Parliamentary Privilege and Admissibility of Evidence
| Author | Enid Campbell |
| Published date | 01 September 1999 |
| DOI | 10.22145/flr.27.3.2 |
| Date | 01 September 1999 |
| Subject Matter | Article |
PARLIAMENTARY
PRIVILEGE
AND
ADMISSIBILITY
OF
EVIDENCE
Enid
Cam
pbell*
INTRODUCTION
Courts
have
recognised
that
the
circumstances
in
which
they may
receive
and
make
use
of
evidence
of
parliamentary
proceedings
are
restricted.
The
restrictions
have
been
held
to
be
required
by Article
9
of
the
English
Bill
of
Rights
1689.
This
Article
is
part
of
the
law
of
all
the
Australian
polities
1
and it
gives
expression
to
one
of
the
most
important
privileges
of
parliaments.
Article
9
provides
That
the
freedom
of
speech and debates or
proceedings in
parliament ought not
to
be
impeached
or
questioned
in
any
court
or
place
out
of
parliament.
In
Prebble
v
New
Zealand
Television
Ltd
2
the
Judicial
Committee
of
the Privy
Council,
on
appeal
from
New
Zealand,
held
that
Article
9
does
more
than
accord
to
participants
in
parliamentary
proceedings
an
immunity
from
liability
for
statements
made
by
them
in
the course
of
those
proceedings.
It
means
also
"that
parties
to
litigation,
by
whomsoever
commenced,
cannot
bring
into
question
anything said
or
done
in
the
House
by
suggesting
(whether
by
direct evidence,
cross
examination,
inference
or
submission)
that
the
action
or
words
were
inspired
by
improper
motives
or
were
untrue
or misleading".
3
The
Judicial
Committee
also
suggested
that
s
16(3)
of
the
Parliamentary
Privileges
Act
1987
(Cth)
had
given
statutory
expression
to
this
rule,
and
that
it
"contains
the
true
principle
to
be
applied".
4
It
is
by
no
means
clear
that
s
16(3)
would
be so
regarded
by
Australia's High
Court.
This
article
is
primarily
concerned with
the
effects
of
s
16(3)
of
the
Parliamentary
Privileges
Act
1987
(Cth),
and
associated
provisions
in
the
Act,
and
with
issues
concerning
the
constitutionality
of
these
provisions.
It
examines the
constitutional
bases
for
the
enactment
of
an exclusionary
rule
of
evidence
of
the
kind
contained
in
*
Emeritus Professor
of
Law,
Monash
University.
!
Imperial
Acts
Application
Act
1969
(NSW),
s
6
and
Sched
1;
Gipps
v
McEihone
(1881)
2
LR
(NSW)
18
at
21,
24,
25;
Constitution
Act
1867
(Qld),
s
40A;
Imperial
Acts
Application
Act
1984
(Qld),
s
5;
Constitution
Act
1934 (SA),
s
38;
Tas:
R
v
Turmbull
[19581
Tas
SR
80
at
83-84;
Vic:
Constitution
Act
1975 (Vic),
s
19;
Imperial
Acts
Application
Act
1980
(Vic)
Part
II,
Divn
3;
Parliamentary
Privileges
Act
1891
(WA),
s 1.
See
also
Egan
v
Willis
(1998)
158
ALR
527.
For
the
position
in
the Territories
see
text
at
384
below.
2
[1995]
1
AC
321.
3
Ibid
at
337.
4
Ibid.
Federal
Law
Review
s
16(3).
It
considers
whether
the
power
to
enact
such
a
rule
is
constrained
by
implied
constitutional limitations
on federal legislative powers:
notably
the
principle
that
the
Parliament
cannot
interfere
with
the
exercise
by
courts
of
any
of
the
judicial powers
of
the
Commonwealth;
5
the principle
that
federal
legislative
powers cannot
be
used
to
intrude
in
a
fundamental
way
into
the workings
of
the central
institutions
of
State
government;
6
and
the implied
freedom
of
political
communication.
Attention
is
given
also
to
the question
of
whether
the
federal
Constitution
has
any
bearing
on
State
and
Territory
laws
regarding
the
admissibility
of
evidence
of
parliamentary
proceedings.
Later
parts
of
the
article
deal
with
proposals
for
modification
of
the
exclusionary
rule contained
in
s
16(3)
of
the
1987
Act;
the
modification
of
Article
9
of
the
Bill
of
Rights
1689
effected
by
s 13
of
the
Defamation
Act
1996
(UK);
and
the
fundamental
question
of
whether
an
exclusionary
rule
of
evidence
such
as
that
contained
in
s
16(3)
of
the
Parliamentary
Privileges
Act
1.987
(Cth)
is
necessary
to
safeguard
freedom
of
speech
and
debate
in
parliamentary
forums.
SECTION
16
OF
THE
PARLIAMENTARY
PRIVILEGES
ACT 1987
(CTH)
Legislative
history
The
Parliamentary
Privileges
Act
1987
was
enacted
by
the
Federal
Parliament
following
a
comprehensive
review
of
the federal
law
of
parliamentary
privilege
by
a
joint
select
con.mmittee
of
the
Senate and
the House
of
Representatives.
7
The
select
committee
acknowledged
that
Article
9
of
the
Bill
of
Rights
1689
applied
to
the
Federal
Parliament
by
virtue
of
s
49
of
the
Constitution,
the
section
which had
endowed
the
Houses
of
the
Federal
Parliament,
their members
and
committees with
the
powers,
privileges
and
immunities
of
the House
of
Commons,
its
members
and
committees,
as
of
the
date
of
the
formation
of
the
Commonwealth
of
Australia,
but
only
until
such
time
as
the
Federal
Parliament
otherwise
provided.
The select
committee
also
recognised
that
problems
had
arisen
concerning
what
could
be
regarded
as
proceedings
in
Parliament
for
the
purposes
of
Article
9
of
the
Bill
of
Rights.
It
recommended enactment
of
Federal
legislation
to clarify
the
meaning
of
that
concept
8
Its
recommendation
in
that
regard
was
implemented
in
s 16(2)
of
the
Act,
but
not
in
the precise
terms
proposed
by
the
committee.
The
committee
did
not
consider
whether
legislation
should
be
enacted
to
define
the
circumstances
in
which
courts
were
obliged
to
exclude
evidence
of
parliamentary
proceedings.
The
need
for
such
legislation was,
however,
perceived
following
rulings made
by
judges
of
the
New
South
Wales
Supreme
Court
in
1985
and
1986
during
the
trial
of
Justice Lionel
Murphy
on criminal
charges.
9
Witnesses
for
the
prosecution in
that
case
had
included
several
5 Chu Kheng
Lim
z
Minister
for
Immigration
(1992) 176
CLR
1;
Nicholas
v
The
Queen
(1998)
72
Al
JR
456.
6
Queensland Electricity
Commission
o
Commonwealth
(1985) 159
CLR
192
at
217
and
235;
Re
Tracey; Ex
parte
Ryan
(1989)
166
CLR
518;
Re
Education
Union;
Ex
parte
Victoria
(1995)
184
CLR
188
at
231;
Victoria
o
Commonwealth
(1996) 187
CLR
416.
7
Parliament
of
the
Commonwealth
of
Australia,
Joint
Select
Committee
on
Parliamentary
Privilege,
Final
Report,
(ParI
Pap
219/1984).
8
Ibid
para
5.29.
9
Cantor
J's
ruling
in
the
first
trial
of
Justice
Murphy
was
not
reported
but
is
summarised
in
Sir
C
Harders,
"Parliamentary
Privilege
-Parliament
versus
the
Courts: Cross-examination
Volume
27
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