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Parliamentary privilege

The Information Law Branch provides legal advice and legal policy advice in relation to parliamentary privilege issues.  The term parliamentary privilege refers to the powers and privileges (or immunities) of the Houses of the Federal Parliament.  The law in relation to parliamentary privilege derives from section 49 of the Constitution.  The effect of this provision was to incorporate the law of parliamentary privilege as it existed in the United Kingdom at 1901 into the constitutional law of Australia.  The law of parliamentary privilege has been further enunciated and refined in Australia by the courts and by the Parliamentary Privileges Act 1987.

Parliamentary Privileges - Introduction and Legal Framework

• Introduction
• History
• The Declaration of Rights 13 February 1689 [Bill of Rights 1688]
• Powers and Immunities
• Parliamentary Privilege in Australia
• Australian Constitution
• Parliamentary Privileges Act 1987
• Immunity of Proceedings from Impeachment and Question
• Protection of Witnesses
• Privileges Resolutions of the Senate 1988
• Resources

Introduction

The rules, conventions and practices relating to parliamentary privilege regulate the relationship between the three arms of government; the Executive, the Parliament and the courts.  Departments and agencies form part of the Executive arm of government and because of this parliamentary privilege is relevant to all of our working lives.

Parliamentary privilege developed to allow Parliament to proceed with the business of making legislation and reviewing the activities of the Executive without undue interference.

Historically

• Lock, GF ‘Parliamentary Privilege and the Courts:  The Avoidance of Conflict’, Public Law, Spring 1985, pp 64 - 92
• Harders, Sir Clarrie, ‘Parliamentary Privilege - Parliament versus the Courts:  Cross-examination of Committee Witnesses’, 67 ALJ 1993 pp 109 - 142
• Limon, Sir Donald, Clerk of the House of Commons, ‘Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament,’ Twenty Second Edition, Butterworths, London 1997.

The privileges and the powers of Parliament emerged as the result of the struggle between the Crown, the courts and the House of Commons in the United Kingdom over hundreds of years.  There were many flashpoints.  One crucial flashpoint occurred in the second half of the seventeenth century and related principally to one of the major privileges of parliament, the right to freedom of speech in the parliament.

• In the seventeenth century judicial independence could not be assumed.  Judges held office during the King’s pleasure and were often dismissed if judgments did not please the King.  It wasn’t until 1701 that judges were guaranteed security of tenure and protected from summary dismissal by the Crown.
• In 1680 a pamphlet containing libels on the Duke of York, later James II, was printed among the papers of the House of Commons and its publication authorised by the Speaker, Mr William Williams.  In 1686, by which time the Duke had become King, Mr Williams was prosecuted and fined 10 000.  Mr Williams was prosecuted for his actions as Speaker.  It was seen as an attack on the freedom of parliament to conduct its business without undue interference by the Crown.
• A further complicating factor was James’ Roman Catholicism which brought him into conflict with the Protestant church hierarchy and powerful members of Parliament.
• As a result of this conflict William of Orange, Protestant son-in-law to Catholic James, was invited to intervene and accept the Crown.  He landed in Devon with 15,000 troops and James II fled to France.

The Declaration of Rights 13 February 1689 [Bill of Rights 1688]

The full text of the Declaration can be found at the UK Government website Fact Sheet ‘The Glorious Revolution’

As a result of the conflict between Parliament and James II the Parliament issued the Declaration of Rights in 1689.  Article 9 of the Declaration was a response to the case of William Williams and other similar cases.

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of the kingdom ...

By prosecutions in the Court of King’s Bench for matters and causes cognisable only in parliament; and by divers other arbitrary and illegal courses ...

And thereupon the said lords spiritual and temporal and Commons ... do in the first place (as their ancestors in like cases have usually done) for the vindicating and asserting their ancient rights and liberties, declare:
...

9. 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.

It sets down one of the primary privileges of Parliament which is still relevant in the modern context for the following reason stated by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 35:

• ‘a Member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences.’

This freedom is also of significance to public servants and others who have dealings with Parliament, for example, the freedom also applies to witnesses before parliamentary committees.  This means that evidence you give before a parliamentary committee and submissions made to such committees attract absolute privilege and the use which can be made of such material in subsequent legal proceedings is extremely limited.

Parliamentary Privilege - Powers and Immunities

A range of other privileges and powers also developed over time to help ensure that the balance between the three arms of government was maintained.

The term parliamentary privileges refers to certain aspects of the law relating to Parliament:

• the privileges, or immunities, of the Houses of Parliament; and
• the powers of the Houses of Parliament to protect the integrity of their processes.

Privileges are actually immunities from the ordinary law:

‘The privileges of Parliament are immunities conferred in order to ensure that the duties of members as representatives of their constituents may be carried out without fear of intimidation or punishment, and without improper impediment ... a privilege of Parliament is more properly called an immunity from the operation of certain laws, which are otherwise unduly restrictive on the proper performance of the duties of Parliament.’

[Senate Committee of Privileges, ‘Committee of Privileges 1966 - 1996, History, Practice and Procedure,’ 62nd Report June 1996 page 1.]

• The only major immunity is that set out in Article 9 of the Declaration of Rights, that is, the immunity of parliamentary proceedings from impeachment and question in the courts.
• Minor immunities are as follows:
•  immunity from arrest in civil causes;
•  exemption from service as a juror; and
•  exemption from compulsory attendance in a court or tribunal.

Powers of the Houses of Parliament:

• Power of the Houses to determine their own constitutions
• Only in so far as it is not determined by the Constitution and statutory law, therefore, in Australia this power is of limited significance;
• Power to conduct inquiries
• power to require the attendance of persons
• power to require the production of documents

 This power is currently the subject of examination in the courts. 

Egan v Willis & Cahill [1998] HCA 71 is a recent decision of the High Court which deals with the power of the NSW Parliament to demand documents from the Government and the power of the Parliament to punish a Minister for refusing to produce documents.

Egan v Chadwick [1999] NSWCA 176 is another case dealing with the powers of the NSW Parliament and is a very recent decision of the NSW Court of Appeal.  In this case the NSW Government claimed legal professional privilege and public interest immunity for certain documents.  The case concerns the power of the NSW Parliament to compel the production of documents in these circumstances.

• power to take evidence under oath; and
• the power to punish for contempts
• supports the power to conduct inquiries
• acts which impede the performance by a House of its functions, defined in Section 4 of the Parliamentary Privileges Act 1987.
• Examples:  unauthorised publication of committee evidence taken in camera, adverse treatment of a witness in consequence of the witness’s evidence; harassment of a Senator.
• the Houses may impose terms of imprisonment or fines for contempts of Parliament.

 There has been only one case of a penalty of imprisonment imposed by a House of the Commonwealth Parliament.  In 1955 the House of Representatives imprisoned two persons for publishing articles intended to influence and intimidate a Member in his conduct in the House and deliberately attempting to impute corrupt conduct as a Member against a Member for the express purpose of silencing him.  The action of the House was examined and upheld by the High Court in R v Richards: ex parte Fitzpatrick and Browne 1955 92 CLR 157.

Parliamentary Privilege in Australia

Australian Constitution

At Federation in 1901 the powers and privileges of the UK House of Commons were adopted for both Houses of the Commonwealth Parliament under the Australian Constitution.

• Section 49

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.

• Section 50

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.

• By virtue of section 49, parliamentary privilege is part of the ordinary law of Australia.
• Sections 49 allows the Commonwealth Parliament to change the powers, privileges and immunities of Parliament.
• In the US parliamentary privilege is incorporated in Section 6 of the Constitution:
  The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

Parliamentary Privileges Act 1987

[A copy of the Act can be found at page 55 of the Senate Committee of Privileges 76th Report ‘Parliamentary Privilege; Precedents, Procedures and Practice 1966 - 1999.’]

The Commonwealth Parliamentary Privileges Act 1987 was introduced to clarify the law following decisions of Mr Justice Cantor and Mr Justice Hunt in the NSW Supreme Court concerning the meaning of Article 9 of the Declaration of Rights.  The cases involved the prosecution of Justice Lionel Murphy of the High Court for attempting to pervert the course of justice.  Senate Select Committees had conducted inquiries into whether Justice Murphy should be removed from office.  The parliamentary privilege issue which arose in these cases was whether a witness who gave evidence to a parliamentary committee could then be examined on that evidence in the course of a criminal trial.  At both trials the prosecution and the defence made use of the evidence given to the parliamentary committees, examining the witnesses as to the truth of and motives behind their evidence.

[R v Murphy unreported; R v Murphy (1986) 64 ALR 498]

• The Explanatory Memorandum to the Parliamentary Privileges Bill makes clear that the Bill was introduced to avoid the consequences of the interpretation of Article 9 of the Bill of Rights in the Murphy trials.

[A copy of the EM can be found at page 63 of the Senate Committee of Privileges 76th Report.]

• The Act also picks up some of the recommendations of the Joint Select Committee on Parliamentary Privilege, Final Report October 1984, Parliamentary Paper No 219/1984.
• The Act is not an exhaustive statement of the law of parliamentary privilege.  It addresses only certain aspects of the law. 

Immunity of Proceedings from Impeachment and Question

• Section 16 of the Act:

16(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.

• Meaning of ‘Proceedings in Parliament’

16(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.

• Broad Prohibition on Use of Proceedings

16(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.

• Section 16(3) of the Act h as been held to be declaratory of the prior operation of Article 9 of the Bill of Rights - Amann Aviation Pty Ltd v Cth (1988) 19 FCR 223;  Prebble v Television New Zealand Limited [1995] 1 AC 321.

Protection of Witnesses

• Section 12 of the Act:

12(1) A person shall not, by fraud, intimidation, force or threat, by the offer or promise of any inducement or benefit, or by other improper means, influence another person in respect of any evidence given or to be given before a House or a committee, or induce another person to refrain from giving any such evidence.

Penalty:

(a) in the case of a natural person, $5,000 or imprisonment for 6 months; or

(b) in the case of a corporation, $25,000.

(2) A person shall not inflict any penalty or injury upon, or deprive of any benefit, another person on account of:

(a) the giving or proposed giving of any evidence; or

(b) any evidence given or to be given; before a House or a committee.

Penalty:

(a) in the case of a natural person, $5,000 or imprisonment for 6 months; or

(b) in the case of a corporation, $25,000.

(3) This section does not prevent the imposition of a penalty by a House in respect of an offence against a House or by a court in respect of an offence against an Act establishing a committee.

Privileges Resolutions of the Senate 1988

• Made changes in Senate practices but not part of the law
• Resolution 1 Procedures to be observed by Senate Committees for the protection of witnesses

[Page 71 of the Senate Committee of Privileges 76th Report.]

Resources

• Odgers’ Australian Senate Practice, Eleventh Edition, Harry Evans Clerk of the Senate (Ed) AGPS Canberra 1999 Chapter 2.
• House of Representative Practice, Fifth Edition, IC Harris Clerk of the House of Representatives (Ed) AGPS Canberra 2001 Chapter 19.
• Parliamentary Privilege in Australia, Enid Campbell, Melbourne University Press, Melbourne, 1966.
• Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, Limon, Sir Donald (Ed), Butterworths, London, 1997.
• Senate Committee of Privileges 76th Report Parliamentary Privilege; Precedents, Procedures and Practice in the Australian Senate 1966 - 1999.