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Published online by Cambridge University Press: 24 January 2025
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 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 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”.
1 Imperial Acts Application Act 1969 (NSW), s 6 and Sched 1; Gipps v McElhone (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 Turnbull [1958] 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.
5 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1;Nicholas v The Queen (1998) 72 ALJR456.
6 Queensland Electricity Commission v 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 v Commonwealth (1996) 187 CLR 416.
7 Parliament of the Commonwealth of Australia, Joint Select Committee on Parliamentary Privilege, Final Report, (Par! 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 Harders, C, “Parliamentary Privilege–Parliament versus the Courts: Cross-examination of Committee Witnesses” (1993) 67 ALJ 109 at 125-126Google Scholar. For Hunt J's ruling see R v Murphy (1986) 5 NSWLR 18
10 Senate Deb 7 Oct 1986 at 892, 894-895; H Reps Deb 19 April 1987 at 1154-1156. See also A R Browning (ed),House of Representatives Practice (2nd ed 1989) 694-697; H Evans (ed), Odgers’ Australian Senate Practice (8th ed 1997) 32-43; Sir C Harders, ibid.
11 Section 3(1) defines the term tribunal to mean “any person or body (other than a House, a committee or a court) having power to examine witnesses on oath, including a Royal Commission or other commission of inquiry of the Commonwealth or of a State or Territory having that power”.
12 There have been differences of opinion about what can be regarded as proceedings in parliament: see Griffith, G, Parliamentary Privilege: Use, Misuse and Proposals for ReformGoogle Scholar (NSW Parliamentary Library Research Service, Briefing Paper No 4/97) 28-32, 33-34. The meaning of s 16(2) of the Parliamentary Privileges Act 1987 (Cth) was considered by the Queensland Court of Appeal in O'Chee v Rowley (1997) 150 ALR 199.
13 Hamsher v Swfft (1992) 33 FCR 545 at 564 per French J.
14 (1988) 81 ALR 710.
15 Ibid at 717-718. Beaumont J's views are in line with judicial interpretations of Article 9 of the Bill of Rights 1689: see R v Turnbull [1958] Tas SR 80 at 84; Sankey u Whitlam (1978) 142 CLR l at 35-37; Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435 at 438-439; Uren v John Fairfax and Sons Ltd [1979] 2 NSWLR 287 at 289; Mundey v Askin [1982] 2 NSWLR 374 at 375; NSW Branch of Australian Medical Association v Minister of Health and Community Services (1992) 26 NSWLR Tl6; Prebble v New Zealand Teleuision Ltd [“1995] 1 AC 321 at 337.
16 Tranton v Aston (1917) 33 TLR 383; Forbes v Samuel [1913] 3 KB 706.
17 Wason v Walter (1868) LR 4 QB 73; Cook v Alexander [1973] 3 All ER 1037.
18 (1975) 134 CLR 81.
19 Church of Scientology of California v Johnson-Smith [1972] 1 QB 522.
20 Laurance v Katter (1996) Hl ALR 447 was such a case. See also Beitzel I' Crabbe' [1992] 2 VR 121.
21 Cushing v Peters (District Court, Wellington, 3 July 1996, unreported) was a case of this kind. The case is discussed in P Joseph, “Parliamentary Privilege: Cushing v Peters” [1996] NZ Law Rev 287 and Joseph, P A, “Constitutional Law” [1998] NZ Law Rev 197 at 214-219Google Scholar. The New Zealand High Court's decision on appeal in Peters v Cushing, delivered on 14 Nov 1997, has not to date been reported.
22 This type of case is exemplified by Wright and Aduertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 and Prebble New Zealand Teleuision Ltd [1995] 1 AC 321.
23 Cases in this category include R v Turnbull [1958] Tas SR 80 and R v Jackson (1987) 8 NSWLR H6. See also United States v Brewster, 408 US 501 (1972); United States v Johnson, 383 us169 (1988).
24 R v Murphy (1986) 5 NSWLR 18 was such a case. See also R v Wainscot [1899] 1 WALR 77.
25 Cases in this category include R v Secretary of State for Trade; Ex parte Anderson Strathclyde [1983] 2 All ER 233; Amman Aviation Pty Ltd v Commonwealth (1988) 81 ALR 710 and Hamsher v Swift (1992) 33 FCR 545. Cf HA Bachrach Pty Ltd v Queensland (1998) 156 ALR 563 at paras [10] and [12].
26 Section 4 defines essential elements of offences which may be tried and penalised by the Houses. Section 6 removes from the Houses their former power to punish “libels” on Parliament.
27 The words are those of Brennan C J in Nicholas v The Queen (1998) 72 ALJR 456 at para [23].
28 (1996) 141 ALR 447.
29 Ibid at 481.
30 Ibid.
31 Ibid at 483.
32 Ibid at 489.
33 [1995] 1 AC 321.
34 Ibid at 338.
35 Ibid.
36 Ibid.
37 (1996) 141 ALR 447.
38 26 June 1997, transcript at p 5. The appeal to the High Court was subsequently discontinued.
39 (1996) 141 ALR447 at 486.
40 Ibid.
41 Ibid at 483.
42 Ibid at 485. See also Chesterman, M, “Privileges and Freedoms for Defamatory Political Speech” (1997) 19 Adel LR 155 at 187-188, 191-193Google Scholar.
43 Ibid at 490.
44 Ibid at 491.
45 Ibid at 490-491.
46 Ibid at 478-481. See also Amann Aviation Pty Ltd v Commonwealth (1988) 81 ALR 710 at 718.
47 (1839) 9 A & E 1; 112 ER 1112. See also Doe v McMillan, 4"12 US 306 (1973).
48 (1955) 92 CLR 157.
49 Ibid at 167-169.
50 Section 8.
51 Section 6.
52 Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225;Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727. See also Egan v Willis (1996) 40 NSWLR 650.
53 [1995]1 AC 321.
54 Ibid at 333.
55 (1996) 141 ALR447.
56 Ibid at 481.
57 Ibid at 484.
58 Ibid at 485.
59 Ibid at 486.
60 Ibid at 479.
61 (1955) 92 CLR 157.
62 Leask v Commonwealth (1996) 187 CLR 579.
63 (1996) 141 ALR 447.
64 Ibid at 479. See Re Tracey; Ex parte Ryan (1989) 166 CLR 518.
65 (1996) 141 ALR 447 at 479.
66 (1997) 189 CLR 520.
67 Ibid at 561.
68 Ibid at 561-562.
69 1996) 141 ALR 447 at 488-491.
70 (1997) 150 ALR 199.
71 See text at n 39 above.
72 Victoria v Commonwealth (1996) 187 CLR 416 at So-1-503.
73 (1996) 141 ALR 447 at 482.
74 Ibid.
75 Ibid at 486.
76 Ibid.
77 (1992) 177 CLR 1 at 6'1, 80, 91.
78 (1996) 141 ALR 447 at 486.
79 Aboven1.
80 (1996) 189 CLR 51.
81 The question of whether State legislation interfering with State judicial processes might be unconstitutional was left open by the High Court in HA Bachrach Pty Ltd v Queensland (1998) 156 ALR 563.
82 Lange u Australian Broadcasting Corporation (1997) 139 CLR 520 and Levy v Commonwf.'alth (1997) 189 CLR 579. See also Lindell, G J, “Expansion or Contraction? Some Reflections about Recent Developments in Representative Democracy” (1998) 20 Adel LR l1l at 137, 138-139Google Scholar.
83 (l997) 42 NSWLR 429.
84 (1997) 71 ALJR 1604.
85 (1997) 189 CLR 520.
86 Ibid at 566.
87 Ibid.
88 Senate Deb 17 March 1987 at 808, 813; H Reps Deb 6 May 1987 at 2668.
89 Parliamentary Privileges (Amendment) Bill 1992, 1st reading 17 Sept, 2nd reading 8 Oct.
90 H Reps Deb 8 Oct 1992 at 1724.
91 Senate Deb 17 March 1987 at 813.
92 (1996) 141 ALR 447.
93 See Williams, K, “Only Flattery is Safe': Political Speech and the Defamation Act 1996” (1997) 60 MLR 388CrossRefGoogle Scholar; Sharland, A and Loveland, I, “The Defamation Act 1996 and Political Libels” [1997] PL 113Google Scholar.
94 G Griffith, above n 12 at 36.
95 G Griffith, ibid at 35-39; Prebblc v New Zealand Television Ltd [1995] 1 AC 321 at 335. See also AR Browning above n 1.0; H Evans above n 10 at 64; McGee, D, Parliamentary Practice in New Zealand (2nd ed 1994) 474Google Scholar.
96 The case is discussed in Campbell, E, “Investigating the Truth of Statements Made in Parliament: The Australian Experience” [1997] PL 125Google Scholar.
97 Arena v Nader [1997] 42 NSWLR 429; (1997) 71 ALJR 1604.
98 G Griffith, above n 12 at 37.
99 See above n 93 and H Evans above n 10 at 64.
100 [1995] 1 AC 321.
101 Ibid at 336.
102 ' Ibid.
103 (1998) 72 ALJR 456.
104 See Griffith, above n 12 at 12-14; Lock, G F, “The 1689 Bill of Rights” (1989) 37 Political Studies 540CrossRefGoogle Scholar; Lock, G F, “Parliamentary Privilege and the Courts: The Avoidance of Conflict” [1985] PL 64Google Scholar.
105 See Havinghurst, A F, “The Judiciary and Politics in the Reign of Charles II” (1950) 66 LQR 62, 229Google Scholar and “James II and the Twelve Men in Scarlet” (1953) 69 LQR 522.
106 Mainly through various statutory protections against liability for defamation.
107 (1986) 5 NSWLR 18.
108 Ibid at 29.
109 Ibid at 34.
110 [1995] 1 AC 321.
111 (1998) 72 ALJR 456.
112 Ibid at para [38].