Page 5189 - Week 13 - Thursday, 29 November 2018

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Making a determination

(24) The Arbiter may, but is not bound to, apply the following test to determine whether or not a document that is sought pursuant to a compulsory production power or information that is sought pursuant to a compulsory examination falls within “proceedings in Parliament”.

STEP 1: Were the documents or information that is sought brought into existence in the course of, or for purposes of or incidental to, the transacting of business of the Assembly or an Assembly committee?

YES  Falls within the scope of “proceedings in Parliament” and parliamentary privilege applies.

NO  Move to step 2.

STEP 2: Have the documents or the information that is sought been subsequently used in the course of, or for purposes of or incidental to, the transacting of the business of the Assembly or an Assembly committee?

YES  Falls within the scope of “proceedings in Parliament” and parliamentary privilege applies.

NO  Move to step 3.

STEP 3: Is there any contemporary or contextual evidence that the documents or the information that is sought was retained or intended for use in the course of, or for purposes of or incidental to, the transacting of the business of the Assembly or an Assembly committee?

YES  Falls within the scope of “proceedings in Parliament” and parliamentary privilege applies.

NO  The document does not fall within the scope of “proceedings in Parliament” and is not immune from production / the information sought by the Commissioner in the course of an examination is not covered by parliamentary privilege.

(25) In determining whether or not parliamentary privilege applies to a document or information that is sought, the Arbiter must have regard to:

• the written claim made by the Member;

• the written dispute of the claim by the Commissioner;

• any transcript of an examination of a Member in which a claim relating to parliamentary privilege has arisen;

• any written submission made by the Member or by the Commissioner;

• applicable law relating to parliamentary privilege;

• the Assembly’s standing orders and continuing resolutions;

• reports of an Assembly committee or of a committee of either House of the Commonwealth Parliament relating to parliamentary privilege; and

• any other matter that the Arbiter considers to be relevant.

(26) Documents or information that may fall within the scope of “proceedings in Parliament” may include (but are not necessarily confined to): notes, draft speeches and questions prepared by a Member for use in the Assembly or an Assembly committee; correspondence received by a Member from a

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