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House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-10-15 Daily Xml
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Matter of Privilege

Independent Commissioner Against Corruption Act

The SPEAKER (14:01): Yesterday the member for Morphett raised a second privilege matter with me. The member for Morphett was seeking clarification about the operation of the Independent Commission Against Corruption Act (the ICAC Act) and its potential impact on the privileges of parliament. The member for Morphett referred to an instance in the Aboriginal Lands Parliamentary Standing Committee where a witness appearing before the committee, on being asked whether he had considered or, indeed, had approached the ICAC to give them information, in the words of the member for Morphett:

The witness stated that it was his clear understanding that, under the ICAC legislation, he could not answer the questions and he declined to answer.

More specifically, the member for Morphett is seeking my ruling on this matter as he is concerned about the potential impact of the operation of the ICAC Act on parliamentary committees in doing their work.

I can advise the house that parliamentary privilege is not affected by provisions in statutes that create criminal offences for the disclosure of information. In this instance this is further reinforced by section 6 of the ICAC Act where it states that nothing in the ICAC Act affects the privileges, immunities or powers of the Legislative Council or House of Assembly or their committees and members. In the words of John Cleese, 'the bleeding obvious'.

State statutory provisions that create criminal offences for the disclosure of information do not prevent the disclosure of information covered by provisions to a house of the parliament or to a parliamentary committee in the course of a parliamentary inquiry. They have no effect on the powers of the houses and their committees to conduct inquiries and do not prevent committees seeking the information covered by such provisions or persons who have that information providing it to committees.

The basis of this principle is that the law of parliamentary privilege provides absolute immunity to the giving of evidence before a house or a committee which, I should interpolate, is why we should be so careful in the use of parliamentary privilege. In the South Australian context, the law of parliamentary privilege is picked up by section 38 of the Constitution Act 1934 and is derived from the Bill of Rights 1688 and the 9th article that declares:

That the Freedom of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

The Hon. A. Koutsantonis interjecting:

The SPEAKER: Yes. In essence, the law of parliamentary privilege recognises a submission of a document or the giving of evidence to a house or a committee as forming part of the proceedings of parliament which attracts wide immunity from all impeachment and questioning. It is also a fundamental principle that the law of parliamentary privilege is not affected by a statutory provision unless the provision is expressed to be intended to alter the law.

Section 9 of the Constitution Act supports this principle by providing that the law of parliamentary privilege can be defined by a statutory declaration by the parliament. I finish by saying I see no reason why the good work of committees in fulfilling their functions will not continue in the light of the protection afforded to parliamentary privilege by section 6 of the ICAC Act, which was always the intention of the Attorney-General and the parliament.

In that connection, before I take any points of order, I have received a request from the Right Honourable Lord Mayor for a statement to be entered in Hansard under sessional orders. I am calling together a meeting of the Standing Orders Committee to consider his request, so since you are all in here and are deemed to be here, any members of the Standing Orders Committee should come to my office after question time.

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