PARLIAMENTARY
PRIVILEGE
IN
QUEENSLAND
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.
Parliamentary Privilege
 “Parliamentary privilege” is the collective
term for the powers, rights and
immunities of Parliament, its committees
and members
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)
Parliamentary Privilege
 Rights include
 Right of each member to participate in
proceedings
 Right to have access to parliamentary
documents (tabled papers) etc.
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
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)
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
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]
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[1]
[2]
(1842) 1 Moo PC 63
Ibid., at 88.
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). [
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”.
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[1] (1946) St.R.Qd 87.
 [2] Ibid., pp.108-109.
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).
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”
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.
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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.
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.
Current law
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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.
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.
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.
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
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.
Particular Issues –
“Republication”
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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 nonprivileged 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.
Particular Issues –
“Republication”
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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.
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).
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.
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.
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.
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.
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.
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”
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.
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.
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.
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)
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.
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.