Chapter 13: Privilege and Ethics
Parliamentary privilege refers to certain rights, powers and immunities from the law provided to individual Members of Parliament in order for them to do their job and for the Parliament collectively to enable it to perform its constitutional role.
Parliamentary privilege exists fundamentally to ensure a House of Parliament can perform its functions and as such the individual privileges have only been conferred on Members to the extent necessary to achieve this end.
Parliamentary privilege may be absolute or qualified. Essentially, a statement or action is privileged if the person making it is protected from legal action. An absolute privilege is one that does not give way to any other principle or right. Qualified privilege is its own body of law which extends beyond the scope of Parliamentary privilege.
As New South Wales has not enacted its privileges recourse is made to the common law. The Parliament of New South Wales has only those privileges that are considered necessary for it to carry out its functions.
This short guide sets out some of the main principles of Parliamentary privilege. However, for more information on Parliamentary privilege reference should be made to Part Two of New South Wales Legislative Assembly Practice, Procedure and Privilege.
Protection for parliamentary proceedings
The most fundamental parliamentary privilege is the privilege of freedom of speech. The statutory recognition of this privilege is founded in Article 9 of the Bill of Rights, which is in force in New South Wales by operation of the Imperial Acts Application Act 1969. It provides protection for speeches, debates and proceedings in Parliament from being questioned in any court or other place outside of the Parliament.
There is no statutory definition of what constitutes “proceedings in Parliament” in New South Wales. However, it arguably includes the speeches and debates of the Parliament and its committees, and any documents that were created for the purpose of business of the House or a committee.
Correspondence from constituents and between Members (including Ministers) does not attract privilege and can generally be subpoenaed.
Tabled papers do not necessarily fall within the ambit of proceedings in Parliament and hence do not automatically attract parliamentary privilege. There appears to be a firmer argument if they are ordered by the House to be printed. This applies in cases where a report has been prepared pursuant to a statutory requirement and then subsequently tabled in Parliament.
- Section 3.2 of Part Two New South Wales Legislative Assembly Practice, Procedure and Privilege.
No protection for repetition out of Parliament
Members are not protected by privilege for actions performed outside of proceedings in Parliament, regardless of whether the action is conducted pursuant to the Member’s position as an elected representative.
In particular, Members should be aware that if they make a speech in the House which is defamatory in content and then repeat that statement outside the House such statements are unlikely to attract privilege. Repetition includes any reiteration or adoption of the words said in the House by the use of phrases such as “I stand by what I said in the House” or “I do not resile from what I said in the House”.
In such cases the remarks which are made outside the House may, on their own, be meaningless and it is only when reference is made to the preceding parliamentary remarks that a Member can be held liable for defamation.
Qualified privilege attaches to any republication of a speech made in Parliament so long as there is no improper motive or malice involved. To be fair, an extract or summary should properly reflect the proceeding. It is possible that an extract of a complete speech which did not include a reply that was made or was otherwise out of context might not be considered fair.
- Section 3.10 of Part Two New South Wales Legislative Assembly Practice, Procedure and Privilege.
Raising a matter of privilege or contempt
Members can raise a matter of privilege or contempt suddenly arising relating to the proceedings then before the House (S.O. 91). For other matters of privilege a Member must inform the Speaker of the details in writing. The Speaker will then determine whether the matter should be referred to the Standing Committee on Parliamentary Privilege and Ethics (S.O. 92).
Contempt of Parliament is ancillary to privilege and to constitute a contempt an act or omission must obstruct or impede the House (or a committee of the House), a Member or an officer in the discharge of a duty.
- Section 5.2 of Part Two New South Wales Legislative Assembly Practice, Procedure and Privilege.
Members are required to register their pecuniary interests, or receipt of other material benefits, which might appear to raise a conflict between a Member’s private interests and their public duty as a Member.
The declaration of interests scheme is established under the Constitution (Disclosures by Members) Regulation 1983. When Members are first elected they are required to lodge a primary return of their pecuniary and other interests within three months of the date they take the pledge of loyalty in accordance with section 12 of the Constitution Act 1902.
Members are required to lodge an annual “ordinary” return and a six-month supplementary update. The Clerk, who is the Registrar of Interests under the Regulation, can provide detailed information about the lodgement dates and reporting requirements. As Registrar the Clerk formally writes to each Member forwarding forms as return dates fall due.
Members are also able to lodge discretionary returns at any time. A Member who fails to comply with the requirements of the Regulation may lose their seat.
Pecuniary interest disclosure forms are available from the Table Office, the intranet and are normally sent to all Members after their initial election and before the two reporting periods.
The Register is one of the principal mechanisms of accountability, in that by annually making a statement of their substantive pecuniary and other interests, Members are alerted to areas where conflict of interest might arise. When the Register is tabled it becomes a Parliamentary Paper, meaning it is available to the public through the Table Office, State Library of NSW, or by request to the Clerk. It is not available on the internet. The public may inspect the Register at any time, including supplementary ordinary returns and discretionary returns lodged during the reporting period, by making an appointment with the Clerk’s Office during business or sitting hours.
- Chapter 30 New South Wales Legislative Assembly Practice, Procedure and Privilege.
Code of Conduct
The NSW Parliament has adopted a code of conduct for its Members. The Code covers conflicts of interest, bribery, gifts, the use of public resources and confidential information and the duties of a Member of Parliament.
- Chapter 7 New South Wales Legislative Assembly Practice, Procedure and Privilege.
Parliamentary Ethics Adviser
The Parliament has appointed a Parliamentary Ethics Adviser to advise Members on request about ethical issues concerning the exercise of their role as a Member of Parliament (including the use of entitlements and potential conflicts of interest).
The Adviser bases the advice given on the determinations of the Parliamentary Remuneration Tribunal and the provisions of the Code of Conduct adopted by the Parliament. The Adviser does not provide legal advice and gives an opinion rather than a ruling. It is up to Members how and whether or not they adopt the advice given.
- Section 7.3 New South Wales Legislative Assembly Practice, Procedure and Privilege.