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Parliamentary privilege: first principles and recent applications

Parliamentary privilege: first principles and recent applications

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 1/2009 by G. Griffith

This paper is in two parts. The first starts by defining the subject, before looking at parliamentary privilege in the context of a wider constitutional setting, in relation to its underlying purpose, by reference to such doctrines as the separation of powers and the relationship between the courts and Parliament.

Parliamentary privilege concerns the powers, privileges and immunities from aspects of the general law conferred on the Houses of Parliament, their members, officers and committees. [2]

The justification for parliamentary privilege is that the freedom to control their own proceedings and the freedom of speech in Parliament are necessary if the Houses of Parliament are to perform their constitutional functions effectively - that is, to inquire, debate and legislate. [2.5]

Based on the 1999 First Report of the UK Joint Committee on Parliamentary Privilege, the test that applies to parliamentary privilege is whether any particular power or privilege is necessary today, in its present form, for the effective functioning of a House of Parliament? [2.4]

In Australia the law of parliamentary privilege varies across jurisdictions. To take three examples: at the Commonwealth level it is codified under the Parliamentary Privileges Act 1987; in Victoria it is defined by statute under s 19(1) of the Constitution Act 1975 by reference to the privileges of the House of Commons as at 1855; in New South Wales, Article 9 of the Bill of Rights of 1689 applies further to s 6 of the Imperial Laws Applications Act 1969, but otherwise the privileges of its Houses are largely on a common law basis, to be implied by reasonable necessity. [2.2]

This makes for an area of law that constitutes an interesting combination of statutory law, the conferral of privilege on an inherent basis, and by the law and custom of Parliament as this developed in the United Kingdom, as part of the common law yet not made by the common law courts.

Historically, in 17th century England, parliamentary privilege was political, not legal, in origin, forged in the conflict between Parliament, the Executive and the courts. Parliamentary privilege can be located within what has been called the ‘rough’ doctrine of the separation of powers that operates in Westminster parliamentary systems. The fundamental rights of the House of Commons were asserted against the prerogatives of the Crown and the authority of the courts. The assertion of privilege was a declaration of its independence from the other branches of government. [2.6]

The historical relationship between the courts and Parliament is set out in May’s Parliamentary Practice, where the landmark 19th century cases are explained, notably Stockdale v Hansard (1839) and Bradlaugh v Gossett (1884). From these cases it emerged that the Houses of Commons had exclusive jurisdiction over its own internal proceedings. At the same time it was held that, whenever a claim of privilege arose in determining the rights and liabilities of individual subjects, the courts had no option but to determine the correctness of a claim of privilege. In effect, the courts claimed they had the jurisdiction to declare what were the powers, privileges and immunities of the House of Commons. Parliamentary privilege was therefore part of the general law of the land and it was for the courts to apply and interpret the law. [3]

In this last context it is argued that conflict has emerged between two different lines of thought; one based on the administration of justice and the rights of citizens to have their cases heard before the courts, with all available evidence before the courts; the other based on the exclusive rights of Parliament which operate as an exception to the general law. Put another way, the tension is between the administration of justice, on one side, and the powers and immunities of Parliament, on the other. [3.1]

Prebble v TV New Zealand [1995] 1 AC 321 is considered. There Lord Browne-Wilkinson for the Privy Council said the case illustrated ‘how public policy, or human rights, issues can conflict’. Three issues were in play: (i) the need to ensure that the legislature can exercise its powers freely on behalf of its electors; (ii) the need to protect freedom of speech generally; and (iii) the interests of justice in ensuring that all the relevant evidence is available to the courts. It was declared: ‘Their Lordships are of the view that the law has been long settled that, of these public interests, the first must prevail…’. [3.2]

That would seem to be clear enough – a bright exclusionary line was apparently drawn where admissibility questions were raised. But note in this respect that two caveats were added to the exclusionary rule in Prebble, leaving the door ajar for a judicially creative approach, which might redefine the relationship between the administration of justice and the exclusionary rule. [3.2]

The ‘historical exception doctrine’ is discussed in this context, an exception which some argue is becoming the ‘rule’ in those cases where freedom of speech in Parliament is at issue. [3.3]

The second part of the paper looks at outcomes - how the courts have dealt with parliamentary privilege in selected recent cases, including:

    Toussaint v Attorney General of St Vincent and the Grenadines [2007] 1 WLR 2825
    Mees v Roads Corporation (2003) 128 FCR 418
    Buchanan v Jennings [2005] 1 AC 115
    Erglis v Buckley [2004] 2 Qd R 599
    Canada (House of Commons) v Vaid [2005] SCR 667 and
    President of the Legislative Council (SA) v Kosmas [2008] SAIRC 41

In the concluding comments it is said that case law is rarely compact or tidy, a process of reasoning all pointing in the one direction. Nonetheless, at least in relation to certain categories of cases - freedom of speech in Parliament and the use of ministerial statements in Parliament - there is something akin to a pattern emerging, away from the exclusionary rule and towards the administration of justice.

The controversial decision of the Privy Council in Buchanan v Jennings is a case in point. [4.4] So, too, is decision of the Queensland Court of Appeal in Erglis v Buckley. This last case is an instance of where the courts by piecemeal, case by case means arrive at conclusions which strike at the raison d’etre behind parliamentary privilege. [4.5]

In relation to the freedom of speech immunity, Bernard Wright has suggested that Parliament may be ‘asked to amend the law to accommodate what can be called the “administration of justice” interest’. He also quotes Professor Lindell as suggestion that ‘this area of the law should be absorbed as part of the wider law of public interest immunity’. Whether a root and branch change of this kind occurs remains to be seen. Do the courts really need assistance from Parliament in this respect? It may be that in Toussaint, where the use of ministerial statements in Parliament was at issue, first steps have already been taken in the direction of some kind of public interest test. [5]

The Canadian case of Vaid is a different category of privilege case, one concerning the exclusive cognisance or jurisdiction of Parliament over its own ‘internal affairs’ - or more specifically the exclusive jurisdiction over ‘the management of employees’. The case involved the Speaker’s chauffeur who claimed he had been constructively dismissed, contrary to the Canadian Human Right Act. [4.6]

The South Australian case of Kosmas is another exclusive cognisance case. There the question of paying overtime to a Committee officer was treated as ‘internal’ to Parliament, and one to which the rule of non-intervention by the courts applied. Whether it was correctly decided is a matter for debate. At the very least it indicates that there is life yet in the exclusive cognisance doctrine, as formulated by reference to Parliament’s constitutional role. [4.8]