Memorandum by the Clerk of the Legislative
Council of South Australia
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?
No specific legislation exists in relation to
parliamentary privileges. The Constitution Act 1855-56 expressly
gave Parliament in the colony of South Australia power to declare
and define the powers, privileges and immunities of the Houses
of Parliament, their members and committees. Unlike other Australian
colonial Parliaments, the South Australian Constitution Act did
not restrict the privileges to those of the House of Commons,
its members and committees when the Constitution Act came into
force. Shortly afterwards, the Judicial Committee of the Privy
Council drew attention, in the case of Fenton v Hampton,
to the fact that until Parliament enacted legislation declaring
and defining parliamentary privilege, the Houses only had the
necessary common law privileges which did not include the power
to commit for contempt. As a result, in 1858, there was enacted
specific legislation delineating the penal jurisdiction of the
Houses of Parliament with the power to punish for contempt limited
to defined circumstances. In 1872, the South Australian Parliament
repealed this Act and substituted legislation which adopted for
the Houses of Parliament all the powers, privileges and immunities
of the Commons House and members and committees thereof as of
1856, the time of the passing of the Constitution Act. This was
later qualified in 1888 when legislation provided that no member
of the South Australian Parliament should be entitled to claim
any of the privileges to which he might be entitled under the
Act of 1858 against any process issued by a court of law within
the colony, except that no writ of capias ad satisfaciendum
should be put into effect against a member during any session
of Parliament or within 10 days before Parliament meets, and that
no member should be liable to any penalty or process for non-attendance
as a witness in court when his non-attendance should be due to
his attendance in Parliament. Subsequently, in 1934 the present
Constitution Act was passed repealing the Act of 1855-56 and the
subsequent Parliamentary Privileges Acts of 1872 and 1888 and
made provision that:
38. The privileges, immunities, and powers
of the Legislative Council and House of Assembly respectively,
and of the committees and members thereof respectively, shall
be the same as but no greater than those which on the twenty-fourth
day of October, 1856, were held, enjoyed, and exercised by the
House of Commons and by the committees and members thereof, whether
such privileges, immunities, or powers were so held, possessed,
or enjoyed by custom, statute, or otherwise.
Section 39 of the present Act takes into account
the matters raised in the 1888 legislation.
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?
2. Section 9 of the Constitution Act therefore
restricts the South Australian Parliament to not exceeding the
powers, etc of the House of Commons as at twenty-fourth day of
October 1856 which was the date of the enactment of the Constitution
Act on the attainment of responsible government. Therefore, should
the United Kingdom Parliament change its privileges, it would
seem that there would be no effect on the South Australian Parliament.
As the majority of privileges of the House of Commons are enjoyed
by common law or custom, it is not easy to determine with certainty,
100 or more years later, what privileges were enjoyed at the earlier
date. Halsbury's Laws of England, 1st Edition (1912) lists
privileges of both Houses at that time as freedom from arrest,
exmeption from jury service, protection of witnesses before Parliament
or any parliamentary committee and of counsel, solicitors etc
engaged upon business of Parliament from arrest or any other legal
action, freedom of speech, control over publication of proceedings
and power to exclude strangers during parliementary sittings.
The following privileges are listed as peculiar to the House of
Commons, namely powers relating to the constitution of its own
body, power of expulsion of members and power to fill a vacant
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?
3. The Parliament has control over its buildings.
However, the Parliament of South Australia is reliant on funding
from the Government of the day for servicing the building and
the provision of staff. Whilst the Government cannot determine
appointments of personnel as such, it does hold the "purse
strings" which obviously determines the level of staffing
and to a certain extent, administrative services.
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?
4. Legislation has been enacted dealing
with the applicability of certain Acts in relation to employment
of those persons within the joint service of the Parliament, eg,
Workers Rehabilitation and Compensation, Superannuation, Equal
Opportunity, Sexual Harassment and Industrial Relations, Long
Service Leave, etc. However, the legislation provides that it
is the decision of the Joint Presiding Officers of the Houses
to allow any investigation or inspection by such outside authorities.
These provisions do not apply to the staffs of the respective
Houses. However, it has been the practice for such general legal
provisions to be applied.
5. Can you punish a member of the public
for a contempt of Parliament? Is there any appeal to a Court?
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?
5/6. It has always been considered that
the South Australian Houses of Parliament have power to punish
for contempt and breaches of privilege taking into consideration
the powers of the House of Commons as at twenty-fourth day of
October, 1856, and that the public has no redress in a Court.
However, as the House of Commons may, in addition to or in substitution
for its own proceedings, direct the Government Law Officer to
prosecute the offender, it is presumed that the South Australian
Parliament also possesses this power. In 1870, Serjeant-Major
Patrick McBride was sent to prison for one week for sending a
letter to a member of the Legislative Council accusing him of
having lied to the Council. Later, the House of Assembly determined
the publishers of a newspaper guilty of publishing a false, scandalous
and derogatory libel on members of the House of Assembly, and
rather than the House punishing the offenders, directed the Attorney-General
to prosecute. Later, this resolution was rescinded. In 1968, a
witness to an Upper House Select Committee made accusations against
the Chairperson of the Committee. The person was summoned to appear
before the Bar of the Council and accordingly admonished.
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 S.13 of the United Kingdom Defamation
Act 1996 (attached)?
7. Freedom of speech in debate or other
proceedings is absolute, and derives from Article IX of the Bill
of Rights. There are no derogations from this.
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?
8. In 1987, a Member of the House of Assembly
made certain allegations in Parliament. Those allegations implied
that a member of the public had sought and/or received favoured
treatment because of close association with the former Labor Government.
Subsequently, a newspaper published a letter
written by this member of the public in which he disputed the
allegations saying that they were unfounded and defamatory. The
Member of Parliament then issued proceedings against this person
and the newspaper alleging that the letter was defamatory.
The member of the public and the newspaper filed
their defence to that claim. The defence pleaded qualified privilege,
fair comment and justification (ie truth). On the face of it,
the defences of fair comment and justification (at least as pleaded)
would require the Court to determine whether the allegations made
by the Member in Parliament were true. The Court would probably
also be required to inquire into the Member's motives in making
the statement. The Member of Parliament then applied to have the
defences struck out as being in breach of Parliamentary privilege.
He argued that the privilege was absolute and that the Court could
not hear any evidence of what occurred in Parliament.
The Judge accepted this argument and struck
out the relevant defences. This had the effect that the member
of the public and the Newspaper had no defence. This decision
was appealed to the Full Court. The Attorney-General intervened
and his argument can be summarised as follows:
(a) A court cannot inquire into the truth
of what is spoken in Parliament or the motive of a member when
speaking in Parliament. It is doubtful whether this privilege
can be waived.
(b) A court can receive admissible evidence
to prove as a fact that a particular statement was made in Parliament.
Parliamentary privilege may render inadmissible some otherwise
relevant evidence on this topic. However, Hansard can be received
in evidence for this purpose.
(c) Any person who is attacked by a speech
in Parliament has a qualified privilege to publicly answer that
The qualified privilege will apply so long as
the answer is a reasonable response to the attack and is not actuated
by malice. The truth or otherwise of the answer need not be proved.
The Attorney-General was not successful. Two Judges of the Supreme
Court were of the view that in the circumstances of this case
in particular, a defendant faced with an action by a member of
parliament for defamation has a right in those circumstances to
cross-examine the member of Parliament as to the facts of the
statement which was made in the Parliament and to which a citizen's
response may relate, the motives and even the sources of information.
Subsequent to the decision of the Full Court,
the then Attorney-General sought leave to appeal to the High Court
on the basis of the same argument that he put to the Full Supreme
Court. However, he later withdrew, indicating his concern that
this was the worst possible case on its facts to use as a vehicle
to test the extent of Parliamentary privilege. He recommended
that Parliament should consider the issue of privilege unencumbered
by the potentially unjust case which was then before it. The Parliament
could then consider whether legislation to cover privilege should
Subsequently, a Joint Committee on Parliamentary
Privilege was appointed by both Houses to consider the matter.
This Committee never reported and subsequently lapsed on the prorogation
of the then Parliament. The issue has not been considered since.
It was felt at the time that had the Federal
Parliamentary Privileges Act 1987 been in force in South Australia
at that time, then the likely result of those proceedings would
have been to uphold the position taken by the then Attorney-General.
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)?
9. Refer to my answer to Question No. 4.
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?
10. There is no legislation dealing with
the bribery of a Member of Parliament. The South Australian Parliament
has the power to punish persons who attempt to influence or interfere
with Members of Parliament in the discharge of their parliamentary
duties by offering or giving money or a material benefit and likewise
to punish a Member who solicits or accepts bribes. This misconduct
is punishable as a contempt of Parliament and is derived from
the powers and privileges of the House of Commons.
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 required?
12. The South Australian Constitution Act
has defined parliamentary privileges in respect of arrest and
subpoena, and Members are declared not exempt from the duty of
obeying any "summons, subpoena, writ, order, process, or
proceeding whatsoever issued by any court of law". However,
"no write of capias ad satisfaciendum shall be executed
or put into effect against any such member during any session
of Parliament, or within 10 days prior to the meeting thereof;
and no member shall be liable to any penalty or process for non-attendance
as a witness in any court when such non-attendance is occasioned
by his attendance in his place in Parliament".
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?
13. The view has always been taken that
Members cannot be served with a subpoena in the precincts of Parliament,
whether on a sitting or a non-sitting day, and that it could be
possibly deemed a contempt, especially on a sitting day. As Clerk
of the Upper House, I was faced with the situation of the Police
endeavouring to obtain a warrant to obtain certain documents under
my control in relation to a Member's accommodation and travel
claims prior to the eve of an Election, the President of the Council
having retired. The Crown Solicitor's Office eventually dissuaded
the Police from this course of action, and I had indicated that
they would be prohibited from entering the Parliament Building.
14. Can the House/Senate expel one of its
14. It is understood that as a result of
Common Law, the House of Commons is recognised to have power to
expel a Member for misconduct unfitting him for membership despite
the misconduct not being such as to disqualify the Member from
Parliamentary office. However, Halsbury's Laws of England,
1st Edition (1912) lists as peculiar to the House of Commons,
powers relating to the constitution of its own body, power of
expulsion of members and power to fill a vacant seat.
15. Has either House the power to fine? Has
it used the power?
15. It is also understood that the House
of Commons at one time claimed the power to fine, but this power
has not been exercised since 1660. It would seem that the South
Australian Parliament would not have this power.
16. Do you have provision for citizen's rights
of reply to what is said in Parliament? If so how is it implemented?
16. There is no provision for citizen's
right of reply to what is said in Parliament. Obviously it was
being considered by the Joint Committee of Parliamentary Privilege
17. Do you have provisions in the Standing
Orders or elsewhere for the protection of witnesses who appear
before parliamentary committees?
17. Standing Orders provide for the protection
of the respective House of witnesses before Parliamentary committees
"in respect of anything that may be said by them in their
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
18. Intimidation of witnesses is treated
as a contempt of Parliament and solely punishable by the House
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?)
19. Witnesses before the Houses of the Parliament
or any Committees thereof do not have the power to examine under
oath. Should a witness be found to attest to an untruth before
a House or a Committee, it would be treated as a contempt of Parliament
and accordingly punishable by the House concerned.
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?
20. The Wrongs Act 1936, S. 12(1) states
(1) It shall be lawful for any defendant
in any civil or criminal proceeding in respect of the publication
of any report, paper, votes, or proceedings of Parliament, which
either House of Parliament deems fit and necessary and has authorished
to be published, to bring before the Court, after giving twenty-four
hours' notice to the plaintiff or prosecutor of his intention
so to do, a certificate under the hand of the President or Clerk
of the Legislative Council, or the Speaker or Clerk of the House
of Assembly, stating that the matter in question was published
by order or under th authority of the Legislative Council or House
of Assembly, as the case may be, together with an affidavit verifying
the said certificate, and the court shall thereupon stay the said
proceeding, and the same and every writ and process therein shall
thereupon be put an end to and superseded, by virtue of this Act.
(2) It shall be lawful for the defendant
in any civil or criminal proceeding in respect of the publication
of any copy of any such report, paper, votes, or proceedings,
to lay before the court, at any stage of the proceeding, the said
report, paper, votes or proceedings, and the said copy together
with an affidavit verifying the same and the correctness of the
said copy, and the court shall thereupon stay the said procedding,
and the same and every writ and process therein shall thereupon
be put an end to and superseded by the virtue of this Act.
(3) It shall be a good defence to any civil
or criminal proceeding in respect of the printing of any extract
from or abstract of such report, paper, votes, or proceedings
if the defendant proves that the said extract or abstract was
published in good faith and without malice.
(4) The following persons, namely, the Government
Printer and those members of the public service who are employed
in the making of official reports of the debates and proceedings
of Parliament are hereby authorised by each House of Parliament
to publish reports of the debates and proceedings of that House:
Provided that this subsection shall not absolve
any such person from the duty to conform to any instructions lawfully
given to him by any person in authority.
(5) For the purposes of this section, the
papers which set out the daily business of each House of Parliament
and are commonly called "Notices and Orders of the Day"
shall be papers of the Parliament the publication of which has
been authorised by the House concerned.
Papers published by the Government without Parliament's
authority are not accorded Parliamentary privilege.
Clerk of the Legislative Council
11 May 1998