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Parliamentary Privileges Amendment Bill 1992 [Private Member’s Bill]
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Parliamentary Research Service Department of the Parliamentary Library
This Digest was prepared for debate should not be taken as a complete guic’e to the legislation which may reflect amendments.
Parliamentary Privileges Amendment Bill 1992
(Private Member’s Bill)
Date introduced: 17 September 1992 House: House of Representatives Presented by: Mr D. Kerr M.P.
Purpose To allow the credibility of certain witnesses to be tested with regard to prior inconsistent statemelts given before a House of the Parliament or a committee of the Parliament.
Background The Parliamentary Privileges Act 1987 (the Princrpal Act) sets out the powers, privileges and immunities of each House of the Parliament and of the Members and comimittees of each House. 1 he Principal Ac:t was introduced to ensure a broad interpretation of Article 9 of the Bill of Rights 1688 and to give effect to certain recommendations of the Joint Select Committee on Parliamentary Privilege.
Article 9 of the Bill of Rights 1688, applies to the Houses of the Australian Parliament by viriue of section 49 of the Constitution, provides:
‘That the freedom of speech and debates or proceedings in Partiarnent ought not to be impeached or questioned in any court or place out of Parliament’.
Article 9 guarantees freedom of speech so that Members are absolutely privileged from prosecution in respect of anything they may sa!/ in the course of proceedings in Parliamient. The traditionally broad interpretation given to the article has meant that the privilege covers evidence given to Parliamentary committees and prevents Parliamentary proceedings from being called into question by any Court or Tribunal.
On 5 June 1985, Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New Soiith Wales delivered judgements in
(9. v Murphy which limited/narrowed the operation of Article 9.
According to the judgement of MI. Justice Hunt, Article 9 will not be breached where parliamentary proceedings are used as evidencs of an offence, civil liability, to establish a motive or intention 0’ a person for tihe purpose of proving an offence’or a civil liability, or to attack the credibility of a perso 1.
Therefore, while maintaining that a Member may not be sued or prosecuted for something a Member had said or done in the actual course of parliamentary proceeclings, if the narrow view of Article 9 is against the Member to establish the Members 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 acs. The Principal Act was introduced ‘:o prevent such uses of parliamentary proceedings and to ensure that the former, broader protection offered by Article 9 was maintained.
The area of parliamentary privilege was examined by a Joint Committee which delivered ;3n exposure report in June 1984. The Committee’s final report was delivered in October 1984 and made a number of recommendations concerning freedom of speech, contempt and other areas of privilege. Recommendations of the Committee given effect to by the Principal Act include: * section 6 - words or acts are not to be regarded as an offence against a House solely because
they are defamatory or critical of the Parliament, a House, a committee or
a Member (Note:
section 6 does not apply to words spoken or acts done in the presence of a House or a
committee);
* section 8 - a House does not have the power to take away a Member’s membership of a House:
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Pafiiarwt7tary Privileges Amendment Bill 1992
* section 11 - tabled documents, which an officer of a House conveys to a Member, attract
absolute privilege; and t section 12 - it is a criminal offence to interfere with parliamentary witnesses.
Section 16 of the Principal Act deals with Parliamentary privilege in (court proceedings. Sect on 16 provides a broad interpretation of Article 9. Section 16 clarifies that ‘proceedings before Parliamc nt means all words spoken and acts done in the course of, or for purposes of, or incidental to, :he transacting of the business of a House or of a committee. Express protection is given under sect on
16 to the giving of evidence, 07 the presentation of a document to a House or a commit:ee
(subsection 16(2)). It is unlawful to tender evidence in any court lwhich concerns proceedings in Parliament for the purpose of questioning the truth, motive, intentioln or good faith of those
proceedings or questioning the credibility, motive, intention or good faith of any person (subsect on 16(3)). A court or tribunal is not to call for the production of a document which has been prepared for submission and submitted to a House or a committee, and has been directed by a House or
committee that the document be 1:reated as evidence taken in camera (section 16(4)).
As noted by the presenter of this Bill, in the Second Reading Speech to this Bill, subsection 16(3) of the Principal Act has the effect of preventing the cross-examination of prosecution witnesses as to prior inconsistent statement!; given to a House or a committee. The effect of subsection 16 :3) can be illustrated through the use of an example used by Mr Spender Q.C., the then shadow Attornt!y- General, in the debate on the Par iamentary Privileges Bill 1986. Mr Spen’der said:
‘Let us take a hypotheticel case in which a witness comes before a parliamentary committee and gives evidence which is quite untruthful and which amounts to a charge for serious criminal conduci: against a third person. That third person is charged. The same witness is called and gives different evidence but the evidencle is vital to the case, for ex,ample, vital to the prosecution. Should it not be open to the accused person to say:
“The evidence he is giving is untruthful. What he says now is different from what he said before the parliamentary colnmittee?”
The prohibition on asking questions of a witness in court proceedings applies both wherct it appears that the witness has previously given false evidence to a committee, and where tie truthfulness of committee evidence is not challenged but the witness has subsequently given eviden 38 in a court which is inconsistent with his/her committee evidence.2 In addition, the prohibition applies to evidence given by non-members as well as to evidence given by members of Parliament; is
absolute; and there is no provision for waiver of the privilegee3
It is the view of the presenter of this Bill that subsection 16(3) has carried the reach of
parliamentary privilege further thaii is necessary or desirable. The presenter of this Bill argues tt at subsection 16(3) in its current form has the potential to prevent the giving of evidence that may in some future case be vital to the rights of a person on trial.4
(Note: Reference is made in the Second Reading Speech to this Bill to a paper by Sir Clarrie Harders titled
ParliamentaryPrivilege-Parliament versus the Courts: Crossexamination of Committee Witnesses, published by the Department of the Parliamentary Library. Copies of this paper may be obtained by contacting the Law and Government Group on 06 2772430.)5
Main Provisions The principal effect of clause 3 will allow a person against whom *a person (the witness) has given evidence in a court or tribunal: *the witness had previously made a statement in evidence before a House or committee; and
*that statement is inconsistent with evidence given by the witness in the court or tribunal; to test the credibility of the witnes!; by questioning them with regard to that statement.
References 1. Sir Clarrie Harders, Parliamentary Privilege-Parliament versus the CoBurts: Cross-examination of Committee Witnesses, Parlizmentary Research Service, October 1991, p.1. 2. Ibid., at p. 3.
3. Ibid.
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4.
5.
House of Representatives, Daily Hansard, 17 September 1992, p. 1223. The Clerk of the Senate issued a counter view on some aspects of Sir Clarrie Harders paJer. Sir Clarrie Harders subsequently wrote a reply to the comments of the Clerk of the Senattt.
Bills Digest Setvice Parliamentary Research Service
7octobef1992
This Digest does not have any olficial legal status. Other sources should be consulted to determine the subsequent official status of ‘:he Bill.
0 Commonweatth of Australia 12~92.
Except to the extent of the uses Dermitted under the Copyright Act 1968, no part of this publica:ion may be reproduced or transmitted in any form or by any means, including information storage ‘and retrieval systems, without the priol’written consent of the Parliamentary Library, other than by Memt ers of the Ausi:ralian Parliament in thlz course of their official duties.
Published by the Department of l:he Parliamentary Library, 1992.
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