Legislative Assembly for the ACT: 2002 Week 2 Hansard (19 February) . . Page.. 310 ..
MR SPEAKER (continuing):
Insofar as the order related to the presentation of documents in the Assembly, the matter raised important issues concerning the privileges of the Assembly. I therefore instructed the Clerk that advice be sought on the matter, and this was done on 8 January 2002. The specific question asked was whether it was within the jurisdiction of the court to make an order in relation to the presentation of a document to the Assembly, particularly the document in question.
The legal advice sought was received on 18 January and concluded, in summary, that on its face the injunction involved a breach of the privilege of the Assembly in the sense that it obstructed the Assembly in the performance of its functions. In addition, the advice raised serious issues as to the enforceability of the injunction against the Chief Minister.
The self-government act provides that the Assembly and its members and committees have the same privileges and immunities as the House of Representatives and its members and committees. As outlined in the advice, this in turn means that the provisions of the Commonwealth's Parliamentary Privileges Act 1987 operate largely to define the operation of parliamentary privilege in relation to the Assembly, its members and committees.
The matter is somewhat unusual. As outlined in the advice, it does not easily fit within the provisions of the Parliamentary Privileges Act of the Commonwealth, but rather it is examined in the advice according to common law and parliamentary practice relating to parliamentary privilege. The advice states that, unlike most of the fact situations in which privilege issues tend to arise, the then situation was not one in which there was a possibility that proceedings in the Assembly might be impugned in a court or tribunal. Rather, it was seen as a situation in which a court had ordered that information not be presented to the Assembly until a further hearing took place or other order was made by the court. The advice views this as potentially a more fundamental interference with the work of the Assembly.
The advice considered that whether or not the report fitted within the definition of "proceedings in parliament" as being not necessarily relevant to the future progress of the matter. It considered that the interference with the working of the Assembly that the injunction involved as much more fundamental. The injunction denied to the Assembly information that was demonstrably relevant to the functions of the Assembly. As a result, it was seen as involving, on its face, a breach of privilege.
Members, I will not address in any more detail the matters raised in the advice. I propose to table the advice and copies will be made available to members.
As indicated in my letter to members of 21 January, I intended to ensure that the Assembly was represented by counsel and seek to intervene in proceedings set down in the Supreme Court for 8 February as amicus curiae, or friend of the court. The purpose of this action was to assist the court, subject to its agreement, by informing it of the issues relating to parliamentary privilege. In fact, this action was not necessary.