Inquire, debate and legislate – the bounds of parliamentary privilege

The conduct of members of parliament, both State and Federal, is increasingly subject to detailed scrutiny. Debates, speeches and hearings occurring within Parliament can now be published and circulated online with unprecedented ease. In this context, the notion of parliamentary privilege has ascended to the forefront of the political landscape as politicians and bureaucrats alike seek to invoke the privilege and cloak themselves with the protections and immunities that such a privilege attracts.

Parliamentary privilege

Fundamentally, parliamentary privilege is a function of the separate constitutional roles of parliaments and the courts which enable these institutions to go about their business without being subject to outside interference or control.

Historically, the ‘privilege’ extended to members of the House of Lords and the House of Commons in the United Kingdom, meaning they were immune from civil actions for things said and done within the Palace of Westminster. With respect to the modern-day privilege enjoyed by members of Australian Parliaments, there are a number of special rights which constitute ‘parliamentary privilege’. Whilst the freedom of speech in Parliament is undoubtedly the best-known privilege, there are a number of other powers which are seen as essential to a parliament’s ability to discharge its functions. By way of example, a rarely used Parliamentary privilege power is the right of a parliament to determine that a person has committed an ‘offence against the House’ and to impose a punishment.

The privilege of freedom of speech in parliament is often said to be the most important of all privileges and has been described as ‘one of the cornerstones of democracy’. [1] It is, perhaps, well known that any statement by a member of Parliament in the course of parliamentary proceedings is absolutely privileged, such that anything said in Parliament will not expose the member to criminal or civil sanction, for example for defamation.[2] However, parliamentary privilege extends further. For example, witnesses before parliamentary committees cannot be sued or prosecuted for giving evidence or for the content of the evidence they give.

In Queensland, parliamentary privilege is bestowed upon ‘proceedings in the Assembly’ by the Parliament of Queensland Act 2001 (Qld) (POQ Act). The POQ Act contains a non-exhaustive definition of what is meant by the phrase ‘proceedings in the Assembly’, including for example ‘a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry’. The practical effect of this statutory definition in the POQ Act is to cast the ambit of parliamentary privilege much wider than simply oral statements made by a member of parliament while in Parliament.

Parliamentary privilege: a recent example

The recent decision in Carne v Crime and Corruption Commission [2021] QSC 228 is an example of the expansive scope of parliamentary privilege. In this case, a report by the Crime and Corruption Commission (CCC) into the alleged corrupt conduct of a public servant was provided, under the authorisation of statute, to a parliamentary committee for the purposes of the document being submitted to the Legislative Assembly of Queensland (Assembly). The public servant in question applied to the Supreme Court of Queensland to prevent the report being submitted to the Assembly. Justice Davis ultimately held that parliamentary privilege attached to the report which had been submitted to the parliamentary committee and therefore, any complaints about the contents of the report (for example, that the report contained unsubstantiated allegations) were not matters which could be heard, determined or ‘impeached’ by the Court. The effect of this finding was that it was a matter for the parliamentary committee in question, to determine what was to be done with the report (including whether it would be provided to the Assembly and ultimately released into the public domain).

The decision in Carne serves as a timely reminder that parliamentary privilege extends beyond merely words spoken in Parliament. Somewhat paradoxically, the finding in Carne also demonstrates that parliamentary privilege can in fact promote and reinforce the accountability and transparency in government, particularly in respect of statutory authorities such as the Crime and Corruption Commission, given that a finding of parliamentary privilege rendered the report able to being released into the public domain. It remains to be seen, however, whether the decision in Carne will be appealed to the Court of Appeal in Queensland. Ultimately, parliamentary privilege is a concept that should perennially cause public servants to stop and consider if the documentary material they are producing will be subject to the privilege.

[1] Parliamentary Privilege in Australia, by Enid Campbell, Sir Isaac Isaacs, Professor of Law, Monash University, Melbourne, Melbourne University Press, 1966.

[2] See for example, (QLD) Criminal Code s 365(8); (QLD) Defamation Act 2005 s 27(2)(a), Sch 5.