Memorandum from the Legislative Assembly
I refer to your correspondence dated 23 February
1998 about the review of privilege by the Joint Committee on Parliamentary
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
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
Question 5 Can you punish a member of
the public for a contempt of Parliament? Is there any appeal to
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
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
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
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
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