LSB February 2018_Web_LSSA

POLITICS AND THE LAW
scandalous or libellous reflection on the
proceedings of the House or on a Member,
disobedience to orders of the House,
tampering with a witness, interfering with
the Officers of the House in the execution
of their duty and attempts to influence the
decision of a Committee are considered
breaches of privilege.
It is a necessary privilege of a legislative
body that it should have the right to
summon and examine witnesses and
compel the production of papers and, if
a witness is in custody, to cause him to be
produced as required. Privilege extends to
protect witnesses, petitioners and others
while in attendance at Parliament from
arrest and from the consequences of any
statement made by them.
In Odgers in Australian Senate Practice
(12th Ed, 2008, p65) it is explained that the
“rationale of treating defamation of the Houses
or of their Members as a contempt was not as
was some time supposed, to protect the dignity and
good name of Parliament and its Members but to
prevent public attacks which, by undermining the
respect due to Parliament as an institution and
diminish its authority, tend to obstruct or impede
the Houses in the performance of their functions”.
In 1870, Serjeant-Major Patrick McBride
was sent to prison for one week for
sending a letter to a member of the
Legislative Council accusing him of having
lied to the Council. Mr John Baker, a
Member of the Legislative Council, read
to the Council an “abusive” letter which
he had received from a Mr McBride (a
Serjeant-Major, R.A.), as follows:
“Sir - I regret to hear you state what is a
deliberate and repeated and base lie, on your
part, stating Mr H.H.B. Strangways is or
was my lawyer on any matter connected with
the Volunteer Force of this Colony. Such a
statement is a base calumny against the Hon.
Gentleman.
I am, Sir, your obedient servant, McBride.”
The Hon J Baker
The letter was forthwith, on motion,
declared a breach of the privileges of
Parliament. At a subsequent sitting the
President reported that he had received
from Serjeant-Major McBride the following
letter, apologising that he had committed a
breach of privilege:
Privilege extends to protect witnesses, petitioners
and others while in attendance at Parliament from
arrest and from the consequences of any statement
made by them.
“Pennington Terrace, North Adelaide, 16th
September 1870.
The Honourable the President of the
Legislative Council.
Sir - It was with great regret that I found,
on reading the Register of the 14th of this
month, that the Council has resolved that I
had, in forwarding a letter to the Honourable
Mr. Baker, ‘committed a breach of the
privileges of Parliament,’ and ‘that some
members of the Council considered that I had
offered an insult to the Council generally’. I
assure you, Sir, as President of the Council,
that nothing could be further from my intention
than to commit any breach of the privileges
of Parliament, nor would I willingly insult a
body of gentlemen for whom I entertain a high
respect on account of the individual action of
one member of that body; I beg to express my
extreme regret that I should have done anything
that should be capable of such a construction as
that arrived at by the Council, and to request
that you will read this letter to the Council.
I am your obedient servant,
P. McBride.”
However, despite the apology he was at
once “adjudged guilty of contempt of
the Council” and committed to Her
Majesty’s Gaol for seven days on the
warrant of the President. On the expiry
of the seven days, the Council ordered
“that no fees be demanded from Serjeant-
Major McBride”.
Enid Campbell in Parliamentary Privilege in
Australia (1966, p129) argued:
“This is a good illustration of the kind of
case in which legislative assemblies ought not
to intervene at all. If anyone is defamed, it is
not members of parliament collectively, but an
individual member who is free to seek amends
in the ordinary courts. Protection of the
reputations of individual members is not the
business of the Houses of Parliament, and if
they extend their punitive jurisdiction thus far,
they expose themselves to the charge not only
of usurping the jurisdiction of the courts, but
of dispensing justice to their members on the
cheap. If jurisdiction is usurped in this way,
the citizen who is made to suffer as a result is
without a remedy. No writ of prohibition or
injunction could issue to prevent either House
of Parliament proceeding with the case, nor
could the House’s judgement be upset by appeal
or certiorari.”
Likewise, Odgers (p65) held that “To
constitute a contempt, a reflection upon an
individual member had to relate to the member’s
capacity as a member and tend to obstruct the
performance of the member’s duties”. It should
not be the business of the Houses to
become involved in the punishment
of defamation as a contempt, which it
is argued, does not impede Parliament
or its Committees going about their
business.
In 1898 Lord Kilmorey, who was a
stranger in South Australia but was
promoting the Outer Harbor Bill, was
accused of having sent certain Members
of the Council circulars that reflected on a
Report of the Standing Orders Committee.
The matter was referred to a Select
Committee, which reported that the circular
was a breach of privilege; but that, in view
of Lord Kilmorey having withdrawn and
apologised, the matter did not proceed any
further. The Council adopted the Report of
the Select Committee.
It was not until 1968 that this issue
arose again. A witness before the Select
Committee on the Scientology Bill 1968
brought along a prepared statement to
the Committee, the opening paragraph
of which referred to certain misgivings
which the witness desired resolved before
proceeding with his evidence. The first
referred to protection afforded him in
respect of evidence tendered by him and
the Chairperson quoted LC Standing
February 2018 THE BULLETIN 37