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Imagereal Capture Commonwealth Powers and the Privileges of State Parliaments Enid Campbell Emeritus Professor of Law, Monash University I. Introduction The purpose of this article is to examine the extent to which Australia's federal Constitution restricts the powers of the Commonwealth to affect privileges and immunities which, under State law, are accorded to the Houses of the State Parliaments and their members. The privileges and immunities with which the article is principally concerned are those of freedom of speech and debate in Parliament and the immunity of members of Parliament from requirements to attend courts and tribunals to give evidence. For the purposes of the article the powers of the Commonwealth are treated as including not only the legislative powers of the Commonwealth Parliament, but also powers conferred by Commonwealth legislation, the executive powers of the Commonwealth under s 61 of the federal Constitution, and judicial powers of the Commonwealth. Judicial powers of the Commonwealth include the power of federal courts to punish or restrain acts in contempt of court and the power of the Houses of the Commonwealth Parliament to punish for contempt of Parliament. The latter power derives from s 49 of the federal Constitution but has been limited by the Parliamentary Privileges Act 1987 (~th).'To these Commonwealth powers one needs to add the powers of investigation possessed by the Houses of the federal Parliament under s 49 of the federal Constitution. These powers include power to send for persons and papers. Whether this power is curtailed by the federal Constitution and whether the Constitution also curtails the investigatory powers of State Parliaments are questions considered in the last part of the article. To date, the High Court of Australia has not had occasion to consider the extent to which the federal Constitution safeguards the privileges of the State Parliaments. But in 1983, the Senate Standing Committee on Constitutional and Legal Affairs was asked by the Senate to consider an issue which could conceivably have arisen for judicial determination. The issue arose as a result of a speech Mr Peter Duncan MLA had made in the South Australian Legislative Assembly. Mr Duncan had criticised the conduct of a federal royal commission which was inquiring into certain matters of national security. In the course of his speech Mr Duncan revealed certain information and evidence given to the royal commission, some of which had been the subject of a direction by the commissioner (Hope J) under s 6D of the Royal Commissions Act 1902 (Cth). The direction restricted publication of the evidence. Breach of such a direction was a criminal offence. The Attorney-General, Senator Gareth Evans, was asked by the commission to advise on whether Mr Duncan may have committed a criminal offence. The Attorney-General and the Solicitor-General, Sir Maurice Byers, advised that, as a matter of statutory construction, the relevant Commonwealth provisions did not restrict freedom of speech and debate in State Parliaments. They nevertheless made observations suggesting that Commonwealth legislative powers could be exercised so as to restrict that pri~ilege.~ The Senate Committee was requested by the Senate to report on the joint opinion of 1 Sections 4 and 6. 2 The opinion is reproduced in Cth Pad Paper 23511985 at 85-7. 202 Enid Campbell the law officers. Its report, entitled Commonwealth Law Makirig Power and the Privilege of Freedom of Speech in State parliament^,^ was presented in 1985. Four of its six members disagreed with the law officers' opinion regarding the power of the federal Parliament to derogate from the State privilege."he differences of opinion are discussed later in the article. II. Commonwealth Powers and their Limitations Under the federal Constitution, the legislative powers of the Commonwealth are limited to enumerated subjects. The executive powers of the Commonwealth under s 61 of the Constitution are largely limited to matters within federal legislative power. Federal judicial powers are confined to the matters enumerated in ss 75 and 76 of the Constitution. Laws made in exercise of federal legislative powers may bind the States and their agencies.' But federal powers to legislate are subject to some implied limitations. One of particular importance in the present context is that: the Commonwealth will not in the exercise of its powers discriminate against or 'single out' the States so as to impose some special disability or burden upon them, unless the nature of a specific power otherwise indicates, and will not inhibit or impair the continued existence of the States or their capacity to f~nction.~ The second limb of this implied immunity doctrine was most recently applied to the High Court when it held certain provisions in the Industrial Relations Act 1988 (Cth) not to be applicable to States in relation to employment of persons in the higher levels of government or in relation to the number or identity of persons to be employed in State government service and the duration of their a~~ointments.~Some of those employed in the service of State parliamentary departments must certainly be regarded as persons employed at one of the higher levels of State government. Another implied limitation on Commonwealth power (and one which applies also to the States) is the implied freedom of political communication, discovered by the High Court as recently as 1992.8 This limitation clearly has an important bearing on the Commonwealth's capacity to derogate from freedom of speech and debate in State Parliaments. It is a limitation which affects not merely legislative powers. It constrains executive powers and it also controls Australian common law. That common law, the High Court has held, must conform with the implied constitutional freedome9There is no reason, in principle, why this limitation should not also constrain exercise of judicial powers to impose penalties for contempt of court and to make orders to restrain conduct adjudged to be in contempt of court. At common law a person may be adjudged to be guilty of contempt of court for having published statements which are 'defamatory' of a particular court or judicial institutions in general. Some such statements might today be regarded as political statements and therefore protected by the implied constitutional freedom of political communication. At common law a person may also be adjudged guilty of contempt of court for having Cth Par1 Paper 23511985. Senators Robert Hill, Nick Bolkus, Barney Cooney and Alan Missen. Senators Michael Tate and Chris Puplick presented dissenting reports. Amalgamuted Society of Erzgitzeers v Acleluide Steamship Co Lfd (1920) 28 CLR 129. Victoria v Australian Building Con.struction Employees' and Builders Labourers' Fec/erarion ( 1982) 152 CLR 25 at 93 per Mason J. See also Queensfand Electricity Conmmi.ssion v Commonwealth (1985) 159 CLR 192 at 217 and 235; Re Educutiorz Urrion; Ex parte Victoria (1995) 184 CLR 188 at 23 1; Victoria v Commonwealth (1996) 187 CLR 416. Victoria v Commonwealth (1996) 187 CLR 4 1 6. Nutionwide News Pty Lrd v Wills (1992) 177 CLR 1; Austruliarz Capital Television Ltd v Commotlwealth (1992) 177 CLR 106. hnge v Au.straliutz Broadcasting Corporation (1997) 189 CLR 520. Commonwealth Powers and the Privileges of State Parliaments 203 published statements which a court considers to be prejudicial to the conduct of pending judicial proceedings. Some, but by no means all, such publications may be in the nature of political statements. Which of them might be regarded as protected by the implied constitutional freedom of political communication has not yet arisen for judicial determination. The extent to which Commonwealth powers affect State parliamentary privileges may be constrained by the implied constitutional limitations on Commonwealth powers is considered in the following parts of the article. Ill. Freedom of speech and debate in Parliament All Australian Houses of Parliament, and their members and committees, enjoy the privilege conferred by Article 9 of the English Bill of Rights 1689.1° They do so by virtue of general statutory provisions which invest them, their members and committees with the powers, privileges and immunities of the House of Commons of the United Kingdom Parliament;" or by virtue of Imperial Acts Application ~cts;'~or by virtue of principles of common law concerning the privileges of colonial legislatures.13 Article 9 of the Bill of Rights 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. The primary purpose of Article 9 was to ensure that members of the English Parliament could not incur any legal liability, particularly at the suit of the Crown, or be victimised for words spoken or things done by them in the course of parliamentary proceedings. For the purposes of the laws of defamation, communications in the course of parliamentary proceedings are thus absolutely privileged. But Article 9 has been regarded as conferring much broader protection. It has been interpreted by courts as imposing restrictions on the admissibility of evidence concerning parliamentary proceedings.14 It supports the principle that it is for the Houses to regulate their own procedures and to determine their own agendas, free from outside interference.15 It also fortifies the powers of the House to undertake inquiries into a wide range of matters, using their ancillary powers to require the attendance of witnesses and production of documents.16 Courts have asserted a jurisdiction to determine the ambit of parliamentary privileges, including what Article 9 of the Bill of Rights requires and prohibits.17There can, however, be differences of opinion between courts and Houses of Parliament about the effects of Article 9: for example what count as proceedings in Parliament and what amounts to an impeachment or questioning of such proceedings in a court or place out of Parliament.
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