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Parliamentary Privilege First Report

Letter from the Clerk of the Legislative Assembly of New South Wales

  In addition to the New South Wales Parliament's response to your letter of 23 February 1998 concerning questions of the Joint Committee on Parliamentary Privilege, I wish to make two supplementary comments. As our reply to your questionnaire was a joint response, I thought it best to express my personal views on these matters in a separate letter.

  First, in regard to your second question, I do not consider that there is any contemporary link between the privileges of the Parliaments of the United Kingdom and New South Wales. Courts have repeatedly held that the Parliament of New South Wales did not inherit the powers and privileges of the House of Commons but only has those powers conferred by statute and inherent in a legislature under the common law of Australia (eg, "It has long been established that the New South Wales Parliament did not, as a matter of common law, inherit the powers and privileges of the United Kingdom Parliament" Gleeson CJ, Egan v Willis & Cahill, NSW CA (1996) 40 NSWLR 650). The powers and privileges of the Parliament of the United Kingdom only affect the privileges of the New South Wales Parliament insofar as they may illustrate the kinds of privileges that might be conferred by the common law. Consequently, I do not think that changes to the privileges of the Parliament of the United Kingdom will have any effect on the law of privilege in New South Wales. Further, I would consider that s 1 of the Australia Act 1986 (Cwth) would prevent any legislation of the United Kingdom having any effect in Australia unless adopted by local legislation.

  Secondly, our answer to the third point in question 10 should be read in conjunction with our answer to question 9 as the law on the use of parliamentary proceedings in courts in New South Wales is not clear.

  I hope you find these comments helpful and look forward to the results of your inquiries.

Russell D Grove

Clerk of the Legislative Assembly

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