence Mr Scholes in respect of his participation in proceedings in Parliament.140
In the Nugent Case (1992) and the Sciacca Case (1994) the Committee of Privileges considered complaints about actions or threatened actions to sue Members on account of statements made in letters to Ministers. The substance of the Members’ complaints was that they had been subject to improper interference in the performance of their duties as Members. In the case of Mr Nugent, the committee found that the terms of the letter containing the threat and the circumstances of its receipt had a tendency to impair Mr Nugent’s independence in the performance of his duties, although it did not find that a contempt had been committed.141 The House subsequently resolved that the persons responsible should be required to apologise142 and they did so.143 In the case of Mr Sciacca, the committee found that although Mr Sciacca had felt constrained, there was no evidence of an attempt to interfere improperly in the performance of his duties and a finding of contempt should not be made.144
In this case the committee was required to consider a complaint that action to sue a person who had sworn a statutory declaration and given it to a Member (who had used it in the course of proceedings in the House) amounted to improper interference in the performance of the Member’s duties. The committee concluded that no evidence had been produced which would establish that the actions complained of amounted to or were intended or likely to amount to improper interference in the free performance by Mr Katter of his duties as a Member. Accordingly, it found that a contempt had not been committed.145
In 1947 the House of Commons Committee of Privileges inquired into a complaint that certain actions of the Executive Committee of a union were calculated, improperly, to influence a Member (Mr Brown) in the exer