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Published online by Cambridge University Press: 04 August 2020
The law of parliamentary privilege in New South Wales is the sum of certain immunities, rights, and powers enjoyed by the individual Houses of the Parliament of New South Wales, together with their members and committees, as constituent parts of the Legislature. The law is complex. It is liberally interspersed with uncertainty and ambiguity. It is also distinctly different from the law of privilege in other Australian jurisdictions, including the Commonwealth, and also from overseas jurisdictions. It is singular in the degree to which it relies on the common law, without recourse to statutory expression or to the historical privileges of the Houses of Parliament in the United Kingdom. Nevertheless, in some respects, the Parliament of New South Wales has been remarkably successful through the courts, and through its own procedures, in asserting the powers and rights of members under the banner of parliamentary privilege, notably in relation to orders for the production of State papers.
© Stephen Frappell 2020. The author is Clerk Assistant, New South Wales Legislative Council, Parliament House, Sydney. This article was presented to the 38th Annual Course of the International Association of Law Libraries, Law Down Under: Australia's Legal Landscape, on Monday, October 28, 2019.
The views in this paper are those of the author and do not necessarily reflect those of the two Houses of the Parliament of New South Wales or their members.
3 An amendment to the draft Constitution bill to achieve that effect was negatived in the colonial Legislative Council.
4 (1839) 112 ER 1112 at 1169 per Lord Denman CJ.
5 (1842) 12 ER 225.
6 Barton v Taylor (1886) 11 AC 197 at 203 per Lord Selborne.
7 (1881) 2 LR (NSW) 18.
8 Gipps v McElhone (1881) 2 LR (NSW) 18 at 25 per Windeyer J.
9 [1972] 1 All ER 378. See D. McGee, “The Scope of Parliamentary Privilege,” New Zealand Law Journal, (March 2004), p. 84.
10 Unreported and (1986) 5 NSWLR 18.
11 [1995] 1 AC 321 at 333 per Lord Browne-Wilkinson. Note, however, that the constitutionality of section 16(3) of the Parliamentary Privileges Act 1987 (Cth) was critically considered by two Australian State courts: first by Queensland's Court of Appeal in Lawrance v Katter (1996) 141 ALR 447, and then by the Full Court of the Supreme Court of South Australia in Rann v Olsen (2000) 159 FLR 132.
12 The parliament has passed legislation waiving privilege over the members’ interest disclosure regimes for the purposes of investigations by the State's Independent Commission Against Corruption.
13 (1998) 195 CLR 424 at 478 per McHugh J.
14 In passing, there is some judicial support for the proposition that the powers of the Houses of Parliament in New South Wales, no longer being a local legislature of a British colony, have moved beyond those restrictions—notably the “protective” or “self-defensive” restrictions—deriving from the test of necessity. At the very least, it is well established that the powers of the Houses in New South Wales have changed to fit their changing role and operation.
15 Their subsequent appeal to the High Court for a writ of habeas corpus was dismissed in R v Richards; Ex parte Fitzpatrick and Brown (1955) 92 CLR 157.
16 (1870) LR 4 HL 661.
17 Egan v Willis and Cahill (1996) 40 NSWLR 650.
18 Egan v Willis (1998) 195 CLR 424.
19 Egan v Chadwick (1999) 46 NSWLR 563.
20 Evans, H., “Lively, analytical history of the NSW Parliament,” Constitutional Law and Policy Review, vol. 9, no. 1, May 2006, pp. 17-20Google Scholar.
21 Commonwealth v Northern Land Council (1993) 176 CLR 604.
22 Mason, A., “The Parliament, the Executive and the Solicitor-General,” in Appleby, G., Keyzer, P. and Williams, J. (eds), Public Sentinels: A Comparative Study of Australian Solicitors-General, (Ashgate, 2014), p. 63Google Scholar.
