Parliamentary Privilege First Report


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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