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House of Representatives                                Ch 19                                                 p 715

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. ¹ Apart from court proceedings in respect of civil ² and criminal ³ matters, the issue of references to parliamentary records has also arisen in respect of Royal Commissions, ⁴ and the documents involved have included the Votes and Proceedings, ⁵ the Hansard report of proceedings, ⁶ documents presented in the House, ⁷ a committee report, ⁸ the transcript of committee evidence, ⁹ documents submitted to parliamentary committees, ¹⁰ and documents related to a speech in the Senate. ¹¹

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. The 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. ¹²

Following judgments which had the effect of permitting participants in proceedings in Parliament (in this case witnesses before committees— see p. 721 ) 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:

(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.

(4) A court or tribunal shall not—

(a) 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

(b) 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.

In 1988 the application of section 16 was considered by the Federal Court. An application to tender an extract from Hansard was rejected, being seen 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 . . .’. ¹³ 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. This was held to be contrary to paragraphs 16(3)(b) and (c) of the Act. ¹⁴ 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. ¹⁵

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—that is, in this case the Court held that the privilege articulated in section 16 had the effect that the documents did not need to be produced. ¹⁶

In Laurance v. Katter the Queensland Court of Appeal considered the application of subsection 16(3). The Court 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. ¹⁷ The decision was appealed to the High Court, but the case was settled before it was decided. ¹⁸ The Privy Council has held that a Member may be held liable in respect of a statement made out of the House in which the Member affirmed, but did not repeat, a defamatory statement the Member had made in the House. ¹⁹

In Rann v. Olsen the South Australian Supreme Court held that subsection 16(3) would prevent Mr Olsen from maintaining and supporting certain defences in a defamation action and it rejected submissions to the effect that the Act was invalid because it impermissibly infringed the implied constitutional guarantee of freedom of political communication. ²⁰ 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. The Appeal Court held however that the infringement was not such as to justify reversal of his conviction. ²¹

For discussion of constitutional issues possibly arising in connection with subsection 16(3) see Campbell, Parliamentary Privilege (2003). ²²

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.

Many court decisions have confirmed this, e.g. Church of Scientology of California v. Johnson-Smith [1972] (UK) I QB 522.

VP 1980-83/908-9; VP 1983-84/956.

R v. Lionel Keith Murphy , R v. John Murray Foord (1985) ( see p.  721 ).

Royal Commission into the Australian Meat Industry (1982), VP 1980-83/949; Royal Commission on Australia’s Security and Intelligence Agencies (1983), VP 1983-84/149; Royal Commission into Activities of the Nugan Hand Group (1984), VP 1983-84/881.

VP 1998-2001/827.

VP 1980-83/908-9.

VP 1980-83/908-9; VP 1983-84/881.

VP 1985-87/1355.

R v. Lionel Keith Murphy ; R v. John Murray Foord .

VP 1985-87/1355; VP 1987-89/965-6.

O’Chee v. Rowley [1997] QCA 401.

See , for example, Campbell, Parliamentary Privilege (2003), pp. 29, 67, 89, 97, 106, 124.

Amman Aviation Pty Limited v. Commonwealth of Australia (No. G667 of 1987, p. 15).

Hamsher and ors v. Swift and ors (1992) 33 FCR 545-67 at 547, 562-5.

Prebble v. Television New Zealand Limited (1994) 3 All ER 407-420 at 414.

O’Chee v. Rowley [1997] QCA 401

Laurance v. Katter [1996] QCA 471.

Laurance v. Katter B69/1996 (26 June 1997).

Jennings v. Buchanan [2004] UKPC 36..

Rann v. Olsen [2000] SASC 83.

And see Campbell, Parliamentary Privilege (2003), pp. 96-98.

pp. 99-104.