Parliamentary Privilege First Report

Memorandum from the Legislative Assembly of Queensland

  I refer to your correspondence dated 23 February 1998 about the review of privilege by the Joint Committee on Parliamentary Privilege.

  For your information I am attaching to the original of this letter the following material.

    —  Issues Paper No 3 Members' Ethics and Parliamentary Privileges Committee, Parliamentary Privilege in Queensland, July 1997.

    —  Extracts from the Constitution Act 1867 (Qld).

    —  Extract from the Criminal Code (Qld).

    —  A copy of the Parliamentary Papers Act 1992 (Qld).

    —  A copy of the Parliamentary Committees Act 1995 (Qld).

    —  A copy of the Parliamentary Service Act 1998 (Qld).

    —  Procedures for witnesses appearing before Parliamentary Committees.

    —  Sessional Orders for the Appointment and Conduct of Committees.

    —  Extracts from the Standing Rules and Orders of the Legislative Assembly.

  As to the list of questions which you have asked, I provide the following information.

  Question 1  We understand that you have enacted legislation to define your privileges. May we have a copy of the relevant legislation? Was the decision to legislate based on your experience of not having codification of your privileges, or is there a tradition of statutory enactment?

  The privileges and immunities of the Legislative Assembly are not comprehensively defined by legislation. Rather, section 40A of the Constitution Act 1867 provides that the powers, privileges and immunities of the Legislative Assembly, its members and committees are those defined by statute and until defined by statute are the same as those possessed by the House of Commons, its members and committees for the time being. This general provision has been supplemented by specific legislation dealing with parliamentary papers and the activities of parliamentary committees. The relevant legislation is attached to the original of this letter.

  Question 2  How close is the linkage between your privileges and those in the United Kingdom. Is this link based on statute? If we change our privileges will this directly, or indirectly affect your own?

  As explained above, the linkage between the Assembly's privileges and the House of Commons is very close and any change to the privileges of the House of Commons will directly affect the Assembly. It should be noted that this linkage between the House of Commons and the Assembly is under active consideration by the Members' Ethics and Parliamentary Privileges Committee.

  Question 3  A central issue is the extent to which Parliament should have exclusive control over its own affairs. Apart from exclusive control over their procedure does your Parliament have exclusive control over the buildings in which it meets and over its staffing and administration?

  The Legislative Assembly has exclusive control over its own proceedings, buildings, staffing and administration. The appropriation for the Parliament each year is contained in a separate Appropriations Bill to that for the general public service. For your information I have attached a copy of the Parliamentary Service Act 1992 (Qld) which establishes the Parliamentary Service and explains our administrative arrangements.

  Question 4  Does the general law (eg on employment, office conditions) automatically apply within the parliamentary precincts; or does it only apply to the extent accepted by Parliament and/or the extent specifically provided in statute?

  Section 49 of the Parliamentary Service Act 1992 (Qld) provides that the law relating to industrial relations and occupational health and safety apply to the Parliamentary Service. However, there are a number of other legislative regimes that do not apply to the Legislative Assembly or the Parliamentary Service (including Freedom of Information and service of administrative decisions).

  Question 5  Can you punish a member of the public for a contempt of Parliament? Is there any appeal to a Court?

  A member of the public could be held in contempt of the Assembly and could be fined or imprisoned for certain listed contempts. There is no mechanism for appeal to any Court.

  Question 6  Have you codified those offences which are considered to be a contempt of Parliament? If not, can you give examples of cases where a member of the public has been punished for a contempt?

  We have not codified those offences which are considered to be a contempt of Parliament as such. However, section 45 of the Constitution Act of Queensland 1867 provides a list of contempts for which the Legislative Assembly may summarily punish a person. Section 52 of that Act also provides that the Assembly may refer a matter to the Attorney-General to prosecute as contempt in the Supreme Court. It should be noted that section 52 is not intended to allow the prosecution of a contempt per se in the Supreme Court. What section 52 envisages is that the actions which would constitute a contempt would also have to constitute another offence at law. In this respect there are a number of criminal offences within the Criminal Code (Qld) (relevant extracts are attached), which would also constitute a contempt. Despite sections 45 and 52 of the Constitution Act 1867, the Legislative Assembly could declare a person to be in contempt for a matter not listed in that part. However, the only punishment that could in effect be given is the declaration that a contempt was committed. There are no recent examples of cases where a member of the public has been punished for a contempt. In the last few years a member of the public was found to have been in contempt by putting a false name on a submission to a committee but no punishment was inflicted after that person made a formal apology. There was an example in 1867 of a journalist prosecuted in the Supreme Court of Queensland for an alleged libel of the Assembly and its members. The prosecution was unsuccessful.

  Question 7  Is freedom of speech in debate or other proceedings absolute? Does freedom of speech derive from Article IX of the Bill of Rights or another source? Are there any derogations such as those in Section 13 of the United Kingdom Defamation Act 1996 (attached)

  The privilege of freedom of speech derives directly from Article IX of the Bill of Rights via section 40A of the Constitution Act 1867 and section 5 of the Colonial Laws Validity Act. There are some limited derogations from that position in that section 26 (9) and (10) of the Parliamentary Committees Act 1995 (Qld) makes it clear that the evidence given by a witness before a committee may be used against that person in any proceedings for a criminal offence relating to the misleading or threatening nature of the evidence. It should also be noted that section 3 of the Parliamentary Papers Act 1992 (Qld) defines the term "proceeding in parliament" and may extend the accepted definition under the Bill of Rights.

  Question 8  Do the Courts in your state interpret Parliament's privilege of freedom of speech as having the same scope as that described in the 1987 Parliamentary Privileges Act as applying to the Federal Parliament?

  No Court in our State has made a decision exactly on point. However, for your information I attach a copy of CJC v News Limited and Madonna King.

  Question 9  Are there any circumstances (eg where a Parliamentary Committee's responsibilities relate to the administrative management of the House or the letting of contracts) where the proceedings of a Parliamentary Committee can be considered by a Court (eg in a dispute over a contract)?

  The position is uncertain. The traditional view is that the activities of parliamentary committees (being a proceeding in Parliament) cannot be considered by a Court. However, there is some doubt as to whether because most of our committees are established by statute this may give the Courts some power of review which they haven't had in the past. For example, the Courts may find that they have the ability to determine whether a statutory parliamentary committee has acted outside its area of responsibility and therefore its jurisdiction.

  Question 10  The United Kingdom Government may introduce legislation on corruption which, as part of a general reform, will include an offence of bribery of an MP or a Peer.

  What Statutory offence exists in your state relating to bribery of a member?

  Who authorises prosecution?

  Are there circumstances where the Court can hear and examine evidence on what a member has said or done in Parliament?

  Are there circumstances where a tribunal or a Royal Commission may do so?

  Sections 59 and 56 of the Criminal Code Queensland relate to bribery of a member. The prosecution would not have to be "authorised" by anyone as such, but the decision to prosecute would be a matter for the Director of Public Prosecutions who is an independent officer. The only circumstances in which a Court could hear and examine evidence of what a member has said or done in Parliament would be if the purpose was simply to establish the fact of what the member said or done. Evidence could not be taken to question or impeach what the member had said in Parliament. The situation applies equally to Royal Commissions.

  Question 11  Is there any procedure for "waiving privilege" when a member is charged with an offence relating to his or her parliamentary duties?

  There is no procedure for waiving privilege when a member is charged with an offence relating to his or her parliamentary duties. However, because our privileges and immunities are linked to the House of Commons, the provisions of the Defamation Act 1996 (UK) that allow the waiver of Article IX of the Bill of Rights in respect of defamation proceedings would apply in Queensland.

  Question 12  To what extent does privilege provide for immunity from arrest or from attendance, as a witness, or as a defendant in a civil suit, before a Court? Are any such immunities confirmed in statute? Does any immunity extend to attendance before tribunals or Royal Commissions? What limitations are placed on any immunity? Can a member be served with a subpoena which requires him/her to appear in Court on a sitting day? Is any right of immunity exercised by the member without reference to the House or is Presiding Officer, or is authorisation required?

  The rules relating to immunity from arrest or from attendance as a witness in a civil suite are the same as the House of Commons. They are not specifically dealt with in statute. The immunity is extended to tribunals or Royal Commissions. However, the immunity only applies when the House is actually sitting.

  Question 13  Can a member be served with a subpoena in the precincts of Parliament on a sitting day? Or would such service be regarded as a contempt?

  A member cannot be served with a subpoena in the precincts of Parliament on a sitting day and such service would be regarded as contempt.

  Question 14  Can Parliament expel one of its members?

  This issue has never been tested, but it is assumed that the Assembly has the same powers as the House of Commons in this respect and so could expel one of its members.

  Question 15  Has Parliament the power to fine? Has it used the power?

  The Assembly does have the power to fine for some contempts, but to my knowledge it has never used that power.

  Question 16  Do you have provision for citizen's rights of reply to what is said in Parliament? If so, how is it implemented?

  There is a provision for a citizen's right of reply in the Legislative Assembly. For your information I attach an information paper produced by the Members' Ethics and Privileges Committee which outlines the House's resolution and the procedures to be followed.

  Question 17  Do you have provisions in the Standing Orders or elsewhere for the protection of witnesses who appear before parliamentary committees?

  The Legislative Assembly has adopted rules for the protection of witnesses to be followed by Parliamentary committees. For your information a copy of those rules is attached.

  Question 18  Are such witnesses protected against intimidation in respect of their evidence by statute? Or is this treated as a contempt of Parliament and solely punishable by the House?

  There is no statutory provision protecting witnesses against intimidation. An intimidation of a witness would be treated as a contempt of Parliament, however, the only action that can be taken by the Legislative Assembly would be to declare that the contempt has taken place. No effective punishment could be made against the person who intimidated the witness, unless the actions which constituted the intimidation also constituted a criminal offence.

  Question 19  Is perjury before a committee punished by the Courts or as a contempt? (Could "proceedings in Parliament" be considered in any case tried in a Court relating to perjury before a parliamentary committee?)

  Perjury before a committee may be dealt with as a criminal offence under section 57 of the Criminal Code (Qld). Section 57 provides that a false answer to any lawful or relevant question by the Assembly or a committee of the Assembly is a crime. It also provides that the person cannot be convicted of the offence on the uncorroborated testimony of one witness. Once again the Assembly could theoretically declare somebody in contempt for providing false information to a committee, but not other penalty could be imposed. As mentioned above, sections 25(9) and (10) of the Parliamentary Committees Act provides that any evidence taken by a committee can be used in the prosecution of a perjury.

  Question 20  Is there statutory provision to give absolute privilege to papers published under the authority of Parliament? Do papers published by the Government without Parliament's authority enjoy such privilege?

  The Parliamentary Papers Act provides privilege to papers tabled in the Legislative Assembly or published under the order of the Assembly, a committee, or an authorised person. There are a number of other statutes in Queensland which provide that reports such as Departmental Annual Reports, reports of the Auditor-General, Information Commissioner and the Ombudsman (Parliamentary Commissioner for Administrative Investigations) may be tabled through an automatic process when the House is not sitting by delivery to the Clerk of the Parliament. Such reports have all the privileges of a report tabled in the Parliament and ordered to be printed. However, any other Government document not specifically included in the above legislation which are published by the Government do not enjoy any Parliamentary privilege.

R D Doyle

The Clerk of the Parliament

7 April 1998

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