Parliamentary Privilege Minutes of Evidence

Memorandum by the President of the Legislative Council of Western Australia


  It might be said that the purpose of the law and custom of Parliament is to ensure the continuing ability of Parliament and its members to discharge their constitutional functions with integrity for the benefit of the nation and free from improper influence or duress.


  In Australian parliaments, including the Commonwealth, the scope of privilege is determined at first instance by the extent of "statutory reception" of UK privilege law in each jurisdiction. With the exception of New South Wales, each upper and lower House of an Australian parliament has statutorily-conferred powers, privileges, rights and immunities that are expressed to be those of the House of Commons either as they are from time to time, or as they were at a date certain.


  Immediately after the grant of responsible government in 1890, the then colonial Parliament of Western Australia, relying on s 36 of the Constitution Act 1889, enacted the Parliamentary Privileges Act 1891. Section 1 conferred the Commons' powers but went on to provide that where there was conflict between the Commons' powers and those enacted in succeeding provisions of the Act, the latter were to prevail. Some of those provisions have modified the scope of privilege enacted in section 1, eg s 8 enables either House to impose fines on its members and others for committing contempts set out in the section.


  Within the lifetime of the WA Parliament, just over 100 years, parliamentary law, both in form and content, has fallen behind and failed to adapt to changing political and social attitudes. Rather than confront and deal confidently with the issue, Parliament has played down the existence of its coercive powers to an extent that when they are used in circumstances where their use is warranted their existence and use are questioned. The preception has been created that, where members' standards of conduct are concerned, Parliament cannot, or will not, regulate its own members. The result is increasing resort to statutory, external, regimes.


  The Stockdale v Hansard doctrine:

    —  a House cannot change the law by its own resolution;

    —  a House cannot place a person beyond the reach of the law,

is firmly entrenched, leaving Houses to apply 19th century law in late 20th century situations. Because of the inherent conservatism of parliament as an institution, statutory intervention has been infrequent. Members appreciate that parliamentary intention is susceptible to judicial interpretation in this branch of law equally with any other. This is a significant factor in Western Australia where constitutional development is not solely a matter for the State Parliament and the Supreme Court; the High Court of Australia is the final arbiter on these issues.


  A second reason is the growth and dominance of the parliamentary system by the political parties. In both WA Houses, some privilege cases have been decided by political numbers rather than the merits of the case. This contributes to a high degree of cynicism within the community about the worth of privilege as a means of maintaining the integrity of the institution and its processes.

  The press, with some justification, has seized on the partisan use of privilege against political opponents to demonstrate that politicians cannot be trusted to use privilege impartially and in the public interest. Equally, the fear of adverse media comment creates a climate in which members are reluctant to invoke privilege in cases where its use is justifiable.

  It is a matter for regret that political parties are willing to use privilege as a means of furthering their political agendas.


  A further impediment to discrete reform of privilege law is the existence of parallel jurisdictions. The 1891 Act confers a privilege jurisdiction on each House essentially the same as that of the House of Commons. It enables either House to direct the Attorney General to prosecute contempts, a power used by the Legislative Council (LC) to order the prosecution of R Smith for perjury committed before a committee of Privilege.

  At the same time, the State's Criminal Code creates crimes that are mirror-images of the major contempts punishable by either House under the 1891 Act. Significantly, the consent of the House is not a condition precedent to the laying of an indictment under the Code's provisions. Effectively, the Executive has the ability under the Code to prosecute members and non-members without parliamentary authorization. It also means that the courts can determine issues of privilege independently of Parliament and inconsistently with parliamentary interpretation; a matter noted by the Privy Council in Prebble v TVNZ [1995] 1AC 321 at 334 per Lord Browne-Wilkinson.[1]

  A requirement in the Code for the intending prosecutor to obtain the House's consent should be inserted. It subjects the motive for prosecution to public gaze through debate, and publication of that debate, in the media. Importantly, this is so whether or not Government controls House in question.

  The current prosecution of 3 unionists under the Code's provisions for obstructing the former President's access to Parliament House in May 1997 is a good example of where the Government laid the indictments without prior sanction of LC.[2]

  Parliamentary failure as contributor—Part of the fault for the "bad press" associated with privilege lies with Parliament itself. It has failed to inspire in members and the public the need to retain privilege by explaining the role that it plays in a democracy. We know, as politicians, that perception can often have a greater impact than reality and that the popular perception of privilege—the coward's castle syndrome"—is not an isolated view. The resulting "privilege paralysis" has ushered in an era where, as I have previously indicated, members have been willing to allow, sometimes welcome, the intrusion of externally-imposed standards to govern their conduct or subject themselves to the judgment of non-parliamentary tribunals. Members have failed to arrest the perception that a house of Parliament, given its composition, is incapable of reaching a fair decision that results from proper process.


  WA members of Parliament are subject to scrutiny and inquiry by the Anti-corruption Commission (ACC) relating to allegations of criminal or corrupt or improper dealings. The allegations may extend to matters unconnected with the discharge of a member's duties. Members are expressly included within the jurisdiction of the Equal Opportunity Commission and its related quasi-judicial Tribunal.


  There is another aspect of non-parliamentary inquiries that is causing some concern, viz, requests by bodies such as the ACC for access to evidence taken by LC committees. The House has been extremely reluctant to release such material. Although the House's order transmitted the material subject to privilege, eg, evidence not to be used contrary to Wainscot, it is instructive to note that the ACC immediately sought permission to copy the material, something expressly forbidden by the order of transmission, a request that raised in members' minds questions about what, precisely, the ACC intended to do with the information. There the matter rests until LC resumes in early March 1998.

  Power is given to the President under the order to decide issues of privilege that may arise as a result of the ACC's intended use of the documents. Does my ruling, albeit a "proceeding in Parliament", become justiciable were the ACC to argue want of jurisdiction in the House to subject transmission to such a condition?


  A recent royal commission in WA (Easton) had to tread a very fine line in deciding if what some members did or said was a proceeding in Parliament or not. In an earlier case, my immediate predecessor refused to cooperate with a royal commission appointed to make recommendations about the resolution of parliamentary deadlocks. In his opinion, the appointment of an Executive inquiry into parliamentary matters should have been sanctioned by parliamentary resolution at the very least.

  The same President and the then Speaker were subjected to fairly robust criticism by three royal commissioners (the "WA Inc" inquiry) for refusing to countenance any waiver of privilege by serving and former members called to give evidence. It became clear (from 2nd Report) that at least two of the royal commissioners (all of whom held, or had held, high judicial office) had a view of privilege similar to that espoused by Hunt and Cantor JJ of the NSW Supreme Court in the celebrated Murphy trials.


  The Murphy doctrine has its attractions. It holds that proceedings in Parliament may be adduced in curial or inquisitorial proceedings for any purpose, eg, proving prior inconsistent statements (which is what Murphy turned on), with the proviso that no legal consequences can flow because of section 9 immunity. This negates the accepted scope of the immunity, affirmed by WA Full Court in R v Wainscott [1899] 1 WAR 77 that nothing said in the course of parliamentary proceedings can be adduced in curial proceedings or be used as the basis of a prosecution arising from self-crimination before a parliamentary committee.


  The Full Court went further, suggesting that Parliament, having induced criminating evidence under immunity from prosecution, could not subsequently resolve to remove that immunity. It has never been the case that either the LC or LA believes it has the power to waive privilege. It was the express refusal of the WA presiding officers to concede a power to waive that was criticized by WA Inc royal commission.[3]


  The policy question here is not how we deal with criminal acts committed by MP's in any capacity but rather the extent (if any) to which the non-criminal acts of MP's should be subject to external, non-parliamentary, inquiry which may result in adverse or critical findings against an MP with serious consequences for reputation and career.

  The fact that Parliament, as legislator, has subjected its own membership to external scrutiny whilst maintaining a traditional approach to parliamentary privilege indicates a confused understanding of what privilege is supposed to achieve and its purpose in a modern legislature. It also suggests parliamentary acceptance, albeit tacit, that a House cannot discharge its obligation to fix, maintain, and enforce standards of conduct for its own members. Rather than renovate privilege law, Parliament concedes jurisdiction ad hoc in statutory language that, because of its breadth, must inevitably lead to an erosion of section 9 immunity for what is said or done in Parliament. Such an erosion, as I have mentioned, nearly took hold in Commonwealth jurisdiction by reason of Murphy judgments of Hunt and Cantor JJ of NSW Supreme Court reversed by Parliamentary Privileges Act 1987 (Commonwealth). Reversal did not deter WA Inc commission from recommending that law be changed to reflect Murphy doctrine. That was taken up in the reference to COG which recommended that the traditional approach be retained.


  The potential for conflict between privilege and the effect of the immunity it affords in non-parliamentary proceedings lies in the penumbra of what constitutes a "proceeding in Parliament". The Commonwealth's approach has been to legislate as to what is included within the meaning of that expression and I am aware that previous committees of the UK Parliament have considered/recommended varying degrees of statutory definition. The Privy Council in Prebble took the opportunity to approve the Commonwealth's s 16 definition because it amplified, without extending, what their lordships saw as being the accepted ambit of section 9.

  However, the question must be asked whether the operation of the immunity should extend beyond that traditional area. The House of Commons has already rejected an inclusion of what passes between a member and a minister in relation to that member's constituents.


  Relevantly, but rarely discussed, is the fact that privilege does not attach to any matter or thing until the House is seised of that matter or thing. The House cannot issue an order akin to a prerogative writ that enjoins a person from doing, or omitting to do, something which, if perfected, would constitute a breach or a contempt—the House must wait until an actual breach has occurred. For example, union pickets were placed around Parliament House in May last year with the object of obstructing, desirably preventing, the passage of legislation the unions believed was designed to destroy their effectiveness. For fairly obvious reasons, neither Parliament nor the Government was particularly anxious to precipitate an all-out confrontation by having the pickets removed by use of the general industrial relations laws, and there was no guarantee that such moves would have been successful—picketing is not always unlawful per se. It was also the case that at the time the House became aware that the picket was to be formed, it had no jurisdiction to order its officers, with police assistance, to prevent that formation; it would have to wait until an actual contempt, arising from picket activity, was committed, before it could take action. In the event, it took no action at all.


  The point I am making is that for an activity to be characterized as a "proceeding in Parliament" it must surely be something of which the House is actually seised or nearly so ("nearly so" means activity that must result in, and which cannot have as its sole or paramount object, anything other than the listing of a matter for consideration by the House or a committee). I agree with the finding of my own House and of the Commonwealth Senate that a petition in circulation cannot be so characterized—the promoter, for any number of reasons, may decide not to have the petition presented. A question from a member may not be lodged. Arguably, it is not a "proceeding in Parliament" until the member takes the necessary steps to put it in the system. Until that is done, a member is free to do what he/she wants with the question without reference to any parliamentary authority. Once lodged, the question assumes the character of a parliamentary question whose form and content and progress are determined, not by the member, but by the rules applicable to parliamentary questions.


  One must ask why privilege should be extended beyond traditional boundaries. If it is intended that MPs' communications with other MPs or constituents or anybody else should be subject to some form of secrecy protection then privilege is not a solution. Parliamentary privilege is not concerned with secrecy—aspects of it prohibit premature publication which is not the same as secrecy. If an extension would prevent the threat of litigation that might otherwise arise, the public policy issues presented by such an extension are profound. Does it, for example, enable an MP or a constituent to publish material defamatory of a third person with impunity? Is that directed towards the proper discharge of an MP's constitutional functions? In WA members of both Houses maintain electorate offices where they deal with all manner of issues brought to them by constituents. To clothe those, and related communications with third parties, with absolute immunity misconceives the nature of parliamentary proceedings and the reasons for their associated immunities. Neither can it be said that extending absolute immunity in this way assists the standards of prudence, probity and responsibility expected of an MP.

  The dangers of extending privilege to cover party/caucus meetings are fully explained in an article by the Clerk of the New Zealand House of Representatives in [1997] NZLJ 137. Properly, in my opinion, no such claim was made when SPLP caucus Minutes were subpoenaed by WA Inc and Easton royal commissions.


  If some form or degree or privilege, additional to the qualified privilege already enjoyed in circumstances where there is a reciprocity of interest between the communicator and the recipient, is desired for an MP's non-parliamentary activities, it would be preferable in my opinion to enact an immunity mutatis mutandis based on the principles now governing a claim to Executive immunity (Conway v Rimmer 1968 UK; Samkey v Whitlam 1978 Commonwealth) rather than seek to extend the accepted ambit of section 9 immunity.


  Since 1989-90, the Legislative Council has established and developed a committee system. There have been inklings since then, and I anticipate that the first full-blown case is not far off, where ministers and public servants have suggested that public interest immunity should, or ought to, prevail over the House's right to know. Closely allied to the attempted translation of a curial doctrine into parliamentary procedure is the claim by ministers to decline providing information on the ground of "commercial-in-confidence". Statutory amendment in 1992 to the State's Financial Administration and Audit Act 1985 forbidding the Government from agreeing to such a provision in a contract does not seem to have gained currency among ministers or public servants and, of course, ministers may still resist providing the information unless and until the House summons sufficient will and numbers to order production of the information; a somewhat rare event.


  There is no doubt that the 1891 Act needs a full revision and a change of direction. For example, the Act permits the imposition of fines in limited circumstances. Unlike the courts, the House does not have the capacity to choose from a range of penalties and impose one commensurate with the gravity of the breach or contempt. Instead the House, in cases where a fine is not available, must choose between reprimand or censure or jail. A monetary penalty, recoverable through the courts if necessary, or a community service order, or other sentencing options would be preferable to imprisonment. Going a step further, I see merit in treating breaches of privilege or contempts as "quasi-torts". In the Easton case, justice may have been better served had the House been in a position to award compensation to those who suffered damage resulting from Mr Easton's petition. I have an open mind as to whether the quantum should be fixed by the House or by the Supreme Court.


  Some Houses of Australian parliaments, notably the Senate but also WA Legislative Assembly [4] have adopted procedures intended to provide a public form of redress to non-members said to have been unfairly dealt with by an MP under cloak of privilege. Shorn of rhetoric, such procedures are designed to avert the "coward's castle" criticism.

  I am aware that the House of Commons (1st Report of Select Committee on Procedure March 1989) has considered the Senate procedure and rejected its adoption for reasons that I support. The LC Standing Orders Committee has a reference before it at present requiring it to consider both the policy issue and any procedure that might be used should the House determine that a right of response is desirable.

  Making separate provision for a form of response complicates unnecessarily an ability that already exists and which is available to an aggrieved person, viz, the parliamentary petition. It also abnegates the right and duty of the House to take action against members abusing or misusing its privileges by denying, whether to the Presiding Officer or a committee of Privilege charged with determining the matter, the opportunity to consider the veracity of the statements complained of and whether, under the circumstances, the publication of a rejoinder is a less than satisfactory outcome.

  This matter was considered in 1988 by the ad hoc Parliamentary Standards Committee (which included the two WA presiding officers). That Committee concluded that a discrete procedure was both undesirable and unnecessary. It made the point that "words are irrevocable"—once uttered in debate they cannot be taken back and that any resulting damage is for the House to redress by proceeding to discipline a member abusing or misusing his/her freedom of speech. I agree with those sentiments.

  If a member vilifies a non-member under privilege that person has every right to petition for redress. In LC, all petitions stand referred to a committee on presentation for inquiry and report. Obviously, some petitions will take a higher priority than others but, rather than invent new procedures, it is a simple matter for the House to accord high priority to a petition from a citizen seeking redress. Moreover, the committee's inquiry will extend to whether the MP had grounds, or not, for the adverse statement and, where the committee finds adversely to the MP, recommend what disciplinary action the House might take. In my view, this procedure follows the form and substance of the obligation imposed on any House whose members enjoy freedom of speech to discipline any member who abuses that freedom. For a House to be seen to take positive steps to maintain standards is much more salutary and considerably more satisfying to the wronged citizen than employing a procedure that, essentially, avoids the real issue. I believe that this view has been fortified recently by the High Court (three justices including Chief Justice) when it said:

    "A House of Parliament in which allegations are made has a legitimate interest in knowing, and perhaps a duty to ascertain, whether there is substance in allegations made by a member on a matter of public interest."

  Arena v Nader (1977) 71 ALJR 1604 at 1605 per Brennan CJ


  This century has seen a resurgence in the willingness of Commonwealth superior courts to review the decisions of inferior courts and tribunals, using their inherent powers to quash rulings that are wrong in law or lacking procedural fairness. In Australian jurisdictions, it is now the case that any decisionmaker is bound to observe statutory or judicially-developed rules of procedural fairness. Essentially, a decisionmaker must not be biased for or against any person who stands to be affected by a decision or, whether by circumstance or personal relationship to any of the parties, create in the mind of a reasonable person a belief that that decisionmaker cannot act impartially (nemo judex in causa sua). As well, a person whose rights or interests may be affected as a result of a decision must be given a reasonable opportunity to present argument to the decisionmaker and an opportunity to rebut allegations adverse to that person which, if given weight by the decisionmaker, may have bearing on the final outcome (audi alteram partem).

  By virtue of privilege, parliamentary committees are not subject to judicial review and the rules of procedural fairness, as they now are, do not bind such committees. Understandably, committee systems and particular committee inquiries have each been criticized for their perceived failure or unwillingness to adopt standards of procedural fairness, particularly where the end result may be an exercise of parliament's coercive or penal powers.

  When a committee system was established in LC in 1989-90, the House adopted a rule that goes a fair way towards meeting expectations of procedural fairness where witnesses, appearing before an LC standing committee, are concerned. Throughout the same period, select committees have voluntarily adopted the same rule and applied it to their witnesses.

  SO 330 does not deal with the first leg of procedural fairness—bias in the decisionmaker. In the Rindos case referred to, UWA was critical of the fact that in the course of a near-20 month inquiry, turnover in membership came close to 50 per cent; a factor that actually delayed the report's presentation as new committee members came to grips with the issues and the evidence. Despite the perceived injustice that changes of committee membership may cause, they remain a reality of parliamentary life. Short of aborting an inquiry each time membership changes, there is little that can be done to allay adverse perceptions. Clearly, the desirability of re-starting inquiries must be weighed against attendant cost to the public purse, and inconvenience suffered by affected or interested parties occasioned by the inevitable delay caused by recommencement.

  I find it difficult to accept the argument that a committee of Privilege is inherently biased—the "judge, jury and executioner:" argument. The House in the exercise of its privilege jurisdiction is no more biased than the superior court judge who jails a person for contempt until such time as the person is willing to purge that contempt, or the same judge who jails a journalist for refusing to reveal sources of information. I have yet to read of a serious proposition arguing that judicial contempt ought to be dealt with otherwise than by the courts. Conversely, it is urged that Parliament should transfer the totality of its privilege jurisdiction to the courts on the ground that Parliament is incapable of exercising its powers justly; Parliament is inherently biased and capricious.

  Two recent privilege cases involving non-members in my own House do not support that assertion.


  Thus far, Australian courts have been content to uphold that view of the law which says that they determine whether a particular privilege exists but, having found that it does, they will not review the occasion or manner of its exercise. The WA Full Court in 1992 adopted that approach when an order of LC was challenged on a number of procedural and constitutional grounds. As it turned out, the Court did not have to decide questions relating to a paramountcy of federal law over the House's exercise of State privilege law, eg, whether an Aboriginal body, incorporated under State law but wholly-funded by the Commonwealth, was compellable under LC's order to produce documents. The House did not renew order in next session. The NSW Supreme Court, in later cases, has declined to follow the Murphy ratios.

  An interesting but as yet untested change to WA privilege law resulted from the passage of the Defamation Act 1996 (UK). Section 13 of that Act permits waiver by a member or non-member who is a party in defamation proceedings to the protection of any privilege of Parliament that might otherwise apply. On being informed by an officer of the House of Commons at their annual conference of this change in UK law, several presiding officers and clerks from State parliaments went rather pale. The reason for their consternation is that some States, my own included, tie their privileges to those "held, possessed, exercised and enjoyed .  .  .  for the time being" by the House of Commons. Needless to say, the effects wrought by section 13 on WA's parliamentary privilege have not been broadcast in the hope that section 13's statutory existence may soon be terminated.

  The High Court has shown reluctance to become involved in questions of privilege law. It has upheld the use by the House of Representatives of the power to jail non-members for contempt (R; ex p Richards 1955) and the validity of those provisions of the 1987 Commonwealth Act that have arisen for its consideration. In two cases last year, HC maintained its stance. In the first it said:

    "Section 49 of the Constitution, in dealing with the powers, privileges and immunities of the Senate and of the House of Representatives, secures the freedom of speech in debate which, in England, historically was a potent instrument by which the House of Commons defended its right to consider and express opinions on the conduct of affairs of State by the Sovereign and the Ministers, advisers and servants of the Crown. Section 49 also provides the source of coercive authority for each chamber of the Parliament to summon witnesses, or to require the production of documents, under pain of punishment for contempt."

  Lange v ABC (1997) 71 ALJR 818,

  In Arena v Nader (1997) 71 ALJR 1604 the Australian High Court rejected a NSW MLC's application for special leave to appeal a decision of the NSW Court of Appeal upholding the validity of a NSW Act providing for the appointment of a commissioner to inquire into matters involving proceedings in Parliament and report to the Legislative Council. Significantly, the High Court reaffirmed the traditionally-accepted view of parliamentary privilege.

  At the same time, through a series of cases, one of which involved a WA LC standing committee, the High Court has refashioned the Australian common law of defamation so far as it affects public figures, MPs included.

  In the earlier cases, the High Court found implied in the Constitution a right of political freedom of speech (Capital Duplicators, Stephens; Theophanous) consistent with the system of government provided by the Commonwealth Constitution. The High Court has now refined that view, so far as Australia's defamation laws are concerned, in Lange v ABC 1997 so that:

    "The common law may be developed to confer a head or heads of privilege in terms broader than those which conform to the constitutionally required freedom [of political communication], but those terms cannot be any narrower. Laws made by Commonwealth or State Parliaments or the legislatures of self-governing territories which are otherwise within power may therefore extend a head of privilege, but they cannot derogate from the common law to produce a result which diminishes the extent of the immunity conferred by the Constitution."

  The discovery of such "implied rights" in the Constitution may place a fetter on the legislative capacity of Commonwealth and State parliaments; the High Court is saying that the common law cannot be overridden by statute where that law is underpinned by, and reflects, constitutional rights.

  Nonetheless, it seems to be that the High Court accepts privilege law as an integral part of the system of government mandated by the Constitution and not something that is to be interpreted and applied subject to, or harmonized with, Australia's international obligations in relation to human rights.

1   1 "Misleading the House is a contempt of the House punishable by the House. If a court were also permitted to decide whether or not a member or witness has mislead the House there would be a serious risk of conflicting decisions on the issue." Back

2   2 Query whether, given the extreme "politics" of the situation at the time the obstruction occurred, the House's consent to prosecution should have been sought. Because the numbers changed immediately after incident, such consent unlikely. Even less likely would be the post-May 21 House proceeding to deal with the matter itself. Result would have been that serious obstruction would have gone unpunished (assuming case is proved) leaving people with the belief that contempt of Parliament is a paper tiger. Nonetheless, and despite the outcome in a particular case, prosecution under the Code should be determined by House. Back

3   3A view upheld by the Privy Council in Prebble p 337 (NZ is the same as WA in all substantive respects re parliamentary privilege). Back

4   4 NSW LC's SOs Committee recommended adoption of Senate procedure-report 26 tabled November 11 1997. Back

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