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PARLIAMENTARY PRIVILEGE IN QUEENSLAND

PARLIAMENTARY PRIVILEGE IN QUEENSLAND. Parliamentary Privilege. The privileges of the Westminster Parliament have been described by Erskine May as:

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PARLIAMENTARY PRIVILEGE IN QUEENSLAND

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  1. PARLIAMENTARY PRIVILEGE IN QUEENSLAND

  2. Parliamentary Privilege The privileges of the Westminster Parliament have been described by Erskine May as: • ... the sum of peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.[1] [1] Erskine May, 21st edition, op cit., n 19, p. 69.

  3. Parliamentary Privilege • “Parliamentary privilege” is the collective term for the powers, rights and immunities of Parliament, its committees and members

  4. Parliamentary Privilege • Powers include: • Control own proceedings • Conduct inquiries (House or Committee) and general investigative powers (summon persons, paper and things, hold hearings etc.) • Punish for contempt (including discipline own members)

  5. Parliamentary Privilege • Rights include • Right of each member to participate in proceedings • Right to have access to parliamentary documents (tabled papers) etc.

  6. Parliamentary Privilege • Immunities include: • Freedom of speech • Freedom from arrest (virtually now defunct) • Exemption from jury service and attendance at court when House sitting • Service of process on precinct

  7. Parliamentary Privilege • Note that various rights and immunities are “collective” (possessed by the House or Committees) whilst others are “individual” (enjoyed by each member) • Depends on which right or immunity is being exercised and the circumstances of its exercise • For example, the protection afforded by Article 9 of the Bill of Rights 1688 is a privilege of the Parliament itself (see Prebble v. Television New Zealand Ltd [1995] AC 321 at 335)

  8. Waiver of privilege • Protection of Article 9, being a collective and statutory protection, cannot be waived by either an individual member or the Assembly itself. May only be displaced by legislation. • On the other hand, a member has the right to either decide to release a document prepared for the member to another person or entity or not and that must be a decision that the member alone can make

  9. Historical • In Kielly v. Carson[1] the Privy Council held that colonial legislatures were only entitled to exercise such powers and the protection of such privileges as were necessary for the existence of such a body, and the proper exercise of the functions which it is intended to exercise.[2] • [1] (1842) 1 Moo PC 63 • [2] Ibid., at 88.

  10. Historical At first the Queensland legislature opted to detail its contempt power only. The Parliamentary Privilege Act 1861 (Qld) conferred upon the Queensland Legislative Assembly a restricted power to punish summarily for certain enumerated contempts. Later, these provisions were transferred to the “consolidated” Constitution Act of 1867 (Qld). [

  11. Historical In Barnes v. Purcell,[1] Philp J acknowledged that the Queensland Parliament by legislation could vest itself with the same powers, privileges and immunities of the House of Commons.[2] It was not until 1978 that the Constitution Act of 1867 (Qld) was amended, by the insertion into the Act of s.40A, to give the Queensland Legislative Assembly the same powers, privileges and immunities of the House of Commons “for the time being”. • [1] (1946) St.R.Qd 87. • [2] Ibid., pp.108-109.

  12. Historical • The Parliamentary Privilege Act 1861 (Qld) conferred upon the Queensland Legislative Assembly a restricted power to punish summarily for certain enumerated contempts. • Later, these provisions were transferred to the “consolidated” Constitution Act of 1867 (Qld).

  13. Historical • 1978 – s.40A of the Constitution Act 1867 amended, to give Queensland Parliament, the same privileges as the House of Commons “from time to time”

  14. Current law • Section 9 of the Constitution of Queensland 2001 provides that the Legislative Assembly has the same powers, rights and immunities of the House of Commons as at 1 January 1901. • 9 Powers, rights and immunities of Legislative Assembly • (1) The powers, rights and immunities of the Legislative Assembly and its members and committees are— • (a the powers, rights and immunities defined under an Act; and • (b) until defined under an Act—the powers, rights and immunities, by custom, statute or otherwise, of the Commons House of Parliament of the United Kingdom and its members and committees at the establishment of the Commonwealth. • Note— • Date of establishment of the Commonwealth—1 January 1901. • (2) In this section— • “rights” includes privileges.

  15. Current law • Sections 8 and 9 of the Parliament of Queensland Act 2001 provide a clear reinforcement of the protection afforded parliamentary proceedings. (Article 9 immunity) • 8 Assembly proceedings can not be impeached or questioned • (1) The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly. • (2) To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection.

  16. Current law • 9 Meaning of “proceedings in the Assembly” • (1) “Proceedings in the Assembly” include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee. • (2) Without limiting subsection (1), “proceedings in the Assembly” include— • (a) giving evidence before the Assembly, a committee or an inquiry; and • (b) evidence given before the Assembly, a committee or an inquiry; and • (c) presenting or submitting a document to the Assembly, a committee or an inquiry; and • (d) a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry; and • (e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and • (f) preparing, making or publishing a document (including a report) under the authority of the Assembly or a committee; and • (g) a document (including a report) prepared, made or published under the authority of the Assembly or a committee.

  17. Current law • The Parliament of Queensland Act 2001 also provides the Legislative Assembly with an explicit statutory definition of contempt; based largely on the Commonwealth legislation. • 37 Meaning of “contempt” of the Assembly • (1) “Contempt” of the Assembly means a breach or disobedience of the powers, rights or immunities, or a contempt, of the Assembly or its members or committees. • (2) Conduct, including words, is not contempt of the Assembly unless it amounts, or is intended or likely to amount, to an improper interference with— • (a) the free exercise by the Assembly or a committee of its authority or functions; or • (b) the free performance by a member of the member’s duties as a member.

  18. Current law • Section 13B of the Acts Interpretation Act 1954 provides: • 13B Acts not to affect powers, rights or immunities of Legislative Assembly except by express provision • (1) An Act enacted after the commencement of this section affects the powers, rights or immunities of the Legislative Assembly or of its members or committees only so far as the Act expressly provides. • (2) For subsection (1), an Act affects the powers, rights or immunities mentioned in the subsection if it abolishes any of the powers, rights or immunities or is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. • (3) In this section— • “rights” includes privileges.

  19. Particular Issues – “Republication” • Jennings v Buchanan [2002] ICHRL 11 (23 May 2002) • Adopting outside the House things said inside the House • Not necessarily repeating, but adopting or referring to statement in the House

  20. Particular Issues – “Republication” • Jennings v Buchanan [2002] ICHRL 11 (23 May 2002) • Majority • Two facts in the present case are critical. Firstly, the defamatory statement is made up, in part, of a statement published in a newspaper in respect of which no claim of parliamentary privilege could be or is made. Secondly, the non-privileged statement was made after the privileged statement was made.

  21. Particular Issues – “Republication” • The important public interest which is protected by the absolute privilege of Article 9 is to ensure that Members of Parliament and Committee witnesses at the time they speak are not inhibited from stating fully and freely what they have to say (dicta of Lord Browne-Wilkinson in Prebble v Television New Zealand [1994] 3 NZLR 1 at 8 applied). In this context, the prospect of the present proceedings would not have inhibited J at the time he spoke in Parliament. It was only his unprotected later statement that enabled these proceedings to be brought. Therefore, the court is not concerned with the use of a later parliamentary statement to give content or identity to an earlier non-privileged statement which would contradict Article 9 (Peters v Cushing [1999] NZAR 241 distinguished). • The purpose of protecting freedom of debate and of speech in Parliament is not infringed by defamation proceedings being founded on a later unprivileged statement. Nor are the precise terms of Article 9 itself breached even when the defamatory statement is repeated word for word on a non-privileged occasion (Hyams v Peterson [1991] 3 NZLR 648; Beitzel v Crabb [1992] 2 VR 121 and Laurance v Katter [1996] 141 ALR 447 considered). To hold otherwise would mean that persons who have made an absolutely privileged defamatory statement in Parliament, knowing that it is in the public domain, could continue with impunity to repeat on non-privileged occasion as often as they wished that they stood by the statement. Such a course was not contemplated by 17th century parliamentarians. • Silence outside the House maintains the protection, as does any statement that merely acknowledges but does not affirm or effectively repeat the defamatory statement. Whether a later statement either affirms or effectively repeats the privileged statement is a matter of fact to be determined in the circumstances of the case. Not recoiling and retreating from something is equivalent to adopting or affirming it, being more than a mere acknowledgement. Merely by saying that he 'does not resile from' a statement, a Member has effectively repeated it.

  22. Particular Issues – “Republication” • The purpose of protecting freedom of debate and of speech in Parliament is not infringed by defamation proceedings being founded on a later unprivileged statement. Nor are the precise terms of Article 9 itself breached even when the defamatory statement is repeated word for word on a non-privileged occasion (Hyams v Peterson [1991] 3 NZLR 648; Beitzel v Crabb [1992] 2 VR 121 and Laurance v Katter [1996] 141 ALR 447 considered). To hold otherwise would mean that persons who have made an absolutely privileged defamatory statement in Parliament, knowing that it is in the public domain, could continue with impunity to repeat on non-privileged occasion as often as they wished that they stood by the statement. Such a course was not contemplated by 17th century parliamentarians. • Silence outside the House maintains the protection, as does any statement that merely acknowledges but does not affirm or effectively repeat the defamatory statement. Whether a later statement either affirms or effectively repeats the privileged statement is a matter of fact to be determined in the circumstances of the case. Not recoiling and retreating from something is equivalent to adopting or affirming it, being more than a mere acknowledgement. Merely by saying that he 'does not resile from' a statement, a Member has effectively repeated it.

  23. Particular Issues – “Republication” • The important public interest which is protected by the absolute privilege of Article 9 is to ensure that Members of Parliament and Committee witnesses at the time they speak are not inhibited from stating fully and freely what they have to say (dicta of Lord Browne-Wilkinson in Prebble v Television New Zealand [1994] 3 NZLR 1 at 8 applied). In this context, the prospect of the present proceedings would not have inhibited J at the time he spoke in Parliament. It was only his unprotected later statement that enabled these proceedings to be brought. Therefore, the court is not concerned with the use of a later parliamentary statement to give content or identity to an earlier non-privileged statement which would contradict Article 9 (Peters v Cushing [1999] NZAR 241 distinguished).

  24. Particular Issues – “Republication” • The purpose of protecting freedom of debate and of speech in Parliament is not infringed by defamation proceedings being founded on a later unprivileged statement. Nor are the precise terms of Article 9 itself breached even when the defamatory statement is repeated word for word on a non-privileged occasion (Hyams v Peterson [1991] 3 NZLR 648; Beitzel v Crabb [1992] 2 VR 121 and Laurance v Katter [1996] 141 ALR 447 considered). To hold otherwise would mean that persons who have made an absolutely privileged defamatory statement in Parliament, knowing that it is in the public domain, could continue with impunity to repeat on non-privileged occasion as often as they wished that they stood by the statement. Such a course was not contemplated by 17th century parliamentarians.

  25. Particular Issues – Use to increase damages Erglis v. Buckely and Others [2004] QCA 223 • Issue in media and Parliament about hospital resources and Ward 9D of the Royal Brisbane Hospital • Claims and counter claims over resources and risks to patients etc. • 11 Queensland Health employees sign letter critical of Ms Erglis a nurse at Ward 9D and informant as to alleged problems at Ward.

  26. Particular Issues – Use to increase damages • Letter addressed to the Minister and passed on to the Minister, but a copy of it before it was tabled spent time on a notice board at the hospital. • Minister receives letter, makes Ministerial Statement in the House and tables the letter in the House. • Erglis commences defamation action against 11 signatories and Queensland Health as their employer.

  27. Particular Issues – Use to increase damages • Supreme Court Trial Judge ruled that in determining damages regard cannot be made to ultimate wider publication of the document as a result of its being read out and tabled in the Parliament by the Minister as to do so would to be an impeachment of the proceedings of the Legislative Assembly.

  28. Particular Issues – Use to increase damages The trial judge held that the pleadings by seeking to claim the publication in the House exacerbated the damages to the plaintiff’s reputation was seeking to prove inferences that reflect upon the Ministers conduct and impeach proceedings.

  29. Particular Issues – Use to increase damages Trial judge: • “A Member must not be inhibited from speaking freely in the Assembly and taking part in proceedings in the Assembly because of the risk that such conduct may result in an increased award of damages against another”

  30. Particular Issues – Use to increase damages • On appeal, 2 to 1, the appeal was upheld. • Thus, the exacerbated damage to the plaintiff’s reputation caused by the publication in the Assembly and as a result into the wider community could be taken into account.

  31. Particular Issues – Use to increase damages • Dissenting Judge (Jerrard JA) largely took the approach of the trial judge. • Jerrard JA carefully considered the pleadings and found that what they were really doing was to impute improper motives and mala fides in the Minister’s conduct in the Assembly even though the actual action was against a third party.

  32. Particular Issues – Use to increase damages • Majority – McPherson JA stated it was clear that there was no claim against the Minister for her actions in the Assembly, but merely trying to recover more damages from the defendants for the foreseeable consequences of giving the letter to the Minister with the intention it be tabled and thus circulated widely.

  33. Particular Issues – Use to increase damages • McPherson JA considered that all the plaintiff was seeking to do was lead evidence that the letter had been read and tabled in the House as “historical fact” (and in this context referred to Buchanan v. Jennings [2002] 3 NZLR 145)

  34. Particular Issues – Use to increase damages • The other majority judge, Fryberg J did not think that there was any allegation that the Minister’s action in the House caused the damage but merely assisted them to become known to the public at large and that the defendants intended that this would happen. • He emphasised that no damages were sought in respect of the Ministers actions in the House per se, but that damages were exacerbated by the subsequent republication in the public domain.

  35. Particular Issues – Protection of Informants • Laurence v. Katter [1996] QCA 471 • Rowley v. O’Chee [2000] 1 Qd R 207 –The “chilling effect” in deterring Members and witnesses from participating in proceedings was emphasised.

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