The following is Alberta's response to the questions posed in the 23 February 1998 letter to W J David McNeil. We are pleased to be given the opportunity to provide information to the Joint Committee on the status of privilege in the province of Alberta. There are, however, a few points that should be made at the outset. With respect to some of the questions, the specific issue may not have arisen in Alberta. Where this is the case, we have attempted to allude to the absence of a specific situation. Given that our Assembly has been in session since we received the letter, we have not necessarily had the time to conduct as much research as we may have liked. However, in an effort to provide a somewhat timely response, we have attempted to be as comprehensive as time allows.

QUESTION 1:   ARE THERE ANY DIFFERENCES BETWEEN THE SCOPE OF THE PRIVILEGES OF YOUR PARLIAMENT COMPARED WITH THE NATIONAL PARLIAMENT? DOES ARTICLE 9 OF THE BILL OF RIGHTS 1689 EXPRESSLY OR IMPLICITLY APPLY TO YOUR LEGISLATURE? IS THIS INTERPRETED AS MEANING THAT A MEMBER'S IMMUNITY FROM AN ACTION FOR DEFAMATION IS ABSOLUTE IN RESPECT OF EVERYTHING SAID AND DONE IN THE PROCEEDINGS OF THE LEGISLATURE? DOES THIS EVEN EXTEND TO THE REVELATION OF OFFICIAL SECRETS IN DEBATE?

  In general, the scope of privileges in the Alberta Assembly is similar to that in the Canadian House of Commons and Senate. Of course, given Canada's federal system created by the Constitution Act, 1867, provincial assemblies are distinct and independent of the federal Parliament. Therefore, while the general scope of privileges may be the same, the rules and practices surrounding the application of privilege differ by jurisdiction.

  With respect to the application of Article 9 of the Bill of Rights, 1689, it may have been thought that it was part of the Constitution and applied to the Alberta Assembly and all assemblies in Canada until the Supreme Court of Canada's decision in New Brunswick Co v Nova Scotia (Speaker, House of Assembly) (1993) 100 D.L.R. (4th) 212 (hereinafter "Donahoe" who was the Speaker of the Nova Scotia Assembly at the time). This case represents a watershed in the recognition of parliamentary privilege as the Supreme Court held that the inherent privileges of an Assembly enjoy constitutional status and cannot be abrogated by another part of the Constitution such as the Canadian Charter of Rights and Freedoms. We will not recite the particulars of this case, which are addressed in Chapter 14 of the second edition of Joseph Maingot's Parliamentary Privilege in Canada (House of Commons and McGill-Queen's 1997), which you apparently have as indicated in your 23 February 1998 letter. In Donahoe, Justice McLachlin, writing for the majority, states at 262 that while specific articles of the Bill of Rights are not part of the Constitution, "This is not to say the principles underlying art 9 of the English Bill of Rights of 1689 do not form part of our law and inform our understanding of the appropriate relationship between the courts and legislative bodies in Canada."

  In Alberta, section 13 of the Legislative Assembly Act, SA 1983, chapter L-10.1 (as amended), expressly states that a Member is not liable to any civil action or prosecution, arrest, imprisonment or damages for anything said by him in the Assembly or any committee of the Assembly. Furthermore, under section 10(2)(k) of the Act, it is a breach of privilege or a contempt of the Assembly to take any civil action against a Member for anything said by him before the Assembly or a committee of the Assembly. Under section 10 of the Defamation Act, RSA 1980, chapter D-6, (as amended), a fair and accurate report published in a newspaper or by broadcasting of the proceedings in the Legislative Assembly of Alberta is privileged unless it is made maliciously.

  With respect to official secrets, those are generally matters of concern in the federal Parliament.

QUESTION 2:   ARE THERE ANY STATUTES OR OTHER PROVISIONS DEFINING YOUR PRIVILEGES? MAY WE SEE THEM?

  The above-noted Legislative Assembly Act is enclosed for your information.

QUESTION 3:   DO YOU HAVE EXCLUSIVE CONTROL OVER YOUR PROCEDURE (IN YOUR ABILITY TO MAKE STANDING ORDERS FOR EXAMPLE)?

  The Legislative Assembly has exclusive control over its procedure under section 8 of the Legislative Assembly Act. The only restriction would be that the procedure must conform with the Constitution and the statutes of Alberta. For instance, the Supreme Court of Canada held in R v Mercure (1988) 1 SCR 234, that among other uses, French could be spoken in the Saskatchewan Assembly. As Alberta and Saskatchewan were created from the North-West Territories and that the Saskatchewan Act, 1905 and the Alberta Act, 1905 are virtually the same, it was perceived that the ruling applied to Alberta. Accordingly, the Alberta Legislature passed the Languages Act 1988. Under section 5(1) of this Act, Members of the Assembly may use English or French in the Assembly. Section 5(3) provides that the Standing Orders, records and journals of the Assembly may be made, printed and published in English. Section 5(4) allows the Assembly to direct by resolution that the records of the Assembly be printed or published in English or French or both.

QUESTION 4:   DO YOU HAVE EXCLUSIVE CONTROL OVER THE BUILDINGS IN WHICH THE LEGISLATURE MEETS AND OVER ITS STAFFING AND ADMINISTRATION?

  The Assembly does not have exclusive control over the building in which the Legislature meets. The Assembly has control only over the Legislature Chamber and environs and the offices in which the staff of the Assembly are housed within the Legislature Building. The Government, through the department of Public Works, Supply and Services, allocates the balance of the space within the building to Ministers and their staff. Common services such as caretaking, utilities, etc. are managed by the Department of Public Works, Supply and Services.

  The Assembly has exclusive control over its staffing and administration including separate financial and human resource management systems.

QUESTION 5:   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?

  The issue of the application of general law (eg employment statutes) to the parliamentary precincts is one that has not been litigated in Alberta. Certainly, the general rule may be that a statute must specifically refer to the Legislative Assembly Office (LAO), which is the legal entity created under section 19 of the Legislative Assembly Act as the administrative arm of the Assembly, in order for the LAO to be covered. In Alberta, for instance, the Employment Standards Code applies to all employers in the province, including the Crown. As such, it may be assumed that it applies to the LAO. The LAO is the entity which enters into employment contracts with all employees of caucuses and the Members' constituency offices. However, a recent decision from Ontario in Soth v Speaker of the Ontario Assembly (1997) 32 OR (3d) 440 (Div Crt) represents the most recent treatment of the issue and refers to the most relevant case law in the area. This decision is attached for your reference.

QUESTION 6:   CAN YOU PUNISH A MEMBER OF THE PUBLIC FOR A "CONTEMPT OF PARLIAMENT" IS THERE ANY APPEAL TO A COURT?

  In theory, a member of the public can be held to be in contempt of the Assembly. In this regard, please see sections 10, 11 and 12 of the Legislative Assembly Act. This almost occurred in 1996 when a lawyer wrote a letter to the Leader of the Opposition threatening him with legal action if he asked certain questions in the House (Rulings enclosed).

QUESTION 7:   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?

  Once again, please see section 10 of the Legislative Assembly Act.

QUESTION 8:   ARE THERE ANY CIRCUMSTANCES (EG WHERE A PARLIAMENTARY COMMITTEE'S RESPSONSIBILITIES RELATE TO THE ADMINISTRATIVE MANAGEMENT OF THE HOUSE OR THE LETTING OF CONTRACTS) WHERE THE PROCEEDINGS OF SUCH A COMMITTEE CAN BE CONSIDERED BY A COURT (EG IN A DISPUTE OVER A CONTRACT)?

  This is a most interesting question. If the parenthesis were removed and the question was whether a Court could consider the proceedings of a committee of the Assembly, the answer would be a qualified "yes". While it may be abhorrent to parliamentarians, courts in Canada have, over the years, relaxed the exclusionary rule about admitting Hansard as evidence. It was not until 1978 that the Supreme Court affirmed the admission of extrinsic materials in Reference re Anti-Inflation Act, 1975. The admission was, at the time, limited to constitutional cases. The gates were opened somewhat wider by the late Justice Sopinka's judgment in R v Morgentaler [1993] 3 SCR 463, wherein he cast doubt on the former exclusionary rule about evidence of legislative history. He indicated that as long as courts are mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and purpose of the legislation. While technically still applicable only to constitutional cases, it is likely fair to say that Hansard evidence is being used in non-constitutional cases in the interests of the "purposive approach" to statutory interpretation. Certainly there has not been a case considering whether the admission of such Hansard evidence violates Article 9 of the Bill of Rights, 1689. In other words, to our knowledge, there is no case in Alberta or Canada comparable to Pepper v Hart.

  With the parenthesis, the question seems to be whether the proceedings of a committee could be considered by a court if the proceedings dealt with an employment contract or presumably a dismissal pursuant to an employment contract. In Alberta, this would seem to be an open question as there is not a decision directly on point or even vaguely on point. Generally speaking, most employment matters are the responsibility of the LAO. Committees of the Assembly are not, generally speaking, involved in the vast majority of employment matters.

QUESTION 9:   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 relating to bribery of a member of the legislature?

—  who authorises prosecution?

—  are there circumstances where the Court can hear and examine evidence on what a member of the legislature has said and done in the course of proceedings?

—  are there circumstances where a tribunal (or a Royal Commission) may do so either in circumstances where corruption is alleged, or in any other circumstances?

  Offering a bribe to a member of a provincial legislature or the acceptance of a bribe (any money, valuable consideration, office, place of employment for himself or another person in respect of anything done or omitted to be done or omitted by him is his official capacity) by a Member, is a criminal offence under section 119 of the Criminal Code RSC 1985, c C-46. In Arseneau v The Queen [1979] 2 SCR 136, it was held that the "official capacity" of a member extended to the actions of a Minister so that the section applied to Ministers.

  As in most criminal matters, the prosecution of the offence would be a matter for the provincial Attorney General. While the federal Parliament makes the criminal law in Canada (section 91(27) Constitution Act, 1867) it is the provinces which are responsible for the administration of justice (section 92(14)) and which are expressly authorised to conduct prosecutions by the Criminal Code. There is no Director of Public Prosecutions in Alberta.

  Section 10(1)(c) of the Legislative Assembly Act makes it a breach of privilege or a contempt of the Assembly for the offer to or acceptance by a Member of a bribe "to influence him in his conduct as a Member" or of a fee or reward in respect of "drafting, advising on, revising, promoting, or opposing any bill, resolution, petition or other matter submitted or intended to be submitted to the Assembly or a committee of the Assembly."

  We are not aware of a case of bribery of a Member being the basis of a question of privilege in Alberta so there is no factual situation on which to base an answer to your final two points in this question.

QUESTION 10:   IS THERE ANY PROCEDURE FOR "WAIVING PRIVILEGE" WHEN A MEMBER OF THE LEGISLATURE IS CHARGED WITH AN OFFENCE RELATING TO HIS OR HER PARLIAMENTARY DUTIES?

  While this is a most interesting question, we must advise that there is no express procedure for a Member waiving his or her privileges with respect to an offence relating to his or her parliamentary duties. This is not to say it could not be done but rather that the situation has not arisen to our knowledge.

QUESTION 11:   TO WHAT EXTENT DOES PRIVILEGE PROVIDE FOR IMMUNITY FROM ARREST OR FROM ATTENDANCE, AS A WITNESS, OR AS A DEFENDANT IN A CIVIL SUIT, BEFORE A COURT? ARE ANY SUCH IMMUNITIES CONFIRMED IN STATUTE? DOES ANY IMMUNITY EXTEND TO ATTENDANCE BEFORE TRIBUNALS (OR ROYAL COMMISSIONS?) WHAT LIMITATIONS ARE PLACED ON ANY IMMUNITY? CAN A MEMBER OF THE LEGISLATURE BE SERVED WITH A SUBPOENA WHICH REQUIRES HIM OR HER TO APPEAR IN COURT ON A DAY WHEN THE LEGISLATURE IS SITTING? IS ANY RIGHT OF IMMUNITY EXERCISED BY THE MEMBER WITHOUT REFERENCE TO THE HOUSE OR ITS PRESIDING OFFICER, OR IS AUTHORISATION REQUIRED?

  In Alberta, parliamentary privilege includes immunity for Members from arrest and attendance in a civil proceeding. This privilege is, to a certain degree, outlined in section 10(2) of the Legislative Assembly Act (attached, in particular refer to clauses (k) and (l)).

  Although the legislation does not expressly outline the duration of this immunity, it is considered to apply for the period of 40 days before and after a session and 40 days after dissolution of a Legislature. The authority for this principle stems from the privileges of Members of the United Kingdom House of Commons which are deemed to apply to the Members of the Alberta Legislative Assembly. This is codified in section 9(1) of the Legislative Assembly Act.

  Members do not require authorization from the House, or its Presiding Officer, to exercise the right of immunity.

QUESTION 12:   CAN A MEMBER OF THE LEGISLATURE BE SERVED WITH A SUBPOENA IN THE PRECINCTS OF PARLIAMENT ON A SITTING DAY? ON A NON-SITTING DAY? OR WOULD SUCH SERVICE BE REGARDED AS A CONTEMPT?

  We have attached a copy of the Legislative Assembly of Alberta's policy with respect to the service of documents at the Legislature Building and its precincts.

  Generally speaking, legal documents relating to civil matters cannot be served on a Member of the Alberta Legislative Assembly within the Legislature Building or its precincts unless the permission of the Speaker or the House is first obtained. If the documents pertain to an action involving a Member of Executive Council in his or her capacity as a Minister of the Crown, the document server is directed to the Department of Justice, which is the appropriate manner to effect service for an action involving the Crown in right of Alberta under section 13 of the Proceedings Against the Crown Act, RSA 1980, c P-18 (attached).

  In 1987, a matter of privilege arose in the Alberta Legislative Assembly relating to documents which were served by a Member on two Cabinet Ministers when the Assembly was in session. The action alleged that lottery money held by the Western Canada Lottery Corporation for the account of the Government of Alberta was public money within the meaning of the Financial Administration Act and that the Treasurer and the Minister of Career Development and Employment were acting contrary to the law by failing to place these monies in the General Revenue Fund. Both Ministers argued that the service of these documents constituted a breach of their privileges as Members. Speaker Carter ruled that this was a prima facie case of privilege. A motion was subsequently moved by one of the Cabinet Ministers which, if passed, would require the Member who had initiated the action to apologize in the Assembly at the earliest possible opportunity. An amendment to this motion was moved which would have provided that the Assembly refer the matter to the Standing Committee on Privileges and Elections, Standing Orders and Printing. The amendment to the motion was defeated by the Assembly and the original motion was passed. The Member subsequently apologized to the Ministers and the Assembly.

  To our knowledge, the matter of privilege has not arisen with respect to the service of documents on Members when the Assembly is not sitting.

QUESTION 13:   CAN THE LEGISLATURE SUSPEND OR EXPEL ONE OF ITS MEMBERS?

Disqualification of Members

  Sections 25-35 of the Legislative Assembly Act address the grounds for disqualification of Members and the procedures which must be followed. There are three grounds for disqualification from membership of the Alberta Assembly which are expressly provided in the legislation:

1.  a Member ceases to be a Canadian citizen;

2.  a Member fails to comply with the Election Finances and Contributions Disclosure Act, the Speaker has laid a report before the Assembly to that effect, the financial statement has not been filed with the Chief Electoral Officer and the court has not dispensed with compliance;

3.  a Member becomes a member of the Senate or the House of Commons of Canada.

  Disqualification on the basis of citizenship does not occur until a court makes a finding to that effect (section 32(1)). Disqualfication on the remaining grounds does not occur until a court makes a finding to that effect and the Member has been declared disqualified by the Assembly pursuant to the procedures outlined in section 35. The procedure in section 35 can be summarized as follows:

—  The Speaker lays a copy of the court's judgment before the Assembly at the earliest opportunity.

—  If the judgment includes a finding of disqualification, then the judgment stands referred to the Standing Committee on Privileges and Elections, Standing Orders and Printing for its review and report.

—  After the Standing Committee has tabled its report, the Assembly may do any of the following:

1.  declare the Member disqualified,


2.  if the Assembly determines that disqualification is not warranted but the Member is deserving of punishment, by order suspend the Member's right to sit and vote in the Assembly for a stated period or until the fulfilment of a condition in the order, or


3.  declare that the Member is not disqualified if the Assembly finds that the allegations are not proven or that disqualfication is not warranted under the circumstances.

  In 1920, there was an attempt in the Alberta Legislative Assembly to move adjournment of the ordinary business of the House to debate whether a Member should be disqualified to sit as a Member for the reason that he was not a resident of the Province of Alberta. The Speaker ruled that this was not a matter on which he should be called upon to give a decision and stated that it is the duty of the Speaker to recognize every Member who has been gazetted as a Member of the House and who has taken the oath of office, unless otherwise instructed by the House.

  To date, this is the only record of the matter of disqualification of a Member being raised in the Assembly.

Supreme Court of Canada decision—Harvey

  The 1996 Supreme Court of Canada decision in the case of Harvey v. New Brunswick (Attorney General) addressed the issue of disqualification of a Member in connection with his conviction of a corrupt or illegal practice under New Brunswick's Election Act. The Election Act provided that on conviction the Member would be disqualified from voting, holding government office, standing for election for five years or continuing to sit in the Legislative Assembly. This legislation was challenged on a number of grounds as violating the Charter of Rights, most notably section 3 which guarantees the right to vote and to run for election to the House of Commons or a Legislative Assembly. The Supreme Court of Canada upheld the impugned provision in the Election Act. The Court was, however, divided in its reasoning. The majority decision based its reasoning on applying the Charter of Rights to the impugned provision in the Election Act. Madam Justice McLachlin, writing for herself and Madam Justice L'Heureux-Dube, based her decision on parliamentary privilege. She held that the legislative provisions in dispute were extensions of parliamentary privilege and the courts were not to intervene as privilege is constitutionally protected and one part of the Constitution, ie the Charter of Rights, cannot "trump" another part. The majority decision refused to consider the issue of parliamentary privilege as it was raised by an intervenor in the case and not by an actual party to the action. Chief Justice Lamer stated in the majority decision on the issue of parliamentary privilege, "However, I will leave it to another day when the issue is properly before this Court."

Punishment—Breach of privilege or contempt

  If a Member is found by the Assembly to have committed a breach of privilege or a contempt of the Assembly, the Member's right to sit and vote in the Assembly can be suspended for a stated period or until the fulfilment of a condition in an order of the Assembly (section 11(1)(c) of the Legislative Assembly Act).

Naming by the Speaker

  There have been several occurrences in the Alberta Legislative Assembly where the Speaker has named a Member and requested that the Member withdraw from the House.

Suspension of a Member

  There has been one occurrence where the Assembly has approved a motion suspending a Member. The situation arose in 1952 when a Member made derogatory comments about a civil servant during Committee of Supply. The Assembly unanimously approved a motion that the Member be suspended for two sitting days and until the Member advised that he was prepared to withdraw his derogatory comments and apologize to the Assembly.

Punishment—Breach of Conflicts of Interest Act

  In Alberta, Members are subject to the Conflicts of Interest Act. Alleged breaches of this legislation are investigated by an officer of the Legislature, The Ethics Commissioner. The Ethics Commissioner, upon investigating an alleged breach, prepares a report which outlines his findings. This report is forwarded to the Speaker who must table it in the Assembly. Section 26 of the Conflicts of Interest Act provides that the Legislative Assembly shall deal with a report of the Ethics Commissioner within 60 days after the tabling of the report or such other period determined by resolution of the Assembly. In his report, the Ethics Commissioner may recommend any one of the following sanctions:

—  that the Member be reprimanded;

—  that a penalty be imposed on the Member in an amount recommended by the Ethics Commissioner;

—  that the Member's right to sit and vote in the Legislative Assembly be suspended for a stated period or until the fulfilment of a condition;

—  that the Member be expelled from membership of the Assembly.

  Section 27 of the Conflicts of Interest Act expressly provides that the Assembly may accept or reject the findings of the Ethics Commissioner or substitute its own findings. If the Assembly determines that there is a breach, the Assembly may do any of the following:

—  impose the sanction recommended by the Ethics Commissioner;

—  impose a different sanction; or

—  impose no sanction.

  We attach the relevant provisions of the Conflicts of Interest Act.

QUESTION 14:   HAS THE LEGISLATURE THE POWER TO FINE? HAS IT EVER USED THE POWER?

  The Assembly has the power to fine but, to the best of our knowledge, has never used that power.

  This power is, to a certain degree, outlined in legislation. Section 11(1) of the Legislative Assembly Act provides that a person who is found by the Assembly to have committed a breach of privilege or contempt may be liable to a penalty in an amount determined by order of the Assembly. Section 12 of the same Act also provides that the Assembly is a court for the purpose of exercising its powers and jurisdiction. The Assembly's power to fine is also referenced in the Conflicts of Interest Act.

  To our knowledge there has been one occurrence where the Assembly exercised its role as a court. In 1938, the Assembly ordered the arrest of an Edmonton Journal reporter because he had published statements which were allegedly lies and misrepresentations concerning Members. The reporter was ordered to appear before the bar of the House. He was found guilty and sentenced to jail; however, the reporter did not serve any time in prison because the House reversed its decision prior to the sentence being carried out.

QUESTION 15:   DO YOU HAVE PROVISION FOR CITIZEN'S RIGHT OF REPLY TO WHAT IS SAID IN PARLIAMENT? IF SO HOW IS IT IMPLEMENTED?

  No, there is no right of reply for citizens with respect to what is said in Alberta Legislative Assembly.

QUESTIONS 16 AND 17:   DO YOU HAVE PROVISIONS IN STANDING ORDERS OR ELSEWHERE FOR THE PROTECTION OF WITNESSES WHO APPEAR BEFORE PARLIAMENTARY COMMITTEES? ARE SUCH WITNESSES PROTECTED AGAINST INTIMIDATION IN RESPECT OF THEIR EVIDENCE BY STATUTE? OR IS THIS TREATED AS A CONTEMPT OF THE LEGISLATURE AND PUNISHED BY IT?

  Section 10(2)(e) of the Legislative Assembly Act expressly provides that "tampering with a witness with regard to evidence given or to be given by him before the Assembly or a committee of the Assembly" constitutes a breach of privilege or contempt of the Assembly.

  To the best of our knowledge, this matter has never arisen in our jurisdiction.

QUESTION 18:   IS PERJURY BEFORE THE LEGISLATURE OR A COMMITTEE OF THE LEGISLATURE PUNISHED BY THE COURTS, OR IS IT PUNISHED BY THE LEGISLATURE AS A CONTEMPT?

  Section 10(2)(f) of the Legislative Assembly Act provides that "giving false evidence or prevaricating or misbehaving in giving evidence or refusing to give evidence or to produce papers before the Assembly or a committee of the Assembly" constitutes a breach of privilege or contempt of the Assembly.

  To the best of our knowledge, this matter has never arisen in our jurisdiction.

QUESTION 19:   IS THERE STATUTORY PROVISION TO GIVE ABSOLUTE PRIVILEGE TO PAPERS PUBLISHED UNDER THE AUTHORITY OF THE LEGISLATURE?

  Standing Order 107 states that there shall be a printed record of the deliberations and proceedings of the Assembly to be known as Hansard which shall be printed and distributed under the direction and authority of the Speaker (attached). There is no statutory provision which gives absolute privilege to papers published under the authority of the Alberta Legislative Assembly apart from the United Kingdom's legislation, Parliamentary Papers Act, 1840, which is, arguably, the law of Alberta on the basis that it was "received" in 1870 when the federal Parliament created the North-West Territories (from which originated the province of Alberta) and continued in force the laws in existence at that time.

QUESTION 20:   DO YOU HAVE A "FREEDOM OF INFORMATION ACT"? DOES IT APPLY TO THE LEGISLATURE IN ANY RESPECT?

  In Alberta, there is freedom of information legislation titled the Freedom of Information and Protection of Privacy Act. Under this Act, the "Legislative Assembly Office" is included in the definition of "public body" and is, therefore, subject to the Act. However, the definition of "public body" expressly excludes the office of the Speaker and the office of a Member. Section 4 of the Act states that the following records are excluded from the legislation:

—  a record that is created by or for the office of the Speaker or the office of a Member that is in the custody or control of the Legislative Assembly Office;

—  a record that is created by or for a Member or a member of Executive Council that has been sent or is to be sent to a Member or a member of Executive Council;

—  a personal record or a constituency record of a member of the Executive Council.

  The Act recognises parliamentary privilege and provides that the head of the public body, who is the Speaker in the case of the Legislative Assembly Office, may refuse to disclose information that is subject to parliamentary privilege (section 26). The Act also expressly states that it is the Speaker who determines whether information is subject to parliamentary privilege and the Speaker's decision cannot be reviewed (sections 26 and 62).

  In 1997, the Legislative Assembly Office received an access to information request for a Member's expense records. This request was refused on the basis that these are records outside the scope of the freedom of information legislation. The refusal to provide records was the subject matter of an appeal to the Freedom of Information and Protection of Privacy Commissioner. In January, 1998, the Commissioner released his decision which was in agreement with the submissions of the Legislative Assembly Office that these were records to which the Act did not apply.

  We have attached the relevant provisions of the Freedom of Information and Protection of Privacy Act and a copy of the Freedom of Information and Protection of Privacy Commissioner's January, 1998 decision.

20 April 1998