Memorandum by Professor G T Lindell
PARLIAMENTARY PRIVILEGES ACT 1987 (AUSTRALIA)—USE
OF PARLIAMENTARY PROCEEDINGS FOR JUDICIAL REVIEW OF GOVERNMENTAL
ACTION IN AUSTRALIA
A. NATURE OF
REQUEST
1. I have been asked to supply a note to
the Joint Committee on Parliamentary Privilege (UK) on how far
does Article 9 of the Bill of Rights 1688 (Eng), and more specifically
s16(3)(c) of the Parliamentary Privileges Act 1987 (Cth), limit
the use that can be made of parliamentary proceedings in judicial
review of governmental action in Australian courts.
2. Reference was made to the practice in
the UK under which announcements on virtually all major Governmental
decisions on policy (and many minor ones) are made to Parliament
either by ministerial statement, or in appropriate debate, or
by way of an answer to a written parliamentary question. This
necessitates the courts having to take account of what is contained
in Hansard when considering ministerial decisions. Examples
of the questions which the Joint Committee is considering are:
(a) to what extent are applicants for judicial
review able, in practice, to criticise in court a Minister's decision
given in Parliament or use parliamentary material as evidence
that the Minister misdirected himself or acted for an unauthorised
purpose?
(b) would the applicant be able to go further
and point to the ministerial statement in Parliament and claim
that the Minister deliberately misled the House (if this was relevant
to the issue arising in the proceedings and there were grounds
for believing this to be so)?
Given the operation of Article 9 of the Bill
of Rights as a result of the combined operation s49 of the Commonwealth
Constitution and the declaratory provisions of the Parliamentary
Privileges Act s16(1), the central issue on which information
is sought, in effect, is whether the provisions of s16(3)(c) of
the same Act inhibit the Australian courts in the situations referred
to above.
3. Reference was made to the statement of
Australian federal practice provided by the Acting Clerk of the
House of Representatives to the effect that fewer statements of
government policy are made in the Federal Parliament. I am not
in a position to provide any further information on that practice
except to indicate that some of the cases referred to below show
that similar problems can nevertheless still arise in this country,
even if not with the same frequency eg as a result of answers
given to parliamentary questions.
3. This note is confined to the position
in relation to the use that may be made of Australian Federal
(ie Commonwealth), as distinct from State and Territory, parliamentary
proceedings. Furthermore, it does not deal with the use of such
proceedings to establish the constitutional invalidity of legislative
or executive action—a problem that does not of course arise
in the United Kingdom.
B. AIM AND
NATURE OF
THE PARLIAMENTARY
PRIVILEGE ACT
S16(3)
4. The aims and operation of the provisions
of s16 were explained in the Second Reading Speech which was made
when the legislation was enacted in the Parliament and also the
Explanatory Memorandum, the relevant extracts from which have
been attached to this note. Since the Joint Committee may have
already received advice on the effect of the relevant provisions
from the Federal Attorney-General and also officers of the Commonwealth
Parliament, I will not attempt to retrace in detail the kind of
information and background which may have already been provided
from those sources. Rather, I will attempt to indicate how I understand
those provisions to operate and present that information from
a non-governmental or parliamentary perspective.
5. The provisions of s16(1) of the Act declare
and enact that the provisions of Article 9 of the Bill of Rights
apply in relation to the Federal Parliament. As is well known
those provisions state:
"That the freedom of speech and debates
or proceedings in Parliament ought not to be impeached or questioned
in any court or place out of Parliament."
The provisions of s16(2) provide an extensive
statutory definition of the term "proceedings in parliament"
for the purposes of the operation of Article 9. The provisions
of s16(2) state:
"(3) In proceedings in any court or tribunal,
it is not lawful for evidence to be tendered or received, questions
asked or statements, submissions or comments made, concerning
proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth,
motive, intention or good faith of anything forming part of those
proceedings in Parliament;
(b) otherwise questioning or establishing the
credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences
or conclusions wholly or partly from anything forming part of
those proceedings in Parliament."
The provisions of s16(4) prohibit the use of
evidence or the production of documents taken in camera
in the course of a parliamentary proceeding. The provisions of
s16(5) seek to limit the application of the above restrictions
so that they do apply in relation to the determination of certain
constitutional issues and also the interpretation of Acts passed
by the Federal Parliament. (So far as the determination of constitutional
issues is concerned, it is possible that the exception has
been stated too narrowly to be consistent with the role of the
High Court as the "guardian of the Constitution".) The
provisions of s16(6) also make it possible to use certain evidence
for the prosecution of offences under the Act. One final and implicit
qualification to the above restrictions on the use of evidence
is contained in the provisions of s10 of the Act which facilitate
the use of evidence to support the defence of qualified privilege
against defamation for a fair and accurate report of parliamentary
proceedings.
6. As can be seen from the attached extract
from Second Reading Speech delivered by the President of the Australian
Senate, the main purpose of the relevant provision was to avoid
the consequences of what were thought by the Senate to be the
"very narrow interpretation and reading down of Article 9
of the Bill of Rights 1688 in its application to the Australian
Parliament in the judgments of Cantor J and Hunt J in the Supreme
Court of New South Wales in each trial in R v Murphy"
(Commonwealth Parliamentary Debates, Senate, 7 October
1987, p 892.) The case in question involved the criminal prosecution
of the late High Court Justice, Mr Justice Lionel Murphy, for
allegedly perverting the course of justice. These and other cases
in which Australian courts adopted an arguably restrictive approach
to the scope of Article 9 are sufficiently explained in the attached
extracts from the Explanatory Memorandum. Suffice it to say that
in both the Murphy J trials the judges allowed, contrary to the
wishes of the Senate, evidence to be given of what the accused
and a prosecution witness had written or said in the course of
a Senate Committee hearing for the purpose of cross-examining
those persons in relation to the evidence they both gave at the
trials of the judge. (See the attached extracts from the Explanatory
Memorandum; the article by H Evans, "Parliamentary Privilege:
Changes to the Law at the Federal Level" (1988) 11 University
of New South Wales Law Journal 31; and of generally the contrasting
and conflicting views of Sir C Harders, "Parliamentary Privilege—Parliament
versus the Courts: Cross-examination of Committee Witnesses"
(1993) 67 Australian Law Journal 109. The latter author
was a former Secretary to the Federal Attorney-General's Department
who later acted as one of the solicitors for Mr Justice Murphy
at his criminal trials. The former author is the current Clerk
of the Senate.)
7. The Explanatory Memorandum is particularly
helpful in explaining the intended operation of paras (a), (b)
and (c) of sl6(3).
Paragraph (a) was seen as preventing, for example,
a statement in debate by a member of parliament or the evidence
of a parliamentary witness being directly attacked for the purpose
of court proceedings, or the motives of the member or witness
in speaking in Parliament or giving evidence being attacked.
— Thus, it was stated that the paragraph
prevents it being submitted that a member's statements in Parliament
were not true, or reckless, to support a submission that the member
is an untruthful, or reckless person. (At pp 12-13)
Paragraph (b) was seen as preventing, for example,
a member's speech in debate or a parliamentary witness's evidence
being used to establish their motives or intention for the purpose
of supporting a criminal or civil action against them, or against
another person. (At p 13.)
Paragraph (c) was seen as preventing,
for example, a jury being invited to infer matters from speeches
in debate by members of Parliament or from evidence of parliamentary
witnesses in the course of a criminal or civil action against
them or another person.
— Thus, it was also stated that
a member's speech in Parliament cannot be used to support an inference
that the member's conduct outside Parliament was part of some
illegal conduct. (At p 13.)
The essence of the aim of the above restrictions
were summarised in the following passage which is worth emphasising:
"Basically, what they prevent is proceedings
in Parliament being "used against" a person in
the broad sense, that is, not only being made the subject of a
criminal or civil action, such as where a member is sued for words
spoken in debate, but also being used to support a civil
or criminal action against a person." (At p 14.)
8. The above restrictions would clearly
inhibit the courts from admitting evidence in cases which involve
the judicial review of governmental and administrative action
in the kind of circumstances envisioned by the Joint Committee,
at least if the restrictions are given their intended operation.
The statutory provisions in question would then give effect to
the first of the conflicting public interests identified by the
Privy Council in the well known case of Prebble v Television
New Zealand Ltd [1995] 1 AC 321 at the expense of the other
two interests identified by their Lordships in that case. The
three interests were:
— first, the need to ensure
that that the legislature can exercise its powers freely on behalf
of its electors, with access to all relevant information;
— second, the need to protect freedom
of speech generally;
— third, the interests of justice
in ensuring that all relevant evidence is available before the
courts (ie the rule of law) (at p336).
The conflict generated by these interests lies
at the heart of the complex issues which have arisen in Australia
and elsewhere in relation to the matters being considered by the
Joint Committee.
C. PARLIAMENTARY
PRIVILEGES ACT
S16(3): APPLICATION
TO JUDICIAL
REVIEW OF
GOVERNMENTAL ACTION
9. Two cases decided by the Federal Court
of Australia have applied the restrictions contained in s16(3)
of the Parliamentary Privileges Act to challenges to the
legality of ministerial action by giving full effect to the literal
width of the same provisions. The first of those cases was Amann
Aviation Pty Ltd v The Commonwealth (1988) 81 Australian
Law Reports 710 in which the Amann Aviation sued the Crown
in right of the Commonwealth for breach of contract. Amann Aviation
alleged that a contract to supply coast watch services for the
Commonwealth was terminated by the Commonwealth without lawful
cause. In the course of those proceedings Amann Aviation sought
to tender extracts from Hansard which recorded an answer
given to a parliamentary question. This was done in an attempt
to justify the drawing of an inference that the Commonwealth through
its relevant Minister had been improperly influenced by a Director
or another company which provided the same kind of air services
as Amann Aviation. Beaumont J rejected the tender as being proscribed
by the provisions of s16(3)(c) and made extensive reference to
the Second Reading Speech and the extracts from the Explanatory
Memorandum referred to above.
10. In his view the provisions in question
prevented the admission of evidence of parliamentary proceedings
for the purpose of questioning the motive, intention or good faith
of a member of Parliament. They also prevented the admission of
such evidence for the purpose of inviting the drawing of adverse
inferences or conclusions from what was said in the Parliament.
Furthermore the tender of a newspaper report of the same parliamentary
proceedings was inadmissible for the same reasons as those given
for the rejection of the tender of the extract from Hansard.
11. His Honour conceded however that the
provisions of s16(3)(c) did not prevent the use of Hansard
for:
(i) for the (non-contentious) purpose of
proving that a member of Parliament was present in the House on
a particular day; and
(ii) on a provisional basis for the purpose
of a temporary and conditional examination to enable the court
to inquire whether its reception was or was not prohibited by
s16(3) as properly construed.
12. After indicating that the apparent purpose
of s16 was to ensure that a member of Parliament should be able
to speak in Parliament "with impunity and without fear of
the consequences", Beaumont J said in the course of his judgment:
"Where, as here, the subject matter of the
passage from Hansard is contentious in that it is sought
to be used to impugn the conduct of the senator (ie the Minister
in question), in the context of a denial by the respondent (ie
the Commonwealth) of any impropriety, it is almost inevitable
that the tender of the Hansard would lead to an examination
of the circumstances in which the senator came to make that statement
and this would further lead to an attempt to assess the credibility
of this evidence and to compare it with other evidence already
given. Such an examination, in a contentious area, cannot be reconciled
with the complete freedom of speech envisaged by the Bill of Rights
and the Act." (ALR at p 717)
It is clear that his Honour gave the relevant
provisions an interpretation which accorded with their intended
operation.
13. The literal view of s16(3) was also
given effect to by another Federal Court judge in Hamsher v
Swift (1992) 33 Federal Court Reports 545 at pp 562-5
when that case was heard at first instance. The facts of that
case were that the applicants sought to challenge the refusal
of Federal Immigration authorities to grant the applicants permanent
entry permits to remain in Australia. The primary ground of their
challenge was that their applications for permanent residence
status should have been considered and decided under the terms
of the Migration Act 1958 (Cth) before that Act was amended by
the Migration Legislation Amendment Act 1989 (Cth) because of
certain transitional provisions contained in the amending Act.
This, in turn, required them to show that their application was
part of an earlier application which was still outstanding at
the time the amending Act came into force. Their pleadings in
relation to this ground made reference to a statement made by
the then Minister for Immigration in the Australian Senate on
6 October 1989 concerning the applicants. No objection was made
to the reception into evidence of that statement.
14. It was held by French J that s16(3)
of the Parliamentary Privileges Act was expressed in terms of
an absolute prohibition and that the prohibition could not be
waived by an individual member of Parliament or to be taken as
having been waived in the absence of objection. In his view the
admission of evidence in the case would have involved:
"the use of evidence of the Minister's statement
to the House for the purpose of establishing his intention or
otherwise inviting the drawing of inferences from the proceedings
in the Parliament of which that statement forms a part. Such a
use of the statement is prohibited by s16(3)(b) and (c) of the
Act. For similar reasons the statement cannot be taken as evidencing
a decision made by the Minister on that date. Even were it capable
of supporting such an inference, which I do not think it was,
its use to establish the inference would appear to contravene
s16(3)(c)." (FCR at p564.)
15. Fortunately for the applicants, there
was other evidence to prove the same facts in the case, so that
the inability to use the Minister's statement made in Parliament
did not prove critical. The appeal in the case turned on other
matters and the Full Court did not have to rule on the correctness
of the view reached on this matter by French J except that two
members of that Court saw fit to observe:
"Whether s16(3) of the Parliamentary Privileges
Act prohibited the court from considering evidence of proceedings
in the Parliament if the evidence was adduced only to show consistency
of the subsequent conduct with prior statements and not to provide
the foundation for an inference or finding in itself was not a
submission ventilated before his Honour or addressed to this Court.
(See Munday v Askin [1982] 2 NSWLR 369 at 373.)" (per
Beaumont and Lee JJ in Min for ILGEA v Hamsher (1992) 35
Federal Court Reports 359 at p367. The other member of
the Full Federal Court made no reference to the issue.)
The quoted observation may indicate that those
members of the Full Federal Court might have been inclined to
adopt a narrower and less literal view of the effect of s16(3).
16. A final aspect of the case worth mentioning
is that French J left open the question whether the prohibition
contained in s16 could be overcome by any permission of the House
of Parliament concerned—an issue which was regarded as doubtful
and unnecessary for decision in that case (33 FCR at 564.) Notwithstanding
his Honour's remarks on that matter, a strong argument can I think
be mounted to show that since s16 is only intended to be declaratory
of the pre-existing position a more explicit indication is required
of the intention of the Parliament to abrogate the power of the
House concerned to waive the relevant privilege.
17. Enough has been stated to show that
there are judicial authorities which seem to support a wide and
literal approach to the interpretation of s16(3) in its application
to the judicial review of governmental and administrative action
involving statements made by Ministers in the Australian Federal
Parliament. In particular, neither of the two cases discussed
above seeks to qualify the effect of the relevant prohibitions
by reference to whether the admission of the evidence would in
fact inhibit the freedom of debate in the Australian Parliament.
It is now necessary, however, to deal with the difficulties created
by the wide and literal view in relation to other contexts in
order to know whether those authorities would be followed in the
future.
D. PARLIAMENTARY
PRIVILEGES ACT
S16(3): PROBLEMS
CAUSED BY
ITS POTENTIAL
WIDTH
18. The potential width of the intended
operation of the restrictions confirmed or created by the provisions
of s16(3) of the Parliamentary Privileges Act has been shown to
produce unfair results in the application of those provisions
to other areas of the law, such as criminal liability and liability
in defamation. The significance of those results lies in the possibility
that Australian courts may feel disinclined to give effect to
the wide and literal interpretation evidenced in the two Federal
Court cases already discussed in this note.
19. The unfair results may be illustrated
by the situations described below.
(i) In the course of a parliamentary debate
an MP makes statements which are, prima facie, defamatory of D.
The statements are widely reported by the mass media. A newspaper
publishes a rejoinder by D who claims that the MP's statements
are untrue and that the MP lied. The MP then sues D and the newspaper
for defamation. The defences are truth, fair comment and qualified
privilege. But the court trying the action cannot receive evidence
of what the MP actually said in Parliament. (The situation which
arose in Prebble's case (1995) and Wright and Advertiser Newspapers
Ltd v Lewis (1990) 53 South Australian State Reports
416.)
(ii) In the course of a parliamentary debate
an MP makes statements which are, prima facie, defamatory of P.
In an interview outside the House, the MP states that he adheres
to what he said in the House ie by adopting and reaffirming the
same but without repeating the actual contents of the statements
made in the House. The interview is widely published. P sues the
MP for defamation in respect of what he said outside the House.
It is accepted that P can only establish his cause of action by
proving what the MP said in the House. But the court trying the
action cannot receive evidence of what the MP said in the House.
(See eg Laurance v Katter (1996) 141 Australian Law
Reports 447.)
(iii) An MP (or former MP) is charged with
a criminal offence in respect of conduct which clearly did not
form part of proceedings in parliament. The case for the prosecution
depends in part on what the MP (or former MP) said in the course
of parliamentary proceedings. Evidence of what was said in the
course of those proceedings cannot be adduced in the criminal
trial. (R v Jackson (1987) 8 New South Wales Law Reports
116 at p 120).
(iv) In the course of parliamentary proceedings,
an MP makes allegations which suggest that named officials have
engaged in criminal activities. The allegations are strenuously
denied. The Government, however, decides to appoint a royal commission
to inquire into and report on the truth of the allegations. The
relevant statute on royal commissions endows royal commissioners
with coercive powers to require the giving of evidence and the
production of documents. The statute is likely to be required
to be read subject to the provisions of s16 of the Parliamentary
Privileges Act so as to preclude the examination of the truth
of what the allegations made by the MP. (In s3 of that Act "tribunal"
is defined to include a Royal Commission endowed with such powers.
The example is taken from L Hallet, Royal Commissions and Boards
of Inquiry (1982) at pp 260-271; RFK Davies, "Parliamentary
Privilege—Parliament and the Western Australian Royal Commission"
(1993) 67 Australian Law Journal 671; G Griffith, Parliamentary
Privilege: Use, Misuse and Proposals for Reform (NSW Parliamentary
Library Research Service, Briefing Paper No 4/97 at pp 42-5.)
(v) D is charged with the commission of a
criminal offence in respect of conduct which did not form part
of a proceeding in Parliament. False and untruthful evidence is
given by a W, witness for the prosecution, against D and the evidence
differs from that given by W before a parliamentary committee
on the same matter. D may be unable to refer to the different
evidence given before the parliamentary committee to show that
the evidence given at the trial is unreliable. (Mr Spender QC
(then shadow Attorney-General) in the debate on the Parliamentary
Privileges Bill, Commonwealth Parliamentary Debates, House
of Representatives, 5 May 1987, pp 2635-6 and quoted by Sir C
Harders in the article cited above in para 6, (1993) 67 ALJ
at p 109).
(iv) The situation envisaged by the Joint
Committee and outlined in para 2 of this note.
20. Not all the examples are of course drawn
from actual cases which involve the Federal Parliament or, indeed,
s16 of the Parliamentary Privilege Act (Cth). But they all usefully
illustrate the potential operation of those provisions in relation
to the use which can be made of Federal Parliamentary proceedings
in Australian courts. (I am indebted to my colleague, Enid Campbell,
Emeritus Professor of Law, Monash University, for outlining the
first four examples which were listed above in an unpublished
paper entitled, "Parliamentary Privilege and Freedom of Political
Communication", dated 11.11.97, at pp 5-7.)
21. The potentially wide and restrictive
operation of those provisions has given rise to a number of complex
issues which involve the construction and constitutional validity
of those provisions. The constitutional doubts involve the following
questions:
(i) Whether the provisions exceed the constitutional
power of the Federal Parliament to make provision for the powers
privilege and immunities of both Houses of the Parliament and
their members—as lacking a sufficient connection with the
power essentially because the provisions are not "proportionate"
to the ends they seek to achieve. (The relevant head of legislative
power is located in s49 when read in conjunction with s51(xxxvi)
of the Commonwealth Constitution.) (See generally Laurance
v Katter (1996) 141 Australian Law Reports 447 per
Fitzgerald P at p 479 who rejects this possible ground of invalidity.)
(ii) Even if they are a valid exercise of
power under s49 of the Constitution they interfere with the freedom
of political communication recently implied by the High Court
from recognition of representative government in the same Constitution.
Although it has not so far been made entirely clear, the argument
in favour of invalidity on this ground may be based on the effect
of the provisions in preventing the analysis of the conduct of
parliamentary proceedings (ie the conduct of elected politicians)
in the courts; or because they impede discussion of the same matters
by non-parliamentarians given the legal consequences that may
result in defamation and other cases discussed in some of the
examples noted above in para 19. (See Laurance v Katter supra
per Pincus JA ALR at pp 482-486 and cf Fitzgerald P at pp
452-3; M Chesterman, "Privileges and Freedoms for Defamatory
Political Speech" (1997) 19 Adelaide Law Review 155
at pp 187-8, 191-3.
(iii) The provisions may also be invalid
as constituting an impermissible interference with the exercise
of judicial power by restricting the evidence which courts may
use to determine cases which come before them. (This would contravene
the separation of the judicial power of the Commonwealth created
by Ch III of the Federal Constitution.) (This possible ground
of invalidity was rejected in Amann Aviation Pty Ltd v The
Commonwealth (1988) 81 Australian Law Reports 710 at
p 718 and Laurance v Katter supra per Fitzgerald P at ALR
pp 453-481 and cf Pincus JA at p 485; Cambell unpublished paper
cited above in para 20 at pp 44-8; and also Harders in the article
cited above in para 6, ALJ at pp 138-140.)
The High Court has yet to rule on these issues
which are undoubtedly real and difficult. In my view there may
be sufficient answers to the points they raise but their significance
for the Joint Committee rests on the way they help to highlight
the conflicting public and policy interests which the Privy Council
identified in the Prebble case. They cannot of course have
a direct legal or constitutional relevance given the absence at
the present time of a written constitution in the United Kingdom.
It will, however, be suggested later, although only in passing,
that similar issues could nevertheless arise under the guise of
international law as a result of British membership of
the European Convention on Human Rights. (See below in para 29.)
22. In addition to the constitutional doubts,
and partly associated with them, judicial differences of opinion
have developed regarding the construction of the provisions of
section 16(3). Thus there is uncertainty at the present time regarding
whether those provisions:
(a) replicate the judicial interpretation
accorded to Article 9 of the English Bill of Rights (as assumed
in Prebble's case [1995] AC at p 332 and the Amann Aviation case
(1988) 81 ALR at p 718; cf Laurance v Katter (1995) 141 ALR at
p 484 per Pincus JA); or
(b) can validly apply to defamation suits
at all (as denied by Pincus JA in Laurance v Katter but cf Fitzgerald
P who upheld their valid operation in relation to those suits);
or
(c) even if the provisions can validly apply
to such suits, whether the provisions make it unlawful to admit
evidence of parliamentary proceedings only if the effect of the
admission of the evidence would be to impeach or question the
freedom of proceedings in Parliament (as held by Davies JA in
Laurance v Katter 141 ALR at pp 488-491.)
It will be seen that some of the differences
of opinion above stem from the decision of the Queensland Court
of Appeal in Laurance v Katter. The High Court of Australia granted
special leave to appeal from the decision in that case but unfortunately
the difficult issues which divided the members of the Court of
Appeal remain unresolved because the case was settled before the
appeal was heard by the High Court. It is also worth highlighting
that the possible construction supported by Davies JA (ie in sub-para
(c) above) would involve the judges becoming the final arbiters
of whether the admission of evidence would actually have the effect
of impeaching or questioning the freedom of proceedings in Parliament.
23. It only remains to mention that the
literal and wide effect given to the provisions of Article 9 of
the English Bill of Rights in such cases as Prebble (and the cases
which apply the same view to the corresponding provisions of section
16(3) of the Australian Act) has not, as the Joint Committee will
no doubt already be aware, escaped considerable academic criticism.
(See eg M Harris, "Sharing the Privilege: Parliamentarians,
Defamation, and Bills of Rights" (1996) 8 Auckland University
Law Review 45; G Marshall, "Impugning Parliamentary Impunity"
[1994] Public Law 509; A Sharland and I Loveland, "The
Defamation Act 1996 and Political Libels" [1997], Public
Law 113. These articles were cited by Professor Campbell,
in the published paper mentioned above in para 20, at pp 8-9 n21.)
Not surprisingly one of the principal grounds of that criticism
is that the balance struck in that case between the freedom of
parliamentary proceedings and the freedom of political speech
was tilted far too much in favour of the former at the expense
of the latter.
E. PARLIAMENTARY
PRIVILEGES ACT
S16(3): APPLICATION
TO JUDICIAL
REVIEW OF
GOVERNMENTAL ACTION—CONCLUSION
24. Notwithstanding the criticisms levelled
against the Privy Council's decision in the Prebble case
I have always believed that the view adopted in that case represents
the correct interpretation of Article 9 of the English Bill of
Rights as a statement of law. It was in fact supported by some,
but by no means all, Australian judicial authority before the
enactment of s16(3) of the Parliamentary Privileges Act. Similarly,
I an not persuaded that those provisions should be read down,
although whether they are constitutionally valid is another matter.
I would personally support the correctness of the two Federal
Court cases discussed earlier in this paper as a statement of
existing Australian law on the assumption that the provisions
in question are valid.
25. That said, the result of the foregoing
analysis should be sufficient to demonstrate that there can be
no assurance that the Australian courts (including the High Court)
will take the same view of the interpretation of those provisions.
There is a distinct possibility that they might seek to construe
those provisions by reference to whether the admission of evidence
would in the view of a court tend to impeach or question the freedom
of proceedings in Parliament (as held by Davies JA in Laurance
v Katter and mentioned above in para 22). This is so, notwithstanding
what I would regard as a clear expression of a contrary parliamentary
intention. Accordingly there can be no assurance that the view
taken in the Federal Court cases will be followed in the future.
F. REFORM
(1) Introduction
26. My personal support for the view adopted
by the Privy Council as a statement of existing law should not
be taken as support for what the law ought to be as a matter of
policy. To the contrary, I agree with the view that the law as
so interpreted is not well suited to modern conditions and fails
to take sufficent account of the conflicting public interests
and policies in relation to freedom of expression and the rule
of law.
(2) Different Traditions of Judicial Review
in Australia and the UK
27. There are two matters which I would
like to mention before reference is made to some possible reforms
which might be made of the existing law. The first relates to
the reason for the enactment of s16 of the Australian Act. As
was explained earlier it was prompted by the failure of some courts
in Australia to adhere to the traditional view of parliamentary
privilege and the need perceived by the Australian Parliament
to reassert its privileges in the face of that failure. It seems
that Australian courts have not accorded the same level of judicial
deference to the privileges of the Parliament than that which
is accorded by English courts, despite the fact that the courts
in both countries purport to interpret the same principles of
law. Thus Australian courts have shown less sensitivity than their
English counterparts to the kind of conflict which occurred between
the courts and the parliament in England in the famous case of
Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112
and which culminated in the imprisonment of the unfortunate sheriff
in the Sheriff of Middlesex Case (1840) 11Ad & E 273;
113 ER 419 for his role in executing the judgment of the court
in the former case.
28. The phenomenon can probably be explained
by reference to the different traditions of judicial review necessitated
by the existence of a written and federal constitution in Australia.
This has made our courts far more accustomed to review the actions
and conduct of all governmental bodies including those
of our legislatures and their constituent Houses. Perhaps it is
inevitable in those circumstances that too little heed has been
paid to the remarks of Dixon CJ, McTiernan, Taylor and Windeyer
JJ in Clayton v Heffron (1960) 105 Commonwealth Law
Reports 214, when they said in a different connection:
"Under the federal system we have grown
so accustomed to attacks upon the validity of Acts of Parliament
that it is easy to overlook the principles which apply to a unitary
system . . ." (at p 245.)
(3) The international human rights perspective
29. Secondly, both in Australia
and the United Kingdom, the matter under discussion needs now
to be looked at from the additional perspective of international
human rights instruments which may hasten the need for change
in this area of the law. This adds a further conflicting public
interest to that mentioned by the Privy Council in Prebble's
case. Thus, as the Joint Committee may already be aware, the
European Court of Human Rights has found that the law of Malta
breached Article 6 of the European Convention on Human Rights
in vesting the power to punish persons for contempt of Parliament
in a non-judicial body, at least when those persons were not members
of Parliament (in Demicola v Malta (1991) 14 EHRR 47).
The law of parliamentary privileges in Malta followed the British
model. (This gives rise to the possibility that the future exercise
of the same jurisdiction in Australia may be contrary to Article
14 of the International Covenant on Civil and Political Rights
with the consequence that a complaint may be taken to the
United Nations Human Rights Committee under the First Optional
Protocol to the Covenant. (See A Twomey, "Parliamentary
Privilege: Who wants to take this to Geneva?" (1995) 1 Constitutional
Centenary Foundation (Vic)Newsletter 7). Similar developments
could well occur in relation to Article 9 of the Bill of Rights
and s16(3) of the Parliamentary Privileges Act. (The significance
of this possiblity is also mentioned by the late Sir C Harders
in the article cited above in para 6, 67 ALJ at pp 140-2.)
(4) Shortcomings of present procedures
30. The discussion which follows assumes that
English courts, at least, will follow the traditional view accepted
by the Privy Council in Prebble's case. It addresses the
ways in which evidence of parliamentary proceedings might be admitted
in cases which involve the judicial review of a Minister's actions
both under the law as it exists at present and under modifications
which might be made to that law. I will attempt to emphasise the
relevance of Australian federal experience to those issues.
31. The existing procedures for dealing
with such evidence would seem to consist of the following:
(i) seek the permission of the relevant House
either on an ad hoc basis or under a standing resolution
(as I understand now occurs with the use of Hansard); and
(ii) the ability of the courts to stay judicial
proceedings in case the evidence is critical to the outcome of
those proceedings and the relevant permission for the admission
of the evidence has been refused.
The obvious shortcomings with those procedures
lie in the control which a Government can exercise over its back-benchers
(at least when it enjoys a majority in its own right and is not
in office as a minority Government) in order to prevent the House
granting the necessary permission. Thus the control could be used
to protect the Minister being sued for such matters as abuse of
the exercise of a statutory power in circumstances where a Government
feels able to resist any political pressure to permit the admission
of the evidence. The use of the power to stay the proceedings
would in that event only frustrate the action. Similar problems
could arise in the case of evidence which relate to proceedings
in the Australian House of Representatives but not in the Senate
where Governments have found it very difficult to obtain control
of that Chamber because of the adoption of proportional representation
and other factors.
(5) Waiver of the privilege by the Minister
32. It is true that in the United Kingdom
some of the problems which have been experienced with defamation
suits have been overcome by the enactment of s13 of the Defamation
Act 1996 (UK). That solution enables members of Parliament to
waive the privilege either as plaintiffs or defendants in defamation
actions. It is also an approach which was adopted by the New South
Wales State Parliament last year to allow an extra-parliamentary
inquiry to investigate the truth of controversial allegations
made by a member of the Legislative Council in that Chamber. (A
useful and concise account of the events which gave rise to the
legislation and the outcome of challenges to its validity is contained
in E Campbell, "Investigating the Truth of Statements Made
in Parliament: The Australian Experience" [1998] Public
Law 125.) However the solution may not prove helpful here
since it will be the Minister who is being sued in actions which
seek the judicial review of his or her conduct or decisions, and
in most cases the Minister is unlikely to have any incentive to
waive the privilege.
(6) Statutory modification of Article 9 confined
to judicial review of governmental action
33. There remains the possibility of the
Parliament waiving the privilege by further modifying the operation
of Article 9. I understand that some members of the Joint Committee
are anxious not to stand in the way of allowing the admission
of ministerial statements in actions which review the validity
of governmental action, although elsewhere the Committee is inclined
towards retaining the existing position. It should be possible
to draft a limited alteration to the law to achieve that objective.
34. So far as I am aware no thought has
been given to enacting a similar amendment to s16 of the Australian
Act, perhaps because the practice of relying on ministerial statements
here is not as extensive as it is in the UK. However some thought
was given to drafting exceptions to those provisions at the time
the Bill was being debated to deal with concerns about the potential
width and restrictive effect of those provisions. The proposed
amendments would have allowed a person who had given evidence
before a parliamentary committee to be cross-examined in court
on that evidence for the purpose of showing that the person's
parliamentary and court evidence were inconsistent and that the
person's evidence was therefore unreliable. According to the current
Clerk of the Senate, ultimately the conclusion was reached that
it was not possible to make such an exception without undermining
the whole principle of the Bill. (See H Evans in the article cited
above in para 6 of this note, (1988) 11 UNSWLJ 31 at pp 39-41.)
35. There are two matters which may be worth
noting for present purposes. The first was that it appears that
it was assumed that there could be no question of extending the
proposed exception to speeches of members of Parliament themselves.
Thus Senator Gareth Evans, a former Minister and Commonwealth
Attorney-General, said:
"It is, I believe, very important—and
most members of parliament would believe it is very important—to
retain untrammelled the privilege that we in this Parliament enjoy
of speaking our minds fearlessly and freely and not facing the
consequences of court challenge, harassment or cross-examination,
let alone prosecution, as a result of it." (Commonwealth
Parliamentary Debates, Senate, 17 March 1987, p 813. Coincidentally,
the senator in question was the Minister involved in the Amann
Aviation case discussed above in paras 9-12 of this note.)
36. Secondly, one difficulty which was seen
with the proposed exception is that if one party in a civil or
criminal action were allowed to seek to undermine the evidence
of a witness by using the witness's parliamentary evidence, then
as a matter of fairness the other party in the proceedings would
have to be allowed to try to rebut that undermining by further
use of the parliamentary proceedings. The example cited was that
of evidence given before a parliamentary inquiry being used in
a criminal trial and envisioned complaints being raised about
the unfair or misleading way in which the witness was questioned.
This was seen as opening the way to the very impeaching and questioning
of parliamentary proceedings which it was said was the aim of
Article 9 and the legislation to prevent. These considerations
may not be directly relevant to the use which can be made in court
of a statement made by the Minister in Parliament. But, perhaps
by parity of reasoning, similar consequences could result if such
statements were to be used in court proceedings. This would depend
on the kind of parliamentary proceedings and debates which can
follow the making of a statement by a Minister in either House
of the Parliament.
37. Ultimately, however, such consequences,
even if they are significant, need to be balanced against the
importance of citizens being able to challenge the legality of
governmental and administrative action. In other words, a choice
needs to be made between preserving the freedom of parliamentary
proceedings and ensuring the unfettered access of the courts to
all the evidence they need to secure justice between the citizen
and the State so as to give full effect to the rule of law.
(7) Whether Article 9 should become part
of the law of public interest immunity
38. Given the Joint Committee's inclination,
no attempt has been made in this note to deal with the question
whether the time has arrived to consider the more radical notion
of relegating the privilege in Article 9 regarding the use of
evidence about parliamentary proceedings to the general law of
public interest immunity (formerly described as "Crown privilege").
It is well known that Article 9 finds its historical origin in
the times when the judges did not enjoy the tenure and independence
they presently enjoy in both the United Kingdom and Australia.
As such they can no longer be seen as servants and agents of the
Crown so that it can no longer be asserted that to permit them
to question the proceedings of the parliament would be to allow
the Executive to interfere with the freedom of parliamentary proceedings
enjoyed by the Legislature. If the privilege was absorbed as part
of the law of public interest immunity it would of course mean
that the final word for determining whether evidence should be
excluded would rest with the courts and not, as is now the case,
the Houses of Parliament.
G. SUMMARY
39. The contents of this note may be summarised
in the following way.
(i) Two cases decided by the Federal Court
of Australia have applied the provisions of section 16(3) of the
Parliamentary Privileges Act to challenges to the legality of
ministerial action by giving full effect to the literal width
of the same provisions (paras 9-17).
(ii) The width of section 16(3) of the Parliamentary
Privileges Act has the potential to produce unfair results and
has given rise to uncertainty in the application of those provisions
to other areas of the law, such as criminal and defamation law
(paras 18-23).
(iii) Because of that uncertainty and potential
for unfairness, there can be no assurance that Australian courts
will take the same view of the interpretation of those provisions
as was taken in the two Federal Court cases (paras 24-25).
(iv) Instead there is a distinct possibility
that the provisions in question may be construed as only applying
to restrict the admission of evidence if in the view of a court
the admission of the evidence has the tendency to impeach or question
the freedom of proceedings in Parliament (para 25).
(v) It seems that Australian courts have
not accorded the same level of judicial deference to the privileges
of the Parliament than that which is accorded by English courts,
despite the fact that the courts in both countries purport to
interpret the same principles of parliamentary law (paras 27-8).
(vi) Both in Australia and the United Kingdom,
the matter under discussion now needs to be looked at from the
additional perspective of international human rights instruments
and this may increase the need for change in this area of the
law (para 29).
(vii) Existing procedures for allowing the
admission of evidence of a ministerial statement made in Parliament
suffer from significant shortcomings (para 30-31).
(viii) The alteration of the law to provide
for the waiver of the privilege by the Minister would not provide
an adequate solution in many cases (para 32).
(ix) It should be possible to draft a limited
alteration to the law to allow the admission of Ministerial statements
made in Parliament in actions which review the validity of the
Minister's conduct or action. But Australian experience in seeking
to devise exceptions to the privilege in Article 9 has given rise
to questions whether such exceptions would undermine the general
principle which underlies the traditional approach to that privilege
(paras 33-37).
(x) No attempt has been made in this note
to deal with the more radical question whether the privilege in
Article 9 regarding the use of evidence about parliamentary proceedings
should be relegated to the general law of public interest immunity—formerly
described as "Crown privilege" (para 38).
G J Lindell
Reader and Associate Professor in Law
The University of Melbourne
6 November 1998
Attachments
PARLIAMENTARY PRIVILEGES BILL 1986
(subsequently enacted as the Parliamentary
Privileges Act 1987 )Cth))
1. Second Reading Speech: President of the
Senate
2. Extracts from Explanatory Memorandum—clause
16 of the Bill (s16 of the Act)
Motion (by The President) agreed to:
That leave be given to introduce a Bill for
an Act to declare the powers, privileges and immunities of each
House of the Parliament and of the members and committees of each
House, and for related purposes.
Bill presented by The President, and
read a first time.
Second Reading
The PRESIDENT—By leave—I
move:
That the Bill be now read a second time.
The main purpose of this Bill is to avoid the
consequences of the very narrow interpretation and reading down
of article 9 of the Bill of Rights 1688 in its application to
the Australian Parliament in the judgments of Mr Justice Cantor
and Mr Justice Hunt of the Supreme Court of New South Wales in
each trial of R v Murphy. I have had this Bill prepared and I
am submitting it to the Senate in response to requests and suggestions
by honourable senators to the effect that a Bill for this purpose
should be introduced as soon as possible for consideration by
both Houses of the Parliament, and that it would be appropriate,
as it is a parliamentary matter, for the President to introduce
such a Bill. In so doing I have discussed the matter with the
Speaker of the House of Representatives and she concurs with this
course of action. I have also included in the Bill, at the request
of honourable senators, provisions designed to put into effect
the legislative recommendations of the Joint Select Committee
on Parliamentary Privilege. It was put to me that I should give
the Senate the opportunity to consider those recommendations in
conjunction with the provisions relating to freedom of speech
in Parliament.
It is an unprecedented step for a Presiding
Officer of a House of the Parliament to introduce a Bill—indeed,
it is unusual for a President to speak to any matter before the
Senate at all—but I have decided to take such a step because
of the fundamental importance of freedom of speech to the operations
of both Houses, and because of the very serious threat to that
freedom of speech posed by the judgments to which I have referred.
I want to stress once again that the privilege of freedom of speech
does not exist for the benefit of members of parliament, but is
designed to allow them to speak fearlessly on behalf of the people
they represent and to pursue without hindrance matters in the
public interest.
In order to assist the Senate in its consideration
of the Bill and the matters raised by the judgments in the courts,
on 4 June 1986 I presented to the Senate a draft of the Bill,
an explanatory memorandum explaining the provisions of the Bill,
and a commentary on the judgment of Mr Justice Hunt prepared in
the Senate Department. In a statement at that time I invited honourable
senators and members to comment on the draft Bill. Some minor
refinements have been made to the Bill since the draft was presented.
I now present to the Senate an updated explanatory memorandum,
and a set of the papers relating to the matter, including the
submission which was made to the Court on my behalf and the two
judgments. In this second reading speech I will not deal with
the provisions which give effect to the recommendations of the
Joint Select committee, as these are fully explained in the explanatory
memorandum. I will concentrate on the issue of freedom of speech.
Article 9 of the Bill of Rights, which is a
statutory provision applying to the Houses of the Australian Parliament
by virtue of section 49 of the Constitution, provides:
That the freedom of speech and debates or proceedings
in Parliament ought not to be impeached or questioned in any court
or place out of Parliament.
It has long been accepted, virtually since this
provision was enacted, that this prevents parliamentary proceedings
from being called into question in the broadest sense in proceedings
before any court or tribunal. This interpretation was supported
and applied in a number of judgments in British and Australian
courts which are referred to in the documents I have presented
to the Senate. These judgments and the long-established interpretation
of article 9 which they embodied, however, have been repudiated
by the recent judgments given in the Supreme Court of New South
Wales. Mr Justice Cantor's judgment, given on 5 June 1985, was
to the effect that the test of a breach of article 9 is any adverse
effect on parliamentary proceedings, and that the protection provided
by article 9 must be balanced against the requirement of court
proceedings. It was not clear what this judgment meant in practice
until, in the course of the trial, witnesses and the accused were
rigorously cross-examined on the evidence which they gave to the
Senate committees—including evidence given during in camera
committee proceedings—the truth of that evidence was questioned,
and submissions were made to the jury as to the credibility of
witnesses and the accused based on that questioning.
In his judgment, Mr Justice Hunt ruled that
this use of parliamentary proceedings is not in breach of article
9 because the latter is restricted to preventing the prosecution
or suit of a person for what that person has said or done in the
actual course of the parliamentary proceedings. According to this
judgment, it is not a breach of article 9 to use parliamentary
proceedings as evidence of an offence or of a civil liability,
to establish the motive or intention of a person for the purpose
of proving an offence or a civil liability, or to attack the credibility
of a person.
This judgment may not necessarily be followed
by other courts, and, indeed, a contradictory judgment has already
been given. In Australian Broadcasting Commission and Another
v Chatterton and Chapman v Chatterton, on 12 August 1986, the
Acting Chief Justice of the Supreme Court of South Australia,
Mr Justice Zelling, adhered to the traditional interpretation
of article 9, notwithstanding that the judgment and reasons of
Hunt, J were submitted to him. He held that what was said in Parliament,
by a defendant in a defamation action could not be used to support
the cause of action by adding to or explaining what was said outside
Parliament. His Honour stated:
What was said in Parliament cannot be used to
extend the meaning of what was said outside Parliament . . . the
"untruth" relied on by the Judge [in the trial the subject
of appeal] could only be proved by using the appellant Chapman's
words in Parliament.
His Honour also rejected a submission that the
member of parliament in question had waived his privilege, stating
that such a waiver is not possible.
The questions involved in the interpretation
of article 9 have also been raised in the trial in the New South
Wales Supreme Court in R v Jackson and Others, in which
the Crown proposed to use statements by one of the defendants
in Parliament as evidence of conspiracy on the part of the defendant.
I am advised that the judge in that case, Mr Justice Carruthers,
would not allow such use of the defendant's statements in Parliament,
but has not yet given his reasons.
Apart from these contradictory court judgments,
there are many arguments in favour of the view that the interpretation
by Hunt, J of article 9 is not correct. In particular, Hunt, J
relies upon an historical analysis of the reasons behind the enactment
of article 9 which is not complete and ignores some of the history.
I will not go into these arguments here, as they are more fully
set out in the documents which I have presented. Instead, I will
concentrate on the effects of the judgment.
The narrow reading down of article 9 contained
in the judgments of Hunt, J would, if followed, pose a serious
threat to the freedom of speech of members of parliament, to whom
it applies, as well as to witnesses before parliamentary committees.
According to the judgment, while a member may not be sued or prosecuted
for something the member has said or done in the actual course
of parliamentary proceedings, the member's participation in those
parliamentary proceedings can be used against the member to establish
the member's motive or intention in relation to words said or
acts done outside Parliament and to support an action, civil or
criminal, in relation to such words or acts. Thus, in a defamation
suit taken against a member for something the member said outside
Parliament, the necessary element of malice for success of the
suit can be proved by evidence as to something the member said
or did in Parliament. To prove a criminal offence against a member
in respect of something the member said or did outside Parliament,
the member's words or actions in Parliament can be used to establish
guilty motive or intention or as evidence of the offence. If a
member were called as a witness in a civil or criminal action
it would be open to counsel to cross-examine the member on the
member's contribution to parliamentary proceedings for the purpose
of discrediting the member's evidence.
It is clear, therefore, that the judgment of
Hunt, J would allow a member's participation in parliamentary
proceedings to be used against the member in court proceedings
in a way not thought possible hitherto. Such a situation is clearly
a serious inroad on the freedom of speech in Parliament and ought
not to be countenanced. The judgment would allow similar use to
be made of evidence given by witnesses before parliamentary committees.
Senators who have participated in inquiries by the Senate will
know that the protection afforded to witnesses by article 9 is
often vital in ensuring that witnesses give full and frank evidence.
In particular, witnesses have often given evidence which is necessary
for the purposes of an inquiry and which could, if given elsewhere,
expose them to the risk of civil or criminal action, or be used
as evidence of an offence or a civil liability. The judgment of
Hunt, J obviously drastically reduces the protection afforded
to witnesses by parliamentary inquiries, and would make the securing
of full evidence more difficult in the future. Indeed, it may
well create a situation where witnesses, with what they would
see as justification, are reluctant to accept the invitation to
attend and give evidence. As honourable senators who have worked
on committees will immediately recognise, this would lead to grave
problems in continuing the present committee system, perhaps forcing
the use of compulsive measures, which many would see as undesirable,
and, in many cases, unproductive. If the Senate were forced to
use its powers—which it has not used to a large extent in
the past—of compelling witnesses to give evidence under
threat of punishment, it obviously would be unfair to leave those
witnesses exposed to the use of that evidence against them in
future court proceedings. The Bill would prevent such use of parliamentary
proceedings and would uphold the long-established interpretation
of article 9.
The Bill proceeds from the starting point that
article 9 is part of the law of Australia under section 49 of
the Constitution, and then indicates that it is to be given the
broad and previously-established interpretation. There are two
reasons for framing the Bill in this fashion: first, because the
Bill must start with a general declaration of the immunity of
parliamentary proceedings from question or examination, and the
language of article 9 is difficult to improve upon; and, secondly,
to make clear the Parliament's belief that article 9 should properly
be interpreted, as the Bill provides, and always should have been
interpreted that way. Article 9 is part of the law in many jurisdictions
around the world, including the Australian States, and it might
well create difficulties for the various parliaments in those
jurisdictions if the Commonwealth Parliament is seen to be accepting
that article 9 has the narrow meaning attributed to it by the
recent judgments, and that it is necessary to add to that meaning
to establish the broader immunity of parliamentary proceedings
from question in the courts. In relation to this point, there
is included in the papers I have presented a letter from the Speaker
of the New Zealand House of Representatives. The Bill would also
prohibit the unauthorised use of evidence taken in camera and
not released by a committee or the House concerned. Such unauthorised
use of in camera evidence occurred in both trials in R v Murphy.
In commending the Bill to the senate, I would
again draw the attention of honourable senators to the documents
which I have presented, and indicate that I look forward to the
deliberations of honourable senators on the Bill. I commend the
Bill to the Senate.
Debate (on motion by Senator Reid) adjourned.
1987 HOUSE OF REPRESENTATIVES
Parliamentary Privileges Bill 1987 (including
amendments made by the Senate)
EXPLANATORY MEMORANDUM
CLAUSE 16: PARLIAMENTARY
PRIVILEGE IN
COURT PROCEEDINGS
The purpose of this clause is to avoid the consequences
of the interpretation of article 9 of the Bill of Rights 1688
by the judgments of Mr Justice Cantor and Mr Justice Hunt of the
Supreme Court of New South Wales.
Article 9, which applies to the Australian Parliament
by virtue of section 49 of the Constitution, provides
"That the freedom of speech and debates
or proceedings in Parliament ought not to be impeached or questioned
in any court or place out of Parliament.".
In the past the courts have held that the article
prevents parliamentary proceedings from being examined or questioned
in a wide sense or used to support a cause of action (Church
of Scientology of California v Johnson-Smith (1972) 1 QB 522,
R. v Secretary of State for Trade and others, ex parte Anderson
Strathclyde plc, (1983) 2 All ER 233, Comalco Ltd v Australian
Broadcasting Corporation (1983) 50 ACTR1; these judgments
were based on authorities stretching back to 1688).
In each trial of R. v Murphy, in the
Supreme Court of New South Wales, counsel instructed by the President
of the Senate submitted that article 9 prevents the cross-examination
of witnesses or the accused on evidence which they gave before
parliamentary committees for the purpose of impeaching the evidence
of witnesses or the accused.
On 5 June 1985 Mr Justice Cantor, before the
first trial, gave a judgment to the effect that article 9 does
not prevent the cross-examination of persons in court proceedings
on their parliamentary evidence, that the test of a violation
of article 9 is whether there is any adverse effect on parliamentary
proceedings, and that the protection of parliamentary proceedings
must be "balanced" against the requirements of court
proceedings. Subsequently in the course of the trial a witness
was extensively cross-examined on evidence given before a Senate
committee, including evidence given in camera, and the truthfulness
of that evidence was questioned. The accused was cross-examined
on a written statement which he had submitted to a Senate committee
and which had been treated as in camera evidence, and the prosecution
made submissions to the jury questioning the truthfulness of the
accused on the basis of that evidence, despite objections by the
defence.
In R. v Foord, Mr Justice Cantor's judgment
was followed and witnesses in that trial were extensively cross-examined
on the truthfulness of their evidence before Senate committees
and their motives in giving that evidence.
On 8 April 1986 Mr Justice Hunt, before the
second trial in R. v Murphy, gave a judgment which expressly
repudiated the law expounded in the cases cited, and which held
that article 9 prevented only parliamentary proceedings being
the actual subject of criminal and civil action, but allowed the
use of parliamentary proceedings as evidence of an offence, to
impeach the evidence of witnesses or the accused or to support
a cause of action.
The clause would prevent such use of proceedings
in Parliament and restore the interpretation of article 9 contained
in the earlier judgments. (A more detailed analysis of the law
and the judgments is contained in the documents presented to the
Senate by Mr President McClelland on 7 October 1986. Attention
is also drawn to the reasons for judgment in R v Jackson,
presented to the Senate by the President on 17 March 1987.)
The clause declares that article 9 applies in
respect of the Australian Parliament and that it has the effect
indicated by the provisions of the clause. The clause has been
drafted in this way largely to avoid the difficulty which may
be created for other jurisdictions if the Australian Parliament
were to legislatively accept that article 9 as such has the restricted
meaning given to it by the recent judgments and requires legislative
supplementation to be given its broad interpretation. Article
9 is part of the law in many jurisdictions around the world, including
the Australian States, and it has been indicated that Parliaments
in those jurisdictions would not wish the Australian Parliament
to be in any way accepting that article 9 may be read narrowly
and that it requires such legislative supplementation.
Sub-clause (1): This sub-clause declares that
articles 9 applies in relation to the Australian Parliament and
is to be construed in accordance with the provisions of the clause.
Sub-clause (2): It is necessary to define the
phrase "proceedings in Parliament", which sets the scope
of the immunity contained in article 9. The phrase is defined
to include all words spoken and acts done in transacting the business
of the Houses or their committees, including the preparation and
submission of documents.
Sub-clause (3): This sub-clause prevents the
use of parliamentary proceedings in court or tribunal proceedings—
(a) in a manner involving questioning or
relying on the truth, motive, good faith or intention of words
spoken or acts done in the parliamentary proceedings;
(b) to attack or support the evidence or
credibility of persons giving evidence in court or tribunal proceedings;
and
(c) to draw inferences or conclusions for
the purposes of the court or tribunal proceedings.
The following is a further exposition of those
paragraphs:
(a) calling into question parliamentary proceedings
This is the most obvious and clear prohibition
contained in article 9. It prevents, for example, a statement
in debate by a member of Parliament or the evidence of a parliamentary
witness being directly attacked for the purpose of court proceedings,
or the motives of the member or the witness in speaking in Parliament
or giving evidence being attacked. Thus, it cannot be submitted
that a member's statements in Parliament were not true, or reckless,
to support a submission that the member is an untruthful, or reckless,
person.
(b) attacking the credibility, motives, etc
of a person on the basis of proceedings in Parliament
This would prevent, for example, a member's speech
in debate or a parliamentary witness's evidence being used to
establish their motives or intention for the purpose of supporting
a criminal or civil action against them, or against another person.
Thus a member's statements outside Parliament cannot be shown
to be motivated by malice by reference to alleged malice in the
member's statements in Parliament.
(c) drawing references or conclusions to
support a criminal or civil action
This would prevent, for example, a jury being
invited to infer matters from speeches in debate by members of
Parliament or from evidence of parliamentary witnesses in the
course of a criminal or civil action against them or another person.
Thus a member's speech in Parliament cannot be used to support
an inference that the member's conduct outside Parliament was
part of some illegal activity. This would not prevent the proving
of a material fact by reference to a record of proceedings in
Parliament which establishes that fact, eg, the tendering of the
Journals of the Senate to prove that a Senator was present in
the Senate on a particular day.
These prohibitions express the limitations on
the use of parliamentary proceedings which were held to flow from
article 9 in the earlier court judgments. Basically, what they
prevent is proceedings in Parliament being "used against"
a person in the broad sense, that is, not only being made the
subject of a criminal or civil action, such as where a member
is sued for words spoken in debate, but also being used to support
a civil or criminal action against a person.
Sub-clause (4): This sub-clause prevents evidence
which has been taken in camera by a House or a committee and not
published from being used in court proceedings, as was done in
R v Murphy and R v Foord. The sub-clause covers
documents specifically prepared for submission to a House or a
committee and accepted as in camera evidence, and oral evidence
taken in camera.
Sub-clause (5): It may be necessary for a court
to examine proceedings in Parliament for the purpose of determining
a question arising under section 57 of the Constitution after
a double dissolution (eg, whether the Senate failed to pass a
Bill), or interpreting an Act of the Parliament (the Acts Interpretation
Act allows for that purpose reference to parliamentary proceedings,
including second reading speeches, reports of committees and amendments
moved and determined). This sub-clause therefore provides that
neither this clause nor the Bill or Rights shall be taken to prevent
the admission in evidence in the court proceedings of parliamentary
records for those purposes. Nothing in the sub-clause makes admissible
anything which would otherwise not be admissible.
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