The privilege of freedom of speech
By the 9th Article of the Bill of Rights 1688 it was declared:
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 Article 9 became part of the law applying to the Commonwealth Parliament by virtue of section 49 of the Constitution.
The privilege has been variously described as one which has always been regarded as most valuable and most essential, and as the only privilege of substance enjoyed by Members of Parliament. Unquestionably, freedom of speech is by far the most important privilege of Members.
Members are absolutely privileged from suit or prosecution in respect of anything they might say in the course of proceedings in Parliament. Provided their statements are in accord with the rules and practices of the House, Members are able to express themselves as they judge fit. It is, however, incumbent upon Members not to abuse the privilege. The House itself, by its rules of debate and disciplinary powers, has the ability to deal with abuse (see Chapter on ‘Control and conduct of debate’, and see page 779).
The Committee of Privileges has stated:
Allegations of wrongdoing are often made to Members of Parliament. Members enjoy very special rights—rights greater than those enjoyed by ordinary citizens. The privilege of freedom of speech is the greatest of these, but its very significance is such, where the reputation or welfare of persons may be an issue, that it should be used judiciously. If a Member is of the opinion that it is in the public interest to disclose such allegations, he or she should make all reasonable inquiries as to the truth of the allegations. The raising of a matter, in full detail, in the House is only one of the options available to Members. … it is for the Member to resolve whether or not it is in the public interest to raise a matter in the House, and his or her actions will be judged accordingly.
In 1989 the Committee of Privileges reported on a reference concerning an allegation made in the House by one Member against another. While it did not find that a contempt had been committed, it concluded that having regard to the experience of the Member who had made the allegation he had offended against the rules of the House. It recommended that he be required to apologise and withdraw. The House agreed to a motion calling on the Member to withdraw and apologise, but he declined to do so and was subsequently suspended by the House for two sitting days.
While there is no doubt that, ultimately, Members can be called to account by the House for their actions and statements, the case cited above shows the difficulties that can arise. The Joint Select Committee on Parliamentary Privilege considered the issue of misuse of privilege. It commented that if it became the practice to examine formally—as by a reference to the Committee of Privileges—what Members say in the House, the essential freedom could be endangered. It acknowledged the danger of misuse, but concluded that the only practical solution consistent with the maintenance of freedom of speech could lie in allowing persons who had been subject to criticism or attack in either House to apply to have a response incorporated in Hansard. (See ‘Citizen’s right of reply’ at page 777 for details of the procedure adopted.)
Absolute privilege does not attach to words spoken by Members other than when participating in ‘proceedings in Parliament’ (see below).
Absolute and qualified privilege
A statement is said to be privileged if the person making it is protected from legal action. Generally, qualified privilege exists where a person is not liable to a successful action for defamation if certain conditions are fulfilled, for example, if the statement is not made with malicious intention. Absolute privilege exists where no action may lie for a statement, even, for example, if made with malice; it is not limited to action for defamation but extends also to matters such as infringement of copyright or other matters which could otherwise be punished as crimes (for example, contempt of court or breach of a secrecy provision).
Proceedings in Parliament
Article 9 of the Bill of Rights refers to ‘debates and proceedings in Parliament’. Section 16 of the Parliamentary Privileges Act re-asserts that the provisions of Article 9 of the Bill of Rights apply in relation to the Commonwealth Parliament, but it goes on to provide that for the purposes of the provisions of Article 9, and for the purposes of that section, the term ‘proceedings in Parliament’ means:
All words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes—
- the giving of evidence before a House or a committee, and evidence so given;
- the presentation or submission of a document to a House or a committee;
- the preparation of a document for purposes of or incidental to the transacting of any such business; and
- the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
The enactment of this provision gave some precision to the term.
It is clear that the ambit of the term, and so the extent of absolute privilege, is limited. The repetition by Members out of the House of statements they have made in the House has not been found to be protected by absolute privilege. Litigation has also resulted from what has been referred to as effective repetition, where a Member, in circumstances not forming part of proceedings in Parliament, has referred to but not repeated the detail of words used in proceedings (see page 743).
Conversations, comments or other communications between Members, or between Members and other persons, which are not part of a ‘proceeding in Parliament’ would not be expected to enjoy absolute privilege. Remarks made by Members during divisions and electronic communications from Members in the Chamber, such as emails or use of Twitter, which do not form part of the proceedings of the House are not assumed to attract the protection of parliamentary privilege. Similarly, citizens communicating with a Member on matters that have no connection with proceedings in Parliament are not protected.
The use of the term ‘for purposes of or incidental to’ the transacting of the business of a House or a committee in section 16 is, however, to be noted. Sometimes it will be clear whether a particular act forms part of ‘proceedings in Parliament’, but on other occasions a judgment may be necessary, for example as to whether a particular act was done ‘for purposes of or incidental to’ the transacting of the business of the House. The Queensland Court of Appeal has accepted that a number of documents obtained by or provided to a Senator which related to a subject he had raised in the Senate did not need to be produced in response to an order because of the protection of subsection 16(2). Documents prepared for Senate committee briefings and documents related to them have been held to be encompassed by section 16 and so not able to be produced in response to a subpoena.
The Committee of Privileges has considered complaints arising from action, or threatened action, against Members following letters the Members had written to Ministers. In each case it accepted that such correspondence did not form part of ‘proceedings in Parliament’. In 1994 the committee considered action taken against a person who had sworn a statutory declaration and given it to a Member. The Member later used the material in a speech in the House. The committee reported that whether the informant’s actions fell within the scope of section 16 of the Parliamentary Privileges Act would be determined in the course of court proceedings. An opinion appended to the report discussed the issue of whether the informant’s actions might be protected (and see ‘Cases involving letters written by Members’ and ‘Case involving Mr Katter, MP’ at page 758).
In a report in 2000 on the status of the records and correspondence of Members, the committee recommended that there should be no additional protection, beyond that provided by the current law, given to the records and correspondence of Members. It recommended, however, that, at the discretion of the Speaker, the House may intervene to assert the protection of parliamentary privilege in court proceedings in which records and correspondence might reasonably be argued to fall within the definition of proceedings in Parliament. It also recommended that a memorandum of understanding be concluded between the Presiding Officers and the Minister for Justice on the execution of search warrants on Members, their employed staff and their offices. Memoranda with State and Territory Attorneys-General in respect of electorate offices were also recommended. The Government agreed with the substance of the recommendations, and a memorandum was negotiated between the Parliament and the Commonwealth. A similar memorandum has been signed between the Parliament and the Tasmanian Government.
In Crane v. Gething the Federal Court held that it should not decide whether certain documents were in fact protected by privilege, and the documents were sent to the Senate for determination of that matter. The Senate appointed a retired public servant with legal qualifications to determine whether any of the documents were immune from seizure.
Although, as stated above, the House of Commons has not to date adopted a detailed definition of the term ‘proceedings in Parliament’, it has considered the meaning and scope of the term. In the London Electricity Board case in 1957 (more generally known as the Strauss Case), the House of Commons Committee of Privileges found that Mr Strauss in writing a letter to a Minister criticising certain alleged practices of the Board, was engaged in a ‘proceeding in Parliament’. The committee also found that, in threatening a libel action against the Member, both the Board and its solicitors had acted in breach of the privilege of Parliament. By a margin of 218 votes to 213 votes, the House of Commons rejected a motion agreeing with the committee’s report. An amendment declaring that Mr Strauss’ letter was not a proceeding in Parliament and that no breach of privilege had been committed was carried on a non-party vote. In 1999 a joint committee of the British Parliament which had reviewed the law and practice in relation to privilege recommended against any extension of privilege to cover communications between Members and Ministers. In 1939 the House of Commons agreed that notice in writing of a question to be asked in the House was ‘protected by privilege’.
The immunity applying to proceedings in Parliament protects Members in respect of their participation, and continues to apply in respect of those proceedings even though a person is no longer a Member.
Search warrants where parliamentary privilege may be involved
Pursuant to the AFP national guideline for execution of search warrants where parliamentary privilege may be involved, if a Member claims that material seized by the Australian Federal Police is subject to parliamentary privilege, the Member may seek a ruling from the House as to whether privilege applies, and until that time the material is held securely by an independent third party.
The first case to which this guideline applied occurred on 23 August 2016, when the Speaker and Mr J. Clare MP were advised that a search warrant was to be executed on the Department of Parliamentary Services at Parliament House. On the search warrant being executed, Mr Clare claimed that seized material was protected by parliamentary privilege, and at the Member’s request the material was held by the Clerk of the House. On 11 October the House referred the claim to the Committee of Privileges and Members’ Interests.
The committee reported on 28 November. It recommended that the House rule to uphold the claim of parliamentary privilege, having found the material seized under the search warrant was held by the Member in connection with his parliamentary responsibilities as a Member, and that the material fell within the definition of ‘proceedings in Parliament’ as defined in the Parliamentary Privileges Act 1987.
On 1 December the House adopted the report; the Australian Federal Police were advised of the ruling and the Clerk returned the seized material to the Member.
Privilege attaching to Hansard reports
Hansard reports of the proceedings are absolutely privileged. However, it is considered that parliamentary privilege does not protect individual Members publishing their own speeches apart from the rest of a debate. If a Member publishes his or her speech, this printed statement becomes a separate publication, a step removed from actual proceedings in Parliament and this is also the case in respect of the publication of Hansard extracts, or pamphlet reprints, of a Member’s parliamentary speeches. In respect of an action for defamation, regard would also be had to the particular law applying in the State or Territory in which the action is taken or contemplated. Even qualified privilege may not be available unless the publication is for the information of the Member’s constituents. In any case arising in the future, reference would need to be had to the provisions of the Parliamentary Privileges Act.
Under section 10 of the Parliamentary Privileges Act it is a defence to an action for defamation that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter, and that the defamatory matter was contained in a fair and accurate report of proceedings at a meeting of a House or a committee. This defence does not apply in respect of a matter published in contravention of section 13 of the Act, and it does not deprive a person of any defence that would have been available to that person if the section had not been enacted.
Use of Hansard and other documents in courts or other tribunals
Two issues arise in this area: first, the restrictions on the actual use of, or reference to, parliamentary records in courts or other tribunals, and second, the arrangements for the production of such records.
Restriction on use of or reference to parliamentary records
Article 9 of the Bill of Rights 1688 prevents proceedings from being examined or questioned or used to support a cause of action. Apart from court proceedings in respect of civil and criminal matters, the issue of references to parliamentary records has also arisen in respect of Royal Commissions, and the documents involved have included the Votes and Proceedings, the Hansard report of proceedings, documents presented in the House, a committee report, the transcript of committee evidence, documents submitted to parliamentary committees, exhibits held for less than 10 years and confidential submissions received by a joint committee, and documents related to a speech in the Senate.
It has long been held that Article 9 protects Members, but also other participants in ‘proceedings in Parliament’, for example, witnesses who give evidence to parliamentary committees. A resolution of the House of Commons of 26 May 1818 stated:
That all witnesses examined before this House, or any committee thereof, are entitled to the protection of this House, in respect of anything that may be said by them in their evidence.
This resolution reflected the attitude of the House of Commons on this aspect, and this attitude is in turn reflected in House of Representatives standing order 256.
Section 3 of the Parliamentary Privileges Act defines the terms ‘court’ (a Federal, State or Territory court) and ‘tribunal’ (essentially a person or body having power to examine witnesses on oath). The law restricting the use of parliamentary material in court proceedings is sometimes referred to as an exclusionary rule of evidence or an exclusionary principle.
Following judgments which had the effect of permitting participants in proceedings in Parliament (in this case witnesses before committees—see page 748) to be examined and cross-examined in court in respect of committee evidence, in 1987 the Parliament enacted legislation to restore and enshrine the traditional interpretation of Article 9, which it believed should be upheld in the interests of the Parliament. Section 16 of the Parliamentary Privileges Act provides, inter alia:
- 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—
- questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
- otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
- drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
- A court or tribunal shall not—
- require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or
- admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence, unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.
The Federal Court has rejected an application to tender an extract from Hansard, characterising it as ‘ … by way of or for the purpose of questioning the motive, intention or good faith of the Senator … and as ‘ … by way of, or for the purpose of, inviting the drawing of inferences or conclusions from what was said in the Senate … . In 1992 the Federal Court held that an answer by a Minister to a question without notice could not be used in court proceedings in support of an argument as to the Minister’s disposition on the matter in dispute, as it would be contrary to paragraphs 16(3)(b) and (c) of the Act. In 1994 the Privy Council gave an interpretation of Article 9 of the Bill of Rights consistent with the articulation of Article 9 in section 16 of the Act.
In 2015 the Federal Court ruled that a Minister’s second reading speech could not be used to establish the Minister’s intention in making a decision and to invite the drawing of inferences or conclusions from the speech, as such use was forbidden by section 16(3)(b) and (c) of the Parliamentary Privileges Act and, before that Act, by the Bill of Rights 1688.
The effect of the Queensland Court of Appeal decision in O’Chee v. Rowley was that a Senator was not required to comply with an order to disclose certain documents which the Senator had claimed were created, brought into existence or had come into his possession for purposes of or incidental to the transacting of the business of the Senate. The Court held that the privilege articulated in section 16 had the effect that the documents did not need to be produced.
In Laurance v. Katter the Queensland Court of Appeal held that subsection 16(3) did not prevent Mr Laurance from relying on statements Mr Katter had made in the House in an action for defamation in connection with statements Mr Katter had allegedly made in the course of an interview. (In the interview Mr Katter had referred to his statements in the House, but had not repeated them.) It was argued that the statements could not support an action for defamation unless they could be understood in the context of the statements in the House. The decision was appealed to the High Court, but the case was settled before it was decided.
In the later case of Rann v. Olsen, the South Australian Supreme Court rejected submissions to the effect that the Parliamentary Privileges Act was invalid because it impermissibly infringed the implied constitutional guarantee of freedom of political communication. In R v. Theophanous the Victorian Court of Appeal held that subsection 16(3) had been breached when Dr Theophanous had been questioned about statements he had made in the House, even though he had tendered the records, but the Court held that the infringement was not such as to justify reversal of his conviction.
Subsection 16(3) is not infringed if, for example, reference is made to proceedings to prove that a certain event occurred. For a discussion of constitutional issues that could arise in connection with subsection 16(3) see Campbell, Parliamentary privilege (2003).
The Privy Council has upheld a decision the effect of which was that a Member had been held liable in respect of a statement made out of the House in which the Member did not repeat, but did not resile from, an otherwise defamatory statement the Member had made in the New Zealand House of Representatives.
The Parliamentary Privileges Act provides that in relation to proceedings that relate to a question arising under section 57 of the Constitution or the interpretation of an Act, neither the Parliamentary Privileges Act nor the Bill of Rights shall be taken to prevent or restrict the admission in evidence of a record of proceedings published by or with the authority of the House or a committee, or the making of statements, submissions or comments based on that record. Similar provisions apply in relation to a prosecution for an offence against the Parliamentary Privileges Act or an Act establishing a committee.
Arrangements for the production of parliamentary records
In a second resolution of 26 May 1818 the UK House of Commons resolved:
That no Clerk, or officer of this House, or short-hand writer employed to take minutes of evidence before this House or any committee thereof do give evidence elsewhere in respect of any proceedings or examination had at the bar, or before any committee of this House, without the special leave of the House.
The terms of the resolution limited it to the question of the attendance of officials. However, until 1980 the House of Commons had followed the practice of requiring leave to be granted both for the attendance of employees and for the production of parliamentary records, although it appears that the usual practice was for leave to be granted without any conditions being attached, presumably in the belief that the requirements of the Bill of Rights would always be observed.
The terms of the House of Commons’ resolution of 1818 are applied, in more modern language, by standing order 253:
Only if the House grants permission, may an employee of the House, or other staff employed to record evidence before the House or one of its committees, give evidence relating to proceedings or give evidence relating to the examination of a witness.
As was previously the case in the House of Commons, in the House of Representatives the usual practice has been to grant permission (formerly referred to as ‘leave’) for the production of parliamentary records as well as for the attendance of House employees, although technically the standing order is limited to the attendance of employees. Previously petitions have been presented from, or on behalf of, parties asking the House to grant the leave sought, although in some cases motions have been moved in the House without a petition having been presented. In such cases it has been usual for a brief explanation to be made. The Speaker has presented a letter conveying a request, and when a motion was moved to grant the request, the Leader of the House made a brief explanation.
In deciding to grant permission, the House has not necessarily granted all that has been requested in a petition; for example, one petition, as well as seeking leave for subpoenas to be served for the production of records, for them to be adduced into evidence, and for the attendance of appropriate officers, also sought leave to interview and obtain proofs of evidence from employees of the Parliamentary Reporting Staff. The House did not grant leave for the employees to be interviewed. In some cases no action has been taken on petitions.
In 1980 the House of Commons discontinued the practice of requiring petitions for leave, and gave leave for reference to be made in future court proceedings to the official report of debate and to the published reports and evidence of committees. The adoption of similar provisions for the Commonwealth Parliament was recommended by the Joint Select Committee on Parliamentary Privilege in its 1984 report. Although resolutions to give effect to the recommendations of the committee were presented, the recommendations were not implemented. The House therefore did not decide that the practice of granting permission should be discontinued. It has, however, been held by some authorities that the granting of permission is not required as a matter of law and the Senate has agreed to a resolution to the effect that leave of the Senate is not required. It should also be noted that the adduction into evidence of evidence taken in private is expressly prohibited by the Parliamentary Privileges Act.
Waiver of privilege by House not possible
The immunity conferred on participants in proceedings in Parliament, and the laws on the use of or reference to records of, or documents concerning, parliamentary proceedings are part of the law of the Commonwealth and, as such, cannot be waived or suspended by either House acting on its own. The Committee of Privileges of the House has expressed the view that ‘as a matter of law there is no such thing as a waiver of Parliamentary Privilege’. In relation to the Prebble v. Television New Zealand case the New Zealand House of Representatives maintained that ‘article 9, as a rule of statute law, cannot be waived collectively by the House or individually by members (or others)’. The Senate has resolved not to accede to a request in a petition that it ‘waive privilege’ in relation to a submission made to a committee.
Until May 2015 when it was omitted, section 13 of the Defamation Act 1996 (UK) enabled a person effectively to waive, in so far as it concerned that person, the immunity preventing ‘proceedings in Parliament’ from being impeached or questioned in court where the person’s conduct in relation to proceedings was an issue in defamation proceedings. The UK Act did not alter the law in respect of the Commonwealth Parliament.
The Parliament of New South Wales has enacted legislation to enable parliamentary privilege to be waived in connection with an inquiry established after a speech by a Member in which she had made certain allegations.
Matters arising when House is not sitting
When the House has not been sitting and the production of parliamentary records has been desired, the Speaker has granted permission, but has noted that it was given on the understanding that proper regard will be had to the law based on Article 9 of the Bill of Rights. The Leader of the House, the Manager of Opposition Business and the Attorney-General have been advised of the decision, and it has been reported to the House as soon as practicable.
Precedents
The more important cases which have arisen are described in the following pages. It should be noted that most pre-date the enactment of the Parliamentary Privileges Act.
On 7 May 1963 the House authorised two Hansard reporters to attend in the Supreme Court of the Australian Capital Territory to give evidence in relation to a proceeding in the House (produce shorthand notebooks to prove the accuracy of a newspaper report of a particular proceeding). No petition was presented to the House in this instance.
‘Brisbane line’ Royal Commission
In 1943 a royal commission was established to inquire, inter alia, into a statement made in the House by a Minister (Mr Ward) in the course of debate concerning the matter known as ‘The Brisbane Line’ (an alleged plan for the defence of Australia). The Royal Commissioner held that Mr Ward was protected by the privilege of Parliament and could not be questioned in regard to his statement or his sources. However, the Commissioner rejected argument that privilege prevented him from investigating the matter raised by the Minister’s statement—that is, whether any such document was in fact missing.
Sankey ‘Loans affair’ prosecution
In 1975 and 1976 petitions were presented from Mr Danny Sankey seeking leave to issue and serve subpoenas for the production of certain official records of the proceedings of the House held on 9 July 1975 and of documents tabled therein, and further to issue and serve subpoenas for the attendance in court of those persons who took the record of such proceedings. Mr Sankey wished to institute proceedings against three Ministers and a former Senate Minister and the records sought were intended to be adduced in evidence in the prosecution. The 1976 petition sought leave for the petitioner and his legal representatives to inspect the documents tabled during the proceedings of 9 July 1975, together with the other matters sought in the previous petition.
On 4 June 1976, the House granted leave for the inspection of the tabled documents in question, for a subpoena to be issued and served for the production of the documents and for an appropriate staff member to attend at court and produce the documents. The House did not grant leave for the Hansard report to be used in the proceedings or for the reporters who took the report to appear in the court. Two further petitions were presented on behalf of Mr Sankey, in December 1976 and March 1977. No action was taken by the House in respect of either.
Order of Mr Justice Begg in the case of Uren v. John Fairfax & Sons
In 1979 an order was made by a judge of the Supreme Court of New South Wales in a case in which a Member had commenced an action for defamation against the publishers of a newspaper. On 11 September 1979, the order having been raised as a matter of privilege, the House referred the following matter to the Committee of Privileges:
The extent to which the House might facilitate the administration of justice with respect to the use of or reference to the records of proceedings of the House in the Courts without derogation from the Privileges of the House, or of its Members.
The judge’s order was to the effect that certain interrogatories should be answered and verified by the Member, requiring him to agree that certain speeches in the Parliament shown in photostat copies of Hansard as having been made by him and two other persons were in fact made by him or them. The judge accepted the submission by counsel to the effect that what the defendant was seeking to do did not infringe the privilege of a House of Parliament in relation to proceedings before it, but sought merely to prove as a matter of fact that the plaintiff and others had made certain speeches in the House, not in any way to criticise them nor call them into question in court proceedings, but to prove them as facts upon which the defendants’ alleged comments were made in the publication sued upon by the plaintiff. The judge ruled that this use of the fact of what was said in Parliament would not be a breach of the privilege of Parliament.
The Committee of Privileges examined the order and concluded that the judge had been in error. (The judge had expressed views to the effect that the broadcast of proceedings and the publication of those proceedings in Hansard amounted to a waiver of privilege.) The committee expressed concern that, as a consequence of the order, the answers to the interrogatories may have been used by counsel in cross-examination had the case (which was settled out of court) come to trial, and that such a course, if allowed, may have been used for questioning the motives of the Member when he made his speech in the House, a violation of the privilege enshrined in Article 9 of the Bill of Rights. As well as commenting on the judge’s order, the committee recommended, inter alia, that the petitioning process be continued and that petitions be referred to the Committee of Privileges, but the recommendation was not implemented.
Royal Commission into Australia’s Security and Intelligence Agencies
In June 1983 during the winter adjournment the Speaker approved a request for the adduction into evidence before a Royal Commission of Inquiry into Australia’s Security and Intelligence Agencies of certain Hansard reports, subject to the condition that proper regard be had to the provisions of Article 9. During the course of its proceedings the Royal Commission produced a statement of issues requiring resolution. Concern was expressed that a matter of privilege could arise in connection with two of the issues which could have involved the questioning of statements of Ministers in the House. Although some modifications of the issues in question were made, it was considered that there was still a risk to Parliament’s interests, and counsel representing the Speaker, joined by the Deputy President of the Senate, was given leave to appear before the Royal Commission. Counsel addressed the Royal Commission on the law of parliamentary privilege. The Speaker’s actions were endorsed when reported to the House when sittings resumed on 23 August 1983.
Cases involving Mr Justice Murphy and Judge Foord
In 1985 and 1986 issues of parliamentary privilege arose during trials which followed Senate committee inquiries concerning Mr Justice Murphy. Although the matters concerned the Senate in an immediate sense, the principles involved were considered to be of equal importance to the House of Representatives.
In the first trial of Mr Justice Murphy arguments put by counsel representing the President of the Senate in favour of the traditional parliamentary view of the meaning of Article 9, and to the effect that the presiding judge should intervene of his own volition to ensure the provisions were observed, were rejected.
The judge favoured a narrower view of the term ‘impeached or questioned’, indicating that there needed to be an adverse effect on freedom of speech or debates or proceedings in Parliament for Article 9 to be breached. The judge stressed the importance of cross-examination of witnesses with regard to previous statements, and referred to the competing interests involved. The judge held that ‘questioning of witnesses … as to what they said before a committee of the Senate, does not necessarily amount to a breach of privilege as being necessarily contrary to the Bill of Rights’. The cross-examination permitted extended to evidence given in private and not authorised for publication. In a later trial, R v.Foord, witnesses were also cross-examined on their committee evidence.
In the second trial a different view was taken of the interpretation of Article 9, although the result was similar. The judge held that Article 9 meant that no court proceedings having legal consequences against a Member, or a witness, which would have the effect of preventing a Member or witness exercising his or her freedom of speech in Parliament or before a committee, or of punishing him or her for having done so, were permissible. It was held that statements to the committees could, without breach, be the subject of comment, used to draw inferences or conclusions, analysed and made the basis of cross-examination or submissions and comparisons made between such statements and statements by the same person outside Parliament. The trial proceeded in light of these decisions.
Members and Senators were informed of these matters and, in due course, it was concluded that only by legislation could the preferred interpretation of Article 9 of the Bill of Rights be guaranteed, and this was one of the principal objects of the Parliamentary Privileges Bill sponsored by the President of the Senate and the Speaker.
Case involving charges against a Member
In 1999 the Speaker presented a request from the National Crime Authority seeking permission for the Votes and Proceedings for 10 November 1998 (the first sitting day of the 39th Parliament) to be produced in committal proceedings against a Member in the Melbourne Magistrates Court, and in any subsequent proceedings. The House gave leave for the Votes and Proceedings to be produced. It was understood that the objective was to establish that the Member in question had in fact been elected, and taken the oath or affirmation of allegiance, as a Member.
Freedom of information
Section 46 of the Freedom of Information Act 1982 states:
A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown … :
…
- infringe the privileges of the Parliament of the Commonwealth or of a State or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory or of Norfolk Island.
The Department of the House of Representatives, along with the other parliamentary departments, is excluded from the operation of the Freedom of Information Act. The department has sought, however, to comply with the intent of the Act and has released documents unless they would have fallen within an exemption under the Act or where a request would have been refused under the Act.