Parliamentary Privileges Act 1891

The Act’s reach is deliberately wide. Its primary subjects are the Legislative Council and the Legislative Assembly themselves, together with every member and every committee that has been “duly authorised by the House to send for persons and papers” (s. 4). These entities are the direct beneficiaries of the privileges and the repositories of the punitive powers.

A second class comprises any person who is summoned to attend or produce documents. This includes public servants, private citizens, journalists, academics and corporate officers—anyone in possession or control of relevant material. Service rules (s. 5(3)) and the requirement to tender conduct money (s. 5(4)) make clear that the obligation can fall on non-residents of Western Australia provided the summons is properly left at a last-known address within the Colony (now State).

A third class is any person who commits one of the contempts listed in s. 8. The section expressly states that the offences may be committed “whether by a member of the House or by any other person.” Thus a Member who assaults another Member on account of his parliamentary behaviour, or who accepts a bribe, falls within the summary jurisdiction. So too does a stranger who sends a threatening letter or creates a disturbance in the public gallery.

Finally, the Act affects the ordinary criminal justice system. The Sheriff, his officers, constables, gaol keepers and all other persons are placed under a statutory duty to assist in the execution of warrants and verbal orders (s. 12). The Attorney General and the Supreme Court are drawn in when either House elects to proceed by prosecution rather than summary punishment (ss. 14–15). In this way the Act intersects with the executive and judicial branches even while preserving parliamentary autonomy.

The statute creates a mixture of positive powers, negative immunities and procedural duties.

Rights and immunities

• The core immunity is the bundle of privileges, immunities and powers of the UK House of Commons as at 1 January 1989, imported by s. 1(b). This classically includes freedom of speech in debate, the right to exclusive cognisance of its own proceedings, and protection from civil or criminal process for acts done in a parliamentary capacity.
• Section 3 designates the Legislature as “The Parliament of Western Australia,” a formal recognition that may have ancillary evidentiary value in legal proceedings.
• Witnesses before the House or a committee enjoy the procedural safeguard in s. 7: an objection that a matter is private and irrelevant must be reported to the House, which then determines the issue. This is not an absolute right to refuse but a right to have the objection adjudicated by the House itself rather than by the Presiding Officer alone.

Duties

• Any person ordered to attend or produce documents is under a statutory duty to comply unless the House excuses him (s. 8(a)–(b)).
• The President or Speaker is under a duty to issue a summons in the prescribed form (s. 5) and, where the House so resolves, a warrant of apprehension (s. 9).
• Sheriffs, constables and gaolers are under a mandatory duty to render assistance and to receive prisoners into custody “according to the tenor of the warrant” (s. 12).
• Either House, when it elects to proceed by prosecution rather than summary process, must direct the Attorney General in writing; the Act does not appear to leave the choice to the Attorney’s discretion once so directed.

The Act is silent on many modern questions—legal professional privilege, parliamentary privilege in relation to the law of defamation post-Stockdale v Hansard principles, or the interaction with the Evidence Act 1906 (WA)—because it freezes the common-law position at 1989 and leaves the detail to the imported UK law and the Standing Orders.

Enforcement is bifurcated.

Summary parliamentary punishment (s. 8)
Each House may impose a fine “according to the Standing Orders.” The Act does not set a statutory maximum; the limit is therefore whatever the Standing Orders prescribe. In default of immediate payment, the House may imprison the contemnor in the custody of its own officer until payment or until the end of the session or any portion of it. The power is exercisable against both members and non-members. The procedural safeguards are minimal: a resolution of the House followed by a warrant issued by the President or Speaker (s. 9). The warrant need only recite the contempt in the words of the Act or equivalent (s. 11); no particular form is required and courts are directed to uphold any warrant from which the fact of adjudication can reasonably be collected.

Arrest without warrant (s. 10)
For disturbances in the House during actual sitting, the Presiding Officer may give a verbal order for immediate apprehension. The person may be held by the House’s officer until a formal warrant is prepared. This is a summary power designed to preserve order in real time.

Criminal prosecution
Section 14 creates a statutory crime of publishing a false or scandalous libel touching a member’s conduct as a member. Maximum penalties on conviction before the Supreme Court are two years’ imprisonment, a fine of $200, or both. The figure of $200 has not been updated since 1904 and is now largely symbolic; the Criminal Law Amendment (Simple Offences) Act 2004 s. 82 substituted the reference but left the monetary amount unchanged. Section 15 permits prosecution before the Supreme Court of “any other contempt against the House which is punishable by law,” thereby preserving the common-law contempt jurisdiction that existed in 1989.

Execution of process is assisted by the general duty imposed on all peace officers (s. 12) and the power to break open doors in daytime (s. 13). There is no statutory right of appeal from a House’s adjudication of contempt; the only remedies lie in judicial review on jurisdictional grounds or habeas corpus where imprisonment is challenged.

The Act is expressly subordinate to the Constitution Act 1889, which supplied the enabling power recited in the Preamble. It must also be read with the Standing Orders of each House, which supply the quantum of fines and detailed procedural rules for the exercise of the summary jurisdiction.

Because s. 1(b) imports UK House of Commons privileges as at 1 January 1989, the Act interacts with all pre-1989 UK statutes and common-law authorities on parliamentary privilege. Post-1989 UK legislation (for example, the Parliamentary Privileges Act 1987 (Cth) or the Defamation Act 1996 (UK)) has no direct application in Western Australia.

At State level the Act intersects with the Criminal Code (WA). The 1902 repeal of the original s. 16 removed any overlap with the Code’s general provisions on contempt of court or public authorities. The Criminal Law Amendment (Simple Offences) Act 2004 amended s. 14 to update language but did not alter the underlying offence.

The Evidence Act 1906 (WA) and common-law rules on privilege are engaged when a witness before a parliamentary committee claims, for example, legal professional privilege or the privilege against self-incrimination. The Act itself contains no express abrogation; any resolution of the conflict must therefore be found in the imported 1989 UK law or in subsequent judicial interpretation.

Finally, the Parliamentary Privileges Amendment Act 2004 (No. 41 of 2004) is the key amending statute. It replaced the original s. 1 with the current dual-limbed provision, inserted the 1 January 1989 cut-off, and amended the Preamble. The Standardisation of Formatting Act 2010 made only stylistic changes.

The most significant recent change occurred in 2004. The Constitution (Parliamentary Privileges) Amendment Act 2004 Pt. 3 inserted the present s. 1 and amended the Preamble. Prior to 2004 the Act simply declared that the Houses possessed the privileges of the UK Commons “according to the usage and practice of the Commons House of Parliament at the time of the passing of the Constitution Act 1889.” The 2004 amendment substituted a fixed date—1 January 1989—thereby preventing the automatic accretion of later UK developments (such as the statutory definition of “proceedings in Parliament” in the Defamation Act 1996 (UK) s. 13). The change was designed to preserve certainty and to ensure that WA parliamentary privilege did not inadvertently expand or contract in response to Westminster reforms over which the State has no control.

The Criminal Law Amendment (Simple Offences) Act 2004 s. 82 updated the language of s. 14(3) to reflect the shift from “misdemeanour” terminology to modern offence language, but left the $200 fine unaltered. The Standardisation of Formatting Act 2010 s. 51 made minor textual and numbering adjustments across ss. 5, 8, 11, 12 and 14.

No substantive amendments have been made since 2010. The compilation table in the 2014 reprint confirms that the Act’s architecture remains essentially that of 1891, with only the 1989 cut-off date and cosmetic updates superimposed.

The source text contains no reported decisions. Section 2’s rule that Journals of the House of Commons are prima-facie evidence has never been tested in a reported WA case on the basis of the materials supplied. The summary contempt power in s. 8 has not generated any recorded habeas corpus or judicial-review litigation in the provided compilation. The statutory crime in s. 14 appears never to have been prosecuted.

The absence of case law is itself noteworthy. It may reflect the deterrent effect of the powers, the political reluctance of Houses to invoke them against outsiders, or the preference for informal resolution. Controversies that have arisen in other Australian jurisdictions—most obviously the Stockdale v Hansard line of cases and the Egan v Willis litigation in New South Wales—illustrate the tension between parliamentary privilege and the rule of law, but none of those authorities are cited in the Act itself and therefore cannot be treated as forming part of the source text. The 1989 cut-off means that later High Court authorities on the scope of “proceedings in Parliament” are relevant only to the extent that they restate the pre-1989 common law.

Most practitioners assume that parliamentary privilege is an absolute shield; the 1989 cut-off in s. 1(b) is therefore a trap. Any UK statutory expansion of privilege after that date (for example, the protection of certain tribunal evidence) does not apply in Western Australia. Conversely, later UK restrictions—such as the narrow reading of “proceedings in Parliament” in Buchanan v Jennings [2005] 1 AC 115—also do not bind the WA Houses.

The $200 fine in s. 14(3) remains on the statute book despite decades of inflation; a prosecutor electing to proceed under that section faces a derisory maximum that may embarrass the House that directed the prosecution. The alternative is to rely on the general criminal law, but that route surrenders control to the Director of Public Prosecutions.

Section 7’s objection procedure is rarely understood. A witness cannot simply refuse; he must object on the narrow ground that the matter is “of a private nature and does not affect the subject of inquiry.” The House alone decides. There is no statutory right to legal representation or to reasons, and the decision is not expressed to be reviewable.

The power to imprison until the end of the session (s. 8) can, in a fixed four-year parliamentary term, amount to a de-facto sentence of years. Because the Act ties the duration to the life of the session rather than a fixed term, a contemnor who is imprisoned late in a session may serve only days, while one imprisoned early may serve years—creating arbitrary outcomes that have never been judicially tested in Western Australia.

Finally, the verbal arrest power in s. 10 is exercisable only “during its actual sitting.” The phrase is undefined; whether it includes suspension for dinner or a division is unclear. An over-zealous Serjeant-at-Arms who arrests during a suspension risks acting without statutory cover.

Compliance for a witness summoned under s. 4 is straightforward but unforgiving. Attend at the time and place stated in the summons, bring the specified documents, and answer all questions unless the House has excused you. If a document or answer appears private, state the objection immediately so that the Presiding Officer can report it under s. 7. Retain a copy of the summons and proof of service of conduct money; these are the only statutory preconditions to validity.

Members of either House should familiarise themselves with the Standing Orders that quantify the fine for contempt. A member who receives a threatening letter or is offered a bribe must promptly report it to the House; failure to do so may itself be viewed as a contempt.

For the House and its officers, compliance requires strict adherence to the procedural sequence: resolution of the House before a warrant issues (s. 9), accurate recital of the contempt in the warrant (s. 11), and use of the s. 14 prosecutorial route only where the maximum penalties are regarded as adequate. Because the Act cross-references the 1989 UK law, any internal manual on parliamentary privilege should be audited against the state of English authorities as at 31 December 1988.

Public authorities and corporations served with a summons should treat it with the same seriousness as a superior-court subpoena. There is no statutory mechanism for setting aside a parliamentary summons on relevance or oppression grounds; the only recourse is the s. 7 objection route. Legal advice should therefore be obtained before any objection is lodged, because an unsuccessful objection followed by non-compliance will trigger the summary contempt jurisdiction.

In all cases, the safest course is to assume that the privileges are as broad as the 1989 UK position and that the contempt powers will be exercised if the House perceives a genuine threat to its dignity or its ability to obtain evidence. The Act gives the Parliament the tools; it is the political culture of the House, rather than the statutory text, that ultimately determines how often they are used.