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Parl Priv Cases NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE Principles, Personalities, Politics: Parliamentary Privilege Cases in NSW by Gareth Griffith Background Paper No 1/2004 RELATED PUBLICATIONS · Parliamentary Privilege: Use, Misuse and Proposals for Reform by Gareth Griffith, Briefing Paper No 4/1997 · Egan v Chadwick and Other Recent Developments in the Powers of Elected Upper Houses by Gareth Griffith, Briefing Paper No 15/1999 · Expulsion of Members of the NSW Parliament by Gareth Griffith, Briefing Paper No 17/2003 This is a revised version of a paper delivered at the Australian and New Zealand Association of Clerks-at-the-Table (ANZACATT) 5th professional development seminar at Parliament House, Sydney, on 30 January 2004. ISSN 1325-4456 ISBN 0 7313 1756 4 April 2004 © 2004 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent from the Librarian, New South Wales Parliamentary Library, other than by Members of the New South Wales Parliament in the course of their official duties. Principles, Personalities, Politics: Parliamentary Privilege Cases in NSW by Gareth Griffith NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE David Clune (MA, PhD, Dip Lib), Manager.................................................. (02) 9230 2484 Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Senior Research Officer, Politics and Government / Law ............................... (02) 9230 2356 Talina Drabsch (BA, LLB (Hons)), Research Officer, Law............................ (02) 9230 2768 Rowena Johns (BA (Hons), LLB), Research Officer, Law............................. (02) 9230 2003 Lenny Roth (BCom, LLB), Research Officer, Law........................................ (02) 9230 3085 Stewart Smith (BSc (Hons), MELGL), Research Officer, Environment .......... (02) 9230 2798 John Wilkinson (MA, PhD), Research Officer, Economics............................. (02) 9230 2006 Should Members or their staff require further information about this publication please contact the author. Information about Research Publications can be found on the Internet at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. CONTENTS 1. INTRODUCTION ................................................................................................1 2. PARLIAMENTARY PRIVILEGE IN NSW.......................................................1 3. HISTORICAL NOTE...........................................................................................2 4. THE INHERENT PRIVILEGE OF FREEDOM OF SPEECH.........................5 4.1 R v MacDermott (1844) 1 Legge 236.....................................................................5 4.2 Gipps v McElhone (1881) 2 LR (NSW) 18............................................................8 5. DISQUALIFICATION AND JUDICIAL REVIEW...........................................9 5.1 Martin v Nicholson (1850) 1 Legge 618.................................................................9 6. IMMUNITY FROM CIVIL ARREST..............................................................11 6.1 Norton v Crick (1894) 15 LR (NSW) 172 ...........................................................11 7. THE INHERENT POWER TO DISCIPLINE MEMBERS............................13 7.1 Barton v Taylor (1886) 11 App Cas 197..............................................................13 7.2 Toohey v Melville (1892) 13 LR (NSW) 132 .......................................................18 7.3 Harnett v Crick [1908] AC 470...........................................................................19 7.4 Willis and Christie v Perry (1912) 13 CLR 592...................................................23 7.5 Armstrong v Budd (1969) 71 SR (NSW) 386 ......................................................25 8. JUDICIAL REVIEW OF LEGISLATIVE PROCESSES.................................29 8.1 Trethowan v Peden (1930) 31 SR (NSW) 183 ....................................................29 8.2 Clayton v Heffron (1961) SR (NSW) 768............................................................32 8.3 Namoi Shire Council v AG (NSW) [1980] 2 NSWLR 639...................................35 8.4 Eastgate v Rozzoli (1990) 20 NSWLR 188..........................................................36 9. FREEDOM OF SPEECH UNDER ARTICLE 9 OF THE BILL OF RIGHTS 1689......................................................................................................................37 9.1 Two lines of authority.............................................................................................37 9.2 The case law in NSW - the narrow interpretation of the immunity against impeaching or questioning proceedings in Parliament.................................................................39 9.2.1 R v Murphy (1986) 5 NSWLR 18.....................................................................39 9.2.2 R v Saffron (unreported, 21 August 1987)......................................................43 9.3 The case law in NSW – the broad interpretation of the immunity against impeaching or questioning proceedings in Parliament.................................................................43 9.3.1 Mundey v Askin [1982] 2 NSWLR 369...........................................................43 9.3.2 Henning v Australian Consolidated Press [1982] 2 NSWLR 374...................44 9.3.3 R v Jackson (1987) 8 NSWLR 116...................................................................45 9.3.4 NSW AMA v Minister for Health (1992) 26 NSWLR 114................................46 9.4 ‘Proceedings in Parliament’ – Members’ informants................................................47 9.4.1 R v Grassby (1991) 55 A Crim R 419..............................................................47 9.5 ‘Proceedings in Parliament’ and the disclosure and production of documents ...........49 9.5.1 Police v Dyers (unreported 1994) ...................................................................49 9.6 Repetition of statements made in Parliament outside Parliament................................50 9.6.1 Commonwealth Bank of Australia v Malouf and Davridge Pty Ltd (unreported 10 December 1996) .....................................................................50 9.6.2 Della Bosca v Arena [1999] NSWSC 1057 (unreported, 27 October 1999)...51 9.7 Waiver of parliamentary privilege............................................................................52 9.7.1 Arena v Nader (1997) 42 NSWLR 427; Arena v Nader (1997) 71 ALJR 1604..............................................................52 10. THE POWER TO ORDER DOCUMENTS .....................................................57 10.1 Egan v Willis (1998) 195 CLR 424 ......................................................................57 10.2 Egan v Chadwick (1999) 46 NSWLR 563...........................................................61 Principles, Personalities and Politics: Parliamentary Privilege Cases in NSW 1 1. INTRODUCTION This paper presents a survey of the main parliamentary privilege cases in NSW. In addition to dealing with the legal principles for which these cases stand, the paper also looks at the personalities and issues involved. 2. PARLIAMENTARY PRIVILEGE IN NSW In NSW there is no legislation comprehensively defining the powers and privileges of its Houses of Parliament. In all other Australian jurisdictions, with the limited exception of Tasmania, the privileges of Parliament are so defined either by reference to the British House of Commons or by specific statute, as in the case of the Parliamentary Privileges Act 1987 (Cth). Certain legislation does operate in NSW in this area, including Article 9 of the Bill of Rights 1689. However, by none of these statutes, alone or in combination, does the Legislative Council or the Legislative Assembly possess the full range of powers and privileges enjoyed by the Houses of the Westminster Parliament. Instead, the powers and privileges of the Houses of the NSW Parliament are founded largely upon the common law and, as such, are a reflection of Australia’s colonial history. As expounded in a series of nineteenth-century cases, the fundamental principle is that, at common law, a formerly subordinate legislature such as the NSW Parliament – originally a ‘colonial’ legislature deriving its authority from Imperial statute – and each House in a bicameral legislature, has only such powers, privileges and immunities as are reasonably ‘necessary for the existence of such a body and for the proper exercise of the functions which it is intended to execute’.1 In particular, it has been held that, in the absence of an express grant, the powers of the NSW Parliament are protective and self-defensive, not punitive, in nature. Further, what is ‘reasonably necessary’ is not fixed, but changes over time.2 A summary of the law of parliamentary privilege in NSW is found in the decision of McLelland J in Namoi Shire Council v AG (NSW): The privileges of the respective House of the United Kingdom Parliament do not provide a valid measure of the privileges of the Legislative Assembly of New South Wales. The former are derived from (a) the historical status of the Parliament at Westminster as a court…; (b) the constitutional foundation of the authority of
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