Commonwealth Powers and the Privileges of State Parliaments

Enid Campbell Emeritus Professor of Law, Monash University

I. Introduction

The purpose of this article is to examine the extent to which Australia's federal Constitution restricts the powers of the Commonwealth to affect privileges and immunities which, under State law, are accorded to the Houses of the State Parliaments and their members. The privileges and immunities with which the article is principally concerned are those of freedom of speech and debate in Parliament and the immunity of members of Parliament from requirements to attend courts and tribunals to give evidence.

For the purposes of the article the powers of the Commonwealth are treated as including not only the legislative powers of the Commonwealth Parliament, but also powers conferred by Commonwealth legislation, the executive powers of the Commonwealth under s 61 of the federal Constitution, and judicial powers of the Commonwealth. Judicial powers of the Commonwealth include the power of federal courts to punish or restrain acts in contempt of court and the power of the Houses of the Commonwealth Parliament to punish for contempt of Parliament. The latter power derives from s 49 of the federal Constitution but has been limited by the Parliamentary Privileges Act 1987 (~ th) . ' To these Commonwealth powers one needs to add the powers of investigation possessed by the Houses of the federal Parliament under s 49 of the federal Constitution. These powers include power to send for persons and papers. Whether this power is curtailed by the federal Constitution and whether the Constitution also curtails the investigatory powers of State Parliaments are questions considered in the last part of the article.

To date, the High Court of Australia has not had occasion to consider the extent to which the federal Constitution safeguards the privileges of the State Parliaments. But in 1983, the Senate Standing Committee on Constitutional and Legal Affairs was asked by the Senate to consider an issue which could conceivably have arisen for judicial determination. The issue arose as a result of a speech Mr Peter Duncan MLA had made in the South Australian Legislative Assembly. Mr Duncan had criticised the conduct of a federal royal commission which was inquiring into certain matters of national security. In the course of his speech Mr Duncan revealed certain information and evidence given to the royal commission, some of which had been the subject of a direction by the commissioner (Hope J) under s 6D of the Royal Commissions Act 1902 (Cth). The direction restricted publication of the evidence. Breach of such a direction was a criminal offence. The Attorney-General, Senator Gareth Evans, was asked by the commission to advise on whether Mr Duncan may have committed a criminal offence. The Attorney-General and the Solicitor-General, Sir Maurice Byers, advised that, as a matter of statutory construction, the relevant Commonwealth provisions did not restrict freedom of speech and debate in State Parliaments. They nevertheless made observations suggesting that Commonwealth legislative powers could be exercised so as to restrict that pri~ilege.~

The Senate Committee was requested by the Senate to report on the joint opinion of

1 Sections 4 and 6. 2 The opinion is reproduced in Cth Pad Paper 23511985 at 85-7.

202 Enid Campbell

II.

the law officers. Its report, entitled Commonwealth Law Makirig Power and the Privilege of Freedom of Speech in State parliament^,^ was presented in 1985. Four of its six members disagreed with the law officers' opinion regarding the power of the federal Parliament to derogate from the State privilege."he differences of opinion are discussed later in the article.

Commonwealth Powers and their Limitations

Under the federal Constitution, the legislative powers of the Commonwealth are limited to enumerated subjects. The executive powers of the Commonwealth under s 61 of the Constitution are largely limited to matters within federal legislative power. Federal judicial powers are confined to the matters enumerated in ss 75 and 76 of the Constitution.

Laws made in exercise of federal legislative powers may bind the States and their agencies.' But federal powers to legislate are subject to some implied limitations. One of particular importance in the present context is that:

the Commonwealth will not in the exercise of its powers discriminate against or 'single out' the States so as to impose some special disability or burden upon them, unless the nature of a specific power otherwise indicates, and will not inhibit or impair the continued existence of the States or their capacity to f~nction.~

The second limb of this implied immunity doctrine was most recently applied to the High Court when it held certain provisions in the Industrial Relations Act 1988 (Cth) not to be applicable to States in relation to employment of persons in the higher levels of government or in relation to the number or identity of persons to be employed in State government service and the duration of their a~~oin tments .~ Some of those employed in the service of State parliamentary departments must certainly be regarded as persons employed at one of the higher levels of State government.

Another implied limitation on Commonwealth power (and one which applies also to the States) is the implied freedom of political communication, discovered by the High Court as recently as 1992.8 This limitation clearly has an important bearing on the Commonwealth's capacity to derogate from freedom of speech and debate in State Parliaments. It is a limitation which affects not merely legislative powers. It constrains executive powers and it also controls Australian common law. That common law, the High Court has held, must conform with the implied constitutional freedome9 There is no reason, in principle, why this limitation should not also constrain exercise of judicial powers to impose penalties for contempt of court and to make orders to restrain conduct adjudged to be in contempt of court.

At common law a person may be adjudged to be guilty of contempt of court for having published statements which are 'defamatory' of a particular court or judicial institutions in general. Some such statements might today be regarded as political statements and therefore protected by the implied constitutional freedom of political communication. At common law a person may also be adjudged guilty of contempt of court for having

Cth Par1 Paper 23511985. Senators Robert Hill, Nick Bolkus, Barney Cooney and Alan Missen. Senators Michael Tate and Chris Puplick presented dissenting reports. Amalgamuted Society of Erzgitzeers v Acleluide Steamship Co Lfd (1920) 28 CLR 129. Victoria v Australian Building Con.struction Employees' and Builders Labourers' Fec/erarion ( 1982) 152 CLR 25 at 93 per Mason J. See also Queensfand Electricity Conmmi.ssion v Commonwealth (1985) 159 CLR 192 at 217 and 235; Re Educutiorz Urrion; Ex parte Victoria (1995) 184 CLR 188 at 23 1 ; Victoria v Commonwealth (1996) 187 CLR 416. Victoria v Commonwealth (1996) 1 87 CLR 4 1 6. Nutionwide News Pty Lrd v Wills (1992) 177 CLR 1; Austruliarz Capital Television Ltd v Commotlwealth (1992) 177 CLR 106. h n g e v Au.straliutz Broadcasting Corporation (1997) 189 CLR 520.

Commonwealth Powers and the Privileges of State Parliaments 203

published statements which a court considers to be prejudicial to the conduct of pending judicial proceedings. Some, but by no means all, such publications may be in the nature of political statements. Which of them might be regarded as protected by the implied constitutional freedom of political communication has not yet arisen for judicial determination.

The extent to which Commonwealth powers affect State parliamentary privileges may be constrained by the implied constitutional limitations on Commonwealth powers is considered in the following parts of the article.

Ill. Freedom of speech and debate in Parliament

All Australian Houses of Parliament, and their members and committees, enjoy the privilege conferred by Article 9 of the English Bill of Rights 1689.1° They do so by virtue of general statutory provisions which invest them, their members and committees with the powers, privileges and immunities of the House of Commons of the United Kingdom Parliament;" or by virtue of Imperial Acts Application ~ c t s ; ' ~ or by virtue of principles of common law concerning the privileges of colonial legislatures.13 Article 9 of the Bill of Rights provides 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.

The primary purpose of Article 9 was to ensure that members of the English Parliament could not incur any legal liability, particularly at the suit of the Crown, or be victimised for words spoken or things done by them in the course of parliamentary proceedings. For the purposes of the laws of defamation, communications in the course of parliamentary proceedings are thus absolutely privileged. But Article 9 has been regarded as conferring much broader protection. It has been interpreted by courts as imposing restrictions on the admissibility of evidence concerning parliamentary proceedings.14 It supports the principle that it is for the Houses to regulate their own procedures and to determine their own agendas, free from outside interference.15 It also fortifies the powers of the House to undertake inquiries into a wide range of matters, using their ancillary powers to require the attendance of witnesses and production of documents.16

Courts have asserted a jurisdiction to determine the ambit of parliamentary privileges, including what Article 9 of the Bill of Rights requires and prohibits.17 There can, however, be differences of opinion between courts and Houses of Parliament about the effects of Article 9: for example what count as proceedings in Parliament and what amounts to an impeachment or questioning of such proceedings in a court or place out of Parliament.

1 Wm & M, Sess 2, c 2. Commonwealth of Australia Constitution, s 49; Parlianteiztary Privileges Act 1987 (Cth), s 16(1); Constitution Act 1867 (Qld), s 40A; Constitution Act 1934 (SA), s 38; Constitutioiz Act 1975 (Vic), s 19; Parliamentary Privileges Act 1891 (WA), s 1; Azistralian Capital Territory (Se&Government) Act 1988 (Cth), s 24; Legislative Assembly (Powers aiul Privileges) Act 1992 (NT), s 6(1). Imperial Acts Application Act 1969 (NSW), s 6; Imperial Acts Application Act 1984 (Qd), s 5; Imperial Acts Application Act 1980 (Vic), Part 11, Div 3. Gipps v McElhone (1887) 2 LR (NSW) 18 at 21, 24, 25; R v Tunzbull [I9581 Tas SR 80 at 83-4. See also Chenarcl and Co v Arissol [I9491 AC 127 at 134. See also Egan v Willis (1998) 158 ALR 527 at 535,569-70. Prehbk v New Zealund Television Ltd [I9951 1 AC 321. Australian cases are surveyed in Griffith, Parliamt.lztary Privilege: Use, Misuse and Proposals jur Reform (NSW Parliamentary Library Research Service, Briefing Paper NO 4/97) 24-28. Carnpbell E, Parliamentary Privilege in Australia, Melbourne University Press, Melbourne, 1966, Chap 5. Commonwealth r,f Australia Constitution, s 49; Parliamentary Eviderzce Act 1901 (NSW); Constitutioii Act 1867 (Qld), ss 41-44; Constitutioiz Act 1934 (SA), s 38; Parliamentary Privileges Act 1858 (Tas), ss I and 2; Parliamentary Privileges Act 1957 (Tas); Constitution Act 1975 (Vic), s 19; Parliamentary Privileges Act 1891 (WA), ss 4-7. The authorities are reviewed in Egun v Willis (1998) 158 ALR 527.

204 Enid Campbell

Section 16(3) of the federal Parliamentav Privileges Act 1987 was enacted to counter judicial rulings on Article 9 with which the Houses of the federal Parliament disagreed.''

Freedom of speech and debate in parliament is a key element of freedom of political communication. The implied constitutional freedom of political communication must therefore impose constraints on the capacity of all Australian legislatures to make laws which detract from the protections conferred by Article 9 of the Bill of Rights. The High Court of Australia has, nonetheless, emphasised that the implied freedom is not absolute. It may be curtailed by laws for the protection of legitimate public interests (such as national security, personal safety, and reputation) so long as those laws do not entail restrictions which are disproportionate to the ends to be achieved.I9

1. Legislative powers to aflect freedom of speech in State Parliaments The legislative powers upon which the federal Parliament might draw to enact legislation which is restrictive of freedom of speech and debate in State Parliaments are few, but they are nonetheless powers which could be exercised in ways which might be seen to be inimical to that freedom. The principal federal legislative powers which have that potential are: * The power conferred by s 51(v) to make laws with respect to 'Postal, telegraphic,

telephonic, and other like services'. The phrase 'other like services' has been held to encompass radio and television services.20

* The defence power conferred by s 51(vi). * The express incidental power conferred by s 5l(xxxix) and the implied incidental

power which attaches to the preceding, more specific heads of legislative power. Communications in the course of parliamentary proceedings could be affected by

exercise of the powers conferred by Part 7B of the Australian Postal Corporation Act 1989 (Cth), an Act enacted in reliance on s 5 1 (v) of the Constitution. Part 7B - headed 'Dealing with Articles and their Contents' - au thorises certain employees of Australia Post to intercept mail in defined circumstances. In some cases articles which have been placed in the mail may be destroyed, or their contents disclosed to designated law enforcement agencies or to the Australian Security Intelligence Organisation. The presentation of a written submission to a parliamentary committee, in response to an invitation to make submissions, would nowadays be regarded as a parliamentary proceeding and thus protected by Article 9 of the Bill of Rights 1689. Were it to become known that such a submission had been intercepted by Australia Post, and its contents made known to one or more of the designated law enforcement agencies, complaint might well be made that there had been an illegitimate interference with a parliamentary privilege.

During time of war, or in the interests of national security, the federal defence power may be invoked to impose regimes of censorship, enforceable by criminal processes and powers of search and seizure.*' In their joint opinion of 1983, Attorney-General Evans and Solicitor-General Byers, gave as an instance of a federal law, supportable under the defence power, one which prohibited disclosure of information about the movements of a convoy of ships during wartime. They suggested that such a federal law could validly apply to proceedings within the State parliament^.^^ I agree with that opinion.

18 Notably in R v Murplzy (1986) 5 NSWLR 18. See Cth Parl Deb (Senate) 7 Oct 1986, at 894-5. 19 Lunge v Australiutz Broadcastijtg Corporatiotz (1997) 189 CLR 520 at 567; Levy v Victoria (1997) 189 CLR

579. 20 R v Bri.slatz; Ex parte Williams (1935) 54 CLR 262; Jones v Comnu)nwealth [NO 21 (1965) 112 CLR 206. 21 See NSW Parliament, Report from the Joint Select Committee of the Legislative Council and kgislative Assembly

upon Parliamentary Privilege ( 1 984-5). 22 Note 3 at 86, para 7. The Solicitor-General of New South Wales, Mary Gaudron, agreed with this opinion. Her

advice is reproduced in the report cited in n 21 above, at 5-34.

Commonwealth Powers and the Privileges of State Parliaments 205

The greatest potential for Commonwealth impairment of freedom of speech and debate in the State Parliaments is probably that provided by the express and implied incidental legislative powers granted to the federal Parliament. Most of the provisions of the Crimes Act 1914 (Cth) have been enacted in reliance on those powers, including those on the crime of sedition. Various Commonwealth laws imposing duties of secrecy, breach of which may be visited with criminal sanctions, have been enacted in reliance on such powers. The incidental federal legislative powers are ones which the Commonwealth Parliament commonly invokes when it creates federal agencies and legislates so as to give them coercive powers and also to afford them protections against legal liabilities.

The federal Royal Commissions Act 1902 (Cth) was enacted solely in reliance on incidental powers of the Commonwealth Parliament.23 It is an Act which presupposes that s 61 of the federal Constitution supplies the executive branch of the Commonwealth with a power to commission inquiries by Letters Patent; but its framers recognised that persons so commissioned do not, at common law, possess any coercive powers, such as a power to require attendance of witnesses and the giving of evidence. The Act of 1902 gave federal royal commissions, whenever appointed, various coercive powers and protections against liabilities.

Incidental legislative powers also attach to the federal Parliament's powers under Chapter 111 of the Constitution to establish federal courts and to invest State courts with federal jurisdiction. The Evidence Act 1995 (Cth) has been enacted principally in reliance on these incidental powers of the Commonwealth Parliament.

Courts have accepted that statutes are not to be construed as derogating from parliamentary privileges unless they express a clear intention to do so.24 That principle of statutory interpretation was relied on by Attorney-General Evans and Solicitor-General Byers when they advised in 1983 that certain provisions in the Royal Commissions Act 1902 (Cth) did not operate to impair freedom of speech and debate in State ~ar l iaments .~~ The same principle has been invoked by the Senate to resist claims by executive agencies of government that secrecy provisions in various Commonwealth statutes prevent the provision of information to the Houses of the federal Parliament and their committee^.^^ It is also a principle on which State Houses of Parliament may rely when a question arises as to whether Commonwealth legislation operates to affect their privileges. There is, of course, the prior constitutional question of whether federal legislation can ever affect those State privileges, and especially that of freedom of speech and debate and all that entails.

Constitutional issues, as well as issues of statutory interpretation, could well arise if a State House of Parliament, or one of its duly authorised committees, were to undertake inquiry to determine the truth of allegations made in the course of federal parliamentary proceedings and were to invoke their powers to require the giving of evidence. In such a case it might be claimed that the tendering or reception of evidence of the relevant federal parliamentary proceedings is prohibited by s 16(3) of the Parliamentary Privileges Act 1987 (Cth). Section 16(3) provides that:

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(1) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

23 Colonial Sugar Refining Co Ltd v Attorney-General for the Comrnonw~ealth ( 19 12) 15 CLR 182; on appeal (19 14) 17 CLR 644.

24 Duke of Newcastle v Morris ( 1 870) LR 4 HL 66 1 . 25 Note 3 at 86-70. 26 Evans H (ed), Odgers' Airstralian Senate Practice, 8th ed, Australian Govt Publishing Service, Canberra, 1997

at 43-7.

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(2) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(3) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of these proceedings in Parliament.

Whether s 16(3) binds Houses of State Parliaments and their committees depends first on whether they are tribunals within the meaning of s 3(1) of the Act. The term 'tribunal' is there defined to mean -

any person or body (other than a House, a committee or a court) having power to examine witnesses on oath, including a Royal Commission or other commission of inquiry of the Commonwealth or of a State or Territory having that power.

Section 3(1) makes it clear that references in the Act to a House or a committee are to Houses and committees of the federal Parliament alone. But read literally the definition of 'tribunal' encompasses those Houses of State Parliaments and their committees which, under State law, have power to examine witnesses under oath. It may, however, be argued that the Act cannot be construed as having any effect on the powers of the Houses of State Parliaments and that therefore s 16(3) does not inhibit the powers of State Houses to receive and use evidence of federal parliamentary proceedings. Even if s 16(3), read together with s 3(1), were construed as applying to State Houses and their committees, there would still be a question about whether it can, constitutionally, so apply.

A court of law would probably take the view that the Parliamentary Privileges Act 1987 (Cth) does not affect the powers and privileges of the Houses of the State Parliaments. That view would not, however, resolve the question of whether, independently of the Act, the Houses of State Parliaments may impeach or question federal parliamentary proceedings. This question is considered later in the article.

In their joint opinion of 1983 Attorney-General Evans and Solicitor-General Byers acknowledged the importance of freedom of speech and debate in Parliament. They recognised also the inability of the federal Parliament to exercise its legislative powers so as to impair the capacity of the governments of the States to function. But they did not accept that federal legislative powers cannot be used at all to restrict freedom of speech and debate in State Parliaments. They referred to the decision of the United States Supreme Court in United States v ~ i l l o c k ~ ~ in which it had been held, they said, 'that freedom of speech of individual state legislators must yield where important federal interests are at stake, as in the case of criminal statutes . . .'.28

The majority of the Senate Standing Committee on Constitutional and Legal Affairs disagreed with the law officers on the constitutional issue. In their view Commonwealth legislation cannot override the State privilege in any circumstance^.^^ That conclusion was based partly on their reading of s 106 of the federal Constitution, the section which continued in force the constitutions of the States 'subject to the [federal] Constitution'. The Committee's view was that the privilege of freedom of speech and debate in Parliament was part of the State Constitutions as at the establishment of the Commonwealth. They thought that the phrase 'subject to the Constitution' meant only subject to those express provisions in the Constitution which modified State Constitutions. So, they concluded, the legislative powers of the federal Parliament cannot be used to override the State constitution^.^^

The correctness of this interpretation of s 106 of the federal Constitution is open to

27 445 US 360 (1980). 28 The words quoted are those of the law officers. The Senate Standing Committee on Constitutional and Legal

Affairs queried the law officers' interpretation of Gillock - see Note 3 at 36. See also Campbell E, Contempt of Royul Commis.sion.s, Faculty of Law, Monash University, Clayton, Vic., 1984 at 5 1-2.

29 Note 3 para 1.19. 30 Note 3 paras 3.18-3.63.

Commonwealth Powers and the Privileges of State Parliaments 207

question. It is an interpretation at odds with the opinion later to be expressed by the High Court of Australia in Port MacDonnell Professional Fishemen's Association Inc v South Australia3' that 'the continuance of the Constitution of a State pursuant to s 106 is subject to any Commonwealth law enacted pursuant' to a grant of power under s 51.32 The better view seems now to be that s 106 is but one of a series of provisions in the federal Constitution which afford a foothold for an implication that the Constitution impliedly constrains federal legislative powers to make laws affecting the powers and operations of agencies of State g~vernrnent.~"

The opinion of the majority of the Senate Standing Committee on Constitutional and Legal Affairs in 1985 did not rest solely on its interpretation of the effect of s 106 of the federal Constitution. It rested also on their understanding of the effect of an implied limitation on Commonwealth legislative powers. The majority thought 'that the freedom for members to speak in a Parliament is necessary for the existence of, and definitive of a Parliament'.34 That freedom, they said, 'is essential to the functioning of the parliamentary branch of State governments'.35 For the Commonwealth Parliament to fetter that freedom 'would amount to a substantial interference with the State's capacity to govern'. It would 'diminish a State's existence as a The majority had no doubt that 'any Commonwealth law which sought to impose on a member of a State Parliament liability on account of what was said in the State Parliament, would necessarily offend the doctrine of federal implication^'.^^

In this writer's opinion it is most unlikely that the High Court would now construe s 106 of the federal Constitution as denying the federal Parliament any capacity whatsoever to make laws affecting State Parliamentary privileges. It is also unlikely that the Court would accept the broad proposition that any Commonwealth law which inhibits freedom of speech and debate in State Parliaments offends the implied immunities doctrine. The Court is more likely to take the view that the question of whether that doctrine has been violated will depend on the nature and effect of a particular federal law, including its practical effect.

Federal laws which inhibit freedom of speech and debate in Parliaments will now, of course, have to conform with the implied constitutional freedom of political communication. While freedom of speech and debate in Parliaments can be seen as a central element of this constitutional freedom, it may nevertheless be regarded as not so absolute a freedom that it cannot be affected in any way by legislation.

The operation of Article 9 of the Bill of Rights, as part of the law of New South Wales, was certainly affected by the special legislation which the New South Wales Parliament enacted in 1996 to enable inquiry to be made by an extra-parliamentary commission into the truth of serious allegations which had been made, under cover of parliamentary privilege, by a member of the State's Legislative Council, Mrs Franca ~ r e n a . ~ ~ The legislation provided that an inquiry commissioned by the Governor was possible only if approved by the Legislative Council. The legislation ensured that the commissioner would have power to require the attendance of witnesses and the answering of questions, but it also allowed Mrs Arena to decline to 'co-operate'. Mrs Arena instituted proceedings to

(1989) 168 CLR 340. (1989) 169 CLR 340 at 35 1 . Zines L, The High Court and the Cotzstitution, 4th ed, Butterworths, Sydney, 1997 at 336-4 1 . Note 3 para 3.68. Note 3 para 3.69. Note 3 para 3.69. Note 3 para 3.65. The New South Wales Joint Select Committee supported these views (n 21 above at 60). See Campbell, 'Investigating the Truth of Statements made in Parliament' [1998] Public Lclw 125; Griffith, 'The Powers and Privileges of the New South Wales Legislative Council: Arena v Nader' (1998) 9 PLR 227; Evans, 'Franca Arena and parliamentary privilege' (1998) 1 (1 ) CLPR 1 .

208 Enid Campbell

challenge the constitutionality of the legislation. The State's Court of Appeal rejected the challenge" and the High Court refused her application for special leave to a p ~ e a l . ~ Neither court was persuaded that the implied constitutional freedom of political communication had been violated or that any other constitutional principle had been infringed.

The allegations which Mrs Arena had made were ones concerning high State officers, among them the Premier and a judge of the State's Supreme Court who had, for some years, been sitting as a State royal commissioner. Had the allegations made by Mrs Arena concerned federal officers, the federal Government might conceivably had sought to have the truth of the allegations investigated by a federal agency. That government might have sought legal advice on whether the inquiry might be committed to a federally appointed royal commission which, once appointed, could invoke the coercive powers conferred by the Royal Commissions Act 1902 (Cth). The advice the federal Government would have received would probably have been similar to that which informed the decision of the Government of New South Wales to seek enactment of the special legislation to enable the truth of the Mrs Arena's allegations to be investigated. There would then have arisen the question whether the Commonwealth Parliament had any authority to enact legislation to authorise the desired investigation.

The answer to the latter question might have been that, insofar as the allegations concerned officers of the executive branch of the Commonwealth (or perhaps even federal parliamentarians), federal legislation to commission inquiry into the truth of the allegations was, prima facie, authorised by s Sl(xxxix) of the federal Constitution. This provision empowers the federal Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in, inter aha, 'the Government of the Commonwealth . . . or in any department or officer of the Commonwealth'. But then the question would have been whether the federal Parliament can use its legislative powers to authorise any inquiry into what has been said or done in a State Parliament.

It could be argued that if the federal Parliament cannot use its 'communications' power under s 5l(v) of the Constitution to prohibit the broadcasting of political advertisements during election periods relating to State Parliaments, there must be grave doubts about whether it has power to enact legislation which restricts freedom of speech and debate in State Parliaments, directly or indirectly. In Australian Capital Television Pty Ltd v Cornmon~ealth~~ the High Court held that federal legislation prohibiting the broadcasting of political advertisements during election periods violated the implied constitutional freedom of political cornm~nication.~~ Brennan and McHugh JJ held also that so far as the legislation applied to broadcasting of political advertisements during State election periods, it represented an illegitimate interference with the functioning of the states." 'The functions of a State', Brennan J observed, 'include both the machinery which leads to the exercise of the State's powers and privileges and the machinery by which those powers and privileges are e~e rc i s ed ' . ~~

That observation clearly suggests that his Honour would have had doubts about the constitutionality of federal legislation which purported to place restrictions on matters which can be debated within Houses of State Parliaments, or which restricted communications to or from those Houses, their members and their committees. If there are constitutional inhibitions on the Commonwealth Parliament's powers to enact legislation which is restrictive of freedom to communicate in the course of electoral

39 Arerm v Nacler (1997) 42 NSWLR 427. 40 Arena v Nacler ( 1 997) 7 1 ALJR 1604. 41 (1992) 177 CLR 106. 42 Political Broaclcusts urzcl Political Disclosures Act 199 1. 43 (1992) 177 CLR 106 at 162-3, 241-4. 44 (1 992) 177 CLK 106 at 163.

Common wealth Powers and the Privileaes of State Parliaments 209

campaigns, those inhibitions must certainly apply, and with stronger force, to communications, in the course of parliamentary proceedings, among the members of the elected Houses and the constituents they serve.

For the purposes of the implied constitutional freedom of political communication, the High Court would probably have to accept that communications, in the course of what the Court can recognise as parliamentary proceedings, must be classified as communications of a political character, and are thus protected by the implied constitutional freedom. Were the Court to attempt to discriminate between those proceedings within a Parliament which it adjudges to be worthy of the constitutional protection, and those which are not, it could justly be accused of arrogating to itself a power to control parliamentary agendas.

Until such time as the Commonwealth seeks to enforce federal legislation which it claims is restrictive of what can be said and done in the course of State parliamentary proceedings, the constitutionality of federal legislation having that effect remains uncertain. Decision on the constitutional issues will not be required unless the federal legislation makes it clear that it is to apply to proceedings in the State Parliaments. In many cases it will be possible for a court to avoid decision of the constitutional issues by application of principles of statutory interpretation. The approach adopted by Young J in Attorney- General (NSW) v Ray45 is illustrative.

In this case an application had been made to the Supreme Court of New South Wales to prevent the deportation of a person who was needed as a witness in pending criminal proceedings. Relying on the implied immunities doctrine, Young J held that the deportation powers conferred by the Migration Act 1958 (Cth) should be read as not authorising the deportation of persons whose evidence is sought in State criminal proceedings. If Young J was right in so holding, it must follow that the deportation powers conferred by federal legislation are not exercisable in relation to persons whose evidence is required by a House of a State Parliament or by a State parliamentary committee.

2. Executive and judicial powers to aflect freedom of speech in State Parliaments Federal legislation may vest in officers of the executive branch of government powers to take action which restricts communications, for example powers of censorship. The legislation may be entirely valid. Nonetheless the powers it confers may be ones which must be read down in light of constitutional constraints such as the implied freedom of political communication. Federal prerogative powers46 must likewise be restricted. There could therefore be doubts about the power of the Governor-General to appoint a royal commission of inquiry to investigate the truth of statements which had been made in a State Parliament. Certainly the powers given to federal royal commissions by the Royal Commissions Act 1902 (Cth) would not be construed as authorising them to require the giving or production of evidence regarding parliamentary proceedings, in breach of State parliamentary privileges.

The Houses of the State Parliament, like the Houses of the federal Parliament, possess investigatory powers. An occasion could arise on which a court is moved to halt a parliamentary inquiry on the ground that its continuation is likely to prejudice the trial of a matter before the court. Courts invested with a general contempt jurisdiction may restrain extra-parliamentary inquiries in such circumstances, for example an inquiry by royal comrnis~ion.~~ There is, however, no reported case in which a court has been moved to issue an injunction to restrain a parliamentary inquiry. An application for such an injunction would probably be refused on the ground that its issue would be an improper interference

45 (1979) 18 ALD 729. 46 Under s 61 of the Constitution. 47 See Victoria v Australiatz Builclirzg Cou.struction Employees' and Builders' Labourers Federutiorz (1982) 152 CLR

28 at 57-80, 9 3 4 , 105, 119; Shave v Gooclhew (1989) 90 ALR 221.

Enid Campbell

with a parliamentary process and in breach of parliamentary privilege. There would, of course, be other constitutional considerations if a federal court were to be invited to restrain an inquiry by a State parliamentary committee, and to do so on the ground that pursuit of that inquiry would prejudice adjudication of proceedings before the federal court. In such a case there would be an issue about whether the jurisdiction invested in the federal court even extended to the making of orders to restrain parliamentary inquiries or to punish conduct in the course of such inquiries. The answer might well be that the jurisdiction of the federal court does not extend this far, in the absence of a clear statutory mandate. Were there to be such a mandate, there would still be an issue ahout the constitutionality of federal legislation which accords federal courts a contempt jurisdiction which reaches into the proceedings of State Parliaments.

Fortunately hard questions of this kind are avoided by parliamentary conventions by which Houses of Parliament eschew debate of matters which are sub j ~ d i c e . ~ ~ Once a House of the federal Parliament had been informed of a matter pending before a court, State or federal, and is persuaded that adjudication of the matter might be prejudiced by a parliamentary inquiry, the House would probably be prepared to suspend the parliamentary inquiry or else take other action to avoid prejudice to the judicial proceedings, such as directing that the parliamentary inquiry be conducted in camera. If the parliamentary inquiry had proceeded to the point of report, the action might be suppression of publication of the report until the judicial proceedings had been concluded.

IV. Attendance before Courts and Tribunals

Members of Parliament, Hatsell wrote in the late eighteenth century 'should not be prevented by trifling interruptions from attendance' in Parliament, 'but for a certain time, be excused from obeying any other call, not so immediately necessary for the great service of the nation'.49 It was for this reason that members of the House of Commons were accorded immunity from arrest in civil causes during parliamentary sessions and for forty days before and after. During this period members were also excused from any duty to attend in court or before a tribunal having power to require the attendance of witne~ses.~' These privileges are, by statute enjoyed by members of the Queensland, Victorian and Western Australian parliaments? and in a slightly modified form by members of the federal and South Australian parliaments," and members of the Legislative Assemblies of the Australian Capital Territory and the Northern ~erritory.~"

Nowadays the circumstances in which persons may be arrested or otherwise detained in civil causes are extremely limited. But members of Parliament are sometimes required to give evidence before the courts, before administrative tribunals and before bodies like royal commissions of inquiry. They may even be required to appear before parliamentary committees.

The federal Evidence Act 1995 expressly recognises the paramount claim of Houses of Parliament to the attendance of their members at their sittings. This Act binds all federal

48 Browning AR (ed), House c~'Repre.setztatives Practice, 2nd ed, AGPS, Canberra, 1989 at 491-5; Evans (ed), n 26 at 211-6.

49 Hatsell, Prececlents and Proceeclitzgs it1 the House of Commons (1786) 1-2. 50 Boulton CJ (ed), Erskine May's Treatise on the Law, Privileges, Proceedit~gs and U.sage of Parliament, 21st ed.,

Butterworths, London, 1989 at 100-2. See also Di Nardo v Dowtzrr [I9661 VR 351. 5 1 Cotzstitution Act 1867 (Qld), s 40A; Constirutio~z Act 1975 (Vic), s 19; Parliumentary Privileges Act 189 1 (WA),

s 1 . 52 Purliumentary Privileges Art 1987 (Cth), s 14; Constitution Act 1934 (SA), s 39. 53 Australian Capital Territory (Self Government) Act 1988 (Cth), s 24; Legislative Assembly (Powers and Privileges)

Act 1992 (NT), s 7.

Commonwealth Powers and the Privileges of State Parliaments 27 7

courts and the courts of the Australian Capital ~ e n i t o r y . ~ ~ Section 15(2) of the Act provides that:

A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending:

(a) a sitting of that House or a joint sitting of that Parliament; or (b) a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member.

Several points need to be made about s 15(2). They are: (1) The sub-section does not apply to State courts when they are exercising federal

jurisdiction. In those cases the court will be obliged to apply the relevant State law. (2) The sub-section applies only to members of Parliament. It does not apply to officers

of parliamentary departments or to non-members who have been summoned to appear as witnesses before a court but whose attendance in court would prevent them attending as a witness before a House of Parliament or a parliamentary committee. Section 10 of the Evidence Act 1995 (Cth), however, preserves the operation of parliamentary privileges, both federal and State. Thus if the attendance of a person is required by a federal court, and the person is excused from attendance under State law on parliamentary privileges, the federal court would be obliged to respect the State law.

(3) Although s 15(2) of the Evidence Act 1995 does not bind the Houses of the federal Parliament and their committees, they may be guided by the provision when they seek the attendance before them of members of other Australian Parliaments.

The only State Parliament which has enacted legislation modelled on the federal Evidence Act 1995 is the New South Wales Parliament. Sections 10 and 15(2) of the Evidence Act 1995 (NSW) substantially reproduce the equivalent sections in the federal Act.

The relationship between s 15(2) of the Evidence Act 1995 (Cth) and State parliamentary privileges has yet to be determined. In those States in which the Houses, their members and committees enjoy the same powers, privileges and immunities as the House of Commons, its members and committees, members of the State Parliament are exempt from attending court as witnesses not only during sessions of a House but for a period of forty days on either side of a session. In 1984 the Joint Select Committee of the federal Parliament on Parliamentary Privilege reported that, in its opinion, this immunity (which at the time applied to members of the federal Parliament by virtue of s 49 of the Constitution) was too sweeping. The Committee recommended that it be abridged.55 'If the immunity is to continue to apply with unabated force', the Committee said?6

it means that a Member who may be a vital witness in a criminal or civil case - he may, for example, be a vital witness to a defendant on grave criminal charges - is assured of virtual immunity in the witness box. If his evidence was first sought at the beginning of the Parliament, effectively the demands of justice could be denied at least for two or three years.

The Committee's recommendation for change of the law in this regard has been implemented in section 14(1) of the federal Parliamentary Privileges Act 1987. It provides that:

A member: (a) shall not be required to attend before a court or a tribunal; and (b) shall not be arrested or detained in a civil cause;

on any day:

54 Section 4. 55 Cth Par1 Paper 21911984, para 5.75. 56 Note 55 at para 5.73.

2 12 Enid Campbell

(c) on which the House of which that member is a member meets; (d) on which a committee of which that member is a member meets; or (e) which is within 5 days before or 5 days after a day referred to in paragraph (c) or (d).

This section has a broader operation in relation to members of the federal Parliament than does s 15(2) of the Evidence Act 1995 (Cth) since it applies to all Australian courts and tribunals. Additionally it extends the period of immunity. Whether s 15(2) of the Evidence Act 1995 overrides s 14(1) of the Parliamentary Privileges Act 1987 is unclear.

A more important question for present purposes is whether a member of a State Parliament whose attendance is required before a federal court can rely on the wider immunity accorded by State law. Arguably s 10 of the Evidence Act 1995 indicates that the member can. The wider immunity may also be claimed by members of State Parliament whose attendance is required by federal tribunals or royal commissions. Possibly it may be claimed also by members of State Parliament whose attendance before a federal parliamentary committee is required.

The immunity accorded to members of the House of Commons extends to officers of that House and to persons who have been summoned to attend before the House or one of its committees. Sub-sections (2) and (3) of s 14 of the federal Parliamentary Privileges Act 1987 accord a more limited immunity to officers of a House of the federal Parliament and persons required to attend before a House or a federal parliamentary committee. Under s 14(3) persons in the latter category cannot be required to attend before any court or tribunal on the day on which their attendance is required in the federal Parliament. The definition of the term 'tribunal' in s 3(1) of the Act is sufficiently broad to cover the Houses of State Parliaments and their duly authorised committees, but it would probably be read as not applying to these institutions. On that reading a person could not rely on s 14(3) as an excuse for not appearing as a witness before a State House or parliamentary committee.

V. The Investigatory Powers of the Parliaments

The Houses of the Australian Parliaments possess extensive pcjwers of investigation. These powers include a power to require the attendance of persons as witnesses and to require the production of documents. The Houses commonly delegate these powers to committees of their members. The Houses of the federal, South Australian and Victorian Parliaments derive these investigatory powers from constitutional provisions which endow them with the powers of the House of Commons of the United Kingdom ~ar l iament .~~ In New South Wales, Queensland, Tasmania and Western Australia the investigatory powers of the Houses have been conferred by more specific legi~lation.~~ Penalties may be imposed on those who fail or refuse to attend on summons, or to produce documents or who refuse to answer question^.^^

There are no express constitutional limitations on the subjects which may be investigated by the Houses of the Australian Parliaments or their committees, or on the uses they may make of their powers to compel the giving of evidence. But there could be some implied limitations arising from the division of legislative powers between the Commonwealth and State Parliaments and from the fact that Australia has a federal system

57 Commonwealth oj' Australia Constitution, s 49; Constitution Act 1934 (SA), s 38; Constitution Act 1975 (Vic), s 19.

58 Parliamentary Evidence Act 190 1 (NS W); Constitution Act 1867 (Qld), ss 4 1-44; Parliametttary Privileges Act 1858 (Tas), ss 1 and 2; Purliarnerzrury Privileges Act 1891 (WA), s 4.

59 See n 15 at 166-7 1 ; Purliametttary Privileges Act 1987 (Cth), s 7; Purliarnerztary Eviclerzce Act 1901 (NSW); Cottstitutiotz Act 1867 (Qld), s 45; Constitutiotz Act 1934 (SA), s 38; Parlirrmetztary privilege^ Act 1858 (Tas), s 3; Purliamerztary Privileges Act 1957 (Tas); Constitution Act 1975 (Vic), s 19; Purliametztary Privileges Act 1891 (WA), ss 8 and 9.

Common wealth Powers and the Privileaes of State Parliaments 2 73

of government. Limitations may also stem from Article 9 of the Bill of Rights 1689, in its application to the several Parliaments. This part of the article examines those possible limitations and problems which may attend their enforcement.

1. Limitations arising from the division of legislative powers The Australian federal Constitution limits the legislative powers of the federal Parliament to enumerated subjects. While most of those subjects are ones on which State Parliaments retain a concurrent power to legislate, there are several subjects which fall within the exclusive domain of the federal Parliament. The State Parliaments retain exclusive power to legislate on subjects not in the federal list.

The High Court has not had occasion to consider whether the investigatory powers which the Houses of the federal parliament possess by virtue of s 49 of the federal Constitution are limited as regards the matters which may be investigated, by reference to the subjects on which the Parliament is authorised to legislate. But if the decision in what is sometimes referred to as the Royal Commissions Case6' remains 'good law', there is reason to doubt whether the federal parliamentary investigatory power is unrestricted as regards subjects of inquiry, at least when the power is invoked to coerce the giving of evidence under pain of punishment if evidence is not provided, or by arrest of a person whose testimony is required.

In the Ro-yal Commissions Case is case, a majority of the High Court held that the coercive powers given to federal royal commissions by the Royal Commissions Act 1902 could not, constitutionally, be exercised except when the matter under investigation was in respect of which the Commonwealth Parliament could legislate. The coercive powers, the High Court held, were not even enlarged by reason of the fact that a royal commission had been charged with the task of advising on whether Commonwealth legislative powers should be extended by formal constitutional amendment, pursuant to s 128 of the Con~titution.~' On appeal the Judicial Committee of the Privy Council held the Royal Commissions Act 1902 ultra vires on the ground that it did not confine the powers of royal commissions to matters within the legislative powers of the Commonwealth Parliament. The Act was not, in short, incidental to any of the existing powers of the C~rnrnonwealth.~~ In Lockwood v ~ommonweal th ,~~ however, Fullagar J took the view that a federal royal commissioner who had been appointed to inquire into a matter within the legislative powers of the Commonwealth can exercise the coercive powers conferred by the A C ~ . ~ ~

It is by no means certain whether the High Court would treat the Royal Commissions Case and Lockwood's case as even relevant to the question of whether the investigatory powers of the Houses of the federal Parliament are limited as regards the subject matters which may be investigated. The sources of these powers are, after all, different from that for inquiry by royal commission. Federal royal commissions derive their coercive powers from legislation enacted under the express incidental power conferred by s Sl(xxxix). The Houses of the federal Parliament derive their investigatory powers from s 49 of the Constitution, though some of the joint committees of the Houses derive their powers from

60 Colonial Sugar Rejiiziizg Co Ltcl v Attortzey-Geizerul jor the Cornrno~zwealth (1912) 15 CLR 183; on appeal Attorney-Generalfor the Commonwealth v Cofotzial Sugar Rejinitzg Co Ltd (1913) 17 CLR 644.

61 (1912) 15 CLR 183 at 194-5 per Griffith CJ; 206 per Barton JJ. Isaacs and Barton JJ dissented. As the Court was equally divided, the opinion of the Chief Justice prevailed by virtue of s 23 of the Judiciary Act 1903 (Cth).

62 (1913) 17 CLR 644. For a critique see Pearce, 'Inquiries by Senate Committees' (1971) 45 AW 652 at 657-9. 63 (1954) 90 CLR 117. 64 (1954) 90 CLR 1 17 at 182-3. See also Victoria v Australian Builditzg Construction Employees and Builders'

Labourers Federation (1982) 152 CLR 25 at 48 per Gibbs CJ.

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statutes.65 Federal legislation dealing generally with parliamentary inquiries and making provision for, say, protection of parliamentary witnesses would be enacted in exercise of the legislative power conferred by s 49 in combination with s 51 (xxxvi), and perhaps also in combination with s 5l(xxxix). If, as a former Chief Justice of the High Court has said, there is no constitutional limit on the matters which may be debated in the federal ~ar l i ament ,~~ there can be no constitutional limit on the subjects which may be investigated by the Houses and their committees. Even so there may be constitutional limitations on the uses they may make of their coercive powers. The United States Supreme Court has taken the view that the power of the Houses of the federal Congress to coerce the giving of evidence does not 'extend to an area in which Congress is forbidden to legislate'.67 Committees of the Australian Senate have been advised that their coercive powers may be limited in the same way.

The High Court might, however, be persuaded that the coercive powers of the Houses of the Commonwealth Parliament cannot be limited by reference to subjects on which that Parliament may presently legislate because of the vital role the Houses play in formal amendment of the Constitution pursuant to s 128. In considering whether to move amendment of the Constitution, or to approve a proposed amendment, the Houses may find it necessary to investigate matters which presently are ones in respect of which the federal Parliament has no power to legislate. Could they then properly be denied authority to use their power to compel the giving of evidence?

2. intergovernmental immunities

Senate committees have on several occasions been advised of the possibility that the High Court might hold that the federal Constitution impliedly restricts their powers by prohibiting the exercise of those powers in ways which impair the capacity of State institutions of government to function.68 This suggested limitation may apply even when the matter under investigation is one in respect of which the federal Parliament has power to legislate. The matter could, for example, relate to the affairs of a State trading or financial corporation, or to interstate trade and commerce, or to external aft'airs. The parliamentary inquiry may have been undertaken to ascertain how certain State laws have been administered in order to determine whether there is a need for federal legislation to implement Australia's obligations under some international agreement.

It would be difficult to establish that a State's capacity to govern is impaired simply because its governmental affairs are the subject of an inquiry commissioned by a House of the federal Parliament. The position could, however, be different if the committee to which the inquiry has been entrusted decided to require the attendance of State members of Parliament or State officials, or to require production of State documents. Compliance with such demands may well take the members and officials away from their normal duties for extended periods of time and perhaps also add to the costs of State administration.

In 1993 the Clerk of the Senate, Mr Harry Evans, advised the Senate Select Committee on the Powers, Functions and Operations of the Australian Loan Council that it had no power to compel the attendance of members of a State Parliament. But he also advised that the Senate could request the relevant State House to require the attendance of State members before the ~ommit tee .~~ Subsequently the Senate resolved, on the

65 The joint statutory committees include the Australian Security Intelligence Organisation Committee (Au~traliarz Security Inte1ligerzc.e Orgaizisution Committee Act 1979, ss 92B and 92C); the National Crime Authority Committee (Natior7ul Crime Authority Act 1984, s 531) ) ; The Public Accounts Committee (Public Accourzts Committee Act 1951, ss 5 and 8(1)); and the Public Works Committee (Public Works Committee Act 1969).

66 A~istralian Capital Television Ltcl v Commonwealth (1992) 177 CLR 106 at 142 per Mason CJ. 67 Qui~zn v Ufzited States, 349 U S 155 at 161 (1955). 68 Note 26 at 51-2. 69 Interim Report (Par1 Paper 7W1993).

Common wealth Powers and the Privileges of State Parliaments 2 75

recommendation of the C~mmi t t e e ,~~ that this procedure be adopted. In consequence letters were sent to the presiding officers of the Houses of the Victorian Parliament requesting that they require named members to attend before the Committee. Both Houses resolved that the designated persons be given leave to attend, but only if they thought tit.71 The designated members chose not to attend. The State Houses apparently took the view that they could not compel their members to attend before a federal parliamentary committee.72

In 1995 the Clerk of the Senate once again advised a Senate committee - the Select Committee on Unresolved Whistleblower Cases - that members of State Parliaments and State officials could not be compelled to attend by the Senate or one of its committees. He referred to the implied immunity doctrine. It was, he said, Senate practice simply to invite attendance by such persons.73

In 1996, advice from the Clerk of the Senate and Emeritus Professor Dennis Pearce resulted in the abandonment of the inquiry assigned to the Select Committee of the Victorian Casino Inquiry.74 The terms of reference of the Committee were framed in such a way that it could not be said that subjects of the inquiry were ones on which the federal Parliament had no power to legislate. On the other hand the inquiry would certainly involve investigation of matters of State administration. The Premier of Victoria was invited by the Committee to make a written submission. He declined the invitation and warned that if evidence were to be required it would be refused on the public interest immunity ground. The Committee accepted that it had no power to coerce the attendance of members of State Parliaments, though it did not believe that its inquiry would impair the functioning of the government of Victoria. In his letter of advice to the Committee, the Clerk of the Senate, Mr Harry Evans, noted the need for comity in the practices of all Houses of Australian Parliaments regarding attendance before them and their committees of members of one another's Parliaments.

Curiously, in none of these cases was reference made to the immunities possessed by members of State Parliaments as a matter of State law. Nor was reference made to the possibility that State members or officials who chose to accept invitations to appear before a federal parliamentary committee might refuse to answer certain questions or to produce certain documents on the ground that they were forbidden to do so by State legislation which imposed duties of secrecy upon them. In such a case the question would arise whether the State legislation could validly operate to curtail the investigatory powers conferred by s 49 of the federal Constitution. The answer would probably be that it cannot inasmuch as the Constitution is the paramount law.75 On the other hand the existence of the State legislation could be a factor taken into account in determining whether a State's capacity to govern would be impaired by compulsory disclosure of the matters covered by a State's secrecy laws.

3. Article 9 of the Bill of Rights Article 9 forms part of the law of all of the Australian polities, but the Parliament to which it refers will be the Parliament of the particular polity.76 This means that in a State, the places out of the State Parliament will include the Houses of the federal Parliament.

Article 9 prohibits the impeachment or questioning of proceedings in Parliament in a

70 Second Report of the Committee on the Australian Loan Council (Parl Paper 15311993). 71 Vic Parl Deb, Legislative Council, 19 Oct 1993, at 485; Legislative Assembly, 19 Oct 1993, at 1064-5. 72 Note 26 at 417. 73 Parl Paper 34411995 at 13840. 74 Parl Paper 35911996. 75 The implied limitations on the powers of the State Parliaments to make laws which bind the Commonwealth and

its instrumentalities was considered most recently by the High Court in Re Residential Tenancies Tribunal (NSW); Ex pane Dejerzce Housing Authority (1 997) 146 ALR 495.

76 Egan v Willis (1998) 158 ALR 527 at 534, 569-70.

Enid Campbell

court or a place outside the Parliament. Precisely what that prohibition entails is still not entirely clear.77 It is, however, generally accepted that the prohibition is violated if the truth of a statement made in the course of parliamentary proceedings is questioned in proceedings before agency of government outside the relevant Parliament, or if the author of the statement is required by such an agency to answer questions about his or her motives for making the statement or about his or her sources of inf~rmation?~

Article 9 has not been entrenched in any of the Australian Constitutions except to the extent that it may have been underwritten by the implied constitutional freedom of political communication under the federal Constitution. The extent to which that implied freedom may protect participants in parliamentary proceedings trom impeachment or questioning in respect of statements made by them in the course of such proceedings has still to be determined by the High Court.79 It is by no means inconceivable that the High Court would construe the implied freedom as one which operates to limit the investigatory powers of Houses of Parliaments so that, for example, the Houses of the federal Parliament are not permitted to use their investigatory powers to force members, or even former members, of State Parliaments to answer questions about what they said under parliamentary privilege.

In 1995 the Senate's Committee of Privileges conceded that Article 9 prevented it from examining members of the South Australian Parliament who, in the course of State parliamentary proceedings, had disclosed the contents of two confidential submissions presented to the federal Joint Committee on the National Crime ~ u t h o r i t y . ~ ~ In other words, Article 9 so far as it formed part of South Australian law, was seen as curtailing the investigatory powers of the Joint Committee notwithstanding that, under s 13 of the Parliamentary Privileges Act 1987 (Cth) unauthorised disclosure of the confidential submissions was a criminal offence. The 'privilege' conferred by Article 9 on the individual members of the State Parliament could not, according to most judicial interpretations of the Article, have been waived by them.8' It is probably one which could not even be waived even by the State ~ o u s e s . ~ * To allow the Houses to waive the 'privilege' would, after all, be to recognise a power to grant a dispensation from a statute. Such a power could be used by parliamentary majorities to the prejudice of their political opponents.

4. Enforcement of limitations on parliamentary investigatory powers If parliamentary powers of investigation are limited by law, occasions may arise when the courts are asked to enforce those limitations. The capacity of courts to enforce the limitations may, however, be impeded if the alleged excess of power, or threatened excess of power, cannot be established unless evidence is received about what has actually occurred in the course of parliamentary proceedings. The relevant evidence may include the resolution of a House to establish a parliamentary committee and defining its terms of reference; a summons to a person requiring attendance before a House or a committee; a record of a question put to a parliamentary witness and the witness's response to the question - which response might have been that he or she was not obliged to answer the question or was under a statutory duty not to divulge the information sought. The dificulty about reception of evidence of these kinds is that Article 9 of the Bill of Rights 1689 may

77 See Griffith, n 14 at 24-8. What is meant by impeachment of proceedings in Parliament was considered in O'Chee v Rowley (1997) 150 ALR 199 at 210.

78 Egun v Willis(1998) 158 ALR 527 at 571. 79 Some of the issues were canvassed by the Queensland Court of Appeal in LawVrance v Katter (1996) 141 ALR

447. The High Court granted special leave to appeal but the appeal was later discontinued. 80 Par1 Paper 13311995. 8 1 See Griffith, n 14 at 35-7. 82 Note 14 at 35-7.

Common wealth Powers and the Privileges of State Parliaments 277

have rendered it inadmissible, unless there is clear statutory provision to the contrary. But in Australia there is now some support for the proposition that Article 9 does not preclude reception by courts of evidence of parliamentary proceedings when the evidence is tendered in support of a case that constitutional limitations have been exceeded or are threatened.

In the recent case of Egan v WiMi~,8~ Kirby J stated that: Courts in this country, at least in the scrutiny of the requirements of the Australian Constitution, have generally rejected the notion that they are forbidden by considerations of parliamentary privilege, or of the ancient common law of parliament, from adjudging the validity of parliamentary conduct where this must be measured against the requirements of the Con~titution.~~

His Honour referred to a series of cases in which the constitutionality of parliamentary procedures had been ~hal lenged.~~ He went on to say that:

Notions of unreviewable parliamentary privilege and unaccountable determination of the boundaries of that privilege which may have been apt for the sovereign British Parliament must, in the Australian context, be adapted to the entitlement to constitutional review . . . [Tlhe Australian context does not accord to . . . [the chamber of a State Parliament] a completely unreviewable entitlement, in law, to define and enforce its own powers. Any such powers can only be exercised in conformity with the political and judicial system which the Constitution creates.86

These observations suggest that if it is claimed that a House of an Australian Parliament has exceeded constitutional limitations on its investigatory powers, or has taken action which threatens to exceed those limits, Article 9 of the Bill of Rights does not preclude a court from receiving evidence of parliamentary proceedings to determine whether an excess of power has occurred or is threatened.

In Egan v W i l l i ~ ~ ~ evidence was received of events which had occurred within the Legislative Council leading to suspension of a Minister for having refused to comply with an order by the House that he table certain documents. The Minister sought a declaration that, in suspending him, the Legislative Council had exceeded its powers. Both the court at first instance, the New South Wales Court of Appeal, and, on appeal, the High Court rejected the Minister's claim. None of the original parties in the case objected to reception of evidence of the parliamentary proceedings, but on the appeal to the High Court, the Attorney-General of South Australia intervened on behalf of that State. He did so on the question of justiciability. He submitted that the issue of whether the suspension of the Minister, and his forcible removal from the House, was lawful was non-justiciable. This submission was based partly on the prohibitions contained in Article 9 of the Bill of Rights. The acts which preceded and which immediately followed the suspension were, it was argued, 'proceedings in parliament' and could not therefore be the subject of inquiry in the courts. The submission was rejected, though only Kirby J dealt with it at any length.88

In Egan v Willis it was, of course, unnecessary for the High Court to consider the effect of s 16(3) of the Parliamentary Privileges Act 1987 (Cth). This sub-section will apply in any case in which evidence of federal parliamentary proceedings is sought to be tendered. It will prohibit the tendering or reception of such evidence for the purpose of 'drawing, or inviting the drawing of . . . conclusions wholly or partly from anything forming part of those proceedings . . .'. On its face s 16(3) would seem to prohibit the reception of evidence of federal parliamentary proceedings for the purpose of persuading a court that a House or one of its committees has exceeded power. Sub-section (3, however, makes it clear

83 (1998) 158 ALR 527. 84 (1998) 158 ALR 527 at 572. 85 (1998) 158 ALR 527 at fn 244. 86 (1998) 158 ALR 527 at 573. 87 (1998) 158 ALR 527. 88 (1998) 158 ALR 527 at 568-7 1.

2 78 Enid Campbell

that the section does not apply to proceedings in a court so far as they relate to, inter alia, a question arising under s 57 of the federal Constitution. In such a case 'evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee' is admissible.

Section 16(3) raises some constitutional issues which have yet to be resolved by the High Court. One is whether it can validly operate to prevent a court from receiving evidence of parliamentary proceedings when that evidence is required to determine whether the federal Constitution has been violated. Arguably s 16(3) cannot so operate and to the extent that it purports to exclude such evidence, it represents an illegitimate interference with the judicial powers of the Commonwealth. Any matter arising under the Constitution or involving its interpretation is, after all, one of the heads of federal judicial power.89

The question whether a House of Parliament or a parliamentary committee has exceeded its powers, or threatens to exceed power, could be raised for judicial determination in several ways. A person subpoenaed as a witness might bring a suit for a declaration that the House or committee had no power to require the witness's attendance. A declaration might also be sought by a witness who has refused to answer certain questions, or to produce certain documents, on constitutional grounds. In such a case a court might take the view that it should not entertain the suit unless it was clear that the House or committee had overridden the witness's objections. Should a House adjudge a recalcitrant witness to be in contempt of Parliament, and impose a penalty of imprisonment, judicial remedy might be sought by a witness who has refused to answer certain questions, or to produce certain documents, on constitutional grounds. In such a case a court might take the view that it should not entertain the suit unless it was clear that the House or committee had overridden the witness's objections. Should a House adjudge a recalcitrant witness to be in contempt of Parliament, and impose a penalty of imprisonment, judicial remedy might be sought on application for habeas corpus, by action for false imprisonment, or by suit for an injunction to prevent execution of the order that the plaintiff be detained in custody.

Prior to the enactment of the Parliamentary Privileges Act 1987 (Cth) it was virtually impossible for anyone who had been committed to custody for contempt of the federal Parliament to challenge the validity of the House's judgment. The reason was that the High Court had, on the basis of English judicial authority, accepted that it was a sufficient answer to an application for habeas corpus for the respondent to produce the warrant for committal, reciting that the person named therein had been adjudged guilty of contempt and 'sentenced' to impri~onment."~ The Court had, however, indicated that if the warrant had specified the ground of commitment, a court could decide whether it was sufficient in law to amount to ~ontempt.~' Section 9 of the Parliamentary Privileges Act 1987 has made it mandatory for the Houses of the federal Parliament to supply, as it were, reasons for judgment whenever they choose to exercise their power, under s 7 of the Act, to impose the sanction of imprisonment. Section 9 provides that:

Where a House imposes on a person a penalty of imprisonment for an offence against that House, the resolution of the House imposing the penalty and the warrant committing the person to custody shall set out particulars of the matters determined by the House to constitute that offence.

The effect of this section is to enable a court to determine whether the matters particularised are capable of being regarded as an offence against the House. There are similar legislative provisions in Queensland, Tasmania and Western Au~t ra l ia .~~

The Houses of the federal Parliament also have power, under s 7 of the Act, to impose

89 Constitution s 76(i). 90 R v Richar(1s; Ex purte Fitzpatrick ard Browrze (1955) 92 CLR 157. 91 (1995) 92 CLR 157 at 162. 92 Cot~stit~itiotz Act 1867 (Qld), s 48; Parliamentary Privileges Act 1858 (Tas), ss 7 and 10; Parliamentary Privileges

Act 1891 (WA), s I I .

Commonwealth Powers and the Privileges of State Parliaments 279

fines for contempt. Fines imposed by them are declared to be debts due to the Commonwealth and 'may be recovered on behalf of the Commonwealth in a court of competent jurisdiction by any person appointed by a House for that purpose'.93 There is no reason in principle why in an action for recovery of a fine the validity of the resolution imposing the fine should not be brought into question.

The resolution may not, it is true, state on its fact why the defendant had been adjudged guilty of an offence against the House, but the reasons may be discoverable on search of the records of parliamentary proceedings. While production of those records might be resisted by the plaintiff on the ground that production is prohibited by s 16(3) of the Act, the plaintiffs answer would, presumably be that s 16(3) does not prohibit reception of evidence of parliamentary proceedings when the evidence is tendered in support of a case that a House has exceeded its powers.

5. Parliamentary powers of investigation in the States The Houses of the State Parliaments derive their powers of inquiry from statutes enacted before federa t i~n .~~ Section 106 of the federal Constitution will have preserved those powers, though subject to that Constitution. There is nothing in the federal Constitution which expressly abridges the investigatory powers of the Houses of the State Parliaments. The Constitution may, however, have limited those powers by implication.

One question which could arise is whether the State Houses, and their duly authorised committees, may use their powers to compel the attendance of witnesses and production of documents in relation to matters within the exclusive legislative competence of the Commonwealth Parliament: for example places acquired by the Commonwealth for public purposes, and duties of customs and excise.95 If the Houses of the federal Parliament cannot use their coercive powers in relation to matters within the exclusive province of the States, then logically it would seem to follow that State Houses cannot use their coercive powers when inquiring into matters on which they have no power to legislate. In Aboriginal Legal Service of Western Australia v Western A~stralia:~ however, a Full Court of the Supreme Court of Western Australia doubted whether the investigatory powers of the State Houses are so limited?7 The Court was nonetheless satisfied that the subject of an inquiry by the State's Legislative Council was one within the State's legislative ~ompetence.~~

In the same case the Supreme Court also considered whether the Council's power to send for persons and papers was constrained by the intergovernmental immunity doctrine propounded by the High Court in 1962 in Commonwealth v Cigamatic Pty Ltd (in liq).99 The Supreme Court accepted that the State power was so constrained but concluded that the orders made by the Legislative Council which were in contest in no way interfered with Commonwealth operations or with the exercise of Commonwealth powers.

The plaintiff in the case was certainly not a Commonwealth instrumentality. It was a voluntary association incorporated in the State, but it received substantial funds from Commonwealth sources, including from the Aboriginal and Torres Strait Islander Commission (ATSIC), a federal statutory corporation. The funding arrangements included conditions to ensure financial accountability. In 1992 the Legislative Council had ordered five officers and employees of the association to attend before it and produce specified documents relating to the association's financial affairs. The summons made it clear that the documents were sought to assist the Council to determine whether there should be full

93 Section 7(6). 94 The Parliamentary Evidence Act 1901 (NSW) consolidated Acts dating back to 1881. 95 Sections 52(i) and 90. 96 (1993) 113 ALR 87. 97 (1993) 113 ALR 87 at 97. 98 (1993) 113 ALR 87 at 98. 99 108 CLR 372.

220 Enid Campbell

inquiry into the funding of and provision of legal services to the Aboriginal community in the State. One of the grounds on which the association sought a declaration that the Council's requisition was ultra vires was that it inhibited or interfered with the exclusive right of fiscal oversight by the Commonwealth of Commonwealth monies, through ATSIC and under the Audit Act 1901 (Cth).Ioo The Court was not persuaded that the Council's action interfered with the exercise of this Commonwealth right or even with the association's accountability to agencies of the Comm~nwealth.'~'

Since this case was decided, the High Court has reshaped constitutional doctrine concerning when the Commonwealth and its instrumentalities may be bound by State laws. Its decision in Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing (Henderson's case) makes it clear that the Court accepts that the State Parliaments have some capacity to enact legislation which binds the Commonwealth and its agencies. According to a majority of the the States cannot use their legislative powers to limit or affect the capacities of the Commonwealth executive: that is, the powers, privileges and immunities of the Commonwealth executive. But Commonwealth activities in exercise of those capacities may be affected by State laws of general application, which do not discriminate against the Commonwealth and which do not impair Commonwealth capacities.

Henderson's case was concerned only with whether New South Wales legislation on residential tenancies bound the Defence Housing Authority, a federal statutory corporation, when it chose to lease residential premises in the State. A majority of the High Court held that the Authority was subject to the State Act.Io4 The decision provides no clear guidance on whether the Commonwealth, its officers and agents may claim immunity from liability to respond to summons by State Houses of Parliament or their committees, or on whether members and officers of the federal Parliament may claim immunity when they are summoned to attend before State parliamentary bodies. It is possible that the High Court would take the view that the Constitution does not confer such sweeping immunities, but that the Houses of the State Parliaments cannot use their powers to send for persons and papers to impede or impair the conduct of the business of the various organs of federal government, including the Houses of Parliament.

In the exercise of its legislative powers the federal Parliament may make laws which impose duties of secrecy on officers of the Commonwealth. Such laws would probably be held to preclude Houses of State Parliaments from compelling those subject to a duty to secrecy to divulge the protected information. The federal Parliament may also exercise its legislative powers so as to immunise Commonwealth agencies and officers from the operation of State laws. Commonwealth corporations may, for example, be exempted from liability to pay State taxes.lo5 Section 123 of the Defence Act 1903 (Cth) exempts defence personnel from various kinds of State licensing laws. There could, however, be doubts about the constitutionality of federal legislation which seeks to exempt Commonwealth officers from the obligation to comply with subpoenas of State courts. These courts are repositories of federal jurisdiction and to grant federal officers exemption from the duty to obey a State court's summons might well be regarded as an impermissible interference with the exercise of judicial powers of the Commonwealth.

Section 14 of the Parliamentary Privileges Act 1987 (Cth) gives to members and

100 (1993) 1 13 ALR 87 at 102-3. 101 (1 993) 1 13 ALR 87 at 103-4. 102 (1997) 190 CLR 410. 103 Brennan CJ, Dawson, Toohey and Gaudron JJ. 104 Kirby J dissented. 105 Australiu~z Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46; c f Gazzo v Comptroller of Stamps

(1981) 149 CLR 227.

Commonwealth Powers and the Privileges of State Parliaments 22 7

officers of the Houses of Parliament limited immunity from duties to attend before courts and tribunals. It does not refer to attendances which may be required by State Houses of Parliament or their committees. It could, however, be argued that s 49 of the Constitution affords a limited immunity from duties to attend before such parliamentary bodies and that s 5 of the 1987 Act preserves this immunity.Io6

There may be occasions on which federal and State parliamentary committees are simultaneously pursuing inquiries under overlapping terms of reference. In Aboriginal Legal Service of Western Australia Inc v Western ~ u s t r a l i a ~ ~ ~ the Supreme Court of Western Australia expressed the opinion that a mere overlapping between some federal inquiry and an inquiry by a State House of Parliament 'cannot interfere disproportionately with any Commonwealth regime of constitutional power'.lo8 The Court did not consider what the position would be if an individual had been summoned to appear before a State committee and a federal body on the same day. In such a case, s 109 of the Constitution, as judicially interpreted, would seem to require that the federal summons take precedence.'@)

106 Section 5 provides that: Except to the extent that this Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and committees of each House, as in force under section 49 of the Constitution immediately before the commencement of this Act, continue in force.

107 (1993) 113 ALR 87. 108 (1993) 113 ALR 87 at 101. 109 See Victoria v Comp1weuLth (1937) 58 CLR 618; Carter v Egg Pulp Marketing Board (Vic) (1942) 66 CLR

557 at 574-6.