Memorandum by the Parliament of New South
Wales
1. We understand that New South Wales is
the only Australian Parliament which has no legislation comprehensively
defining its powers and privileges. Have you considered legislation?
Do you consider that your approach has advantages over those of
other states?
In 1878 a bill to give the New South Wales Parliament
the powers and privileges then held by the House of Commons passed
the Legislative Assembly but was defeated in the Upper House.
In 1901 another attempt to define the Parliament's privileges
passed the Legislative Assembly but lapsed with the prorogation
of the Parliament. At least three other attempts have been made
to define the Parliament's privileges.[46]
In 1985, a Joint Select Committee on Parliamentary Privileges
recommended that legislation be passed providing that the Parliament
has the privileges of the House of Commons at 1856[47]
but no such legislation was introduced.
The absence of comprehensive privileges legislation
in New South Wales, where the Parliament has a statutory origin,
leaves the definition of privileges to the courts. This means
that the Parliament's privileges are uncertain and open to adaptation
to contemporary conditions by the courts (eg, Egan v Willis
& Cahill, NSW CA (1996) 40 NSWLR 650). Whether such uncertainty
tends to foster or dispel constitutional conflicts and whether
the privileges and functions of the Parliament are shaped to best
serve the public interest if defined by unelected courts or a
Parliament in most cases controlled by the executive are continuing
matters for debate.
2. How close is the linkage between your
privileges and those in the United Kingdom? Is this link based
on statute? If we change our privileges will this directly, or
indirectly affect your own?
There is a link between the privileges of Parliament
in the United Kingdom and New South Wales. Although it has been
asserted that New South Wales acquired the privileges of the House
of Commons of 1856,[48]
it is generally accepted that the New South Wales Parliament possesses
only those privileges acquired by statute and, under the common
law, has inherited those powers and privileges that are necessary
for the existence of the Legislature and the proper performance
of the functions it is intended to execute.[49]
3. A central issue is the extent to which
Parliament should have exclusive control over its own affairs.
Apart from exclusive control over their procedure does your Parliament
have exclusive control over the buildings in which it meets and
over its staffing and administration?
Section 7 of the Parliamentary Precincts
Act 1997 vests the control and management of the parliamentary
precincts with the Presiding Officers.
Each House is administered by its Presiding
Officer and joint services are administered by the Presiding Officers
jointly.
Each Presiding Officer controls the staffing
of their individual Houses and jointly control the staffing of
joint services. Whether such control is exclusive is uncertain
as the precise legal status of parliamentary staff is not clear.
Since 1895, the staff of the Parliament have been excluded from
the Public Service Act. All minor servants of the Parliament are
appointed by delegation of the Governor to the Presiding Officers
under section 47 of the Constitution Act 1902 (NSW). In
practice only the Clerks, the Serjeant-at-Arms and the Usher of
the Black Rod are appointed by the Governor as they are with a
Commission under Letters Patent by the Governor.
Since 1988, Parliament has received a global
salaries vote, allowing the Presiding Officers to use the funds
allocated to salaries according to their discretion.
4. Does the general law (eg, on employment,
office conditions) automatically apply within the parliamentary
precincts; or does it only apply to the extent accepted by Parliament
and/or the extent specifically provided in statute?
There is no abrogation of the general law
within the parliamentary precincts and the Parliament is subject
to employment and occupational health and safety laws of general
application.
5. Can you punish a member of the public
for a contempt of Parliament? Is there any appeal to a court?
The Parliament has no general power to punish
for contempt. Specific powers to punish are provided in the Parliamentary
Evidence Act 1901 which provides:
Penalty for refusal to answer
11. (1) Except as provided by section
127 (Religious confessions) of the Evidence Act 1995, if any witness
refuses to answer any lawful question during the witness's examination,
the witness shall be deemed guilty of a contempt of Parliament,
and may be forthwith committed for such offence into the custody
of the usher of the black rod or sergeant-at-arms, and, if the
House so order, to gaol, for any period not exceeding one calendar
month, by warrant under the hand of the President or Speaker,
as the case may be.
Penalty for false evidence
13. If any such witness wilfully makes any
false statement, knowing the same to be false, the witness shall,
whether such statement amounts to perjury or not, be liable to
penal servitude for a term not exceeding five years.
Thus, the House may punish a witness for refusing
to answer a lawful question and a witness may be prosecuted in
a court for a false statement. Following the reasoning of the
Queen v Richards; ex parte Fitzpatrick and Browne (1955)
92 CLR 157, whether the House was acting within the jurisdiction
conferred by this statute would be appellable to a court. There
has been no purported exercise of the powers conferred by these
two sections.
6. Have you codified those offences which
are considered to be a contempt of Parliament? If not, can you
give examples of cases where a member of the public has been punished
for a contempt?
The only codification of offences considered
to be a contempt of Parliament are addressed under 5 above, nor
does the New South Wales Parliament have any other punitive powers.
7. Is freedom of speech in debate or other
proceedings absolute? Does it even extend to the revelation of
official secrets in debate? Does freedom of speech derive from
Article IX of the Bill of Rights or another source? Are there
any derogations such as those in s 13 of the United Kingdom Defamation
Act 1996?
There is no statutory limit on the freedom
of speech in Parliament.
The source of freedom of speech includes
the common law (what is necessary for the operation of the legislature),
Article 9 of the Bill of Rights 1688 (given force by the
Imperial Acts Application Act 1969) and statutes such as
the Defamation Act 1974, and the Parliamentary Evidence
Act 1901.
8. Do the Courts in your state interpret
Parliament's privilege of freedom of speech as having the same
scope as that described in the 1987 Parliamentary Privileges Act
as applying to the Federal Parliament?
No. The Commonwealth Parliamentary Privileges
Act 1987 was passed in response to rulings of three judges
of New South Wales Supreme Court which took a more limited view
of parliamentary privilege than that expressed in the Act (Cantor
J, R v Murphy, unreported, 5 June 1985; Maxwell J, R
v Foord, unreported, 1985, Hunt J, R v Murphy (1986)
5 NSWLR 18). The Act does not directly affect the privileges of
the New South Wales Parliament. Since the passage of the Act,
Justice Loveday of the District Court has ruled that parliamentary
privilege did not prevent the subpoenaing of evidence given in
camera to a select committee of the Legislative Assembly to impeach
the credit of a witness at a criminal trial (Regina v Abraham
Gilbert Saffron, unreported, District Court of New South Wales,
21 August 1987). Nevertheless, a judge of the Federal Court has
expressed the view that s 16(3) of the Act is declaratory of the
law in Australia before its enactment (Amann Aviation Pty Ltd
v Commonwealth of Australia (1988) 19 FCR 223 at 231) and
such views influence interpretation by the courts (eg, NSW
Australian Medical Association v Minister for Health and Community
Services (1992) 26 NSWLR 114 at 126).
9. Are there any circumstances (eg, where
a parliamentary committee's responsibilities relate to the administrative
management of the House or the letting of contracts) where the
proceedings of a parliamentary committee can be considered by
a court (eg, in a dispute over a contract)?
The law on this point in unclear, with conflicting
rulings not yet definitively resolved. It is settled that records
of proceedings may be admitted into evidence to prove certain
things were said in those proceedings. For a more detailed discussion
see Gareth Griffith, Parliamentary Privilege: Use, Misuse and
Proposals for Reform, NSW Parliamentary Library Research Service
Briefing Paper No 4/97 and "Parliamentary Privilege—Parliament
versus the Courts: Cross-examination of Committee Witnesses",
Australian Law Journal, vol 67, Feb 1993, pp 109ff, especially
129-30.
The proceedings of a parliamentary committee
(either Commonwealth or New South Wales) have been used by a NSW
court in the following circumstances:
— In camera committee proceedings (NSW)
allowed to assist defence in a criminal trial impeach the credit
of a prosecution witness (R v Saffron, unreported, District
Court of NSW, 21 August 1987)
— Committee proceedings (Com) of evidence
given by defendant in criminal proceedings admitted to be compared
with testimony given at trial. Ruled that Bill of Rights only
prevents legal consequences arising directly from what is said
in Parliament. (R v Murphy (1986) 5 NSWLR 18)
— Cross examination allowed of prosecution
witness on evidence they had given to a Senate committee (Com)
(R v Foord, unreported, 1985).
— Committee report allowed as evidence
of the objective events of a seven year problem (the subject of
the committee report) as there could be no concern that the motives
or intentions or reasoning of the committee would be questioned
or held against the committee, but not allowed as evidence of
the facts and opinions contained in the report as that would inevitably
result in a challenge to the functions of the committee and the
way in which it has performed those functions. R v Murphy distinguished.
(NSW Branch of the Australian Medical Association v Minister
for Health and Community Services (1992) 26 NSWLR 114)
10. The United Kingdom Government may introduce
legislation on corruption which, as part of a general reform,
will include an offence of bribery of an MP or a Peer.
—what statutory offence exists in
your state relating to bribery of a member of either House?
Part 4A of the Crimes Act 1900 (NSW) attempts
to codify the common law relating to bribery (see Appendix A).
Statutory offences for bribery also exist under
various Acts including the Independent Commission Against Corruption
Act 1988, the Police Integrity Commission Act 1996, the
Casino Control Act 1992, the Parliamentary Electorates
and Elections Act 1912 and the Constitution Act 1902 (relating
to bribery of electors).
Bribery is dealt with under proposed codes of
conduct which are under consideration by the Parliament. If agreed
to, contravention of the code will be a matter that will fall
under the jurisdiction of the Independent Commission Against Corruption
for investigation (s. 9 Independent Commission Agains Corruption
Act 1988). The code does not create any criminal offences.
—who authorises prosecution?
Both the Director of Public Prosecutions and
the Attorney-General may authorise or call off prosecutions for
indictable offences, the Director being subject to any such determination
by the Attorney (Director of Public Prosecutions Act 1986).
—are there any circumstances where
the court can hear and examine evidence on what a member or senator
has said or done in Parliament?
No. The Courts can only use what was said in
Parliament as evidence of fact.
—are there circumstances where a tribunal
or a Royal Commission may do so?
The Royal Commissions Act 1923 (see Appendix
B) provides for special powers, including the power to reject
claims of privilege, which may apply to a Commission if specifically
so declared by the Governor.
In response to a request in 1995 from the Royal
Commission into the New South Wales Police Service, the Legislative
Assembly passed a motion:
That this House grants leave to officers assisting
the Royal Commission into the New South Wales Police Service to
inspect the in camera evidence taken before the Select Committee
upon Prostitution on condition that—
(1) the evidence is inspected at Parliament House;
(2) any information obtained be used by the Royal
Commission to pursue appropriate further inquiry without revealing
to any other person other than the Royal Commissioner and officers
of the Royal Commission, the contents of the in camera evidence,
and its contents not made public; and
(3) before adducing into evidence of the Royal
Commission any evidence taken before the Select Committee upon
Prostitution, the Royal Commissioner, his Honour Justice Wood,
QC, seek leave of the Legislative Assembly. (Votes & Proceedings
26 October 1995, pp 361-2).
On a subsequent request from the Commission,
the House resolved:
That this House, being of the opinion that to
grant leave to the Royal Commission into the New South Wales Police
Service for any evidence taken before the Select Committee upon
Prostitution to be adduced into evidence before the Royal Commission
has real potential to breach Article 9 of the Bill of Rights,
and as the House has no authority to waive its privilege in this
regard, declines to grant leave as requested. (Votes & Proceedings,
27 November 1996, pp 686-7).
The Commission did not subsequently adduce the
transcripts into evidence, notwithstanding its legal power to
do so.
The Special Commissions of Inquiry Act 1983
does not allow a witness to refuse to answer a question or produce
a document by claiming privilege, although, at a public hearing
and as far as practicable, the Commissioner is not to receive
evidence in breach of parliamentary privilege if that privilege
has not been waived under the Act or otherwise.
Part 4A of the Act, which was inserted in 1997
after a member of the Legislative Council made certain allegations
in the House and expires six months after commencement, provides
for either House authorising the Governor to commission an inquiry
into a proceeding of the House and to waive privilege in relation
to such an inquiry.[50]
Any waiver by the House under the Act does not affect the privileges
of any member unless the member also waives his or her privilege.
A challenge to the constitutionality of these provisions in the
Court of Appeal of New South Wales was unsuccessful and, on a
request for special leave to appeal that decision in the High
Court, the court found that the Parliament's plenary powers include
the power to affect its privileges. Whether there was a limit
on the extent to which Parliament could affect its own privileges,
on the grounds that to do so invalidly erodes the institution
of Parliament itself, was said to be an issue worthy of exploration
and special leave would have been granted if the Act could have
been construed as having such an effect (Arena v Nader and
Anor S111/1997).
Other Acts that override a person's right to
plead privilege include the Local Government Act 1993 (witnesses
before the Pecuniary Interest Tribunal), and the New South
Wales Crime Commission Act 1985.
The relevant provisions are appended (Appendix
B)
11. Is there any procedure for "waiving
privilege" when a member or senator is charged with an offence
relating to his or her parliamentary duties?
No, except as described in question 10 above
(see Parliamentary Privilege: Use, Misuse and Proposals for
Reform).
12. Immunity from arrest
In NSW status as a Member of Parliament confers
no immunity from arrest or imprisonment for a criminal offence.[51]
In relation to arrest for civil matters, in 1894 it was held that
members of Parliament could be arrested under a writ to enforce
payment of judgment debts even though the House was sitting (Norton
v Crick (1894) 15 LR (NSW) 172). The reasoning of the Court
was that immunity in such cases did not fall within the scope
of the inherent or implied powers of the House as it was not reasonably
necessary to enable Parliament to function properly. However,
there may be other circumstances, for instance, civil contempt
of court, in which limited immunity from imprisonment might be
permitted.[52]
IMMUNITY FROM
ATTENDANCE AS
A WITNESS
OR AS
A DEFENDANT
IN A
CIVIL SUIT
BEFORE A
COURT
The generally accepted practice is that Members
are exempt from the duty of attending in court to give evidence
so long as the House or a committee of the House is sitting. A
Member may attend to give evidence in a civil suit while the House
is sitting if leave of absence is given by the House.
Section 15 (2) of the Evidence Act 1995 (NSW)
is relevant to this issue:
15(2) A member of a House of an Australian Parliament
is not compellable to give evidence if the Member would, if compelled
to give evidence, be prevented from attending:
Section 10 of that Act states:
(1) This Act does not affect the law relating
to the privileges of any Australian Parliament or any House of
any Australian Parliament.
(2) In particular, section 15(2) does not affect,
and is in addition to, the law relating to such privileges.
CONFIRMATION BY
STATUTE
None of the immunities discussed are confirmed
by statute other than by the provisions of the Evidence Act referred
to above concerning compellability of witnesses.
ATTENDANCES BEFORE
TRIBUNALS OR
ROYAL COMMISSIONS
Principles similar to those applying to process
issued from a court would apply to attendance by Members before
tribunals and royal commissions.
SERVICE OF
SUBPOENA TO
APPEAR IN
COURT ON
A SITTING
DAY
The service of a subpoena on a Member to appear
in Court on a sitting day has not of itself been regarded as a
breach of privilege, unless the actual service was within the
precincts of the House and on a sitting day.
AUTHORISATION FOR
EXERCISE OF
IMMUNITY
Where a Member is required to appear in Court
while the House is sitting, the practice is for the Presiding
Officer to write to the Chief Judge or other appropriate officer
of the Court claiming the privilege of exemption. If the Member
wishes to appear, and depending on the circumstances of the particular
case, the Member may be granted leave of absence to attend, by
vote of the House.
13. Whether ICAC overrides Parliament's powers
Under the Independent Commission Against
Corruption Act 1988 (NSW) (copy attached) the principal functions
of the ICAC include the investigation of allegations or complaints
of "corrupt conduct"(s 13(1)(a)). "Corrupt conduct"
is defined in ss. 8 and 9 of the Act. Section 8 contains a broad,
wide-ranging list of types of conduct which involve criminal conduct
or serious offences such as breach of public trust. Section 9
cuts down the extent of s 8 by providing that conduct which satisfies
s 8 does not amount to "corrupt conduct" unles it "could
constitute or involve" various matters. The matters relevant
to Members of Parliament are:
— a criminal offence (s 9(1)(a));
— a substantial breach of an applicable
code of conduct (s 9(1)(d));
— conduct that would cause a reasonable
person to believe that it would bring the integrity of the office
concerned or of Parliament into serious disrepute (s 9(4)).
At present, the only grounds applicable to Members
are the first and third options listed above as neither House
of Parliament has as yet adopted a code of conduct for the purposes
of the ICAC.
The ICAC has power to summons witnesses to attend
and give evidence under s 37. Section 37 (2) states:
A witness summoned to attend or appearing before
the Commission at a hearing is not excused from answering any
question or producing any document or other thing on the ground
that the answer or production may incriminate or tend to incriminate
the witness, or on any other ground of privilege, or on
the ground of a duty of secrecy or other restriction on disclosure,
or on any other ground. (emphasis added)
However, s 122 states:
Nothing in this Act shall be taken to affect
the rights and privileges of Parliament in relation to the freedom
of speech, and debates and proceedings in Parliament.
Section 4 of the Parliamentary Evidence Act
1975 enables either House or a committee to authorise the
publication of certain documents and evidence. This provision
is overridden by s 70 (7) of the ICAC Act in the case of certain
confidential evidence taken by the joint parliamentary committee
which oversights the ICAC.
EFFECT ON
STANDING AND
INDEPENDENCE OF
PARLIAMENT
There is some effect on the standing and independence
of Parliament as the ICAC in effect exists as a watchdog to scrutinise
the activities of "public officials" including Members
and investigate possible corruption. However, the Act establishes
a parliamentary committee which oversights the ICAC, so that some
checks and balances are maintained. The functions of the committee
include:
— monitoring and reviewing the exercise
by the ICAC of its functions; and
— reporting to Parliament on any matter
appertaining to the ICAC or connected with the exercise of its
functions to which, in the opinion of the Committee, the attention
of Parliament should be directed (s 64(1)).
14. Service of subpoena in precincts on sitting
day
Both houses have regarded the service of a subpoena
on a Member in the precincts of the House on either a sitting
day or non-sitting day as a contempt and such matters are reported
to the House by the Presiding Officer. It has been considered
that the contempt is purged if the person responsible for the
service acknowledges that the service was improper and withdraws
the process. Once this has occurred the person may, if desired,
effect service on the Member in the conventional manner, outside
the precincts of the House.
15. Expulsion of Members
Unlike other Parliaments in Australia, the NSW
Parliament has not by legislation or resolution adopted the powers,
privileges or immunities of the House of Commons, or declared
its privileges and powers in a comprehensive manner. Accordingly,
in matters such as expulsion, the Houses rely on their inherent
or implied powers and, in the case of the Legislative Assembly,
the Standing Orders. The nature and extent of the inherent powers
of former colonial legislatures is governed by common law principles
originally formulated in a series of Privy Council decisions in
the nineteenth century. According to these principles, the Houses
of such legislatures possess only such powers as are "necessary
to the existence of such a body, and the proper exercise of the
functions which it is intended to execute".[53]
The Courts have determined that punitive action does not fall
within the scope of this formulation. To be lawful, any action
which a House in NSW takes to deal with a contempt must be "protective"
and "self-defensive" and not punitive.[54]
These principles have been applied in NSW in recent times in Armstrong
v Budd (1969) 71 SR (NSW) 386 and Egan v Willis & Cahill,
Court of Appeal decisions, 29 November 1996.
EXPULSION IN
THE LEGISLATIVE
COUNCIL
In 1969 the Legislative Council expelled a Member
in the exercise of its inherent powers on the ground of "conduct
unworthy of a Member of the Legislative Council". The conduct
which led to the expulsion included statements that the Member
would consider bribing a judge, and suggestions that the Member
would give false evidence. The validity of the expulsion was subsequently
upheld in Supreme Court proceedings brought by the Member challenging
the validity of the House's actions Armstrong v Budd (supra).
The Court held that the expulsion in this case was "protective"
and "self-defensive" as it was necessary to protect
mutual trust and confidence among Members which was essential
for the House to perform its functions.
In November 1997 a motion was moved in the Legislative
Council proposing the expulsion of a Member, Mrs Arena, on the
ground of "conduct unworthy of a Member". The Member
in question had made a speech in the House which suggested that
prominent political figures (including the Premier of the State)
and a judge were involved in an agreement to suppress the names
of high-profile persons who had allegedly engaged in paedophile
activities. A judicial inquiry established to investigate the
Members's statements found that the claims were false and that
the evidence strongly suggested that the Member knew she had no
evidence in support of her claims. The motion for the expulsion
of the Member was amended in the House in a manner which referred
the Member's conduct to the Standing Commitee on Parliamentary
Privilege and Ethics for inquiry and report on what sanctions
should be enforced in relation to the Member's conduct. The Committee
is due to report in the coming weeks.
EXPULSION IN
THE LEGISLATIVE
ASSEMBLY
There have been three cases of expulsion in
the Legislative Assembly. In 1881 a Member, Mr Baker, was expelled
on the ground of "conduct unworthy of a Member", being
conduct involving misappropriation of funds. The resolution expelling
the Member was later rescinded, in 1883.
In 1890 Mr Crick was expelled having defied
the ruling of the Chair in Committee of the Whole and afterwards
having violently resisted the Serjeant-at-Arms when that officer
was directed to remove him, and further having continued such
resistance until other officers rendered assistance, causing a
great disturbance and scandal.
Legislative Assembly Standing Order 294 states:
294. A Member adjudged by the House
guilty of conduct unworthy of a Member of Parliament may be expelled
by vote of the House, and the seat declared vacant.
In 1917 a Member, Mr Price, was expelled pursuant
to the Standing Order which preceded Standing Order 294 and which
was in the same terms. The relevant conduct in that case included
findings by a Royal Commission that certain claims made by the
Member in Parliament alleging improper conduct by a Minister were
made wantonly, recklessly, and without foundation. At the subsequent
by-election Mr Price wasre-elected to the House.
16. Power to fine
The NSW Parliament has not conferred on its
Houses by statute any power to fine. In the absence of statutory
powers, it is doubtful that the Houses possess a power to fine
as such action could be considered to be punitive and therefore
outside the scope of the inherent or implied powers.
17. Citizen's right of reply
The Legislative Council adopted a citizen's
right of reply procedure by resolution on 13 November 1997 (see
Appendix C). The Legislative Assembly adopted a Sessional Order
governing this matter on17 September 1997 (see Appendix D). No
right of reply has yet been granted under either procedure.
18. Protection of witnesses before parliamentary
committees
The protection of witnesses before parliamentary
committees is governed not by Standing Orders, but by statute:
— Article 9 of the Bill of Rights applies
in New South Wales by virtue of section 6 and schedule 2 of the
Imperial Acts Application Act 1969 (NSW).
— Section 12 of the Parliamentary
Evidence Act 1901 (NSW) states:
No action shall be maintainable against any witness
who has given evidence, whether on oath or otherwise, under the
authority of this Act, for or in respect of any defamatory words
spoken by him while giving evidence.
The extent of protection afforded to witnesses
by Article 9 has been the subject of conflicting judicial authority
in Australia. In R v Murphy 1986 64 ALR 498 the NSW Supreme
Court adopted a narrow interpretation of Article 9 which allowed
witnesses to be examined in a criminal trial concerning the evidence
they had given to a federal parliamentary committee. In R v
Jackson 1987 8 NSWLR 116 the Supreme Court rejected the reasoning
in the earlier case, declining to allow the admission in evidence
in criminal proceedings of statements made in Parliament about
the accused. However, in R v Saffron (unreported, 21 August
1987) the District Court allowed in camera evidence of a select
committee of the NSW Legislative Assembly to be subpoenaed and
made available for use by the defence.
19. Intimidation of witnesses
Intimidation of witnesses would be treated as
a contempt of Parliament if such conduct was shown to have substantially
interfered with the performance of functions by Members of a Committee
or of the House. This has yet to be tested in the New South Wales
Parliament, in either House. There are no statutory mechanisms
conferring protection on witnesses in this area.
20. Perjury
The Houses of the NSW Parliament may take evidence
on oath or affirmation: Parliamentary Evidence Act 1901 (NSW)
section 10.
In relation to witnesses giving evidence under
the authority of the Act, section 13 states:
If any such witness wilfully makes any false
statement, knowing the same to be false, he shall, whether such
statement amounts or perjury or not, be liable to penal servitude
for a term not exceeding five years.
The legislation does not state whether or not
this offence may be prosecuted only in the courts.
21. Absolute privilege to papers published
under the authority of Parliament
Section 17(1) of the Defamation Act 1974
(NSW) provides a defence of absolute privilege for the publication
of a document by order or under the authority of either House
or both Houses of Parliament.
Section 18 provides a defence of absolute privilege
for a publication in the course of an inquiry made under the authority
of an Act or Imperial Act or under the authority of Her Majesty,
of the Governor, or of either House or both Houses of Parliament.
Section 6 of the Parliamentary Papers (Supplementary
Provisions) Act 1975 (NSW) states:
Subject to section 7, it is a defence to any
action or proceedings civil or criminal, brought in respect of
the publication of any document or any copy thereof or any evidence
if it is proved that the publication of the document, the document
from which the copy was made or the evidence, as the case may
be, as authorised under section 4 or by section 5.
Section 7 states that the Act does not operate
so as to provide or affect a defence to an action or proceeding
for defamation.
ABSOLUTE PRIVILEGE
TO PAPERS
PUBLISHED BY
THE GOVERNMENT
WITHOUT PARLIAMENT'S
AUTHORITY
Section 17 of the Defamation Act establishes
a defence of absolute privilege, without the authority of Parliament,
for certain publications by specified government agencies eg:
— a publication to or by the Ombudsman
as such officer (section 17A(1));
— a publication to a member of the
Privacy Committee for the purpose of the execution or administration
of the Privacy Committee Act 1975 (section 17B(1));
— a publication to or by a conciliation
officer for the purpose of any proceedings under the Workers Compensation
(section 17BB).
22. Freedom of Information Act
The Freedom of Information Act 1989 (NSW)
establishes rights and procedures which enable members of the
public to obtain access to documents held by Government agencies.
By virtue of sections 7 and 8, the Houses of Parliament, parliamentary
committees, and membership of either House are excluded from the
definition of "agency". Further, section 17 states that,
for the purposes of the Act,
[a] a document is an exempt document if
it contains matter the public disclosure of which would, but for
any immunity of the Crown:
(a) constitute contempt of court; or
(b) contravene any order or direction of
a person or body having power to receive evidence on oath; or
(c) infringe the privilege of Parliament.
(Emphasis added)
9 April 1998
Appendix A
CRIMES ACT 1900
PART 4A—CORRUPTLY
RECEIVING COMMISSIONS
AND OTHER
CORRUPT PRACTICES
Definitions
249A. In this Part:
"agent" includes:
(a) any person employed by, or acting for
or on behalf of, any other person (who in this case is referred
to in this Part as the person's principal) in any capacity;
(b) any person purporting to be, or intending
to become, an agent of any other person (who in this case is referred
to in this Part as the person's principal); and
(c) any person serving under the Crown (which
in this case is referred to in this Part as the person's principal);
and
(d) a police officer (and in this case a reference
in this Part to the agent's principal is a reference to the Crown).
"benefit" includes money and any contingent
benefit.
Corrupt commissions or rewards
249B. (1) If any agent corruptly receives or
solicits (or corruptly agrees to receive or solicit) from another
person for the agent or for anyone else any benefit:
(a) as an inducement or reward for or otherwise
on account of:
(i) doing or not doing something, or having
done or not having done something; or
(ii) showing or not showing, or having shown or not
having shown, favour or disfavour to any person, in relation to
the affairs or business of the agent's principal; or
(b) the receipt or any expectation of which would
in any way tend to influence the agent to show, or not to show,
favour or disfavour to any person in relation to the affairs or
business of the agent's principal, the agent is liable to imprisonment
for seven years.
(2) If any person corruptly gives or offers
to give to any agent, or to any other person with the consent
or at the request of any agent, any benefit:
(a) as an inducement or reward for or otherwise
on account of the agent's:
(i) doing or not doing something, or having
done or not having done something; or
(ii) showing or not showing, or having shown or not
having shown, favour or disfavour to any person, in relation to
the affairs or business of the agent's principal; or
(b) the receipt or any expectation of which would
in any way tend to influence the agent to show, or not to show,
favour or disfavour to any person in relation to the affairs or
business of the agent's principal, the firstmentioned person is
liable to imprisonment for seven years.
(3) For the purposes of subsection (1), where
a benefit is received or solicited by anyone with the consent
or at the request of an agent, the agent shall be deemed to have
received or solicited the benefit.
Misleading documents or statements used or made
by agents
249C. (1) Any agent who uses, or gives to the
agent's principal, a document which contains anything that is
false or misleading in any material respect, with intent to defraud
the agent's principal, is liable to imprisonment for seven years.
(2) Any agent who makes a statement to the agent's
principal which is false or misleading in any material respect,
with intent to defraud the principal, is liable to imprisonment
for seven years.
Corrupt inducements for advice
249D. (1) If a person corruptly gives a benefit
to another person for giving advice to a third person, being advice
which the person giving the benefit intends will influence the
third person:
(a) to enter into a contract with the person
who gives the benefit; or
(b) to appoint the person who gives the benefit
to any office, and, at the time the benefit is given, the person
who gives the benefit intends the giving of the benefit not be
made known to the person advised, the person who gives the benefit
is liable to imprisonment for seven years.
(2) If a person corruptly receives a benefit
for giving advice to another person, being advice which is likely
to influence the other person:
(a) to enter into a contract with the person
who gave the benefit; or
(b) to appoint the person who gave the benefit
to any office, and, at the time the benefit is received, the person
who receives the benefit intends the giving of the benefit not
to be made known to the person to be advised, the person who receives
the benefit is liable to imprisonment for seven years.
(3) For the purposes of subsections (1)
and (2), where a benefit is given or received by anyone with the
consent or at the request of another person, the other person
shall be deemed to have given or received the benefit.
(4) If any person corruptly offers or solicits
a benefit for the giving of advice by one person to another:
(a) intending that the advice will influence
the person advised:
(b) intending that the giving or receipt
of the benefit not be made known to the person advised, the firstmentioned
person is liable to imprisonment for seven years.
(5) In this section:
(a) a reference to the giving of advice includes
a reference to the providing of information orally or in writing;
(b) a reference to entering into a contract
includes a reference to offering to enter into a contract; and
(c) a reference to the appointment of a person
includes a reference to:
Corrupt benefits for trustees and others
249E. (1) In this section, a reference
to a person entrusted with property is a reference to:
(a) a trustee of the property;
(b) an executor or administrator appointed
for the purpose of dealing with the property;
(c) a person who, because of a power of attorney
or a power of appointment, has authority over the property; and
(d) a person or a member of a committee managing
or administering the property (or appointed or employed to manage
or administer the property) under the Mental Health Act 1958 or
Protected Estates Act 1983.
(2) Any person who offers or gives a benefit
to a person entrusted with property, and any person entrusted
with property who receives or solicits a benefit for anyone, without
the consent:
(a) of each person beneficially entitled
to the property; or
(b) of the Supreme Court, as an inducement
or reward for the appointment of any person to be a person entrusted
with the property, are each liable to imprisonment for seven years.
(3) In this section, a reference to the
appointment of a person includes a reference to:
(a) joining in the appointment of the person;
and
(b) assisting in the appointment of the person.
(4) Proceedings for an offence under this
section shall not be commenced without the consent of the Attorney
General.
(5) A consent to commence any such proceedings
purporting to have been signed by the Attorney General is evidence
of that consent without proof of the signature of the Attorney
General.
Aiding, abetting etc
249F. (1) A person who aids, abets,
counsels, procures, solicits or incites the commission of an offence
under this Part is guilty of an offence and is liable to imprisonment
for seven years.
(2) A person who, in New South Wales, aids,
abets, counsels or procures the commission of an offence in any
place outside New South Wales, being an offence punishable under
the provisions of a law in force in that place which corresponds
to a provision of this Part, is guilty of an offence and is liable
to imprisonment for seven years.
Repayment of value of gift etc
249G. (1) If a person is convicted of
an offence under this Part, the court may (as well as imposing
a penalty for the offence) order the person to pay to such other
person as the court directs the whole or part of the amount or
the value, assessed by the court, of any benefit received or given
by the person.
(2) Any money payable to a person under
this section may be recovered in a court of competent jurisdiction
as a debt due to the person.
Disqualification for office
249H. If a person is convicted of an offence
under this Part, the person is disqualified from holding civic
office for the purposes of the Local Government Act 1993, for
the period of seven years from the conviction or such lesser period
as the court may order.
Dismissal of trivial case
249I. If, in any proceedings for an offence
under this Part, it appears to the court that the offence is of
a trivial or merely technical nature, the court may in its discretion
dismiss the case.
Custom not a defence
249J. In any proceedings for an offence
under this Part, it is not a defence that the receiving, soliciting,
giving or offering of any benefit is customary in any trade, business,
profession or calling.
Appendix B
ROYAL COMMISSIONS
ACT 1923
Division 2—Special Powers
Application of Division
15.(1) If the chairperson of a commission or
the sole commissioner is a Judge of the Supreme Court the provisions
of this Division shall have effect.
(2) The provisions of this Division shall also
have effect if:
(a) the chairperson of a commission or the sole
commissioner is a Judge of the High Court, the Supreme Court of
another State or a Territory or the Federal Court; and
(b) in the letters patent by which the commission
is issued, or in other letters patent under the Public Seal, the
Governor declares that the provisions of this Division are to
have effect in relation to this commission.
(3) The provisions of this Division shall also
have effect if:
(a) the chairperson of a commission or the sole
commissioner is a legal practitioner of at least seven years'
standing; and
(b) in the letters patent by which the commission
is issued, or in other letters patent under the Public Seal, the
Governor declares that the provisions of this Division are to
have effect in relation to the commission.
(4) In this Division:
"commissioner" means such a Judge
or legal practitioner as chairperson or sole commissioner.
Answers and documents
17.(1) A witness summoned to attend or appearing
before the commission shall not be excused from answering any
question or producing any document or other thing on the ground
that the answer or production may criminate or tend to criminate
the witness, or on the ground of privilege or on any other ground.
(2) An answer made, or document or other thing
produced by a witness to or before the commission shall not, except
as otherwise provided in this section, be admissible in evidence
against that person in any civil or criminal proceedings.
(4) This section shall not have effect unless
in the letters patent by which the commission is issued, or in
other letters patent under the Public Seal, the Governor declares
that the section shall apply to and with respect to the inquiry.
(5) A declaration under section 15 that the
provisions of this Division are to have effect is not sufficient
to apply this section unless the declaration specifically states
that this section shall apply to and with respect to the inquiry.
SPECIAL COMMISSIONS
OF INQUIRY
ACT 1983
9. Limitation as to evidence
(1) As far as practicable, a Commissioner shall,
in the course of a hearing in public, only receive evidence in
accordance with this section.
. . .
(3) The Commissioner shall only receive as evidence,
and (as far as practicable) only permit to be given in evidence,
matter that, in the opinion of the Commissioner, would be likely
to be admissible in evidence in civil proceedings.
(4) Despite subsection (3), the Commissioner
is required, when preparing a report in connection with the subject-matter
of the commission, to disregard (in the context of dealing under
section 10 with offences that may or may not have been committed)
evidence that, in the opinion of the Commissioner, would not be
likely to be admissible in evidence in relevant criminal proceedings.
(5) For the purposes of this section, in determining
whether evidence is admissible, regard is not to be had to parliamentary
privilege to the extent that that privilege is waived by or under
this Act or otherwise.
23. Answers and documents
(1) A witness summoned to attend or appearing
before a Special Commission shall not be excused from answering
any question or producing any book, document or writing on the
ground that the answer or production may criminate or tend to
criminate the witness, or on the ground of privilege or on any
other ground.
(2) An answer made, or book, document or writing
produced, by a witness to or before a Special Commission shall
not, except as otherwise provided in this section, be admissible
in evidence against that person in any civil or criminal proceedings.
PART 4A INQUIRIES
CONCERNING PARLIAMENTARY
PROCEEDINGS
33A Definitions
(1) In this Part:
parliamentary privilege means parliamentary
privilege however arising, whether by statute or otherwise.
parliamentary proceedings means any debates
or proceedings in Parliament or in a parliamentary committee,
and includes all words spoken and acts done in the course of,
or for the purposes of or incidental to, the transacting of the
business of either House of Parliament or any parliamentary committee.
relevant House means the House of Parliament
that passes a resolution under this Part and, in the case of a
resolution that is passed by each House of Parliament, each such
House.
(2) A reference in this Part to any act, matter
or thing as specified in a resolution includes a reference to
any act, matter or thing that is of a class or description as
specified in the resolution.
33B Parliamentary resolution for issue of
commission
(1) A House of Parliament may, by resolution,
authorise the Governor to issue a commission undersection 4 authorising
or requiring a person to inquire into and report to the Governor
and the House on such matter relating to parliamentary proceedings
within or before the House or one of its committees as is specified
in the resolution.
(2) Each House of Parliament may, by resolution,
authorise the Governor to issue a commission under section 4 authorising
or requiring a person to inquire into and report to the Governor
and the House on such matter relating to parliamentary proceedings
within or before a joint committee of both Houses as is specified
in the resolution.
(3) A resolution referred to in this section
applies to the parliamentary proceedings specified in the resolution.
(4) A resolution under this section authorises
but does not require the issue of a commission, as contemplated
by the resolution, under section 4 by the Governor on the recommendation
of the Minister.
(5) Without affecting the operation of any
other provision of this Part, but subject to subsection (4), a
resolution referred to in this section is effective to authorise
the issue of the commission concerned.
33C Parliamentary resolution for existing
commission
(1) A House of Parliament may, by resolution,
authorise a Special Commission, already established, to inquire
into and report to the Governor and the House on such matter relating
to parliamentary proceedings within or before the House or one
of its committees as is specified in the resolution.
(2) Each House of Parliament may, by resolution,
authorise a Special Commission, already established, to inquire
into and report to the Governor and the House on such matter relating
to parliamentary proceedings within or before a joint committee
of both Houses as is specified in the resolution.
(3) A resolution referred to in this section
applies to the parliamentary proceedings specified in the resolution.
(4) This section applies to a Special Commission,
already established, whether or not a resolution under section
33B was passed in connection with it before it was established.
33D Parliamentary resolution for waiver of
parliamentary privilege
(1) A House of Parliament that passes a
resolution under section 33B or 33C may, by the same or any later
resolution, declare that parliamentary privilege is waived in
connection with the Special Commission to such extent as is specified
in the declaration.
(2) Without affecting the operation of any
other provision of this Part, a declaration by a House of Parliament
under this section is effective to waive parliamentary privilege
to the extent specified in the resolution concerned, and neither
the Commissioner nor any other person is in contempt of Parliament
in doing anything when relying on that waiver for the purposes
of or in connection with the Special Commission.
(3) However, a declaration by a House of
Parliament under this section waiving parliamentary privilege:
(a) does not operate to waive parliamentary
privilege to the extent that it can be asserted by a member of
either House of Parliament in relation to anything said or done
by the member in parliamentary proceedings within or before a
House of Parliament or a parliamentary committee, but
(b) operates to authorise the member to give
evidence before the Special Commission if the member chooses to
do so, unless the declaration provides otherwise.
(4) Section 23(1) cannot apply to a member
in relation to parliamentary privilege, but the provisions of
section 23(2) and (3) apply to any evidence given by the member
pursuant to subsection (3)(b) whether or not section 23 applies
in relation to the Special Commission.
(5) A reference in this section to the giving
of evidence includes a reference to the giving of an answer to
a question and the production of a book, document or writing.
33E Powers of Special Commission
(1) This section applies to the extent that
a commission is issued in conformity with a resolution under section
33B or a Special Commission already established is the subject
of a resolution under section 33C.
(2) The Commissioner is required to furnish
a report on the subject-matter of the commission to the relevant
House (in addition to the Governor). The report may be furnished
to the Clerk of the House for this purpose.
(3) The Commissioner is empowered:
(a) to inquire into and report to the Governor
and the relevant House as authorised or required by the commission,
and
(b) to exercise and perform any other powers,
authorities, duties and functions under this Act in connection
with the inquiry and report, and
(c) to take any other steps that are necessary
or convenient to be taken in connection with the inquiry and report.
33F Provisions relating to resolutions
(1) A resolution of a House of Parliament
does not have effect for the purposes of this Part unless it has
been passed by at least two-thirds of the members of the House
present and voting.
(2) A resolution under this Part is not
affected by the prorogation, dissolution or expiry of either or
both of the Houses of Parliament.
(3) A resolution may be amended or revoked
by a subsequent resolution, but without affecting the validity
of anything already done.
33G Operation of Part
(1) This Part has effect despite any other
Act, any Imperial Act or any other law.
(2) This Part does not limit any power that
the Governor might have to issue a commission undersection 4 apart
from this Part.
(3) This Part does not limit any power that
a Special Commission might have apart from this Part.
(4) This Part does not limit any power of
Parliament, a House of Parliament or a member of either House
to waive parliamentary privilege apart from this Part.
(5) This Part extends to parliamentary proceedings
occuring before the commencement of this Part.
33H Expiry of Part
This Part expires at the end of the period of
six months commencing on the date on which this Part commences.
Appendix C
Citizen's Right of Reply, Resolution in
the Legislative Council
1. Any person who has been referred to in
the House by name, or in such a way as to be readily identified,
may make a submission in writing to the President, on any one
or more of the following grounds, claiming:
(a) that they have been adversely affected:
(b) that they have been injured in occupation,
trade, office or financial credit; or
(c) that their privacy has been unreasonably
invaded, and requesting that they should be able to include an
appropriate response in the parliamentary record.
2.—(1) Where a person makes a submission
to the President, the President must, as soon as practicable,
consider the submission and decide whether:
(a) to refer the submission to the Standing
Committee on Parliamentary Privileges and Ethics (referred to
as "the Committee") for inquiry and report; or
(b) it is inappropriate to be considered
by the Committee on the grounds that the subject matter of the
submission is trivial, frivolous, vexatious or offensive in character.
(2) The President must inform the person in
writing of the decision.
3. Where a submission is referred to the
Committee, the Committee may decide not to consider a submission
referred to it if, in the opinion of the Committee, the subject
matter of the submission is not sufficiently serious or is frivolous,
vexatious or offensive in character. The Committee must report
its decision to the House.
4.—(1) Where the Committee decides
to consider a submission, the Committee may confer with, but not
take evidence from any person, including:
(a) the person who made the submission; and
(b) any Member who referred to the person
in the House.
(2) In considering any submission, the Committee:
(a) must meet in private;
(b) must not consider or judge the truth
of any statements made in the House or in the submission;
(c) must not make public:
5. In reporting to the House on a submission,
the Committee may recommend:
(a) that no further action be taken by the
House or by the Committee in relation to the submission; or
(b) that a response by the person who made
the submission, in a form of words agreed to by the person and
the Committee and specified in the report of the Committee, be
published in the Minutes of the Proceedings or incorporated in
Hansard, and must not make any other recommendation.
6. Any response by a person who made a submission
and which is included in a report to the House:
(a) must be succinct and strictly relevant
to the questions in issue;
(b) must not contain anything offensive in
character;
(c) must not contain any matter where publication
would have the effect of:
7. In this resolution, person includes an
unincorporated association, a corporation and a body corporate.
8. This resolution has continuing effect
unless and until amended or rescinded by resolution of the House.
Appendix D
Citizen's Right to Reply, Sessional Order
in the Legislative Assembly
(1) That where a submission is made in writing
to the Speaker by a person who has been referred to in the Legislative
Assembly by name, or in such a way as to be readily identified:
(a) claiming that the person or corporation
has been adversely affected in reputation or in respect of dealings
or associations with others, or injured in occupation, trade,
office or financial credit, or that the person's privacy has been
unreasonably invaded, by reason of that reference to the person
or corporation; and
(b) requesting that the person be able to
incorporate an appropriate response in Hansard,
and the Speaker is satisfied:
(c) that the subject of the submission is
not so obviously trivial or the submission so frivolous, vexatious
or offensive in character as to make it inappropriate that it
be considered by the Standing Orders and Procedure Committee;
and
(d) that it is practicable for the Committee
to consider the submission under this resolution,
the Speaker shall refer the submission to that
Committee.
(2) The Committee may decide not to consider
a submission referred to it under this resolution if the Committee
considers that the subject of the submission is not sufficiently
serious or the submission is frivolous, vexatious or offensive
in character, and such a decision shall be reported to the Legislative
Assembly.
(3) If the Committee decides to consider
a submission under this resolution, the Committee may confer with
the person who made the submission and any Member who referred
in the Legislative Assembly to that person or corporation.
(4) In considering a submission under this
resolution, the Committee shall meet in private session.
(5) The Committee shall not publish a submission
referred to it under this resolution of its proceedings in relation
to such a submission, but may present minutes of its proceedings
and all or part of such a submission to the Legislative Assembly.
(6) In considering a submission under this
resolution and reporting to the Legislative Assembly the Committee
shall not consider or judge the truth of any statements made in
the Legislative Assembly or the submission.
(7) In its report to the Legislative Assembly
on a submission under this resolution, the Committee may make
either of the following recommendations:
(a) that no further action be taken by the
Committee for the Legislative Assembly in relation to the submission;
or
(b) that a response by the person who made
the submission, in terms specified in the report and agreed to
by the person or corporation and the Committee, be published by
the Legislative Assembly or incorprated in Hansard,
and shall not make any other recommendations.
(8) A document presented to the Legislative
Assembly under paragraph (5) or (7):
(a) in the case of a reponse by a person
or corporation who made a submission, shall be succinct and strictly
relevant to the questions in issue and shall not contain anything
offensive in character; and
(b) shall not contain any matter the publication
of which would have the effect of:
(9) A corporation making a submission under
this resolution is required to make it under their common seal.
Under sections 21 and 22, for the purposes of
an investigation, the ICAC may require a "public official"
to produce a statement of information or to attend and produce
documents. "Public official" as defined in section 3(1)
includes Member of Parliament and a Minister of the Crown. However
under section 25, the ICAC must set aside a requirement under
sections 21 or 22 if it appears that any person has a ground of
privilege whereby, in proceedings in a court of law, the person
might resist a like requirement and it does not appear to the
ICAC that the person consents to compliance with the requirement.
46 Parliamentary Privilege in New South Wales, 1984-85
Parliament of New South Wales Report of the Joint Select Committee
upon Parliamentary Privilege, p 17. Back
47
ibid p 20. Back
48
ibid p 18. Back
49
Gleeson CJ of the Supreme Court said in Egan v Willis (1996)
40 NSWLR 650 "It has long been established that the New South
Wales Parliament did not, as a matter of common law, inherit the
powers and privileges of the United Kingdom Parliament.";
Barton v Taylor (1886) 11 App Cas 197; Willis and Christie
v Perry (1912) 13 CLR 592; Armstrong v Budd (1969)
71 SR(NSW) 386. Back
50
For a discussion of the circumstances surrounding Part 4A, see
Enid Campbell, "Investigating the Truth of Statement Made
in Parliament. The Australian Experience", Public Law
[1998], p 125. Back
51
Parliamentary Privilege in Australia, Enid Campbell, Melbourne
Univeristy Press, 1966, p 59. Back
52
Ibid. Back
53
Kielley v Carson (1842) 4 Moo. P.C. 63 at 88. Back
54
Barton v Taylor (1886) 11 AC 197. Back
| 
