Memorandum the Parliament of Tasmania
JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE
We are pleased to provide you with responses
to those questions raised in your letter of 23 February 1998,
as they apply to the Tasmanian Parliament. Included also are relevant
Statutes and Standing Orders at Attachments "A" to "K".
Those attachments contain the following documents:
AParliamentary Privilege Act 1858, 1885,
1898 and 1957
BHouse of Assembly Standing Orders
CLegislative Council Standing Orders
DParliament House Act 1962
HSubordinate Legislation Committee Act
IPublic Works Committee Act 1914
JPublic Accounts Committee Act 1970
Our response to your questions one to twenty
are as follows:
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?
There is a tradition of statutory enactment,
with the Parliamentary Privilege Act 1858 put in place soon after
the establishment of the bicameral Parliament in 1856.
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?
The links are close between the House of Commons
and the Tasmanian Act especially clause 11 and less explicitly
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.
Yes, the Parliament has control over staffing
and administration under the Parliamentary Privilege Act 1898
and its grounds under the Parliament House Act of 1962.
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?
The general law on these issues only applies
to the extent accepted by Parliament or provided for in statute.
Question 5 Can you punish a member of
the public for a contempt of Parliament? Is there any appeal to
Yes, a member of the public can be punished
for contempt of Parliamentary Privilege Act 1858 clauses 5, 6.
No, the courts cannot overturn, or even examine a warrant issued
under this Act Clause 10.
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?
Yes, some of the offences that constitute a
contempt of Parliament are codified in the Parliamentary Privilege
Act 1858, clause 3. The Criminal Code is used in preference to
prosecute offences. In practice the privileges committee tends
to only admonish. See also answer 10.
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
Defamtion Act 1966 (attached)?
Yes, freedom of speech is absolute for speeches
in the Parliament, it is derived from Article 9 of the Bill of
Rights. The scope of this has not been tested. Covered in the
Defamation Act 1957 Clause 10, 11.
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 case that we are aware of has tested
this. See answer to 7.
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)?
Yes, it is true for the three statutory Committees,
Public Accounts, Public Works and Subordinate Legislation Committees.
In 1990 Dr Gerry Bates went to court over road works on the West
Coast of Tasmania that had previously been approved by the Public
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 of either House?
who authorises prosecution?
are there circumstances where
the Court can hear and examine evidence on what a Member or Senator
has said or done in Parliament?
are there circumstances where
a tribunal or a Royal Commission may do so?
Yes, there is an offence relating to bribery
of a member of either house in the Criminal Code (Chapter VII,
Clauses 69, 70, 71, 72). Prosecution authorised by the Director
of Public Prosecutions. It is also a contempt under Clause 3(d)
of the Parliamentary Privilege Act 1858. Examination of evidence
on what a member did or said in the house can only be done to
establish matters of fact, not to question it. The same applies
to a Royal Commission or a tribunal.
Question 11 Is there any procedure for
"waiving privilege" when a Member or Senator is charged
with an offence relating to his or her parliamentary duties?
Issue has not arisen as far as we are aware.
There are currently no established procedures to allow waiving
of privilege. It is doubtful that the same level of privilege
applies to Tasmanian MPs as would apply to a member of the House
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 or Senator 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 or Senator without
reference to the House or its Presiding Officer, or is authorisation
There are no immunities from arrest etc. It
is not possible to compel a member to be a witness in court on
a sitting day (although generally it can happen via a pair if
necessary). To serve a warrant in Parliament House on a sitting
day would be a contempt. A warrant could be served in Parliament
on a non-sitting day. The right of immunity does not require authorisation.
MPs and parliamentary staff are exempt from jury duty under the
Jury Act 1899.
Question 13 Can a Member or a Senator
be served with a subpoena in the precincts of Parliament on a
sitting day? On a non-sitting day? Or would such service be regarded
as a contempt?
No, a subpoena cannot be served in the precincts
of Parliament on a sitting day. It would be a contempt to serve
a subpoena on a sitting day. A subpoena could be served in the
Parliamentary precincts on a non-sitting day.
Question 14 Can the House/Senate expel
one of its members?
Question 15 Has either House the power
to fine? Has it used the power?
Yes, the Parliament can impose fines under Clause
11. This is done by directing the Attorney-General to prosecute
certain offences. Fines can also be imposed under Standing Orders,
section 424 in House of Assembly, fine on MPs in Legislative Council
under section 415 and a stranger under section 418.
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 no right of reply for citizens to what
is said in Parliament.
Question 17 Do you have provisions in
the Standing Orders or elsewhere for the protection of witnesses
who appear before parliamentary committees?
Yes there are provisions. They are included
in the Parliamentary Privilege Act, specific acts and standing
orders. Individual Acts include Public Accounts Act (c 7), Public
Works Act (c 25) and Subordinate Legislation Act (c 11).
Question 18 Are such witnesses protected
against intimidation in respect of their evidence by statute?
Or is this treated on a contempt of Parliament and solely punishable
by the House concerned?
Yes it would be a contempt to interfere with
a witness under clause 12 of the Parliamentary Privilege Act 1858.
It is also covered by various acts, Public Works Act (c 26), Public
Accounts Act (c 7), Subordinate Legislation Act (c 11).
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)?
Yes, covered in the Evidence Act 1910 clause
23 and 24.
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?
No, there is no act to give such privilege to
published papers. No; papers published by the Government Printer
without Parliament's authority do not have privilege.
We are happy to provide additional information
should any of the above responses require further elaboration.
R J S McKenzie
Clerk of the Council
P T McKay
Clerk of the House
9 April 1998