ANZACATT Seminar
Parliamentary Privilege and Modern
Information and Communications
Technologies
Robyn McClelland
Clerk Assistant (Table)
Department of the House of Representatives
29 January 2009
Outline
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Starting point – Stockdale v Hansard
The legal and authority framework providing
the protection of parliamentary privilege for
the publication of parliamentary documents
and records, radio and television
broadcasting and electronic communication
technologies, in the Australian Parliament.
Recent privilege case in the Australian
House of Representatives – where modern
technology was used
Stockdale v. Hansard
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Documents published by order or authority of the
House of Commons for its own members [inside
Parliament] were protected by absolute privilege.
Documents ordered to be printed for the use of
members [outside Parliament] were not – and could
only be protected by legislation
Parliamentary Papers Act 1840 – persons who
published votes and proceedings, reports of debates
and papers by order or authority of either House
were accorded the same protection as Members in
respect of speeches in Parliament (the UK act has
been updated for wireless telegraphy and television)
Australian Federal Parliament
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Australian Constitution, section 49
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Powers privileges and immunities of the Senate
and of the House of Representatives, and of the
members and the committees of each House,
shall be such as are declared by the Parliament,
and until declared shall be those of the Commons
House of Parliament of the United Kingdom, and
of its members and committees, at the
establishment of the Commonwealth
Parliamentary Privileges Act 1987
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Except to the extent that the Act expressly
provides otherwise, the powers, privileges
and immunities of each House, and of the
Members and committees of each House, as
in force under section 49 of the Constitution
immediately before the commencement of
the Act, continue in force.
Section 16
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For the avoidance of doubt, declares and enacts
that the provisions of Article 9 of the Bill of Rights
apply in relation to the Commonwealth Parliament.
For the purposes of those provisions and for the
purposes of the section, the term ‘proceedings in
Parliament’ means ‘all words spoken and acts done
in the course of, or for purposes of or incidental to,
the transacting of the business of a House or of a
committee’. ...
Paragraph 16(2)(d)
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The formulation, making or publication of a
document, including a report, by or pursuant
to an order of a House or a committee and
the document so formulated, made or
published, is a ‘proceeding in Parliament’ and
attracts the immunity declared by section 16.
Standing orders of the Houses
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Provide for authorisation of the publication of
documents presented and for documents to
be published, and also provide for
committees to authorise the publication of
evidence and documents
Application to electronic publication
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Pursuant to definition of document in the Acts
Interpretation Act 1901 (and reflected in
House standing order 2)
The mode of publication is not defined in the
Parliamentary Privileges Act.
‘proceedings in Parliament’ is defined broadly
and is technology neutral
Publication of Hansard
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Specifically authorised by resolution of the House (5
May 1993) and Senate standing order 43
Context for House resolution – trial extension, from
1 July 1993, to a number of external users of a
parliamentary database containing, amongst other
things, Hansard
‘motion … is seen as desirable in this context so as
to remove any doubt that may apply to the status of
the Hansard report when it is distributed externally in
an electronic form such as is proposed. ...’
Radio and Television
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Parliamentary Proceedings Broadcasting Act 1946
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Confers immunity from legal action on the radio broadcast
or re-broadcast of proceedings
Directs the national broadcaster, the ABC, to broadcast the
proceedings of the House or the Senate or of a joint sitting
In 1991, legislation was introduced to amend the Act to
extend absolute privilege to the televising of proceedings.
However, the amendments were not proceeded with with
the agreement of all parties.
Extension of House Monitoring Service –
televising of proceedings within
Parliament House
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Pursuant to resolutions of both Houses
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House 28 September 1993
Senate 13 February 1997
Webcasting of proceedings through the
Internet
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Is believed would attract absolute privilege
Senate resolution:
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The Senate authorises the publication by
electronic means, including by the Internet, in
sound and visual images, of proceedings of the
Senate and its committees, subject to the rules
applying to radio and television broadcasting of
Senate and committee proceedings.
(31 August 1999)
What are the practical implications?
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In the House of Representatives of Australia,
procedural issues arising from application of
new technologies, some of which involve
issues of privilege, are arising for
parliamentary committees.
Examples are set out in the paper.
A recent privilege case.
Allegations of documents fraudulently and
inaccurately written and issued in a
member’s name
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Matter referred to the Committee of Privileges
10 August 2005
Findings:
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Ms Harriet Swift, on five occasions in 2005 and 2006,
deliberately misrepresented the Hon Gary Nairn MP
by producing and distributing documents that
fabricated Mr Nairn’s letterhead and signature to make
it appear that the documents were prepared and sent
by Mr Nairn
Privilege Case (cont.) – Findings (cont.)
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Recommendation
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Ms Swift guilty of a contempt of the House in that
she has undertaken conduct which amounts to an
improper interference in the free performance by
Mr Nairn of his duties as a member.
That the House find Ms Swift guilty of a contempt
Reprimand Ms Swift for her conduct
Motion, that the House agrees with the
recommendation of the report, agreed to [14
June 2007]
Privilege Case (cont.) - Issues
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Example of identity fraud – availability of technology
that enables ready reproduction of letterhead and
electronic signatures
Identity of person or person who created and
distributed the documents – through telephone
checks to identify the transmitting fax machine and
exercise of search warrant
Committee wished to send a fairly strong message
that such conduct was not acceptable – from the
point of view of the potential for damage (from any
future cases)
Issues for parliamentary officers
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Officers need to be aware of the legal/ authority frameworks
providing the protection of privilege in their jurisdictions, and how
they encompass electronic publication, broadcasting and
transmission. If gaps, officers need to consider whether action
by their respective Houses is necessary and advise accordingly.
Officers need to be aware that ICT will continue to develop – and
prepare themselves so that they are able to provide appropriate
advice. Officers need to consider what matters should
reasonably be able to fall within the scope of ‘proceedings in
Parliament’.
Officers need to be ready to advise Members if asked as to
whether there have been possible infringements of parliamentary
privilege, eg, by placement of video clips on YouTube.
Matters for Discussion (1)
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Workshop participants are invited to
comment on the legal/ authority frameworks
providing the protection of privilege in their
jurisdictions and how there is provision for
electronic communication, including the
background to any relevant changes and
developments.
Matters for Discussion (2)
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Workshop participants are invited to
comment on practical implications for their
jurisdictions arising from the application of
new technologies including relevant cases or
issues.