Parliamentary Privilege Act 1898

Officers of Parliament (s 3) are persons appointed by the Governor on the recommendation of the President (for the Legislative Council), the Speaker (for the House of Assembly), or both acting jointly for joint purposes. The appointment power is formal: the Governor makes the appointment but cannot do so without the recommendation. Section 3(4) specifies that joint purposes include the reporting of debates and proceedings, which points to roles such as Hansard staff. These officers are not subject to the State Service Act 2000 (s 3A(2)). They are entitled to salary and allowances determined by an award of the Tasmanian Industrial Commission under the Industrial Relations Act 1984, and to other terms and conditions (including leave) determined solely by the relevant Presiding Officer (s 3A(1)). For superannuation, they are treated as employees under the Public Sector Superannuation Reform Act 2016 (s 3A(3)).

Sessional and temporary employees (s 4) are distinct from officers. They are appointed by the President or Speaker alone or jointly, for such period as the appointing officer thinks necessary. Their remuneration and other conditions are determined unilaterally by the appointing officer (s 4(4)). However, a critical constraint is found in s 4(5): no appointment may be made unless Parliament has voted the money necessary for that appointment. This prevents the Presiding Officers from hiring staff without prior appropriation, a fiscal control that binds the parliamentary administration to the same supply process as the executive.

Contingent services (s 5) refers to expenditure out of Appropriation Act moneys that is not for salaries, allowances, or emoluments of persons appointed under the Act. This covers things like office supplies, equipment, travel, and other running costs. The authority to incur such expenditure is given exclusively to the President (for Council matters), the Speaker (for Assembly matters), or both acting jointly (for joint matters), exercisable by written authority either special or general.

Disqualification (s 3B) operates automatically: a person who is a member of any Australian federal, state, or territory parliament, or a candidate for election, cannot be appointed as an officer under s 3. If an existing officer becomes a candidate, they must vacate office. The Act clarifies that candidacy begins upon nomination in accordance with the relevant electoral law (s 3B(2)). Officers may also resign by writing to the Governor; the resignation takes effect upon acceptance (s 3B(3)).

The term relevant officer is defined in s 2 as the Clerk of the House of Assembly, the Clerk of the Legislative Council, or the Secretary of the responsible Department in relation to the Constitution Act 1934, as the case may require. This definition appears to be used in other legislation (the source text does not reveal its use within this Act itself), but it indicates which officials may need to administer certain functions.

The Act directly affects persons who hold or seek to hold the positions of officers of the Tasmanian Parliament, as well as those engaged as sessional or temporary employees in the parliamentary departments. Currently, this includes the Clerk of the Legislative Council, the Clerk of the House of Assembly, the Secretary of the responsible department (insofar as they are a relevant officer for other legislation), and any other officers such as the Parliamentary Librarian, Hansard staff, or committee support officers appointed under s 3. It also includes temporary staff hired to assist during sittings or for specific projects.

The Presiding Officers , the President of the Legislative Council and the Speaker of the House of Assembly , are the key decision‑makers under the Act. They are responsible for recommending appointments to the Governor (s 3), determining terms and conditions for officers (s 3A) and for sessional/temporary employees (s 4(4)), and authorising contingent expenditure (s 5). They, or their delegates, must also ensure that any temporary appointment is only made after Parliament has voted the necessary money (s 4(5)). The Governor plays a formal role in appointing officers and accepting resignations, but has no discretion to refuse a joint recommendation.

The State of Tasmania, as a taxpayer‑funded entity, is affected because the Act creates a separate stream of parliamentary expenditure that bypasses normal departmental budgeting controls. The requirement in s 4(5) provides some discipline, but the Presiding Officers have broad authority to determine conditions and incur costs within the appropriation.

Members of Parliament are affected indirectly through s 6, which permits either House to make rules for paying allowances, fees, or emoluments to members serving on select or joint committees. This can affect the financial position of MPs who take on additional committee work.

Persons who are members of any Australian parliament, or candidates for election, are disqualified from being appointed as officers under s 3. This affects any parliamentary staff who consider running for office: they must vacate their position upon nomination. It also prevents the appointment of current MPs to administrative roles, maintaining a separation between the political and administrative branches of the legislature.

Duties of Presiding Officers: The President and Speaker each have a duty to recommend suitable persons for appointment as officers under s 3(1) and (2), and jointly under s 3(3). They must determine terms and conditions of service for officers under s 3A(1). For sessional or temporary employees, they have a duty to ensure that the appointment is not made unless Parliament has voted the money (s 4(5)). They also have power to authorise contingent expenditure under s 5(1), but this power is discretionary , they are not obliged to spend. The President and Speaker must act within the scope of their authority; they cannot delegate the power to appoint officers, but the Act does not explicitly prohibit delegation of the determination of terms or the authorisation of expenditure, so in practice these may be delegated to the relevant officer (the Clerk or Secretary).

Rights of officers: An officer appointed under s 3 is entitled to salary and allowances as determined by an award of the Tasmanian Industrial Commission (s 3A(1)(a)). This means the officer’s base pay is set by an independent industrial tribunal, not unilaterally by the Presiding Officer. The officer is also entitled to other terms and conditions determined by the relevant Presiding Officer, including leave (s 3A(1)(b)). They are employees for superannuation purposes under the Public Sector Superannuation Reform Act 2016 (s 3A(3)) and thus participate in the State’s superannuation scheme. They may resign by writing to the Governor, and the resignation takes effect upon acceptance (s 3B(3)).

Rights of sessional/temporary employees: These employees are entitled to such remuneration and conditions as the appointing Presiding Officer determines (s 4(4)). They have no right to a particular rate or term except what is determined. They are also employees for superannuation purposes under s 4A, meaning they are covered by the same superannuation regime as officers.

Rights of the Governor: The Governor has a duty to appoint persons recommended under s 3, and to accept resignations under s 3B(3). The source text does not give the Governor any discretion to reject a recommendation, so the role is largely ministerial.

No statutory right to reasons: The Act does not require Presiding Officers to give reasons for any determination or rejection. This may affect any judicial review challenge, as the common law duty to give reasons is limited.

The Parliamentary Privilege Act 1898 contains no express penalties or enforcement mechanisms. It does not create offences for non‑compliance, nor does it provide for fines or imprisonment. This is consistent with its character as an administrative and regulatory statute rather than a penal one. However, this does not mean the Act is unenforceable. Several indirect enforcement mechanisms exist.

First, the requirement in s 4(5) that no appointment of a sessional or temporary employee be made unless Parliament has voted the necessary money is a statutory condition on the exercise of power. An appointment made without such appropriation would arguably be ultra vires and void. The officer or employee could seek a declaration or injunction in the Supreme Court of Tasmania to challenge the validity of the appointment, or to restrain the payment of salary from consolidated revenue without appropriation. Similarly, expenditure under s 5 must be for purposes within the Appropriation Act; if the President or Speaker authorises expenditure outside those purposes, the authority may be invalid.

Second, the disqualification provisions in s 3B are self‑executing. If a person who is a member of a parliament or a candidate is appointed as an officer, the appointment would be invalid. If an existing officer becomes a candidate, that officer is required to vacate the office. Failure to vacate could lead to a dispute over title to the office, which could be resolved by the Supreme Court by way of quo warranto or declaratory proceedings.

Third, the Act interacts with the financial accountability framework of the State. The Tasmanian Audit Office, under the Financial Management and Audit Act 1990, would examine whether expenditure from parliamentary appropriations was properly authorised under s 5. An adverse audit finding could lead to reports to Parliament and potentially a recommendation for remedial action.

Fourth, because the Act excludes the State Service Act 2000, grievances about employment matters are not subject to the State Service discipline or appeal processes. Any disputes would likely be handled internally by the parliamentary department or, if they involve a breach of contract, through the ordinary courts.

In summary, the Act relies on external legal mechanisms , judicial review, audit, and parliamentary scrutiny , rather than its own penalty provisions. This creates a relatively low‑risk environment for deliberate non‑compliance provided the expenditure is within appropriation, but a failure to follow the conditions on appointment could render administrative actions void.

The Act sits within a web of Tasmanian legislation and explicitly modifies or excludes some of those laws. The most significant interaction is with the State Service Act 2000. Section 3A(2) provides that the State Service Act does not apply to an officer appointed under s 3. This means that such officers are not part of the Tasmanian State Service, are not subject to State Service employment conditions, and are not covered by State Service discipline or appeals processes. This preserves the institutional separation of parliamentary staff from the executive public service. However, s 3A(2) only excludes the State Service Act for officers; it does not expressly exclude it for sessional or temporary employees under s 4, though given the similar nature of the appointments, they are impliedly also outside the State Service Act because they are appointed by the Presiding Officers, not under the State Service Act. A careful reader might note that the exclusion is only for s 3 officers, creating a potential gap, but in practice temporary employees have always been treated as parliamentary staff, not State Servants.

Superannuation is addressed by s 3A(3) and s 4A, both of which deem officers and sessional/temporary employees to be employees for the purposes of the Public Sector Superannuation Reform Act 2016. This ensures they participate in the same superannuation scheme as other State employees, despite not being State Servants. This is a pragmatic integration that avoids creating a separate superannuation fund for parliament.

The salary of officers is tied to the Tasmanian Industrial Commission and the Industrial Relations Act 1984 (s 3A(1)(a)). This means that the base pay for officers is not unilaterally set by the Presiding Officer but is determined by an independent industrial body. However, the Commission’s award would apply only to the extent that it covers parliamentary officers , if no specific award exists, the provision may be inoperative or require the relevant officer to be classified under an existing award. Other terms and conditions (leave, etc.) are excluded from the industrial relations framework and left to the Presiding Officer’s discretion.

The expenditure provisions in s 5 interact with the Appropriation Acts that Parliament passes each financial year. The authority to incur expenditure is conditional on the money being provided by an Appropriation Act. The President or Speaker cannot authorise expenditure beyond the amount appropriated, and must ensure that the expenditure relates to Parliament and is not for salaries or emoluments of persons under the Act (which are presumably covered by separate appropriation items). Section 5(2) and (3) were omitted by No. 28 of 1990, which likely removed redundant references or obsolete provisions.

Section 6 interacts with the standing orders of each House, which contain the procedural rules for select committees. The power to make rules for paying allowances to committee members is permissive, not mandatory. If a House makes such rules, the allowances are payable, potentially creating an obligation on the parliamentary department to process payments.

Finally, the Act uses the term “relevant officer” for the purpose of the Constitution Act 1934 and other legislation, tying the interpretation of that term to the officeholders defined in s 2. This ensures that documents such as certificates or notifications under other Acts are signed by the correct official.

The Act originated in 1898 and has been amended multiple times, as noted in the source text through annotations. The first major amendment was by 25 Geo. V No. 78 (1935?), which substituted s 6, but the source does not give a precise year for that. Later amendments include:

• No. 43 of 1964: amended s 6.
• No. 77 of 1979: substituted s 3 (appointment of officers), inserted ss 3A and 3B (supplementary provisions and disqualification), and substituted s 4 (appointment of sessional/temporary employees). This was a significant rewrite that established the modern structure.
• No. 10 of 1982: amended s 3A(3) (superannuation reference).
• No. 20 of 1984: amended s 3A(1) (salary reference).
• No. 29 of 1984: substituted s 3A(2) (exclusion of State Service Act).
• No. 28 of 1990: omitted s 5(2) and (3).
• No. 68 of 1994: amended s 3A(3) (schedule amendment).
• No. 86 of 2000: amended s 3A(2) (reference to State Service Act 2000 as that Act replaced older legislation).
• No. 59 of 2004: amended s 2 (definitions), s 3A(3) (superannuation), and inserted s 4A (superannuation entitlements). This aligned the Act with the new Public Sector Superannuation Reform Act 2016 (later).
• No. 65 of 2005: amended s 2 (definition of Speaker), s 3A(3) (superannuation), and s 4A (several subsections). This appears to have fine‑tuned the superannuation provisions.
• No. 54 of 2016: amended s 2 (definitions), s 3A(3), and substituted s 4A. This final major amendment updated the superannuation reference to the Public Sector Superannuation Reform Act 2016, which replaced earlier legislation.

The cumulative effect is that the Act now refers to current legislation but retains its 1979 framework. The frequent amendments to superannuation provisions reflect the regular restructures of Tasmanian superannuation law, while the core employment provisions have remained stable since 1979. The absence of amendments to the disqualification provisions suggests they have not been controversial.

The source text does not cite any case law. Given the administrative and non‑penal character of the Act, litigation directly under it appears to be rare. Most disputes about parliamentary staffing would likely be resolved internally or through the industrial relations system if they concern salary awards. The disqualification provision (s 3B) could theoretically give rise to a dispute if a staff member’s candidacy is contested, but no such case is referenced. The exclusion of the State Service Act means that unfair dismissal claims would not go to the State Service Commissioner; they might be pursued in the ordinary courts under contract law. The expenditure authority (s 5) could be challenged in judicial review if a Presiding Officer authorises expenditure outside appropriation, but again, no recorded case appears in the source. The likelihood of litigation is low because the parties aggrieved (parliamentary staff or taxpayers) would need standing and interest, and internal parliamentary processes often resolve grievances. The Act’s age and obscurity may also contribute to the lack of precedent. For the purposes of this deep dive, no litigation history is identifiable from the source.

The most surprising feature of the Act is its title. Despite being called the Parliamentary Privilege Act 1898, it contains nothing about freedom of speech, contempt of Parliament, or the immunity of members from legal process. A researcher looking for the law of parliamentary privilege in Tasmania will not find it here. The substantive law on privilege is found in the Constitution Act 1934, the common law, and the standing orders. This misnomer could mislead practitioners and cause confusion when researching.

The Act creates a bifurcated staffing structure: “officers” appointed under s 3 have a formal appointment by the Governor on recommendation, while “sessional or temporary employees” under s 4 are appointed solely by the Presiding Officer. The difference matters because s 3 officers are entitled to salary determined by the Industrial Commission, while s 4 employees have only what the Presiding Officer determines. The line between the two categories is not always clear. An employee hired for a lengthy session might be considered sessional even if the work is ongoing. There is no provision in the Act for promotion from employee to officer status; that would require a fresh appointment.

Section 4(5) prohibits the appointment of a temporary employee unless Parliament has voted the necessary money. This is a trap for the unwary: a Presiding Officer who hires a temporary employee before the Appropriation Act is passed for that financial year would be acting ultra vires. The provision applies even if the money is expected to be voted later. This can create gaps in staffing during the early part of a financial year if supply is delayed.

Section 3B disqualifies candidates from being officers. Note that the disqualification applies from the moment of nomination, not from the date of election. Thus a parliamentary staff member who nominates for a local council election (if that council is a “House of Parliament of … a State or Territory”? The definition in s 3B refers to “a House of Parliament of the Commonwealth, or of a State or Territory”. Local councils are not Houses of Parliament, so council candidacy is not caught. But state or federal candidacy is. The staff member must vacate office immediately upon nomination. There is no grace period.

The term “relevant officer” in s 2 includes the Secretary of the responsible Department in relation to the Constitution Act 1934. This could be a department head who has no connection to Parliament, yet the definition may apply in other legislation. The source does not reveal how this term is used, but it could create confusion if a department head is required to perform functions related to parliamentary privilege.

Section 5(2) and (3) were omitted in 1990. The source simply shows “. . . . . . . . . . .” with a note that they were omitted. This means the Act now has two orphan subsection numbers in s 5. The content of the omitted subsections is not stated, but they may have dealt with financial procedures that are now covered elsewhere. Practitioners should not rely on those subsections.

Finally, the Act does not prescribe any procedure for varying terms and conditions of officers or employees. The Presiding Officer has discretion, but there is no requirement for consultation or notice. This could lead to unilateral changes that might be challenged as a breach of contract, but the Act provides no statutory protection against such changes.

Compliance with the Parliamentary Privilege Act 1898 requires attention to the specific processes for appointment, determination of conditions, expenditure, and record‑keeping. For the Governor’s office, the key step is to ensure that any appointment of an officer under s 3 is made only upon a valid recommendation from the President or Speaker (or both jointly). The Governor should confirm the recommendation in writing. For resignations under s 3B(3), the Governor must receive a written application from the officer and formally accept it. No other formalities are required.

For the Presiding Officers, the main compliance obligations are:

• Before recommending a person for appointment as an officer, check that the person is not disqualified under s 3B(1). This requires confirming that the person is not a member of any Australian parliament and has not been nominated as a candidate. A statutory declaration may be obtained.
• For officers, determine the terms and conditions of service under s 3A(1)(b) in writing, specifying leave and other conditions. Ensure that the salary and allowances component is left to the Tasmanian Industrial Commission award; the Presiding Officer should not attempt to set salary unilaterally unless the award is silent.
• For sessional or temporary employees, ensure that an appropriation has been passed by Parliament covering the appointment before the appointment is made (s 4(5)). Keep a record of the relevant appropriation item. Determine remuneration and conditions in writing (s 4(4)).
• For contingent expenditure under s 5, issue a written authority (special or general) before the expenditure is incurred. Ensure that the expenditure is within the scope of the Appropriation Act and that it does not cover salaries, allowances, or other emoluments of persons appointed under the Act (those are dealt with separately). Maintain a register of authorities.
• For select committee expenses under s 6, if the House makes rules, ensure that payments are made in accordance with those rules. The Presiding Officers may need to certify compliance.

The Clerk of the House of Assembly or the Clerk of the Legislative Council, as relevant officers, will typically administer these processes on behalf of the Presiding Officers. They should maintain a file for each officer and employee containing the appointment documentation, the determination of conditions, and evidence of the superannuation coverage under s 3A(3) or s 4A. For temporary employees, the file should also include a note of the appropriation that funds the appointment.

Superannuation obligations: The relevant department (Tasmania’s superannuation administrator) should be notified that the person is an employee under the Public Sector Superannuation Reform Act 2016. The Presiding Officer’s determination should state the superannuation scheme applicable.

If an officer becomes a candidate (s 3B), the officer must resign immediately. The Presiding Officer should ensure that the resignation is accepted and that the office is vacated. If the officer does not resign, the Presiding Officer may need to seek legal advice as to the validity of the continued tenure.

Finally, because the Act excludes the State Service Act, parliamentary staff are not subject to State Service policies. The Presiding Officers should develop their own policies for conduct, performance management, and discipline, consistent with the terms of employment they have determined.