More on Parlt Privilege

Bill Orr, in commenting on the recent post regarding Twittering in the Australian Parliament, has pointed to a spirited Opinion [PDF] by leading barrister Brett Walker SC and advice from Harry Evans, Clerk of the Senate.

The Opinion and Evans' advice were published as part of the 92nd Report of the Senate Committee of Privileges (June 2000), which concerned matters arising from the Committee's 67th Report. They are of interest for analysis of parliamentary privilege and as examples of critical comments by leading figures regarding a senior judge's explanation of his decision. (Another example is Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, here).

The Committee indicated that earlier in the year the

Honourable Justice Jones of the Supreme Court of Queensland brought down a judgment in a defamation action between Michael Rowley as plaintiff and David Armstrong as defendant. These proceedings were one of the subjects of the 67th Report of the Committee of Privileges tabled in the Senate on 3 September 1997 and adopted on 22 September 1997.

Mr Armstrong's solicitor queried whether the Senate would fund an appeal against that judgment or seek representation at the hearing of such an appeal. The Committee noted that although unable to assist in the terms sought by the solicitor

it was so concerned about the issues raised by the judgment that it decided to seek advice from the Clerk of the Senate and, with the approval of the President of the Senate, from Mr Bret Walker SC.

Evans notes that the judgment

was delivered on an application by Mr Armstrong to have the action against him by Mr Rowley struck out on the grounds of unreasonable delay and abuse of process. The latter ground was based on the finding by the committee that the action constituted a contempt of the Senate and on the argument that the communication between Mr Armstrong and Senator O'Chee which is the subject of the action was protected by parliamentary privilege. By the second ground, therefore, the court was asked to find whether there was abuse of process in the pursuit of the action. It was not necessary for Jones J to determine the question of parliamentary privilege in order to ascertain whether there was abuse of process. A finding that there was no abuse of process would have left the question of privilege to be determined in the subsequent course of the proceedings. Jones J, however, pronounced on the question of parliamentary privilege.

Evans goes on to comment that

Given that he decided to do so, the question for determination was whether the communication between Mr Armstrong and Senator O'Chee was related to proceedings in the Senate to the extent that the communication could be said to be for purposes of, or incidental to, those proceedings. This question would turn on the character of the communication and its relationship with proceedings in the Senate. The judgment, however, does not consider the character of the communication or its relationship with Senate proceedings. Jones J manages to avoid any such consideration in the course of the judgment. He simply comes to a general conclusion that "an informant in making a communication to a parliamentary representative is not regarded as participating in 'proceedings in Parliament' and therefore the provisions of the Parliamentary Privileges Act do not apply", and he applies that general conclusion to the particular communication in question.

Contrary to the judgment, this general conclusion is not one which "follows clearly enough" from the matters cited by Jones J, a point to which I shall return. In any event, no such general conclusion can be drawn. Whether the provisions of the Parliamentary Privileges Act apply depends on whether the communication is for purposes of, or incidental to, parliamentary proceedings. The character of the particular communication and its relationship with proceedings has to be examined. No one has ever claimed that any communication with a member of Parliament is protected by parliamentary privilege. Jones J has not only determined a question unnecessarily but has mistaken the question to be determined. ....

Analysis of the judgment therefore leaves us simply with the finding that an informant is never protected in communicating with a member of Parliament, and with a collection of quotations which do not support such a conclusion.

Walker was similarly unpersuaded, commenting that

For all these reasons, there are profound weaknesses in the reasoning of Jones J. In my opinion, for the same reasons, his Honour's conclusion on the ambit of Parliamentary proceedings for the purpose of considering the question of Parliamentary privilege under the Act is fatally flawed, and of no weight whatever as an authority.

It is,, sometimes, an appropriate response to a very weak judicial decision to ignore it, confident in the expectation that it will not affect the body of doctrine. I am tempted to this view in relation to Rowley v. Armstrong. However, in my opinion the egregious deficiencies in the decision should be addressed by an appellate court not least because the conclusion about sub-sec. 16(2) is so clearly wrong and may thus mislead in other proceedings ...

He continues that

The issue generally is one which, in my opinion, would attract the interest of the High Court, were an unsuccessful party to an appeal to seek special leave to appeal further to the High Court, unless the decision turned on the mundane question of an abuse of process, as opposed to the law of Parliamentary privilege.