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Parliamentary Privilege First Report

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 In 1872, the South Australian Parliament repealed this Act and substituted legislation which adopted for the Houses of Parliament all the powers, privileges and immunities of the Commons House and members and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 seat.

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 attack.

  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 be introduced.

  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 members?

  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 mentioned earlier.

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 evidence".

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?

  18.  Intimidation of witnesses is treated as a contempt of Parliament and solely punishable by the House concerned.

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.

Jan Davis

Clerk of the Legislative Council

11 May 1998

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© Parliamentary copyright 1999
Prepared 9 April 1999