This background paper, which reflects the law as at 1 March 2007, discusses questions and issues in parliamentary privilege that continue to be the subject of debate or uncertainty. These include the law relating to: the execution of search warrants, the issuing of subpoenas and orders for discovery in Parliament; the 'effective repetition' of statements outside Parliament and other areas where parliamentary privilege impinges on the law of defamation; the meaning of the words 'place out of Parliament' in Article 9 of the Bill of Rights 1689; and the interpretation of statutory secrecy provisions and their effect on parliamentary privilege. Considered is the case for and against the statutory codification of the powers and privileges of the Houses of the NSW Parliament.
Also discussed in this paper are continuing issues relevant to orders and addresses for papers, at the heart of which lies the struggle between Executive power and parliamentary scrutiny.
Recent cases are analysed from NSW and comparable jurisdictions. These cases may not point in any discernible direction or reveal any definite trend, turning as most of them do on the particular facts at issue. What can be said by way of a general observation is that the 1999 report of the UK Joint Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead, one of the Law Lords, has proved a landmark in thinking on this subject, one that clearly resonates with the courts in their attempts to apply the principle of non-intervention in contemporary circumstances. With NSW in mind, it might be said that the 'test of necessity' favoured by the Joint Committee is really only a restatement of the test of 'reasonable necessity' which has always applied in this jurisdiction. What is different perhaps is the new vigour with which the courts, in their capacity as the guardians of the rule of law, approach their task of determining the limits of Parliament's jurisdiction.