Two judgments dealing with issues of Parliamentary privilege were handed down by Australian courts in November. The first of these, an interlocutory judgment in Hanson-Young v Leyonhjelm, was given by White J in the Federal Court. The second, Alford v Parliamentary Joint Committee on Corporations and Financial Services, was handed down by Gordon J in the High Court. While neither judgment establishes any new principle of law, they are both interesting for their exploration of the ways in which Parliamentary privilege may impact on curial proceedings (and of the ways in which curial proceedings must not impact on Parliamentary proceedings). Further, the interlocutory judgment in Hanson-Young raises a number of complex questions that may yet have to be resolved in the course of that litigation.
Each of Hanson-Young and Alford dealt with a different aspect of Art 9 of the Bill of Rights 1689, which states 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.’ In the case of the Commonwealth Parliament (with which both Hanson-Young and Alford were concerned), Art 9 is incorporated into Australian law by s 49 of the Commonwealth Constitution, together with the other powers, privileges and immunities enjoyed by the House of Commons at Federation. Aspects of its effect are declared by s 16 of the Parliamentary Privileges Act 1987 (Cth). In Victoria, Art 9 is incorporated into domestic law by s 19 of the Constitution Act 1975 (Vic) (together with the other powers, privileges and immunities of the House of Commons as at 21 July 1855).
The most obvious effect of Art 9 of the Bill of Rights is to ensure that a person speaking in Parliament cannot be held liable in damages for any defamatory statement he or she makes. That is, ‘it is clear law that no proceedings, either civil or criminal, may be taken against a member of Parliament for anything said or done by him in Parliament, and a member is not examinable outside Parliament concerning anything said by him in Parliament.’ However, the effect of Art 9 is broader than this. Thus even where a proceeding does not directly involve an attempt to impose liability on a person for words said in Parliament, it is now broadly accepted that ‘parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading‘ and that ‘courts are precluded from entertaining in any proceedings (whatever the issue which may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament.’ At the Commonwealth level, this position is confirmed by s 16(3) of the Parliamentary Privileges Act, which was adopted in response to the (now widely disapproved) view expressed by Hunt J in R v Murphy that Art 9 only operates to ensure that no court proceedings ‘are permitted which by [their] legal consequences have the effect of preventing that member (or committee witness) exercising his freedom of speech in parliament (or before a committee) or of punishing him for having done so.’
Article 9 may also be brought into operation where a party seeks to invoke the processes of a court to restrain or hinder the provision of information to Parliament. In such a case, ‘a very serious question arises, firstly as to whether such a claim is within the jurisdiction of this court and secondly, whether the making of the application, and in particular the making of any order pursuant to the application, could itself constitute a contempt of Parliament.’ It is with this background in mind that the judgments in Hanson-Young and Alford should be examined.
The interlocutory judgment in Hanson-Young
In Hanson-Young, the applicant seeks damages in defamation from the respondent, whom she alleges has made a number of statements outside Parliament to the effect that she is a hypocrite, a misandrist and a person who makes absurd claims. In his defence, the respondent pleads that each of his statements was a fair reflection of things said by the applicant in Parliament. In his interlocutory application before White J, the respondent submitted that he could not properly defend the applicant’s action without inviting the Court to draw inferences from and conclusions about things said by the applicant in Parliament, and thus inviting it to impeach or question the freedom of speech in Parliament in a manner that contravened Parliamentary privilege. He therefore submitted that Parliamentary privilege would prevent him from fully defending the applicant’s claim and that the proceeding should be stayed permanently on the grounds that it would not be able to be tried fairly. In this regard, the respondent raised similar issues to those considered by the Privy Council in Prebble v Television New Zealand Ltd and by the Supreme Court of South Australia in Rann v Olsen. In each of those cases, the court accepted that ‘there may be cases in which the exclusion of material on the grounds of parliamentary privilege makes it quite impossible fairly to determine the issue between the parties’ and that ‘[i]n such a case the interests of justice may demand a stay of proceedings.’ However, in neither case did the court actually stay the proceeding (two of the five judges who decided Rann v Olsen would have granted a stay, while the other three considered that the question of granting a stay had been raised prematurely).
Justice White rejected the respondent’s submission that the applicant’s claim should be permanently stayed at its present stage. In this regard, his Honour noted that there was no agreement between the parties as to precisely what the applicant had said in Parliament. The question of what the applicant had said (which the Court can inquire into) was necessarily antecedent to the question whether the Court should draw any inference from what she had said or should characterise her words in a particular way. It followed that while Parliamentary privilege might operate to prevent the respondent from pursuing his defence, this could not be known until the question of what the applicant had actually said in Parliament had been resolved. The respondent’s application for a stay was therefore premature.
It will be interesting to see whether this issue is raised again at a later stage of proceedings. If it is, the Federal Court will be required to address the somewhat novel question whether it is a breach of Parliamentary privilege for a court to inquire into whether a statement made outside of Parliament accurately or inaccurately characterises a statement made in Parliament. However, if it finds itself in a position in which it is required to decide whether statements made in Parliament were absurd and/or hypocritical, it is difficult to see how the Court could not conclude that it was being invited to question the credibility of the applicant in a manner that offended s 16(3) of the Parliamentary Privileges Act and that, more broadly, involved impeaching proceedings in Parliament. Of course, whether the Court is required to address this issue will depend on how the case between the applicant and the respondent proceeds and on what findings are made as to the content of the applicant’s statements in Parliament.
The judgment of Gordon J in Alford
In Alford, the plaintiffs sought to restrain the Parliamentary Joint Committee on Corporations and Financial Services from summoning them to appear and give evidence. While the form of relief sought by the plaintiffs was described as a ‘stay’, what they sought was in substance an interlocutory injunction. Justice Gordon held that the injunction should be refused on the grounds that it did not raise a serious question to be tried and that there was ‘little (if any)’ probability that the plaintiffs would succeed at a final hearing. In explaining her reasons for so holding, her Honour made a number of observations about the power of Parliament and its committees to summon witnesses.
The starting point of Gordon J’s judgment was that s 49 of the Commonwealth Constitution ‘provides a source of coercive authority for the two Houses of the Commonwealth Parliament and the members and committees of each House to summon witnesses or require production of documents, under pain of punishment for contempt; a power that can be traced to English practices pre-dating Federation.’ When a person seeks to invoke the coercive authority of a court to interfere with this coercive authority, an ‘immediate hurdle’ arises in the form of Art 9 of the Bill of Rights. Thus as her Honour observed, where a person seeks only to prevent a House or committee of Parliament from exercising the inquisitorial function that each House undoubtedly possesses – as opposed to, for example, seeking a writ of habeas corpus calling upon a gaoler to show that his or her detention of a person is authorised by a warrant issued pursuant to a resolution of a House of Parliament – Art 9 would seem to prevent the court from inquiring into the controversy at all. On this basis, it was sufficient for her Honour to dispose of the plaintiffs’ application to find that the Parliamentary Joint Committee on Corporations and Financial Services existed and that pursuant to resolutions made by each House of Parliament, the power to summon witnesses and call for documents had been conferred upon it.
However, Gordon J also noted that a number of submissions had been made by the plaintiffs as to why the words of s 49 of the Constitution should not be given their full effect. Thus, echoing a submission that was rejected by the Court in R v Richards; Ex parte Fitzpatrick and Brown, the plaintiffs had submitted that to interpret s 49 as authorising the Commonwealth Parliament and its committees to exercise compulsory evidence gathering powers and punish witnesses for contempt was inconsistent with the separation of judicial and legislative power embodied in the Constitution. The plaintiffs had also submitted that such an interpretation of s 49 was inconsistent with the freedom of political communication that is impliedly preserved by the Constitution. Her Honour rejected each of these submissions.