6 th professional development seminar for parliamentary officers Wellington 26-28 January 2005

1. 6th professional development seminar for parliamentary officersWellington26-28 January 2005

2. Fundamentals of privilege:Why, What & Wherefore27 January 2005

3. Lynn Lovelock Deputy Clerk, NSW Legislative Council and Clerk, Standing Committee on Parliamentary Privilege

4. Parliamentary privilege:what is it? Parliamentary privilege refers to the powers and immunities possessed by individual Houses of Parliament, their members, and other participants in parliamentary proceedings, without which they could not perform their functions.

5. Parliamentary privilege in context • Parliamentary privilege must be seen against the context of the constitutional functions of Parliament: legislation; debate; scrutiny of the crown/executive. • The powers and immunities from the general law exist to enable Parliament to perform these functions, free from undue interference from outside bodies.

6. Powers include: • Power to regulate internal affairs • Power to determine own constitution, procedures and agenda • Power to conduct inquiries Power to call and examine witnesses (on oath) Power to call for documents Power to obtain evidence Power to deal with contempt

7. Rights include: • Right to have first call upon members (even when subpoenaed by courts) • Right to control and discipline members • Right to debate what it wishes • Right to debate free from outside control • Right to control access to sittings and to reports of proceedings

8. Immunities include: • Freedom from control and discipline by bodies outside the House • Freedom from legal liability for things said or done in the course of parliamentary proceedings • Immunity for parliamentary witnesses • Qualified immunity from legal process

9. Contempt and privilege • Contempt is an offence against the authority of a House • A contempt must obstruct or impede a House or members, or have a tendency to produce this result • For a contempt to be found an offence must be of such seriousness that it could have a substantial and detrimental impact on the House, committee or member concerned • Need for alleged offender to have acted with improper intent or reckless disregard

10. Sources of parliamentary privilege • Specific Privileges Acts (eg: Parliamentary Privileges Act 1987 (Cth)) • Common law: such powers and immunities as are “reasonably necessary” for the exercise of the functions of the House • Article 9 of the Bill of Rights 1689 • Legislation: NZ Legislature Act 1908 s. 242; NSW Defamation Act 1974 & Parliamentary Evidence Act 1901

11. Jurisdictional differences (Australia) • Some parliaments have been vested with the privileges of the House of Commons (UK): • At a specified date: Cth, Vic, Qld, SA, NT, ACT, NZ • From time to time: WA • In some jurisdictions legislation has codified certain aspects of privilege (to a greater or lesser extent): • Most comprehensive: Cth, Qld, NT, WA • Less comprehensive privileges legislation: ACT, SA, Vic, Tas

12. Privileges legislation • Advantages: • Clarity, certainty • Accessibility (enhanced understanding by outside bodies) • Disadvantages: • Inflexibility (cannot evolve over time) • Enhanced scope for judicial review (legislation interpreted by the courts) • NB: Most privileges legislation has been enacted in response to particular issues / problems • Article 9 of the Bill of Rights is itself legislation

13. Freedom of Speech & Article 9of the Bill of Rights 1689

14. Historical background (I) • NB early assertion (and acceptance) of freedom of speech under Henry VIII and Elizabeth I • 1629 Arrest, prosecution and conviction of Sir John Eliot & others for words used in the House of Commons • 1641 entry into House of Commons by Charles I attempting to arrest 5 members on a charge of treason resulting from proceedings in the House

15. Historical background (II) • Oliver Cromwell eventually became “King” • Cromwell’s son Richard inherited “throne” - promptly lost control of England • 1660 restoration of Charles II - Reign marked by struggle between King and Parliament (religion & money problems)

16. Historical background (III) • 1686 prosecution and fine of Sir William Williams for authorisation (as former Speaker) of publication of a pamphlet which contained libels about the Duke of York (who had become James II by the time of the prosecution): • this case is specifically referred to in the Commons debate and in the preamble to Article 9

17. Historical background (IV) • James II (Catholic king) – eventually deposed • William of Orange installed as King (1688) – Mary was James II’s daughter • William recognised that his throne came to him from the Parliament • Parliament won – Bill of Rights!

18. Article 9 of the Bill of Rights 1689 “That the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

19. Rationale for Article 9 “the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will be later held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say.” Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 334.

20. Purpose of the immunity of freedom of speech “to enhance deliberative democracy and responsible government by some measure of immunity granted to the parliamentary conduct of Members, particularly against threats or reprisals from the Executive.” (Advice of Bret Walker SC concerning “Search warrant on offices of the Hon Peter Breen MLC”, 9 October 2003)

21. Article 9: areas of uncertainty • “proceedings in Parliament” • “impeached or questioned” • “place out of Parliament”

22. Proceedings in Parliament • Term has not been comprehensively defined by the courts • Includes formal transaction of business in a House or committee (eg debate, motions, questions and answers, evidence, petitions, tabling of documents)

23. Section 16(2) Parliamentary Privileges Act 1987 (Cth) • Defines proceedings in Parliament to include not only matters in the House and committees but also words and acts “for the purposes of or incidental to” such proceedings

24. Exercise Consider the list of documents circulated. • Which of these documents would qualify as “proceedings in Parliament”? Why? • Which are definitely not “proceedings in Parliament”? • Which are in doubt? How can we resolve the status of those in doubt?

25. Impeached or questioned • Prevents court proceedings having legal consequences for a member (or parliamentary witness) • Also prevents the bringing into question of anything said or done in Parliament (so as to suggest improper motive, or that they were untrue or misleading) • Risk of “chilling effect” of any such questioning • Does not prevent use of Hansard to prove what has taken place in Parliament

26. Place out of Parliament • Does not prevent comment in the media or elsewhere • This phrase has never been judicially defined • Generally accepted as including royal commissions and permanent commissions of inquiry (eg NSW Independent Commission Against Corruption) – but how to determine where to draw the line? • Police questioning?

27. Sections 16(3) Parliamentary Privileges Act 1987 (Cth) • Refers to a court or “tribunal” • Tribunal is defined to include any person or body having power to examine witnesses on oath, including a royal commission or other commission of inquiry of the Commonwealth or of a State or Territory having that power

28. Powers, Rights and Immunities

29. Power to regulate internal affairs • Right to control its own agenda • Right to make and vary its own procedures • Right to determine its own constitution and to discipline its own members (NB in NSW self protective and not punitive): • Expulsion , Suspension, Censure, Apology / withdrawal, Reprimand / admonishment

30. Power to conduct inquiries • Parliament as the “Grand Inquisition of the Nation” • Power to compel the attendance of witnesses • Power to order the production of documents (including common law power to require the production of state papers: Egan v Willis (1998) 195 CLR 424 • Claims of privilege and immunity: Egan v Chadwick [1999] 46 NSWLR 563

31. Some final terms and principles • Whose privilege is it? • Absolute and qualified privilege

32. Whose privilege is it? Parliamentary privilege: • Exists to ensure the integrity, independence and authority of Parliament • Essentially belongs to the Houses of Parliament as a whole, and is not the privilege of an individual member • Can only be claimed by a member where an action would impede them in carrying out their duties as a member, or adversely affect the proper functioning of the House or a committee

33. Absolute and qualified privilege • Parliamentary privilege is absolute: • Statements made in the House (or a committee) are protected from legal action however injurious they are to another party • Statements outside the House (or a committee) are subject to the normal laws of defamation and protected by qualified privilege only: • This is a separate branch of the law relating to defamation • Qualified privilege is defeated by proof of malice • NB also defence of fair protected report