Parliamentary Privileges Act 1987

The Act’s reach is deliberately wide. “Member” means any member of either House (s 3(1)). “Committee” is defined expansively to include any committee of a House or both Houses, a committee of the whole, a committee established by an Act, and any sub-committee (s 3(1)). “Officer of a House” is not exhaustively defined but appears throughout the Act in contexts that encompass the Clerks, Serjeant-at-Arms, Usher of the Black Rod and their staff.

Witnesses before either House or a committee receive direct protection under ss 12 and 13. Any person who is required to attend before a House or committee on a particular day receives immunity from compulsory court attendance or civil arrest on that day (s 14(3)). Journalists and publishers are affected by the defence created in s 10 for fair and accurate reports of proceedings, qualified by the prohibition on publishing in-camera material (s 10(2) and s 13). Courts and tribunals of the Commonwealth, States and Territories are subject to the evidentiary prohibitions in s 16(3) and (4) and the attendance immunities in s 14.

The executive government is indirectly affected because Royal Commissions and other commissions of inquiry are defined as “tribunals” (s 3(1)) and are therefore subject to the limits on their ability to compel members or officers to appear (s 14). Corporations can be fined up to $25,000 for contempt (s 7(5)(b)) or 250 penalty units for the statutory offences in ss 12 and 13. Finally, any person who interacts with the parliamentary precincts is subject to the declaration in s 15 that ordinary ACT laws continue to apply except where displaced by parliamentary privilege.

The Act creates a mixture of positive duties, negative prohibitions and immunities. The central right is the continued existence of parliamentary privilege itself (s 5), now statutorily confined by the “improper interference” test in s 4. Members enjoy a right not to be required to attend before a court or tribunal, and not to be arrested or detained in a civil cause, on sitting days and within five days before or after (s 14(1)). Officers of a House enjoy a parallel immunity tied to the days on which the House or relevant committee meets (s 14(2)).

Witnesses have a right to be free from intimidation, inducement or reprisal. Section 12(1) and (2) impose corresponding duties on all persons not to interfere with the giving of evidence. A witness also benefits from the in-camera protections in s 13, which create a duty of non-disclosure unless the House or committee authorises publication.

Each House retains the right to punish contempt, but that right is now bounded: maximum penalties are prescribed, expulsion is abolished (s 8), and any imprisonment resolution must particularise the offence (s 9). The Speaker or President may be given delegated power to discharge a prisoner (s 7(4)).

Courts and tribunals have a duty to observe the prohibitions in s 16(3) and (4). They must not receive evidence that questions the truth, motive or good faith of parliamentary proceedings, nor admit in-camera material unless it has been authorised for publication. Conversely, the Act preserves the right of courts to receive authorised parliamentary records when interpreting statutes or determining s 57 constitutional questions (s 16(5)) and in prosecutions for offences under the Act (s 16(6)).

The certificate regime in s 17 gives the President, Speaker or committee chair the right to issue conclusive evidentiary certificates on a range of procedural matters, thereby reducing the scope for collateral litigation about whether a document was in fact tabled, whether evidence was taken in camera, or whether a person was required to attend.

Enforcement operates on two distinct tracks. For contempts of the House, enforcement remains parliamentary. Section 7(1) authorises imprisonment for up to six months; s 7(5) authorises fines. These are imposed by resolution of the House itself. The Act expressly states that a House has no power to imprison otherwise than in accordance with s 7 (s 7(3)). A fine is recoverable as a debt in a court of competent jurisdiction by a person appointed by the House (s 7(6)). Directions and warrants necessary to carry s 7 into effect may be authorised (s 7(8)). Imprisonment penalties survive prorogation or dissolution (s 7(2)).

The statutory offences in ss 12 and 13 are enforced through the ordinary criminal justice system. Both carry maximum penalties of six months imprisonment or 50 penalty units for individuals and 250 penalty units for corporations. Chapter 2 of the Criminal Code applies to these offences (s 3A(1)), bringing with it the general principles of criminal responsibility, but that Chapter does not apply to parliamentary contempts (s 3A(2)).

Defamation actions are not penalties but are affected by the defences in ss 10 and 11. Section 10 provides a defence where the defamatory matter is contained in a fair and accurate report of proceedings and the defendant has not adopted the substance of the matter; the defence is unavailable for material published in breach of s 13. Section 11 confers absolute protection on officers of a House who publish tabled documents to members.

The Act does not create a general enforcement mechanism for the evidentiary prohibitions in s 16; rather, any court or tribunal that receives impermissible evidence acts unlawfully, exposing its proceedings to appeal or judicial review on that ground.

The Act is expressly anchored in s 49 of the Constitution. Section 5 preserves the pre-1987 position under that section except where the Act “expressly provides otherwise”. Consequently the Act sits atop, and modifies, the constitutional foundation.

Section 16(1) incorporates article 9 of the Bill of Rights 1688 and then expands its statutory operation. The relationship is one of reinforcement rather than replacement; s 16(7) provides that the section does not affect proceedings commenced before the Act’s commencement and does not alter the true construction that article 9 possessed before 1987.

The Criminal Code interaction is clarified by s 3A: Chapter 2 applies to offences against the Act but not to offences against a House. The Parliamentary Precincts Act 1988 is referenced in s 15, which declares that ACT laws apply to buildings in which a House meets and to the precincts defined in that later statute, subject always to the Constitution and the present Act.

Section 16(5) and (6) create targeted overrides of the privilege rules for constitutional questions under s 57 of the Constitution, statutory interpretation, and prosecutions for offences under this Act or committee-establishing Acts. In those narrow fields authorised parliamentary records may be used.

The Act preserves pre-existing defences (ss 10(3) and 11(2)), ensuring it does not narrow common-law or statutory defences that would otherwise have been available in defamation or other proceedings.

Because “tribunal” includes Royal Commissions and other commissions of inquiry (s 3(1)), the Act interacts with the enabling legislation of those bodies by limiting their ability to compel members or officers to appear on sitting days (s 14).

The text supplied reflects amendments made after the original 1987 enactment. The insertion of s 3A (Application of the Criminal Code) reflects the general policy, adopted across the Commonwealth statute book after the Criminal Code Act 1995 (Cth), of applying Chapter 2’s general principles of criminal responsibility to all Commonwealth offences. The note to s 3A(1) expressly records that Chapter 2 sets out those general principles. The subsection was added to remove doubt about the fault elements that apply to the offences created by ss 12 and 13. The deliberate exclusion in s 3A(2) of parliamentary contempts preserves the traditional view that contempt of parliament is not a criminal offence in the ordinary sense but a breach of the privileges of the House, thereby avoiding any suggestion that the Houses are bound by the Code’s codification of complicity, attempt or corporate responsibility when exercising their contempt jurisdiction.

No other textual amendments appear in the provided version, but the structure of s 16 reflects a legislative response to judicial developments that had cast doubt on the precise boundaries of article 9. The detailed definition in s 16(2) and the prohibitions in s 16(3) and (4) were included to place beyond argument that parliamentary proceedings could not be used to impugn motive or good faith in collateral litigation. The exceptions in s 16(5) and (6) were crafted to ensure that privilege did not inadvertently obstruct the proper interpretation of statutes or the prosecution of offences created by the Act itself.

These changes illustrate a legislative desire to modernise and clarify a body of law that had previously rested on constitutional incorporation of centuries-old UK practice, while preserving the functional autonomy of the Houses.

Although the Act itself does not record specific cases, its provisions are framed against a background of judicial consideration of the limits of parliamentary privilege. The expansive definition of “proceedings in Parliament” in s 16(2) responds to earlier doubts about whether the preparation of documents or the formulation of draft reports fell within the scope of article 9. By including those activities expressly, the Act seeks to foreclose arguments that only the final published report or the words actually spoken in the chamber are protected.

Section 16(3) was clearly designed to prevent the kind of “motive” inquiries that had arisen in other jurisdictions where courts were asked to examine whether a parliamentarian’s speech was motivated by an improper purpose. The prohibition on questioning “truth, motive, intention or good faith” is absolute in form and extends not only to evidence tendered but to questions asked and submissions made.

The certificate mechanism in s 17 has the potential to generate controversy where a certificate is challenged on jurisdictional grounds (for example, a claim that the President had no power to issue it because the document was never in fact submitted). The Act makes the certificate “evidence of the matters contained in the certificate” but does not use the language of conclusiveness, leaving open the possibility of rebuttal or collateral attack in extreme cases.

Controversy also surrounds the interface between s 4’s “improper interference” test and the retained privileges under s 5. A House that seeks to punish conduct that falls outside the s 4 test risks judicial review on the basis that it has acted beyond the statutory limits now imposed on its contempt jurisdiction. Conversely, a court that too readily accepts an argument that parliamentary privilege prevents examination of a document may be accused of shielding serious misconduct.

The abolition of expulsion in s 8 remains a live point of tension; a House that loses confidence in a member must now use other mechanisms (such as suspension or referral to the Court of Disputed Returns) rather than the historic power of expulsion.

Most practitioners assume that parliamentary privilege is an absolute shield; the Act reveals multiple cracks. First, the five-day immunity in s 14 is both narrower and wider than many realise: it applies only to civil arrest and compulsory attendance, not to criminal process, and the immunity for witnesses is limited to the day of attendance, not the surrounding five days.

Second, the s 16(3) prohibition is triggered only when the purpose of the tender is one of the three prohibited purposes. A clever litigator may attempt to characterise the use of Hansard as going merely to context or chronology rather than to motive or credibility; courts must then decide whether that characterisation is genuine or colourable.

Third, the certificate regime in s 17 is only as strong as the factual accuracy of the certificate. A certificate that states a document was “directed by a House or a committee to be treated as evidence taken in camera” can be challenged if the direction was never in fact made.

Fourth, s 6(2) preserves the power to treat defamatory words spoken in the actual presence of the House or committee as contempt; the distinction between words spoken “in the presence” and words spoken elsewhere but published can be factually elusive.

Fifth, the “improper interference” test in s 4 is deliberately imprecise. Conduct that is merely critical or annoying will not suffice; yet the line between robust criticism and “likely to amount to” improper interference is highly context-dependent and almost impossible to advise upon with certainty in advance.

Sixth, the protection in s 11 for officers publishing tabled papers is absolute only in respect of publication “to a member”; publication to the world at large remains governed by ordinary law and the qualified defence in s 10.

Finally, many compliance officers forget that s 15 applies ordinary ACT criminal law to the precincts unless displaced by privilege; a physical assault inside Parliament House is therefore a matter for the police, not automatically a contempt.

Compliance for members and their staff begins with a clear understanding that privilege is not a personal right but a functional protection for parliamentary business. Any proposed interview, media release or document that refers to parliamentary proceedings should be reviewed against the s 16(2) definition and the prohibitions in s 16(3). If the material questions motive or good faith, it risks contravening the Act when deployed in court.

Witnesses summoned to committee hearings should be advised that any attempt to intimidate them or to penalise them for evidence given will breach s 12. Committees themselves must ensure that any direction that evidence be taken in camera is recorded clearly and that any subsequent authorisation for release is likewise minuted; the certificate mechanism in s 17 will otherwise be unavailable or open to challenge.

For corporate counsel, the risk is primarily the statutory offences. Internal policies should prohibit any inducement offered to a person who may be called before a parliamentary committee. Confidentiality agreements that purport to prevent an employee from giving evidence to parliament are likely to be unenforceable and may themselves constitute an offence under s 12(2).

Media organisations should maintain protocols for reporting parliamentary proceedings that ensure fairness and accuracy and, above all, that never publish in-camera evidence without express authorisation. The defence in s 10 is lost if the publisher “adopts the substance” of the defamatory matter; therefore reports should be confined to neutral paraphrase of the parliamentary record.

Courts and tribunals must embed s 16 screening procedures at the interlocutory stage. Any subpoena seeking production of in-camera committee transcripts should be met with an immediate s 17 certificate and, if necessary, an application for the matter to be heard in closed court so that the privilege question itself is not ventilated in open session.

House officers responsible for tabling documents should ensure that the resolution or order directing a document to be treated as in-camera evidence is unambiguous. The President or Speaker issuing certificates under s 17 should keep a register of certificates issued so that consistency can be demonstrated if a certificate is later challenged.

Finally, any person contemplating conduct that might be seen as critical of parliament should be advised that while s 6 abolishes contempt by defamation per se, the s 4 test remains available if the criticism is part of a campaign intended or likely to impair the House’s ability to function. In marginal cases the safest course is to err on the side of allowing the House to determine the matter through its own processes rather than testing the boundaries in advance. Compliance is therefore a mixture of legal analysis, meticulous record-keeping, and a healthy respect for the functional autonomy that the Act both confirms and confines.