INFORMATION PAPER NO. 7

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

PARLIAMENTARY PRIVILEGE

INTRODUCTION

What is parliamentary privilege?
The term ‘parliamentary privilege’ refers to special legal rights and immunities which apply to the Legislative Assembly, its committees and members. The provisions
are part of the law of the Northern Territory. These notes deal with the subject from that perspective.

Why is it necessary?
The Legislative Assembly of the Northern Territory in common with other similar parliaments is given a special legal status because it is recognised that tasks that parliaments have to perform require additional powers and protections. These special rights and immunities are necessary because of the functions of the Assembly,
for example the requirement to be able to debate matters of importance freely, to raise and discuss grievances and for its committees to conduct inquiries and investigations effectively and without any interference.

MAIN FEATURES OF NORTHERN TERRITORY PRIVILEGES LAW AND PRACTICE
Section 12 of the Northern Territory (Self-Government) Act of the Commonwealth, which is the self-governing Territory’s effective basic constitutional document provides as follows:

Section 12 Powers, privileges and immunities of Legislative Assembly
The power of the Legislative Assembly conferred by section 6 in relation to the
making of laws extends to the making of laws:

(a) declaring the powers (other than legislative powers), privileges and immunities of the Legislative Assembly and of its members and committees, but so that the powers, privileges and immunities so declared do not exceed the powers, privileges and immunities for the time being of the House of Representatives, or of the members or committees of that House, respectively; and

(b) providing for the manner in which powers, privileges and immunities so declared may be exercised or upheld.

In turn, section 49 of the Commonwealth Constitution provides that until declared by the Parliament the powers, privileges and immunities of the
Senate and House of Representatives, its members and committees should be those of the British House of Commons at the time of Federation - 1901.

In 1987, following a thorough review of the whole subject by a joint select committee the Commonwealth Parliament passed comprehensive legislation in this
matter which effectively, pursuant to the provisions of section 12 of the Northern Territory (Self-Government) Act, applies to the Northern Territory.

In 1992 the Legislative Assembly passed legislation - The Legislative Assembly (Powers and Privileges) Act - which in large part mirrors the main features of the Commonwealth Parliament’s legislation.

The main features of the provisions of that legislation are as follows:

• The Assembly, its committee and members enjoy certain rights and immunities (which are exemptions from the ordinary law) such as the ability to speak
freely in the Assembly without fear of prosecution - the privilege of freedom of speech.
• The Assembly has the power to deal with offences known as contempts which interfere with its proper functioning.
• The Assembly has the power to reprimand, imprison or impose fines for offences.
• Complaints are dealt with internally within the Assembly. They may be considered by the Committee of Privileges which reports to
the Assembly which may then act on a matter following the Committee’s report.

There is an ability for a decision of the Assembly to imprison people to be reviewed in court. The Legislative Assembly (Powers and Privileges) Act creates a special category of criminal offence in order to strengthen the protection available to witnesses who give evidence to parliamentary committees (section 20).

THE PRIVILEGE OF FREEDOM OF SPEECH
The privilege of freedom of speech is acknowledged as the most important of all privileges. Its origins date from the British Bill of Rights of
1689. Article 9 of the Bill of Rights provides as follows:

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.

This was one of the privileges of the House of Commons in 1901 inherited by the House of Representatives under the terms of the Commonwealth Constitution. Accordingly, it was also transferred to the Legislative Assembly of the Northern Territory pursuant to the provisions of the Northern Territory (Self-Government) Act.

Section 6 of the Legislative Assembly (Powers and Privileges) Act preserves the application of this traditional expression, but also spells out in some detail just what areas are covered by the terms “proceedings in parliament”.

The practical effect of this provision is that those taking part in proceedings in parliament enjoy absolute privilege; it also means that members may not be sued if they make defamatory statements when taking part in debates in the Assembly. However, the privilege is wider than this and also protects members from being prosecuted if, in a debate they make a statement that would otherwise be a criminal offence - such as revealing a matter covered by a secrecy provision such as personal taxation information.

The privilege of freedom of speech can be described as a ‘privilege of necessity’ as it enables members to raise in the Assembly matters which they would not otherwise be able to bring forward without fear of legal consequences.

While the privilege is extensive it is also acknowledged that it carries with it a corresponding obligation that the privilege should be used responsibly. Pressure
from other members, the public and media would be brought to bear upon members who make accusations unfairly in parliament. Some parliaments (excluding the Northern Territory) have put in place procedures for individuals or corporate bodies who have been offended by remarks to seek to have a response published (right of reply).

The privilege of freedom of speech also applies to others taking part in proceedings in parliament. The most obvious example of others who enjoy absolute
privilege are witnesses who given evidence to parliamentary committees. It should be noted that this privilege only applies to evidence given to properly constituted parliamentary committees.

Absolute and qualified privilege
Qualified privilege exists where a person is not liable for an action of defamation if certain conditions are fulfilled, for example if it is a fair and accurate report and if a statement is not made with malice. The media which report debates in the Assembly rely on qualified privilege.

Absolute privilege on the other hand exists where no action may be taken at all even if for example a statement is made with malice.

As well as proceedings in parliament being absolutely privileged, the Assembly and its committees may confer absolute privilege on various papers.
Resolutions may be made to authorise the publication of papers. Parliamentary committees have powers to authorise the publication of submissions and
transcripts of evidence. The Legislative Assembly (Powers and Privileges) Act also extends absolute privilege to the Hansard record of proceedings.

Section 23 of the Act also gives the Assembly the power to authorise the broadcasting, re-broadcasting and televising of proceedings.

OTHER IMMUNITIES
Members may not be required to attend courts or tribunals as witnesses or be arrested or be detained in civil matters on sittings days and for five days before
and after Assembly sitting days or committee meeting days.

Members of the public required to attend as witnesses before committees may not be required to appear as witnesses before a court or tribunal or be arrested or detained for a civil matter on days that they are required to give evidence to the committee. Members and some officers of the Legislative Assembly are exempt from jury service. These collective immunities are justified on the grounds that the first duty of members and others involved is to the Assembly and this should
override other obligations.

However, the immunity from civil arrest does not exempt members from action by the law.members are still required to fulfil legal obligations at a time when the parliament is not meeting. It should also be noted that no immunity applies at all in criminal matters.

THE ABILITY TO DEAL WITH CONTEMPTS (OFFENCES)
As well as dealing with people or organisations breaching particular rights or immunities, the Assembly may also take action over matters which, while they do not breach any particular legal power or immunity, obstruct or impede the Assembly in the performance of its functions or members or officers in the discharge of their duty. This is known as an ability to punish for contempt - similar to the courts’ powers to punish for contempt of court.

This power gives the Assembly the ability to protect itself and members against any new or unusual threats. While this is a considerable power, a safeguard is
provided in the terms of section 5 of the Legislative Assembly (Powers and Privileges) Act which states that conduct does not constitute an offence unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by the Assembly or a committee, of its authority or
functions, or with the free performance by a member of the member’s duties as a member.

A very important effect of the power to punish contempts is that the Assembly may protect its committees and committee witnesses. Committees usually have substantial powers to help them obtain evidence and information but they may not on their own account take action against any person or organisation who is obstructing or hindering them. If a committee is misled or obstructed, or if its witnesses are punished or intimidated, the committee may bring the matter to the
attention of the Assembly which ultimately may punish for a contempt.

Raising of complaints
Complaints of contempts or breaches of privileges/immunity may only be formally raised by members. A member intending to raise a matter of privilege must
notify the Speaker in writing of the matter. The Speaker then considers the matter and determines whether a motion relating to the matter should have precedence
of other business regarding criteria set out in a resolution of the Assembly. Usually such a motion is for the issue to be referred to the Committee of Privileges.
Whether the matter is sent to the Committee of Privileges is for the Assembly itself to decide.

Committee of Privileges
The Committee of Privileges is established under the Standing Orders of the Assembly and has the power to call for witnesses and for documents to be produced. Witnesses, including members, may be asked to make an oath or affirmation before giving evidence. The committee itself cannot impose penalties. Its role is to investigate and advise and in its report to the Assembly, the committee usually makes a finding as to whether or not there has been a breach of privilege or a
contempt committed and usually recommends to the Assembly what action, if any, should be taken.

Consideration by the Assembly
Normally, when a report from the Committee of Privileges is presented and especially if there is any possibility for further action, the practice is for the Assembly to consider the report at a future time so that members may study the report and relevant issues before making any considered decisions on it. The Assembly is not
bound to follow a committee’s recommendations and any motion moved is able to be amended.

Penalty options
The power to imprison people and to impose fines is provided for at section 25 of the Legislative Assembly (Powers and Privileges) Act. Under the Act the Assembly may impose a penalty of imprisonment not exceeding 6 months of a person, or a fine not exceeding $5000 or not exceeding $25000 in the case of a corporation. To date the Assembly has not imposed a fine under this provision.

Under section 26 of the Act, if the Assembly imposes a penalty of imprisonment the resolution imposing the penalty and the warrant must set out the particulars
of the offence. The effect of this provision is to provide that the full court of the Supreme Court can be asked to determine whether the ground for imprisonment was
sufficient in law to amount to contempt. The Assembly has never imposed a term of imprisonment under the provisions of this legislation to date.

For more information:
Legislative Assembly (Power and Privileges) Act
House of Representatives Practice, 5th edition 2005, pp707 – 754 and Appendix 25
Odgers Australian Senate Practice, 11th edition, 2004, pp29-76, Appendices 1,2,3 and 4
or
contact the Office of the Clerk, telephone 89461450, email: ian.mcneill@nt.gov.au or
facsimile: 89412567