ON Friday afternoon while listening to the news on radio, I heard the Honourable Speaker of the House of Representatives make a statement in Parliament about a matter which is important to us all.
The Speaker referred to an instance where material presented to Select Committee was apparently leaked to the press and carried by a media house before the report had been laid in Parliament.
Contrary to what some may think, if some of the comments on social media are an indicator, this was not an attempt to curb freedom of speech or to “muzzle the media”. The Speaker’s reminder was to give weight and value to the protection of this right.
Many do not appreciate the level of legal protection which our Constitution gives to the Parliament. This protection covers not only Members of both Houses of Parliament, but also to people who appear before the various committees of Parliament. This protection is valuable and is to be found in any democracy which pays more than lip service to the rule of law and the separation of powers.
Section 55 of our Constitution says that no civil or criminal proceedings may be instituted against any member of either House for words spoken by a member or written in any report to either of the Houses of Parliament.
This privilege is not only for Members of Parliament. Any person called to give evidence before any House or any committee enjoys the same privileges and immunities as a Member of Parliament. Citizens of all walks of life are often called to produce documents and/or to testify before various parliamentary committees. The law provides for this protection so that citizens may feel free to come forward and provide information to parliamentary committees without any fear of legal repercussions or victimisation. Without this protection, many matters would not come to light and it would allow for the easy avoidance of parliamentary scrutiny.
Erskine May’s text on parliamentary practice is considered the bible of parliamentary law practice and procedure. It points out that when parliamentary privilege is disregarded or attacked, it may be referred to as an allegation of breach of privilege and it is punishable under parliamentary law. This is where the Privileges Committee of Parliament comes in. This is the place where the breach is identified, the alleged offender is notified and evidence is heard, both from those who may have witnessed the breach and perhaps from the person who allegedly committed it. The committee then makes it findings.
So a breach of privilege is a very serious matter and it was important for the Speaker of the House to remind us of it, and of the fact that there are consequences which may follow. The transmission of information these days is almost instantaneous, so it is crucial to our democracy for us to appreciate there are certain matters which ought not to be disseminated.
Some readers may be wondering about the use of Hansard. Hansard is the official record of whatever is said in Parliament, both on the floor of the respective Houses as well as before committees. There have been cases in the courts where permission has been given to parties to refer to the Hansard. The Standing Orders of both Houses provide for such an application to be made. Because the purpose of such a petition is only for the narrow purpose set out below, there is no debate or discussion of the matters.
This process occurs where a court of law is being called upon to interpret a piece of legislation. Even where a party is allowed to refer to the Hansard, the court may or may not find that the excerpt relied upon is useful.
The Judicial Committee of the Privy Council which remains our highest court of appeal has made it clear that outside of that, parties engaged in litigation before the courts cannot use what is said either on the floor of the Houses of Parliament or before parliamentary committees for the purposes of cross-examination, drawing inferences or making submissions in a court case to suggest what was said was untrue or misleading.
Select committees often hear evidence from citizens who may have been otherwise unwilling to speak out to produce documentary material if they did not have this deep level of protection. In fact, some people, when asked to appear before a select committee, ask about this before attending; and others even enquire whether they may be heard in camera, that is to say, not in public.
The Privileges Committee is perhaps one of the better known committees because more often than not it deals with matters where Members of Parliament may have breached parliamentary law and sometimes the committee is called upon to adjudicate upon matters which arose when tempers rose and exchanges became heated in Parliament.
However, Members of Parliament are not the only ones who may be called before the Privileges Committee. An alleged breach of parliamentary law may result in any citizen being called to answer to Parliament. Something to think about.
Sophia K Chote SC is an Independent Senator.