Angaben zur Quelle [Bearbeiten]
| Autor | Gareth Griffith |
| Titel | Parliamentary Privilege: Major Developments and Current Issues |
| Herausgeber | NSW Parliamentary Library Research Service |
| Datum | April 2007 |
| Nummer | 01/07 |
| Reihe | Background Paper |
| ISBN | 0 7313 1802 1 |
| ISSN | 1325-4456 |
| URL | http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18dbe18c7d65cdf0ca2572d100091751/$FILE/ParliamentaryPrivelige07.pdf |
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| Fußnoten | ja |
| Fragmente | 27 |
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| In most instances a clear connection exists between these individual immunities and collective powers.8 For example, the right to freedom speech in Parliament is the basis of the power of the House to regulate its own proceedings, as well as to control the publication of its debates and proceedings.9
8 H.Evans ed, Odgers’Australian Senate Practice, 11th ed., Department of the Senate 2004, pp.30-1. 9 E.Campbell, Parliamentary Privilege in Australia, Melbourne: Melbourne University Press, 1966, pp.74-5. |
In most instances a clear connection exists between these individual immunities and collective powers.11 For example, the right to freedom speech in Parliament is the basis of the power of the House to regulate its own proceedings, as well as to control the publication of its debates and proceedings.12
11 H Evans ed, Odgers’ Australian Senate Practice, 11th edition, Department of the Senate 2004, pp 30-1. [...] 12 E Campbell, Parliamentary Privilege in Australia, n 5, pp 74-5. |
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| 4 The Justification of Parliamentary Privilege
4.1 The Purpose of Parliamentary Privilege Parliamentary privilege refers to the bundle of powers, rights and immunities ‘necessary’ for the effective performance of parliamentary functions. It is necessary “to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.”101 101 Canada (House of Commons)v. Vaid[2005]1 SCR 667, at para. 41. |
2. PARLIAMENTARY PRIVILEGE
2.1 Purpose [...] Parliamentary privilege refers therefore to the bundle of powers, rights and immunities ‘necessary’ for the effective performance of parliamentary functions. It is ‘necessary’ to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.1 1 Canada (House of Commons) v Vaid [2005] 1 SCR 667 at para 41. |
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| Without the protection afforded by parliamentary privilege, members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a deliberative forum would be diminished. As Griffit [sic] and Ryle state: Parliamentary privilege, even though seldom mentioned in debates, underpins the status and authority of all Members of Parliament. Without this protection individual Members would be severely handicapped in performing their parliamentary functions, and the authority of the House itself, in confronting the Executive and as a forum for expressing the anxieties of the citizen, would be correspondingly diminished.102
Parliamentary privilege, in essence, is essential to the conduct of Parliament’s business, as it is to the maintenance of its authority and independence. At issue is the integrity and autonomy of the institution itself. While certain rights and immunities, notably those attached to the freedom of speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist for their personal benefit. Parliamentary privilege exists rather to protect the Houses “themselves collectively and their members when acting for the benefit of their House, against interference, attack or obstruction”.103 102 R Blackburn, A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and Procedures, Sweet and Maxwell, 2003, p.123. 103 CR Munro, Studies in Constitutional Law, London, Butterworths, 1987, p.136. |
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Without the protection afforded by parliamentary privilege, Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself [Seite 2] in confronting the executive and as a deliberative forum would be diminished.2 As Griffith and Ryle state: Parliamentary privilege, even though seldom mentioned in debates, underpins the status and authority of all Members of Parliament. Without this protection, individual Members would be severely handicapped in performing their parliamentary functions, and the authority of the House itself, in confronting the Executive and as a forum for expressing the anxieties of the citizen, would be correspondingly diminished.3 In essence, parliamentary privilege is essential to the conduct of Parliament’s business, as it is to the maintenance of its authority and independence. At issue is the integrity and autonomy of the institution itself. While certain rights and immunities, notably those attached to the freedom of speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist for their personal benefit. Parliamentary privilege exists rather to protect the Houses ‘themselves collectively and their members when acting for the benefit of their House, against interference, attack or obstruction’.4 2 Joint Committee on Parliamentary Privilege, Report: Volume 1 – Report and Proceedings of the Committee, UK Parliament, Session 1998-99, HL Paper 43 –1, HC 214-1, p 8. 3 R Blackburn and A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and Procedures, Sweet and Maxwell 2003, p 123. 4 CR Munro, Studies in Constitutional Law, Butterworths, London, 1987, p 136. |
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| 9.1 Caucus Meetings and Parliamentary Proceeding
Rata v. Attorney-General, a High Court of New Zealand case from 1997, Master Thompson held that, as Caucus is integral to the parliamentary system, in the interest of ‘robust debate’ what is said there must be absolutely privileged. He concluded: a) As a matter of principle the caucus system as it has developed in New Zealand is an integral part of the parliamentary process and that all matters transacted in caucus are inextricably linked to Parliament… b) If that general proposition is wrong then any discussion and related papers will be privileged when they relate to the passage of legislation (present or future) or any matter which is before the House.303 303 Rata v A-G (1997) 10 PRNZ 304, p.313. |
6.1 Parliamentary proceedings and party Caucus meetings
In Rata v Attorney-General, a High Court of New Zealand case from 1997, Master Thompson held that, as Caucus is integral to the parliamentary system, in the interest of ‘robust debate’ what is said there must be absolutely privileged. He concluded: (a) As a matter of principle the caucus system as it has developed in New Zealand is an integral part of the parliamentary process and that all matters transacted in caucus are inextricably linked to Parliament… (b) If that general proposition is wrong then any discussion and related papers will be privileged when they relate to the passage of legislation (present or future) or any matter which is before the House…206 206 Rata v A-G (1997) 10 PRNZ 304 at 313. |
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| This is contrary to the traditional view that party caucuses are not regarded as
proceedings in Parliament even though they occur within its precincts.304 The decision in Rata has been criticised by David McGee, Clerk of the New Zealand House of Representatives who called it a “perverse interpretation”.305 Equally critical of the approach taken in Rata is PA Joseph, for whom the decision was “without precedent or support”. According to Joseph: Caucus meetings do not qualify as “proceedings in Parliament”. Caucus does not transact the business of the House but is a party-political meeting for coordinating strategies that may or may not relate to proceedings in Parliament…The correct view is that political meetings are not proceedings in Parliament and lack protection of parliamentary privilege.306 In Huata v. Prebble & Anor,307 this traditional view was affirmed by the New Zealand Court of Appeal. At issue in Huata was the judicial review of provisions of the disqualification legislation which placed this process in the hands of the political party caucus to be operated by its leader with the agreement of two-thirds of the caucus members. The question for the Court of Appeal was whether the Parliament should have exclusive cognizance of the ‘reasonableness’ of this process, or was this justiciable matter? In support of judicial review, the joint judgment noted that the general position is that proceedings of a party’s caucus are [not proceedings of Parliament.] 304 Parliamentary Privilege Bill 1994 (NZ), p.9. 305 D, McGee, Parliament and Caucus, New Zealand Law Journal, April, 1997. 306 P.A.Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed., Brookers, 2001, pp.402-3. 307 [2004] NZCA 147. |
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This is contrary to the traditional view that party caucuses are not regarded as proceedings in Parliament even though they occur within its precincts.207 The decision in Rata has been criticised by David McGee, Clerk of the New Zealand House of Representatives who called it a ‘perverse interpretation’.208 Equally critical of the approach taken in Rata is PA Joseph, for whom the decision was ‘without precedent or support’. According to Joseph: Caucus meetings do not qualify as ‘proceedings in Parliament’. Caucus does not transact the business of the House but is a party-political meeting for coordinating strategies that may or may not relate to proceedings in Parliament….The correct view is that political meetings are not proceedings in Parliament and lack protection of parliamentary privilege.209 In Huata v Prebble & Anor210 this traditional view was affirmed by the New Zealand Court of Appeal. At issue in Huata was the judicial review of provisions of the disqualification legislation which placed this process in the hands of the political party caucus to be operated by its leader with the agreement of two-thirds of the caucus members. The question for the Court of Appeal was whether the Parliament should have [Seite 59] exclusive cognisance of the ‘reasonableness’ of this process, or was this a justiciable matter? In support of judicial review, the joint judgment noted that the general position is that proceedings of a party’s caucus are not proceedings of Parliament. 207 Explanatory Note, Parliamentary Privilege Bill 1994 (NZ), p 9; R v Turnbull [1958] Tas SR 80 at 84. 208 D, McGee, ‘Parliament and Caucus’, New Zealand Law Journal, April 1997, p 138. According to McGee, ‘The Master’s conclusion that caucus is now legally an integral part of Parliament in New Zealand is a radical one indeed. As he acknowledges, this is not the view of textbook writers in New Zealand who have commented on the meaning of proceedings in Parliament (McGee, Parliamentary Practice in New Zealand (2nd ed., 1994), pp 69-70 and Joseph, Constitutional and Administrative Law in New Zealand (1993), p 363). Nor is it the view in Canada (Maginot, Parliamentary Privilege in Canada (1982), p 87)’. 209 PA Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed, Brookers, Wellington, 2001, pp 402-3. 210 [2004] NZCA 147. |
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| [In support of judicial review, the joint judgment noted that the general position is that proceedings of a party’s caucus are] not proceedings of Parliament. In our view, the judgment of the High Court in……was not correctly decided.308
Having reviewed the objections of Joseph and McGee to the High Court’s decision, the Court of Appeal noted: Importantly, Mr.McGee goes on to say that even where caucus discussed legislation before the House privilege would not attach to the discussions. The concept of proceedings in Parliament was limited to “essential steps to parliamentary action” and caucus discussions could not be viewed in that light…For these reasons we agree that Rata was wrongly decided on the privilege point.309 9.2 Parliamentary Proceeding and Parliamentary Committees, Other Bodies With the proliferation of integrity oversee and adviser’s questions arise as to the relationship of some or all of their activities to Parliament. This is especially the case where these bodies assist Parliament in an investigatory capacity. Often the relationship between Parliament and these bodies in complex and intimate.310 The connections are obvious in relation to those officers established to oversight parliamentary standards or ethics. In other cases parliamentary committees may be established to oversight independent integrity commissions, as in the case of the ICAC (Independent Commission against Corruption) or the Ombudsman in NSW in Australia. Further, the ICAC is an example of an integrated survey whose brief includes inquiring into the conduct of parliamentarians. 308 [2004] NZCA 147. 309 [2004] NZCA 147. 310 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA2572D100091751/$File/ParliamentaryPrivelige07.pdf. |
In support of judicial review, the joint judgment noted that
Parliament. In our view, the judgment of the High Court in Rata v A-G…was not correctly decided.211 Having reviewed the objections of Joseph and McGee to the High Court’s decision, the Court of Appeal noted:
6.2 Parliamentary proceedings and parliamentary committees, commissioners and independent commissions With the proliferation of integrity watchdogs and advisers questions arise as to the relationship of some or all of their activities to Parliament. This is especially the case where these bodies assist Parliament in an investigatory capacity. Often the relationship between Parliament and these bodies in complex and intimate. The connections are obvious in relation to those officers established to oversight parliamentary standards or ethics. In other cases parliamentary committees may be established to oversight independent integrity commissions, as in the case of the ICAC or the Ombudsman in NSW. Further, the ICAC is an example of an integrity watchdog whose brief includes inquiring into the conduct of parliamentarians. 211 [2004] NZCA 147 at para 63 (McGrath, Glazebrook and O’Regan JJ). 212 [2004] NZCA 147 at para 64 (McGrath, Glazebrook and O’Regan JJ). |
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| [As the debate on search] warrants in Parliament showed, the potential for issues relevant to parliamentary privilege to arise is considerable. | As the debate on search warrants in Parliament showed, the potential for issues relevant to parliamentary privilege to arise is considerable. |
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| It is, however, in other country, notably the UK, that the case law has developed. At issue are two related questions: Does the disputed evidence constitute parliamentary proceedings? If the proceedings are internal to Parliament, do they lie outside the jurisdiction of the courts?316
In the UK case of R v Parliamentary Commissioner for Standards, ex parte Al Fayed317 the Court of Appeal refused an application for judicial review of the report of the Parliamentary Commissioner which had rejected Al Fayed’s claim that an MP (Neil Hamilton) had received a corrupt payment. It was confirmed that the Commissioner’s inquiry and report were ‘proceedings in Parliament’. It is therefore the House of Commons, not the courts, which are responsible for the activities of the Parliamentary Commissioner for Standards. A contrast was drawn [in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman).]
317 [1998] 1 ALL ER 93. |
It is, however, in other jurisdictions, notably the UK and Queensland, that the case law has
developed. At issue are two related questions: does the disputed evidence constitute parliamentary proceedings? if the proceedings are internal to Parliament do they lie outside the jurisdiction of the courts? In the UK case of R v Parliamentary Commissioner for Standards, ex parte Al Fayed213 the Court of Appeal refused an application for judicial review of the report of the Parliamentary Commissioner which had rejected Al Fayed’s claim that an MP (Neil Hamilton) had received a corrupt payment. It was confirmed that the Commissioner’s inquiry and report were ‘proceedings in Parliament’. It is therefore the House of Commons, not the courts, that are responsible for the activities of the Parliamentary Commissioner for [S. 60] Standards. A contrast was drawn in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman). 213 [1998] 1 ALL ER 93. |
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| [A contrast was drawn] in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman).
The former is one of the means by which the Select Committee of Standards and Privileges carries out its functions, which are accepted to be part of the proceedings of the House, whereas the Ombudsman is concerned with the proper functioning of the public service outside Parliament.318 In Australia there are also some of cases of dealing with the meaning of the term of ‘parliamentary proceedings’. For example, Between [sic] 1994 and 2001 at least three Queensland cases dealt with the meaning of the term ‘parliamentary proceedings’ in relation to decisions, investigations or reports of the former PCJC (Parliamentary Criminal Justice Committee, the Parliamentary Commissioner and the CJC(The Criminal Justice Commission). In Criminal Justice Commission (CJC) v. Nationwide News Pty Ltd319 an injunction was sought to restrain publication by a newspaper of a confidential report the independent commission had prepared for the Parliamentary Criminal Justice Committee. The Speaker, who intervened in the case, raised two questions: a ‘procedural’ question as to whether the process of arriving at a conclusion in the case involved a breach of the prohibition in Article 9 of the Bill of Rights against impeaching or questioning proceedings in Parliament; and a ‘substantive’ question as to whether the matter was one within the exclusive jurisdiction of Parliament and that the unauthorised publication of the report was for the Assembly to deal with. 318 That both the inquiry and report of the Parliamentary Commissioner for Standards constituted parliamentary proceedings was confirmed by the House of Lords in Hamilton v Al Fayed [2001] 1 AC 395. 319 [1996] 2 Qd R 444. |
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A contrast was drawn in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman). The former is one of the means by which the Select Committee of Standards and Privileges carries out its functions, which are accepted to be part of the proceedings of the House, whereas the Ombudsman is concerned with the proper functioning of the public service outside Parliament.214 [...] Between 1994 and 2001 at least three Queensland cases dealt with the meaning of the term ‘parliamentary proceedings’ in relation to decisions, investigations or reports of the former PCJC, the Parliamentary Commissioner and the CJC.216 • In Criminal Justice Commission v Nationwide News Pty Ltd217 an injunction was sought to restrain publication by a newspaper of a confidential report the independent commission had prepared for the Parliamentary Criminal Justice Committee. The Speaker, who intervened in the case, raised two questions: a ‘procedural’218 question as to whether the process of arriving at a conclusion in the case involved a breach of the prohibition in Article 9 of the Bill of Rights against impeaching or questioning proceedings in Parliament; and a ‘substantive’ question as to whether the matter was one within the exclusive jurisdiction of Parliament and [Seite 61] that the unauthorised publication of the report was for the Assembly to deal with. 214 That both the inquiry and report of the Parliamentary Commissioner for Standards constituted parliamentary proceedings was confirmed by the House of Lords in Hamilton v Al Fayed [2001] 1 AC 395 – as discussed in section [5.4.2] of this paper. 216 N Laurie, ‘Parliamentary committees, commissioners, independent commissions – parliamentary privilege and judicial review of decisions, investigations or reports’ (Spring 2002) 17(2) Australasian Parliamentary Review 212. 217 [1996] 2 Qd R 444. 218 [1996] 2 Qd R 444 at 455 (Pincus JA). |
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| [The Queensland Supreme Court agreed with the Speaker on the first] “procedural” argument, thereby confirming that the report was a parliamentary proceeding. However, it did not accept the ‘substantive’ argument, concluding that the Court had jurisdiction to restrain unlawful disclosure of a confidential CJC report in circumstances where the CJC had a statutory right under s 26(6) of the Criminal Justice Act 1989 (Qld)320 to protect against disclosure of such reports.
In Corrigan v PCJC321 the issue was whether a decision of a statutory parliamentary committee – the Parliamentary Criminal Justice Committee (PCJC) – was reviewable by the courts. A person had complained to the PCJC about the Criminal Justice Commission (CJC) and requested that the PCJC refer the matter to the Parliamentary Criminal Justice Commissioner (the Parliamentary Commissioner) for investigation. It was the PCJC’s decision not to refer the matter for investigation that the Supreme Court was asked to review. While recognising a distinction between ‘parliamentary’ and ‘executive’ functions of the committee, Dutney J ruled that the ‘act’ in question was of a parliamentary nature. He could ‘see no reason to distinguish the PCJC from any other committee of the Legislative Assembly merely because it is set up under statute, at least in areas of internal decision making where there is no allegation of breach of any statutory duty or prohibition’. In Criminal Justice Commission v Parliamentary Criminal Justice Commissioner 322 the question was whether a report of the Parliamentary Commissioner constituted a ‘proceeding in Parliament’. 320 The Criminal Justice Act 1989 (Qld), Article 26, Section 6, No person shall publish, furnish or deliver a report of the commission, otherwise than is prescribed by this section, unless the report has been printed by order of the Legislative Assembly or is deemed to have been so printed. 321 [2001] 2 Qd R 23. 322 [2002] 2 Qd R 8. |
The Queensland Supreme Court agreed with the Speaker on the first ‘procedural’ argument, thereby confirming that the report was a parliamentary proceeding. However, it did not accept the ‘substantive’ argument, concluding that the Court had jurisdiction to restrain unlawful disclosure of a confidential CJC report in circumstances where the CJC had a statutory right under s 26(6) of the Criminal Justice Act 1989 (Qld) to protect against disclosure of such reports.
• In Corrigan v PCJC219 the issue was whether a decision of a statutory parliamentary committee – the Parliamentary Criminal Justice Committee (PCJC) – was reviewable by the courts. A person had complained to the PCJC about the Criminal Justice Commission (CJC) and requested that the PCJC refer the matter to the Parliamentary Criminal Justice Commissioner (the Parliamentary Commissioner) for investigation. It was the PCJC’s decision not to refer the matter for investigation that the Supreme Court was asked to review. While recognising a distinction between ‘parliamentary’ and ‘executive’ functions of the committee,220 Dutney J ruled that the ‘act’ in question was of a parliamentary nature. He could ‘see no reason to distinguish the PCJC from any other committee of the Legislative Assembly merely because it is set up under statute, at least in areas of internal decision making where there is no allegation of breach of any statutory duty or prohibition’.221 • In Criminal Justice Commission v Parliamentary Criminal Justice Commissioner222 the question was whether a report of the Parliamentary Commissioner constituted a ‘proceeding in Parliament’. 219 [2001] 2 Qd R 23. 220 [2001] 2 Qd R 23 at 24. This followed the comments on Pincus JA in Criminal Justice Commission v Nationwide News Pty Ltd (at 457). Dutney J suggested that the committee’s ‘executive’ functions might include ‘participating the in the constitution of the CJC and, possibly, the role of issuing guidelines and directions to the CJC as provided under the Act’’. 221 [2001] 2 Qd R 23 at 25. 222 [2002] 2 Qd R 8. |
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| [The report at issue was] into an unauthorised disclosure by the CJC concerning an inquiry into a Member of Parliament. The investigation undertaken by the Parliamentary Commissioner
was at the request of the PCJC. In the event, the Parliamentary Commissioner found out in her report to the PCJC that the CJC was the source of the unlawful disclosure. For its part, the CJC sought orders declaring that: a) The report of the Parliamentary Commissioner was ultra vires; b) That in the circumstances the Parliamentary Commissioner could not make findings of guilt; and c) That the Parliamentary Commissioner had not observed the requirements of procedural fairness. The Speaker intervened, arguing that to grant the first declaration – that the report was ultra vires – would be to directly impeach and question the report contrary to Article 9. That view was upheld, both at first instance323 and on appeal. The request by the PCJC that an investigation be undertaken by the Parliamentary Commissioner was held to constitute a proceeding in Parliament, as was the investigation and subsequent report. McPherson JA concluded: “It follows that this Court, like others in Queensland, is precluded by Art. 9 of the Bill of Rights from questioning the validity or propriety of the [Parliamentary] Commissioner’s investigation and report”.324 Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee [of the Parliament’.325] 323 CJC & Ors v Dick [2000] QSC 272. 324 [2002] 2 Qd R 8 at 22. [325 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA 2572D100091751/$File/ParliamentaryPrivelige07.pdf.] |
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The report at issue was into an unauthorised disclosure by the CJC concerning an inquiry into a Member of Parliament. The investigation undertaken by the Parliamentary Commissioner was at the request of the PCJC. In the event, the Parliamentary Commissioner found in her report to the PCJC that the CJC was the source of the unlawful disclosure. For its part, the CJC sought orders declaring that: (a) the report of the Parliamentary Commissioner was ultra vires; (b) that in the circumstances the Parliamentary Commissioner could not make findings of guilt; and (c) that the Parliamentary Commissioner had not observed the requirements of procedural fairness. The Speaker intervened, arguing that to grant the first declaration – that the report was ultra vires – would be to directly impeach and question the report contrary to Article 9. That view was upheld, both at first instance223 and on appeal. The request [Seite 62] by the PCJC that an investigation be undertaken by the Parliamentary Commissioner was held to constitute a proceeding in Parliament,224 as was the investigation and subsequent report. McPherson JA concluded: ‘It follows that this Court, like others in Queensland, is precluded by art. 9 of the Bill of Rights from questioning the validity or propriety of the [Parliamentary] Commissioner’s investigation and report’.225 Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee of the Parliament’.
223 CJC & Ors v Dick [2000] QSC 272 (Helman J). 224 At that time defined by s 3 of the now repealed Parliamentary Paper Act 1992 (Qld). 225 [2002] 2 Qd R 8 at 22. Campbell notes that the Court did consider whether the report was ultra vires and whether the Commissioner had failed to observe the requirements of procedural justice. Campbell comments, ‘Arguably they should not have been considered at all once the court was satisfied that the matters in which the plaintiffs (CJC) sought declarations were proceedings in Parliament’ – Campbell, n 147, p 92. |
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| [Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee] of the Parliament’.325 Irrespective of whether a committee, commission or commissioner is created by statute, the issue is whether its work, in the circumstances in question, is fundamentally an extension of the Parliament’s proceedings:
What is important is to determine whether the functions of the investigation are primarily directed to assisting the Parliament discharge its functions or, more particularly, whether the investigation, decision or report itself is a proceeding of the Parliament.326 9.3 Parliamentary Proceeding and Effective Repetition 325 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA 2572D100091751/$File/ParliamentaryPrivelige07.pdf. 326 N.Laurie, Parliamentary Committees, Commissioners, Independent Commissions – Parliamentary Privilege and Judicial review of Decisions, Investigations or Reports’, Australasian Parliamentary Review, Spring, 2002. |
Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee of the Parliament’. Irrespective of whether a committee,
commission or commissioner is created by statute, the issue is whether its work, in the circumstances in question, is fundamentally an extension of the Parliament’s proceedings: What is important is to determine whether the functions of the investigation are primarily directed to assisting the Parliament discharge its functions or, more particularly, whether the investigation, decision or report itself is a proceeding of the Parliament.226 6.3 Parliamentary proceedings used to support legal proceedings – ‘effective repetition’ 226 N Laurie, n 216, pp 228-229. |
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| [13.] Wy/Fragment 108 12 - Diskussion Zuletzt bearbeitet: 2013-09-14 19:55:57 WiseWoman | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| In recent years, three major New Zealand cases have considered the issues relevant to the use that may or may not be made of parliamentary proceedings in actions for defamation, all of which are distinguishable on the facts.
The first is Prebble v Television New Zealand329 where the defendants (TVNZ) sought to rely on statements in Parliament, from which adverse inferences were to be drawn. In that case a former Labour Minister, Richard Prebble, alleged that a TVNZ program had cast him as having conspired with business leaders and public officials to sell state assets at firesale prices in return for donations to the Labour Party. TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and [sought to refer to speeches in the House by the plaintiff and other Ministers.] 329 [1995] 1 AC 321. |
In recent years three major New Zealand cases have considered the issues relevant to the use that may or may not be made of parliamentary proceedings in actions for defamation, all of which are distinguishable on the facts.
The first is Prebble v Television New Zealand229 where the defendants (TVNZ) sought to rely on statements in Parliament, from which adverse inferences were to be drawn. In that case a former Labour Minister, Richard Prebble, alleged that a TVNZ program had cast him as having conspired with business leaders and public officials to sell state assets at firesale prices in return for donations to the Labour Party. TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and sought to refer to speeches in the House by the plaintiff and other Ministers. 229 [1995] 1 AC 321. |
Kein Hinweis auf eine Übernahme. |
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| [14.] Wy/Fragment 109 01 - Diskussion Zuletzt bearbeitet: 2013-09-14 19:59:49 WiseWoman | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| [TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and] sought to refer to speeches in the House by the plaintiff and other Ministers. The Privy Council struck out the evidence TVNZ was seeking to rely on, holding that to impugn, or even simply to inquire into, a Member’s motives is to ‘impeach’ or ‘question’ and is prohibited. It made no difference that the plaintiff in the case was an MP. On the other hand, Hansard could be used to prove what Prebble had said in the House on certain days, or that the State-Owned Enterprises Act 1986 (which facilitated the sale of state assets) had passed the House and received the Royal Assent.
The second is Peters v. Cushing330 where the defamatory statement at issue was first made outside Parliament and only later confirmed in a parliamentary context. The question, therefore, was whether parliamentary proceedings could be used to establish a cause of action in defamation where the extra-parliamentary confirmation preceded the parliamentary publication? This evidence was ruled to be inadmissible, with Grieg J stating that the parliamentary statement was ‘not to be admitted merely to prove what had occurred in Parliament but to support, indeed found the cause of action against Mr Peters’. 331 Commenting on the case, the Privy Council said: In Peters v. Cushing…the defendant defamed the plaintiff, but without naming or identifying him, in television interviews broadcast on 1 and 3 June 1992. His remarks excited considerable public interest and on 10 June 1992 he named the plaintiff in the House of Representatives. For his first cause of action based on these defamatory remarks the plaintiff could not succeed without relying [sought to refer to speeches in the House by the plaintiff and other Ministers.] 330 [1999] NZAR 241. 331 [1999] NZAR 241 p. 255. |
TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and sought to refer to speeches in the House by the plaintiff and other Ministers. The Privy Council struck out the evidence TVNZ was seeking to rely on, holding that to impugn, or even simply to inquire into, a Member’s motives is to ‘impeach’ or ‘question’ and is prohibited. It made no difference that the plaintiff in the case was an MP. On the other hand, Hansard could be used to prove what Prebble had said in the House on certain days, or that the State-Owned Enterprises Act 1986 (which facilitated the sale of state assets) had passed the House and received the Royal Assent.
In the first cause of action in Peters v Cushing230 the defamatory statement at issue was first made outside Parliament and only later confirmed in a parliamentary context. The question, therefore, was whether parliamentary proceedings could be used to establish a cause of action in defamation where the extra-parliamentary confirmation preceded the parliamentary publication? This evidence was ruled to be inadmissible, with Grieg J stating that the parliamentary statement was ‘not to be admitted merely to prove what had occurred in Parliament but to support, indeed found the cause of action against Mr Peters’.231 Commenting on the case, the Privy Council said:
[S. 64]
230 [1999] NZAR 241. 231 [1999] NZAR 241 at 255. |
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| [15.] Wy/Fragment 110 01 - Diskussion Zuletzt bearbeitet: 2013-09-14 20:11:55 WiseWoman | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| [For his first cause of action based on these defamatory remarks the plaintiff could not succeed without relying] on the naming of him in the House. This was held, rightly in the opinion of the Board, to be impermissible.332 The Privy Council continued:
For the purposes of the action it must be assumed that the defendant’s conduct was proper: if it was not, it was a matter for the House, not the court; and privilege is conferred for the benefit of Parliament as an institution, and of the nation as a whole, not for the benefit of any individual member. Thus the defendant had to be free to name the plaintiff in Parliament if he judged it right to do so, without fear of adverse civil consequences.333 On the other hand, the speech in Parliament was admissible to support the second cause of action in Peters v. Cushing. This arose from the effective repetition of the defamatory statement in a subsequent television interview on 10 October 1993. In this context it was ruled that Hansard could be relied on, not to support the cause of action or as a foundation for it, but to prove what occurred in Parliament as an historical fact.334 The third case, Buchanan v Jennings, was one of the affirmation or “effective repetition” outside Parliament of what was said inside Parliament. As formulated by the Privy Council, the principle in issue was: Whether a Member of Parliament may be liable in defamation if the member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under article 9 of the Bill of Rights 1688– [and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege.]335 332 Buchanan v. Jennings [2005] 1 AC 115. 333 [2005] 1 AC 115. 334 [1999] NZAR 241. [335 [2005] 1 AC 115.] |
:For his first cause of action based on these defamatory remarks the plaintiff could not succeed without relying on the naming of him in the House. This was held, rightly in the opinion of the Board, to be impermissible.232
The Privy Council continued:
On the other hand, the speech in Parliament was admissible to support the second cause of action in Peters v Cushing. This arose from the effective repetition of the defamatory statement in a subsequent television interview on 10 October 1993. In this context it was ruled that Hansard could be relied on, not to support the cause of action or as a foundation for it, but to prove what occurred in Parliament as an historical fact.234 The third case, Buchanan v Jennings, was one of the affirmation or ‘effective repetition’ outside Parliament of what was said inside Parliament. As formulated by the Privy Council, the principle in issue was:
232 Buchanan v Jennings [2005] 1 AC 115 at para 19. 233 [2005] 1 AC 115 at para 19. 234 [1999] NZAR 241 at 249 (Ellis J) and 255 (Grieg J). 235 [2005] 1 AC 115 at para 1. |
Ganzseitige Übernahme. |
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| [16.] Wy/Fragment 111 01 - Diskussion Zuletzt bearbeitet: 2013-09-14 20:18:15 WiseWoman | BauernOpfer, Fragment, Gesichtet, Griffith 2007, SMWFragment, Schutzlevel sysop, Wy |
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| [Whether a Member of Parliament may be liable in defamation if the member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under article 9 of the Bill of Rights 1688 –] and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege.335
Affirmation or ‘effective repetition’ has been found to amount to no more than a Member confirming that they ‘stand by’ what they said in Parliament or, as in Buchanan v Jennings, that they “do not resile” from what they said in the House. The facts of the case were that, in December 1997 the MP, Jennings, alleged abuse of expenditure and an illicit relationship on the part of officials involved in the sponsorship of a sporting tour. He was subsequently interviewed by a journalist who then published an article recording that Jennings withdrew some of his financial allegations, and reported him as saying that he ‘did not resile’ from his claim about the illicit relationship between the officials and the sponsors. The affirmation or ‘effective repetition’ was admitted that the evidence and damages were awarded against Jennings in both the New Zealand High Court and the Court of Appeal. From there it went to the Privy Council, which upheld the earlier rulings. There was no doubt that what Jennings said in the House was protected by absolute privilege. However, that privilege did not extend to cover his republication of that statement by reference outside the House.336 But Buchanan v. Jennings has proved a controversial decision. In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 is amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in [proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.337] 335 [2005] 1 AC 115. 336 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA2572D100091751/$File/ParliamentaryPrivelige07.pdf. [337 Privileges Committee, Final Report on the question of privilege referred 21 July 1998 concerning Buchanan v Jennings, 1.17G, May 2005, p.9; For a commentary see – A Geddis, Parliamentary privilege: quis custodiet ipsos custodes? Public Law,Winter, 2005.] |
[Seite 64]
Affirmation or ‘effective repetition’ has been found to amount to no more than a Member confirming that they ‘stand by’236 what they said in Parliament or, as in Buchanan v Jennings, that they ‘do not resile’ from what they said in the House. The facts of the case were that, in December 1997 the MP, Jennings, alleged abuse of expenditure and an illicit relationship on the part of officials involved in the sponsorship of a sporting tour. He was [Seite 65] subsequently interviewed by a journalist who then published an article recording that Jennings withdrew some of his financial allegations, and reported him as saying that he ‘did not resile’ from his claim about the illicit relationship between the officials and the sponsors. The affirmation or ‘effective repetition’ was admitted into evidence and damages were awarded against Jennings in both the New Zealand High Court and the Court of Appeal. From there it went to the Privy Council, which upheld the earlier rulings. There was no doubt that what Jennings said in the House was protected by absolute privilege. However, that privilege did not extend to cover his republication of that statement by reference outside the House. [Seite 66] Buchanan v Jennings has proved a controversial decision. In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 be amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.243 235 [2005] 1 AC 115 at para 1. 236 Beitzel v Crabb [1992] 2 VR 121. The plaintiff was able to base his proceedings on a radio interview in which the defendant member of Parliament refused to apologise to the plaintiff for what he had earlier said in the Victorian Parliament and said that he stood by what he has said there. 243 Privileges Committee, Final Report on the question of privilege referred 21 July 1998 concerning Buchanan v Jennings, 1.17G, May 2005, p 9. For a commentary see – A Geddis, ‘Parliamentary privilege: quis custodiet ipsos custodes? [Winter 2005] Public Law 696. |
Art und Umfang der Übernahme bleiben ungekennzeichnet. |
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| [17.] Wy/Fragment 112 01 - Diskussion Zuletzt bearbeitet: 2013-09-11 22:59:45 Hindemith | BauernOpfer, Fragment, Gesichtet, Griffith 2007, SMWFragment, Schutzlevel sysop, Wy |
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| [In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 is amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in] proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.337
The Privileges Committee expressed four main concerns. The first concerned the principle of non-intervention between the courts and Parliament in cases of “effective repetition”. This was not an issue where a Member directly repeated a statement outside Parliament. When a statement was only affirmed or “effectively repeated”, however, this involves the parliamentary statement being put directly to the court as it is the main evidence for the proceedings. Secondly, the Committee considered the potential effects on free speech, in circumstances where a minimal response to a question posed by the media could result in civil liability. Thirdly, this may have a ‘chilling’ effect on public debate, whereby Members and committee witnesses are reluctant to submit themselves to subsequent interview for fear of losing their parliamentary immunity. Fourthly, the Privilege Committee was concerned that the Buchanan v Jennings doctrine would have an effect beyond defamation in a parliamentary context. Could it apply, for example, to a breach of statutory incitement laws in a parliamentary context? Might the doctrine also be applied to court proceedings, in which context absolute privilege also applies?338 In April 2006 these concerns were endorsed by the Procedure and Privileges Committee of the Western Australian Legislative Assembly. It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what [was ‘effectively’ but not actually said outside Parliament; and (b) that a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General.339]
338 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/ prod/parlment/publications.nsf/ 0/18DBE18C7D65CDF0CA 2572D100091751/$File/ ParliamentaryPrivelige07.pdf. [339 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006.] |
[Seite 66]
In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 be amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.243 The Privileges Committee expressed four main concerns. The first concerned the principle of non-intervention between the courts and Parliament in cases of ‘effective repetition’. This was not an issue where a Member directly repeated a statement outside Parliament. Where a statement was only affirmed or ‘effectively repeated’ however, this involves the parliamentary statement being put directly to the court as it is the main evidence for the proceedings. Secondly, the Committee considered the potential effects on free speech, in circumstances where a minimal response to a question posed by the media could result in civil liability. Thirdly, this may have a ‘chilling’ effect on public debate, whereby Members and committee witnesses are reluctant to submit themselves to subsequent interview for fear of losing their parliamentary immunity. Fourthly, the Privilege Committee was concerned that the Buchanan v Jennings doctrine would have an effect beyond defamation in a parliamentary context. Could it apply, for example, to a breach of statutory incitement laws in a parliamentary context? Might the doctrine also be applied to court proceedings, in [Seite 67] which context absolute privilege also applies? In April 2006 these concerns were endorsed by the Procedure and Privileges Committee of the Western Australian Legislative Assembly.244 It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what was ‘effectively’ but not actually said outside Parliament; and (b) that the a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General. 243 Privileges Committee, Final Report on the question of privilege referred 21 July 1998 concerning Buchanan v Jennings, 1.17G, May 2005, p 9. For a commentary see – A Geddis, ‘Parliamentary privilege: quis custodiet ipsos custodes? [Winter 2005] Public Law 696. 244 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006. |
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| [18.] Wy/Fragment 113 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 10:08:55 WiseWoman | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| [It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what] was ‘effectively’ but not actually said outside Parliament; and (b) that a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General.339
By reference to the ruling of the New Zealand Court of Appeal, Odgers Australian Senate Practice declared that Buchanan v. Jennings was ‘wrongly’ decided.340 339 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006. 340 H.Evans, Odgers’ Australian Senate Practice, 11th ed., Department of the Senate 2004, p.44. |
[...]244 It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what was ‘effectively’ but not actually said outside Parliament; and (b) that the a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General.
By reference to the ruling of the New Zealand Court of Appeal, Odgers Australian Senate Practice declared that Buchanan v Jennings was ‘wrongly’ decided.245 244 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006. 245 Odgers, n 143, p 44. |
Kein Hinweis auf eine Übernahme. |
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| [19.] Wy/Fragment 120 18 - Diskussion Zuletzt bearbeitet: 2013-09-12 13:06:18 WiseWoman | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| Further to the doctrine of “exclusive cognisance”, the courts are precluded from intervening in the legislative process on several grounds. These include considerations arising from the separation of powers that require a policy of non-[intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings.] | Further to the doctrine of ‘exclusive cognisance’, the courts are precluded from intervening in the legislative process on several grounds. These include considerations arising from the separation of powers that require a policy of non-intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings. |
Kein Hinweis auf eine Übernahme. Beginn einer sich über Seiten hinziehenden weitgehend wortwörtlichen Übernahme, die erst auf Seite 124 enden wird. |
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| [20.] Wy/Fragment 121 01 - Diskussion Zuletzt bearbeitet: 2013-09-14 12:16:51 Graf Isolan | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| [These include considerations arising from the separation of powers that require a policy of non-] intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings. Added to this, in Criminal Justice Commission v. Nationwide News Pty Ltd, 362 Davies JA observed that the reluctance of the courts to intervene in the legislative process stems from “the mutual respect which each branch of government should accord the performance of its functions by the other”. Likewise, British Railway Board v Pickin is authority for the proposition that a court is barred by the principle of comity from investigating the manner in which Parliament exercises its legislative function.363
But there are some cases where the courts have intervened in the parliamentary process. In 2002 the Supreme Court of Western Australia in Marquet v. A-G (WA) undertook review of this area of the law. A manner and form provision was at issue in that case and declarations had been sought from the Clerk of the Parliaments whether it would be lawful for him to present two Bills for the Governor’s assent that had not complied with the absolute majority requirements.364 On the question of jurisdiction, Steytler and Parker JJ concluded (the other members of the Court agreeing): In the case of legislation…which provides that presentation of a Bill [for the royal assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has [been completed, but before the Bill is presented to the Governor for Royal Assent.365] 362 [1996] 2 QdR 444, p.460. 363 [1974] AC 765. 364 See, E.Campbell, Parliamentary Privilege in Australia, pp. 116-118; P. Johnston, Method or Madness: Constitutional Perturbations and Marquet’s case, Constitutional Law and Policy Review, August, 2004. [365 [2002] 26 WAR 201, p.160.] |
These include considerations arising from the separation of powers that require a policy of non-intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings. Added to this, in Criminal Justice Commission v Nationwide News Pty Ltd 248 Davies JA observed that the reluctance of the courts to intervene in the legislative process stems from ‘the mutual respect which each branch of government should accord the performance of its functions by the other’. Likewise, British Railway Board v Pickin249 is authority for the proposition that a court is barred by the principle of comity from investigating the manner in which Parliament exercises its legislative function. [...]
[S. 68] where the courts have intervened in the parliamentary process [...] In 2002 review of this area of the law was undertaken by the Supreme Court of Western Australia in Marquet v A-G (WA). A manner and form provision was at issue in that case and declarations had been sought from the Clerk of the Parliaments whether it would be lawful for him to present two Bills for the Governor’s assent that had not complied with the [S. 69] absolute majority requirements. 254 On the question of jurisdiction, Steytler and Parker JJ concluded (the other members of the Court agreeing): In the case of legislation...which provides that presentation of a Bill [for the royal assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has been completed, but before the Bill is presented to the Governor for Royal Assent.255 248 [1996] 2 QdR 444 at 460. 254 For a detailed background to and commentary on the case see – Campbell, Parliamentary Privilege, n 147, pp 116-118; P Johnston, ‘Method or madness: constitutional perturbations and Marquet’s case’ (August 2004) 7(2)Constitutional Law and Policy Review 25. 255 [2002] 26 WAR 201 at 160. |
Die ganzseitige Übernahme begann auf S. 120 und setzt sich mit kleinsten Veränderungen fort. |
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| [21.] Wy/Fragment 122 01 - Diskussion Zuletzt bearbeitet: 2013-09-14 15:54:08 Graf Isolan | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| [In the case of legislation…which provides that presentation of a Bill [for the
royal assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has] been completed, but before the Bill is presented to the Governor for Royal Assent.365 It was further held that the Court should, as a matter of discretion, exercise its jurisdiction. On appealing to the High Court the question of justiciability was not considered. Rather, it was the validity of the manner and form provision that was the point at issue.366 This area of the law was again reviewed by the UK Court of Appeal367 and subsequently, if less extensively, by the House of Lords in R (Jackson) v. Attorney General368 in which supporters of fox hunting argued that the Hunting Act 2004 was not a valid Act, on the ground that the 1949 amendments to the Parliament Act 1911 were invalid and the procedures used to pass the Hunting Act were also invalid. The 2004 legislation banning fox hunting was passed without the consent of the House of Lords, pursuant to s 2 of the Parliament Act 1911, as amended in 1949 when the period before the Lords’ consent could be dispensed with was reduced by a year. As amended, the procedure only required the passage and rejection of a Bill in two successive sessions (instead of three) over a period of one year (instead of two).369 As explained by Michael Plaxton: The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be amended without the formal consent of the House of Lords; that the bypassing [procedure could not be used to amend itself.] 365 [2002] 26 WAR 201, p.160. 366 Attorney General (WA) v. Marquet (2003) 217 CLR 545. 367 Regina (Jackson and others) v. Attorney General [2005] QB 579. 368 [2005] 3 WLR 733. 369 A Twomey, Implied Limitations on Legislative Power in the United Kingdom, Australian Law Journal, Vol. 80, 2006. |
In the case of legislation…which provides that presentation of a Bill [for the royal
assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has been completed, but before the Bill is presented to the Governor for Royal Assent. 255 It was further held that the Court should, as a matter of discretion, exercise its jurisdiction. On appeal to the High Court the question of justiciability was not considered. Rather, it was the validity of the manner and form provision that was the point at issue.256 This area of the law was again reviewed by the UK Court of Appeal257 and subsequently, if less extensively, by the House of Lords in R (Jackson) v Attorney General258 in which supporters of fox hunting argued that the Hunting Act 2004 was not a valid Act, on the ground that the 1949 amendments to the Parliament Act 1911 were invalid and the procedures used to pass the Hunting Act were also invalid. The 2004 legislation banning fox hunting was passed without the consent of the House of Lords, pursuant to s 2 of the Parliament Act 1911, as amended in 1949 when the period before the Lords’ consent could be dispensed with was reduced by a year. As amended, the procedure only required the passage and rejection of a Bill in two successive sessions (instead of three) over a period of one year (instead of two).259 As explained by Michael Plaxton: The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be amended without the formal consent of the House of Lords; that the bypassing [procedure could not be used to amend itself.] 255 [2002] 26 WAR 201 at 160. 256 Attorney General (WA) v Marquet (2003) 217 CLR 545. 257 Regina (Jackson and others) v Attorney General [2005] QB 579. 258 [2005] 3 WLR 733. 259 A Twomey, ‘Implied limitations on legislative power in the United Kingdom’ (2006) 80 Australian Law Journal 40. |
Identisch. |
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| [The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be amended without the formal consent of the House of Lords; that the bypassing] procedure could not be used to amend itself. The Appellants chiefly rested their argument on the claim that the 1911 Act merely delegated power to the House of Commons that would ordinarily be shared by both Houses. If that were the case, they argued, the House of Commons would be unable to use the powers granted by the 1911 Act to expand them, unless such authority was explicitly granted.370
In the event, both the Court of Appeal and the House of Lords ruled that the 1949 amending Act and therefore the Hunting Act 2004 were valid. In arriving at this decision the Court of Appeal, in a unanimous judgment delivered by Lord Woolf, held that the case turned on more than statutory interpretation and that regard should be had to the parliamentary debates to ascertain the meaning of s 2(1) of the Parliament Act 1911 and ‘subsequent understanding of Parliament as to the nature of the constitutional change effected’ by the Act.371 As to the threshold question of justiciability, the Court of Appeal held that this was a rare occasion when it was appropriate for the courts to rule on the validity of legislation that had received the Royal Assent, on grounds that the courts were ‘seeking to assist Parliament and the public by clarifying the legal position when such clarification is obviously necessary’. Further explaining the Court’s modus operandi, Lord Woolf stated: While we refer [sic] what has happened in debates in Parliament concerning the issue before us, we will not be adjudicating upon the propriety of what occurred in Parliament.372 370 M Plaxton, The Concept of Legislation: Jackson v Her Majesty’s Attorney General, Modern Law Review, Vol. 69, 2006. 371 [2005] QB 579 at para. 77. 372 [2005] QB 579 at para. 13. |
[The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be
amended without the formal consent of the House of Lords; that the bypassing] procedure could not be used to amend itself. The Appellants chiefly rested their argument on the claim that the 1911 Act merely delegated power to the House of Commons that would ordinarily be shared by both Houses. If that were the case, they argued, the House of Commons would be unable to use the powers granted by the 1911 Act to expand them, unless such authority was explicitly granted. 260 In the event, both the Court of Appeal and the House of Lords ruled that the 1949 amending Act and therefore the Hunting Act 2004 were valid. In arriving at this decision the Court of Appeal, in a unanimous judgment delivered by Lord Woolf, held that the case turned on more than statutory interpretation and that regard should be had to the parliamentary debates to ascertain the meaning of s 2(1) of the Parliament Act 1911 and ‘subsequent understanding of Parliament as to the nature of the constitutional change effected’ by the Act.261 As to the threshold question of justiciability, the Court of Appeal held that this was a rare occasion when it was appropriate for the courts to rule on the validity of legislation that had received the Royal Assent, on grounds that the courts were ‘seeking to assist Parliament and the public by clarifying the legal position when such clarification is obviously necessary’. Further explaining the Court’s modus operandi, Lord Woolf stated: [...]
260 M Plaxton, ‘The concept of legislation: Jackson v Her Majesty’s Attorney General’ (2006) 69(2) Modern Law Review 249 at 250. 261 [2005] QB 579 at para 77. 262 [2005] QB 579 at para 13. |
Die Kopie setzt sich fort. |
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| [23.] Wy/Fragment 124 01 - Diskussion Zuletzt bearbeitet: 2013-09-14 15:48:08 Graf Isolan | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| Untersuchte Arbeit: Seite: 124, Zeilen: 1-22, 101-102 |
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| Whether that argument would have applied if the Court of Appeal had found the 1949 amending Act invalid is another matter. For its part, the House of Lords upheld the validity of that legislation on very different grounds. In doing so, it avoided the potential pitfalls the Court of Appeal might have set for itself in respect to the review of parliamentary proceedings. For the House of Lords, judicial review was held to be constitutionally legitimate in this instance, since the courts were not investigating the internal workings of Parliament but were determining whether the 1949 and 2004 Acts were enacted law.373
On this issue the court’s jurisdiction cannot be doubted. This question of statutory interpretation is properly cognizable by a court of law even though it relates to the legislative process. Statutes create laws. [sic] The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognizance (jurisdiction) over its own affairs. In essence, the case was reducible to a question of statutory interpretation, about which Lord Nicholls of Birkenhead stated: 374 That s 2(2) of the 1911 Act, providing for the Speaker to certify that the requirements of the Act had been duly complied with, was not in dispute. At issue was s 2(1) of the 1911 Act which laid down the circumstances in which, save for stated exceptions, ‘any public Bill’ could be enacted without the consent of the House of Lords. The term ‘any’ was given a broad meaning and it was held to refer in this context to primary, not secondary, legislation. 373 [2005] 3 WLR 733 at para. 27 (Lord Bingham of Cornhill). 374 [2005] 3 WLR 733 at para. 51. |
Whether that argument would have applied if the Court of Appeal had found the 1949 amending Act invalid is another matter. For its part, the House of Lords upheld the validity of that legislation on very different grounds. In doing so, it avoided the potential pitfalls the Court of Appeal might have set for itself in respect to the review of parliamentary proceedings. For the House of Lords, judicial review was held to be constitutionally legitimate in this instance, since the courts were not investigating the internal workings of Parliament but were determining whether the 1949 and 2004 Acts were enacted law.263 In essence, the case was reducible to a question of statutory interpretation, about which Lord Nicholls of Birkenhead stated:
That s 2(2) of the 1911 Act, providing for the Speaker to certify that the requirements of the Act had been duly complied with, was not in dispute. At issue was s 2(1) of the 1911 Act which laid down the circumstances in which, save for stated exceptions, ‘any public Bill’ could be enacted without the consent of the House of Lords. The term ‘any’ was given a broad meaning and it was held to refer in this context to primary, not secondary, legislation. 263 [2005] 3 WLR 733 at para 27 (Lord Bingham of Cornhill). 264 [2005] 3 WLR 733 at para 51. |
Identisch, bis auf 3 Buchstaben. |
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| [24.] Wy/Fragment 134 01 - Diskussion Zuletzt bearbeitet: 2013-09-12 13:46:50 WiseWoman | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| Untersuchte Arbeit: Seite: 134, Zeilen: 1-17, 101-102 |
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| [On behalf of the House of Commons and the Speaker it was claimed that the hiring and firing of all House] employees were ‘internal affairs’ of Parliament that were not subject to judicial review. This ‘fundamentalist’ interpretation of the exclusive cognisance doctrine was rejected by the Supreme Court, for which Binnie J wrote the unanimous judgment. Applying the ‘test of necessity’ it was held that exclusive and unreviewable jurisdiction over all House employees was not necessary to protect the functioning of the House of Commons. The attachment of privilege to ‘some’ parliamentary employees was undoubtedly necessary, but not those who were only indirectly connected to the legislative and deliberative functions of the House.401 This was the case in respect to the Speaker’s chauffeur.
This followed Binnie J’s formulation of the test of necessity in these terms: In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.402 401 [2005] SCR 667, at para. 75. 402 [2005] SCR 667, at para. 46. |
On behalf of the House of Commons and the Speaker it was claimed that the hiring and firing of all House employees were ‘internal affairs’ of Parliament that were not subject to judicial review. This ‘fundamentalist’ interpretation of the exclusive cognisance doctrine was rejected by the Supreme Court, for which Binnie J wrote the unanimous judgment. Applying the ‘test of necessity’ it was held that exclusive and unreviewable jurisdiction over all House employees was not necessary to protect the functioning of the House of Commons. The attachment of privilege to ‘some’ parliamentary employees was undoubtedly necessary, but not those who were only indirectly connected to the legislative and deliberative functions of the House.296 This was the case in respect to the Speaker’s chauffeur.
[...] This followed Binnie J’s formulation of the test of necessity in these terms: In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.298 296 [2005] SCR 667 at para 75. 298 [2005] SCR 667 at para 46. For a commentary on the case see - S Joyal, n 188. |
Erneut: Identischer Text, identische Zitate - die eigentliche Quelle bleibt ungenannt. |
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| [25.] Wy/Fragment 165 04 - Diskussion Zuletzt bearbeitet: 2013-09-14 18:26:44 Graf Isolan | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| Untersuchte Arbeit: Seite: 165, Zeilen: 4-23 |
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| 13.2 Waiver of Parliamentary Privilege
The case of Hamilton v Al Fayed507 arose out of the ‘cash for questions’ scandal of the 1990s. In January 1997, the defendant (Al Fayed) alleged on a TV program that the plaintiff, the MP Neil Hamilton, had sought and accepted cash from him for asking questions on his behalf in the House of Commons. Two parliamentary investigations and reports followed, one by the Parliamentary Commissioner for Standards which concluded that Hamilton had received cash payments from Al Fayed, the other by the Committee on Standards and Privileges, whose report was approved by the House of Commons in November 1997. In January 1998, Hamilton commenced proceedings against Al Fayed for defamation in respect to the allegations made by him on the TV program. In doing so, Hamilton waived his parliamentary privilege, pursuant to s 13 of the Defamation Act, as amended in 1996. This provision enables an MP (or any other participant in parliamentary proceedings) who considers he has been defamed to waive parliamentary privilege and bring proceedings for defamation even though such proceedings would otherwise amount to a breach of parliamentary privilege. On his side, Al Fayed sought to strike out Hamilton’s claim on the grounds that the hearing of the action: (a) would contravene Article 9’s prohibition against questioning ‘proceedings in Parliament’; and (b) would constitute a collateral attack on Parliament’s own investigation into the MP’s conduct. 507 [2001] 1 AC 395. |
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5.4.2 Waiver of privilege – s 13 of the Defamation Act (UK) The case of Hamilton v Al Fayed198 arose out of the ‘cash for questions’ scandal of the 1990s. In January 1997, the defendant (Al Fayed) alleged on a TV program that the plaintiff, the MP Neil Hamilton, had sought and accepted cash from him for asking questions on his behalf in the House of Commons. Two parliamentary investigations and reports followed, one by the Parliamentary Commissioner for Standards which concluded that Hamilton had received cash payments from Al Fayed, the other by the Committee on Standards and Privileges, whose report was approved by the House of Commons in November 1997. In January 1998, Hamilton commenced proceedings against Al Fayed for defamation in respect to the allegations made by him on the TV program. In doing so, Hamilton waived his parliamentary privilege, pursuant to s 13 of the Defamation Act, as amended in 1996.199 This provision enables an MP (or any other participant in [Seite 56] parliamentary proceedings) who considers he has been defamed to waive parliamentary privilege and bring proceedings for defamation even though such proceedings would otherwise amount to a breach of parliamentary privilege. On his side, Al Fayed sought to strike out Hamilton’s claim on the grounds that the hearing of the action: (a) would contravene Article 9’s prohibition against questioning ‘proceedings in Parliament’; and (b) would constitute a collateral attack on Parliament’s own investigation into the MP’s conduct. 198 [2001] 1 AC 395. 199 For the background to s 13 see – Joint Committee on Parliamentary Privilege, n 2, p 23. For a commentary on s 13 and ‘waiver of privilege’ generally see – Campbell, Parliamentary [Privilege, n 147, Ch 8.] |
Kein Hinweis auf eine Übernahme. |
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| [26.] Wy/Fragment 166 01 - Diskussion Zuletzt bearbeitet: 2013-09-14 18:33:28 Graf Isolan | Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy |
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| Untersuchte Arbeit: Seite: 166, Zeilen: 1ff (komplett) |
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| The final ruling on the “parliamentary privilege” aspect to the case was
delivered by the House of Lords, in a unanimous judgment delivered by Lord Browne-Wilkinson. Curiously, it was only at this stage that the determining influence of the waiver of privilege under s 13 was given its full weight. At first instance, Popplewell J had not even referred directly to s 13.508 Subsequently, the Court of Appeal had indeed concluded that s 13 “trumped” parliamentary privilege, but only after a lengthy discussion as to whether the two parliamentary investigations were “proceedings in Parliament”.509 In summary, the Court of Appeal held that the report of the Parliamentary Commissioner for Standards and that of the Committee on Standards and Privileges were “ ‘proceedings in Parliament’ and that Popplewell J had been in error and had himself breached parliamentary privilege by criticizing the procedures adopted by the Parliamentary Commissioner for Standards. To this point the Court of Appeal and the House of Lords were in agreement. However, the Court of Appeal had then ruled that parliamentary privilege would not have been infringed if the action had gone forward. On the facts of the case, the House of Lords could not accept this argument, saying that it would have been ‘impossible for Mr Al Fayed to have had a fair trial in this action if he had been precluded from challenging the evidence produced to the parliamentary committees on behalf of Mr Hamilton’ ”. Lord Browne-Wilkinson concluded: “Had it not been for section 13, the court should, in my judgment, have stayed the libel action brought by Mr Hamilton…”510 508 [2001] 1 AC 395, p.407. 509 Hamilton v. Al Fayed [1999] 3 All ER 317. 510 [2001] 1 AC 395, p.408. |
The final ruling on the ‘parliamentary privilege’ aspect to the case was delivered by the
House of Lords, in a unanimous judgment delivered by Lord Browne-Wilkinson. Curiously, it was only at this stage that the determining influence of the waiver of privilege under s 13 was given its full weight. At first instance, Popplewell J had not even referred directly to s 13.200 Subsequently, the Court of Appeal had indeed concluded that s 13 ‘trumped’ parliamentary privilege, but only after a lengthy discussion as to whether the two parliamentary investigations were ‘proceedings in Parliament’.201 In summary, the Court of Appeal held that the report of the Parliamentary Commissioner for Standards and that of the Committee on Standards and Privileges were ‘proceedings in Parliament’ and that Popplewell J had been in error and had himself breached parliamentary privilege by criticizing the procedures adopted by the Parliamentary Commissioner for Standards. To this point the Court of Appeal and the House of Lords were in agreement. However, the Court of Appeal had then ruled that parliamentary privilege would not have been infringed if the action had gone forward. On the facts of the case, the House of Lords could not accept this argument, saying that it would have been ‘impossible for Mr Al Fayed to have had a fair trial in this action if he had been precluded from challenging the evidence produced to the parliamentary committees on behalf of Mr Hamilton’. Lord Browne-Wilkinson concluded: ‘Had it not been for section 13, the court should, in my judgment, have stayed the libel action brought by Mr Hamilton…’.202 200 [2001] 1 AC 395 at 405-406. 201 Hamilton v Al Fayed [1999] 3 All ER 317. 202 [2001] 1 AC 395 at 408. |
Identisch ohne Hinweis auf eine Übernahme. |
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| Lord Browne-Wilkinson made it clear that he had only dealt with this question in order to avoid confusion in the law of parliamentary privilege.511 As he said at the outset, ‘section 13 affects all the issues in this case’.512 In effect, since Hamilton had chosen to rely on s 13, the trial of the action could proceed, notwithstanding the infringement of parliamentary privilege that would result.
In its First Report of 1999, the Joint Committee on Parliamentary Privilege recommended that s 13 be repealed, arguing that it had “created indefensible anomalies of its own which should not be allowed to continue”. The cure s 13 which ought to achieve what was to rectify the situation where an individual MP (or a witness before a parliamentary committee) is precluded by parliamentary privilege from taking action to clear their name when it is alleged that what they have said in a parliamentary context is untrue. For the Joint Committee, the cure was worse than the disease: A fundamental flaw is that it undermines the basis of privileges: Freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example, where two members, or a member and a non-member, are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. No similar waiver is available for any criminal action, or any other form of civil action.513 511 [2001] 1 AC 395, p.407. 512 [2001] 1 AC 395, p.398. 513 UK Parliament, Reports of the Joint Committee on Parliamentary Privilege, http://www.parliament.the-stationery-office.co.uk/pa/jt199899/jtselect/jtpriv/43/4302.htm. |
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Lord Browne-Wilkinson made it clear that he had only dealt with this question in order to avoid confusion in the law of parliamentary privilege.203 As he said at the outset, ‘section 13 affects all the issues in this case’.204 In effect, since Hamilton had chosen to rely on s 13, the trial of the action could proceed, notwithstanding the infringement of parliamentary privilege that would result. In its First Report of 1999, the Joint Committee on Parliamentary Privilege recommended that s 13 be repealed, arguing that it had ‘created indefensible anomalies of its own which [Seite 57] should not be allowed to continue’. The cure s 13 sought to achieve was to rectify the situation where an individual MP (or a witness before a parliamentary committee) is precluded by parliamentary privilege from taking action to clear their name when it is alleged that what they have said in a parliamentary context is untrue. For the Joint Committee, the cure was worse than the disease: A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example, where two members, or a member and a non-member, are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. No similar waiver is available for any criminal action, or any other form of civil action.205 203 [2001] 1 AC 395 at 407. 204 [2001] 1 AC 395 at 398. 205 Joint Committee on Parliamentary Privilege, n 2, pp 24-25. |
Identisch ohne Hinweis auf eine Übernahme. Für das Zitat, das den letzten Absatz ausmacht ("A fundamental ... action") gibt Wy zwar korrekt die (bei ihm: Internet-) Vorlage an, es findet sich aber genau in diesem Umfang und vor allem in demselben, wortwörtlichen Kontext schon in der Quelle Griffith. Wy/Fragment_167_14b zeigt aber auch, dass Griffith den Text evtl. auch aus einer anderen Quelle übernommen hat. |
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