Memorandum by the Parliament of Victoria
We refer to your letter of 23 February in which
you seek answers to a number of questions relating to Parliamentary
Privilege in Victoria. We are pleased to furnish this reply on
behalf of both Houses of the Victorian Parliament.
Q1. 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?
1. The Victorian Parliament has not enacted
separate legislation to define its privileges. Instead it relies
upon the Constitution Act 1975 (section 19) which confers
upon both Houses, their committees and members the privileges,
immunities and powers which were held by the House of Commons
as at 21 July 1855, provided that they are not inconsistent with
any Act of the Victorian Parliament.
Q2. 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?
2. As indicated in the answer to question
1, there is a close link between our privileges and those of the
United Kingdom. However, if your Parliament was to now codify
its privileges the Victorian Parliament would not be affected
to any significant extent.
Q3. 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?
3. Our Parliament has exclusive control
over the buildings in which it meets and by virtue of the Parliamentary
Officers Act 1975 exclusive control over its staffing and
administration. All appointments except those of Department Heads
are made by the Presiding Officers. The Department Heads are appointed
by the Governor-in-Council on the recommendation of the Presiding
Officers acting independently in relation to the Clerks and jointly
in relation to the heads of the service Departments. In relation
to budgetary matters the Parliament has its own annual Appropriation
Bill but in practice it is still subject to Government budgetary
constraints and the same processes as the remainder of the public
sector when the budget is being determined, for example, the imposition
of productivity savings.
Q4. 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?
4. The general law usually applies within
the Parliamentary precincts. However, freedom of information legislation
has not been specifically applied to the Parliament but is in
practice complied with by direction of the Presiding Officers.
In addition, the Parliament is specifically exempted from the
operations of the Liquor Control Act 1987.
Parliamentary staff are appointed pursuant to
the Parliamentary Officers Act 1975 and are employed on
common law contracts. Unlike other public servants who are now
subject to the Federal industrial relations jurisdiction, Parliamentary
Officers in Victoria do not have access to any industrial tribunal.
This problem is currently being addressed.
Q5. Can you punish a member of the public
for a contempt of Parliament? Is there any appeal to a Court?
5. Members of the public can be punished
for a contempt of Parliament and a list of cases where this has
occurred is attached to this letter [Attachment A]. There is no
appeal to a court.
Q6. Have you codified those offences
which are considered to be contempt of Parliament? If not, can
you give examples of cases where a member of the public has been
punished for a contempt?
6. The Victorian Parliament has not codified
those offences which are considered to be a contempt of Parliament.
However, our Members of Parliament (Register of Interests)
Act 1978 provides for the imposition of a fine and any other
punishment that may be awarded by either House for any wilful
contravention of that Act.
Q7. Is freedom of speech in debate or
other proceedings asbolute? 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)?
7. Freedom of speech in debate or other
proceedings is absolute and is derived from Article IX of the
Bill of Rights. There are no derogations such as those in section
13 of the United Kingdom Defamation Act 1996.
Q8. 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?
8. The question as to how Victorian courts
interpret our Parliament's privilege of freedom of speech has
not been tested since enactment of the Federal Act. There have,
however, been two relatively recent cases concerning the privilege
of freedom of speech which may be of interest to you and summaries
are attached (Attachment B).
Q9. 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)?
9. In our opinion, the proceedings of a
Parliamentary Committee can be considered by a court in some circumstances,
eg to test the facts of the matter in question. House documents
have also been provided by officers following requests from courts
to prove certain facts and documents. The circumstances where
this could apply are limited, not only because of the provisions
of section 19 of the Constitution Act 1975, but also because
the Parliamentary Committees Act 1968 (section 4U) provides
that the proceedings of a Joint Investigatory Committee or any
recommendations or reports or any documents published by the committee,
shall not give rise to any case of action in law or be made the
subject of, or in any way be called into question in, any proceedings
before a court.
Q10. 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?
10. The relevant House could deal with bribery
of a Member as a contempt of the Parliament. The Crimes Act
1958 (sections 176 and 177) contains broad provisions in relation
to secret commissions which would most likely cover the offence
of bribery of a Member. The Act defines secret commissions as
indictable offences and as such any prosecutions would be authorised
by the Director of Public Prosecutions. There are no circumstances
in Victoria where a Court, Tribunal or Royal Commission can hear
and examine evidence on what a Member has said or done in Parliament.
Q11. Is there any procedure for waiving
privilege when a Member or Senator is charged with an offence
relating to his or her parliamentary duties?
11. On the assumption that the phrase "
an offence relating to his or her parliamentary duties" relates
only to anything said or done by the Member in his capacity as
a Member, in the House of which he is a Member, then he has absolute
privilege. The position in relation to activities engaged in outside
the House has not been tested to our knowledge. However, we have
doubts as to the extent to which a Member can claim privilege
in relation to the performance of his duties outside the House.
We have no procedure for waiving privilege.
In our opinion, there is doubt whether Parliamentary privilege
can be waived either by a Member or the Parliament without statutory
Q12. 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 immumity 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
12. In our opinion, a Member would not be
immune from arrest on a criminal matter. To our knowledge there
have been no such cases in Victoria. In relation to civil matters,
a Member is immune from attendance before a court whilst the Parliament
is sitting but no such immunities are confirmed in statute. No
Member can be required to attend court on a sitting day. A Member
can attend a Tribunal or Commission if he or she wishes to do
so but permission must be obtained from the relevant House. Any
Member seeking to exercise the right to immunity must first seek
authorisation from the House which has first call on the Member's
services. There have been some instances where Members have received
summonses to attend court on a sitting day and the relevant Presiding
Officer has written to the court indicating that their attendance
is required at Parliament. On at least one occasion a court has
arrived at a very broad interpretation of a "sitting"
by ruling in effect that a Member's attendance is required from
the time a Session is opened until it is prorogued irrespective
of whether the House is actually sitting.
Q13. 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?
13. No subpoenas can be served on a Member
within the precincts of Parliament on a sitting day or a non-sitting
day, except where the Member consents to such a service. Any attempt
to serve a subpoena at Parliament House may be regarded as a contempt,
but this has not been tested.
Q14. Can the House/Senate expel one
of its members?
14. Either House has the power to expel
one of its Members.
Q15. Has either House the power to fine?
Has it used the power?
15. The power to fine Members is thought
to be confined only to the circumstances prescribed by the Members
of Parliament (Register of Interests) Act 1978 [see answer
to question 6.] No Members have yet been fined.
Q16. Do you have provision for citizen's
rights of reply to what is said in Parliament? If so how is it
16. There is no provision for citizens right
of reply to what has been said in either House of the Parliament.
Q17. Do you have provisions in the Standing
Orders or elsewhere for the protection of witnesses who appear
before parliamentary committees?
17. Witnesses before Parliamentary Committees
are protected by the provisions of the Constitution Act 1975,
the Parliamentary Committees Act 1968 and the Standing Orders
which prevent tampering with witnesses. Guidelines have also been
adopted for the protection of witnesses and they are made available
to all prospective witnesses. [Attachment C].
Q18. Are such witnesses protected against
intimidation in respect of their evidence by statute? Or is this
treated in a contempt of Parliament and soley punishable by the
18. Witnesses are protected against intimidation
by the Parliamentary Committees Act 1968 and the Standing
Orders. Any instances of this nature are regarded as a contempt
of Parliament and are punishable by the House concerned.
Q19. 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?)
19. Perjury before a committee is regarded
as a contempt of the Parliament and would be a matter for the
House alone to determine. No proceedings in Parliament can be
considered by a court, including allegations of perjury before
a Parliamentary Committee.
Q20. Is there statutory provision to
give privilege to papers published under the authority of Parliament?
Do papers published by the Government without Parliament's authority
enjoy such privilege?
20. The Constitution Act 1975 (sections
73, 74 and 74AA) provides a statutory extension of privilege in
relation to the publication of Parliamentary proceedings, in both
written and electronic form, which includes papers published under
the authority of Parliament. Legal advice suggests that this privilege
does not extend beyond Victoria. Any papers published by the Government
without the Parliament's authority do not attract the protection
of Parliamentary privilege.
A V Bray
Clerk of the Legislative Council
P J Mithen
Clerk of the Legislative Assembly
Examples of cases where a member of the public
has been punished for a contempt:
|1861-62||Dill||For publishing libellous article, committed to the custody of the Serjeant-at-Arms for one month
|1866||George||For publishing libellous article, committed to the custody of the Serjeant-at-Arms for 11 days and upon the payment of fees ordered by the House to be discharged
|1892-93||Clark||For publishing article imputing notorious impurity to members, ordered to attend bar of House where he was examined and admonished by the Speaker
|1899-1900||Packer and Ebsworth
||For publishing certain articles in newspapers, commentary on inquiry of a select committee, committed to gaol. On following day, after apologising to House, the House ordered that they be discharged out of custody upon the payment of fees
|1906||Rev Worral||For uttering unchristian libel against members, ordered to attend bar of House where he was examined and severely censured by the Speaker
||For writing (Wilkie) and publishing (Gordon) a certain article insulting a public servant witness who had been required to give evidence to an inquiry of a select committee. Author and publisher ordered to attend bar to explain, found guilty of breach of privilege and reprimanded by President.
Holding v Jennings
The case of Holding v Jennings (1979) held that the
privilege declared in article 9 of the Bill of Rights 1688,
has been extended by express statutory provision to the Parliament
in Victoria. Privilege extends to the tabling or production by
a Member of a House in the House of the Parliament of a written
statement (in particular a personal explanation to the Parliament)
which is not read aloud by the Member. It is within the absolute
privilege attaching to every Member of Parliament for or in respect
of anything said or done by the Member in their capacity as a
Member, in the House of which he is a Member. The privilege also
extends to publication by a Member to a typist or printer for
the purpose of preparation of a statement for tabling or production
in the House. Such a statement or publication accordingly cannot
support an action for defamation against the Member. The privilege
extended to publication to a typist in the case of a qualified
privilege a fortiori to absolute privilege. VR 289.
Beitzel v Crabb
The case of Beitzel v Crabb (1992) which related to
whether alleged defamatory comments made in Parliament and repeated
in a radio interview constituted publication of parliament proceedings.
The defendant, a Member of Parliament, said certain words of the
plaintiff in Parliament. These words, or a substantial part of
the words, were reported by the media. The defendant subsequently
answered questions in a radio interview in which he refused to
apologize and said that he stood by what he had stated in Parliament.
The plaintiff sued the defendant for defamation. The defendant
sought to strike out the statement of claim as not disclosing
a cause of action. The application was dismissed because(1)
the cause of action arose from the publication by the defendant,
adoption and repetition outside Parliament of words spoken by
him in Parliament and published by the media. Whether what was
said outside Parliament amounted to a publication of defamatory
words was a mixed question of fact and law. (2) Members of Parliament
might be held liable afterwards publishing words spoken by them
in Parliament, providing that the cause of action was founded
on subsquent publication. (3) The words spoken in the radio interview
did not constitute a "publication of . . . proceedings of
the Houses of Parliament" within the meaning of section 73
of the Constitution Act 1975.  2 VR 121.
Guidelines for the Protection of Witnesses (As amended
by the Chairmen's Panel 13 March 1992)
In their dealings with witnesses, all Joint Investigatory
Committees shall observe the following procedures:
1. A witness shall be invited to attend a committee meeting
to give evidence. A witness shall be summoned to appear (whether
or not the witness was previously invited to appear) only where
the committee has made a decision that the circumstances warrant
the issue of a summons.
2. A witness shall be given adequate notice of a meeting
at which the witness is to appear, and shall be supplied with
a copy of the committee's terms of reference, a statement of the
matters expected to be dealt with during the witness' appearance,
and a copy of these procedures. Where appropriate a witness shall
be supplied with a transcript of relevant evidence already taken.
3. Where a committee desires that a witness produce documents
relevant to the committee's inquiry, the witness shall be invited
to do so, and an order that documents be produced shall be made
(whether or not an invitation to produce documents has previously
been made) only where the committee has made a decision that the
circumstances warrant such an order.
4. Witnesses who do not attend in response to a committee's
summons or fail to produce documents ordered to be produced to
a committee may be reported to the Parliament which may order
their attendance at the Bar of either House.
5. A witness not attending in obedience to an order may
be censured or declared guilty of contempt.
6. A witness shall be given opportunity to make a submission
in writing before appearing to give oral evidence.
7. Where appropriate, reasonable opportunity shall be
given for a witness to raise any matters of concern to the witness
relating to the witness' submission or the evidence the witness
is to give before the witness appears at a meeting.
8. All evidence shall be taken in public, unless a committee
otherwise resolves. Such evidence may also be given on oath or
affirmation if required by the committee.
9. A witness shall be offered, before giving evidence,
the opportunity to make application, before or during the hearing
of the witness' evidence, for any or all of the witness' evidence
to be heard in private session, and shall be given reasons for
any such application. If the application is not granted, the witness
shall be notified of the reasons for that decision.
10. A chairman of a committee shall take care to ensure
that all questions put to witnesses are relevant to the committee's
inquiry and that the information sought by those questions is
necessary for the purpose of that inquiry. Where a member of a
committee requests discussion of a ruling of the chairman on this
matter the committee shall deliberate in private session and determine
whether any question which is the subject of the ruling is to
11. In general, a witness must answer all questions put,
as fully and frankly as before a Court, Inquest, Royal Commission
or Board of Inquiry. Any person giving false evidence may be declared
guilty of contempt.
12. Where a witness objects to answering any question
put to the witness on any ground, including the ground that the
question is not relevant or that the answer may incriminate the
witness, the witness shall be invited to state the ground upon
which objection to answering the question is taken. Unless the
committee determines immediately that the question should not
be pressed, the committee shall then consider in private session
whether it will insist upon an answer to the question, having
regard to the relevance of the question to the committee's inquiry
and the importance to the inquiry of the information sought by
the question. If the committee determines that it requires an
answer to the question, the witness shall be informed of that
determination and the reasons for the determination, and shall
be required to answer the question only in private session unless
the committee determines that it is essential to the committee's
inquiry that the question be answered in public session. Where
a witness declines to answer a question to which a committee has
required an answer, the committee shall report the facts to the
13. Where a witness gives evidence reflecting adversely
on a person and the committee is not satisfied that the evidence
is relevant to the committee's inquiry, the committee shall give
consideration to expunging that evidence from the transcript of
evidence, and to forbidding the publication of that evidence.
14. Where evidence is given which reflects adversely
on a person and action of the kind referred to in paragraph 13
is not taken in respect of the evidence, the committee shall provide
reasonable opportunity for that person to have access to that
evidence and to respond to that evidence by written submission
and appearance before the committee.
15. A witness shall not be entitled to be represented
by counsel or a solicitor at a public hearing, unless both Houses
of the Parliament otherwise resolve in a particular case.
16. Any person who tampers with any witness in respect
of his evidence, or directly or indirectly endeavours to deter
or hinder any witness from appearing or giving evidence, may be
declared guilty of contempt of the Parliament.
17. All evidence given before a Joint Investigatory Committee
is subject to Parliamentary privilege and shall not give rise
to any cause of action in law, or be made the subject of, or in
any way called into question in, any proceedings before a court.
18. Officers in the Government service should not be
asked questions that require them to comment upon or give opinions
on matters of Government policy or which would genuinely jeopardize
the necessary relationship of confidentiality between a Minister
and Government officer. Reasonable opportunity should be given
to such officers to refer such questions to superior officers
or to a Minister.
19. Witnesses will be provided with a proof copy of their
evidence as soon as practicable after it becomes available. They
will have the opportunity to make alterations provided that those
alterations are confined to the correction of inaccuracies in
reporting or printing, or to the correction of matters of fact
which do not materially alter the sense of the answer. Correction
should be made in the handwriting of the witness.
20. Corrected evidence should be returned to the committee
within four days. The committee may or may not accept the alterations.
Corrected transcripts will be tabled with the committee's reports.
If no transcript is returned, an uncorrected copy will be tabled.
16 April 1998