criminal law (false evidence before parliament) amendment

Criminal Law (False Evidence Before Parliament) Amendment Bill 2012

Report No. 1 Legal Affairs and Community Safety Committee July 2012

Legal Affairs and Community Safety Committee

Chair Mr Ray Hopper MP, Member for Condamine

Deputy Chair Mr Peter Wellington MP, Member for Nicklin

Members Miss Verity Barton MP, Member for Broadwater

Mr Bill Byrne MP, Member for Rockhampton

Mr Sean Choat MP, Member for Ipswich West

Mr Carl Judge MP, Member for Yeerongpilly

Mr Trevor Watts MP, Member for Toowoomba North

Mr Jason Woodforth MP, Member for Nudgee

Staff Mr Brook Hastie, Research Director

Mrs Sharon Hunter, Principal Research Officer

Mr Peter Rogers, Principal Research Officer

Mrs Gail Easton, Executive Assistant

Ms Renee Easten, Research Director

Ms Marissa Ker, Principal Research Officer

Technical Scrutiny Secretariat

Ms Dianne Christian, Executive Assistant

Contact details Legal Affairs and Community Safety Committee Parliament House George Street Brisbane Qld 4000

Telephone +61 7 3406 7307

Fax +61 7 3406 7070

Email [email protected]

Web www.parliament.qld.gov.au/lacsc

Acknowledgements

The Committee acknowledges the assistance provided by the Department of Justice and Attorney‐General, and the Queensland Parliamentary Library.

mailto:[email protected]�

http://www.parliament.qld.gov.au/lacsc�

Legal Affairs and Community Safety Committee iii

Contents

Abbreviations iv

Glossary iv

Chair’s foreword v

Executive summary vi

Recommendations vii

1 Introduction 1

1.1 Role of the Committee 1 1.2 Inquiry process 1 1.3 Policy objectives of the Criminal Law (False Evidence Before Parliament) Amendment Bill 20121

2 Examination of the Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 3

2.1 False evidence before Parliament 3 2.2 Repealed section 57 3 2.3 Terminology 7 2.4 Committee comment 8 2.5 Clause 3 – reintroduction of new section 57 8

Subsection (3) 8 Subsection (6) 8

2.6 Committee comment 11 2.7 Practical consequences 11 2.8 Committee comment 13 2.9 Collateral considerations 13 2.10 Committee comment 14 2.11 Part 3 – Amendment of the Parliament of Queensland Act 2001 14

3 Fundamental legislative principles 16

3.1 Rights and liberties of individuals 16 Clear and precise drafting ‐ section 4(3)(k) Legislative Standards Act 1992 16

3.2 Committee comment 17 3.3 The institution of Parliament 17

Penalties 17 Parliamentary Privilege 17

3.4 Committee comment 17

Appendices 18

Abbreviations and Glossary Criminal Law (False Evidence Before Parliament) Amendment Bill 2012

iv Legal Affairs and Community Safety Committee

Abbreviations

Act Parliament of Queensland Act 2001

Bill Criminal Law (False Evidence Before Parliament) Amendment Bill 2012

Clerk The Clerk of the Parliament

CMC Crime and Misconduct Commission

Committee Legal Affairs and Community Safety Committee

Criminal Code Criminal Code Act 1899

Department Department of Justice and Attorney‐General

LNP Liberal National Party

QCCL Queensland Council of Civil Liberties

QLS Queensland Law Society

Standing Orders

Standing Rules and Orders of the Legislative Assembly of Queensland. Effective from 31 August 2004 (Amended by the operation of statute 18 May 2012).

Glossary

Freedom of speech

The power to speak independently, without fear of interference; frankness of speech.1

Parliamentary privilege

The sum of the peculiar rights enjoyed by parliament and its members which allow members to say things freely in parliament that they could be prosecuted for outside and which generally protect them from criticism.2

1 The Pocket MacQuarie Dictionary (Second Edition)(1989), The Jacaranda Press, Singapore, p. 408. 2 Butterworths Concise Australian Legal Dictionary, Butterworths, Australia (1997), p. 294; The Pocket

MacQuarie Dictionary (Second Edition)(1989), The Jacaranda Press, Singapore, p. 755.

Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 Chair’s foreword

Legal Affairs and Community Safety Committee v

Chair’s foreword

This report presents a summary of the Legal Affairs and Community Safety Committee’s (Committee) examination of the Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 (Bill).

The Committee’s task was to consider the policy outcomes to be achieved by the legislation, as well as the application of fundamental legislative principles – that is, to consider whether the Bill has sufficient regard to the rights and liberties of individuals, and to the institution of Parliament.

Calling for submissions has allowed the Committee to canvass a range of views in order to inform its Bill inquiry, which will, in turn, lead to better policy and legislation in Queensland.

On behalf of the Committee, I thank those individuals and organisations who lodged written submissions on this Bill. I also thank the Committee’s Secretariat, the Department of Justice and Attorney‐General, the Technical Scrutiny of Legislation Secretariat, and the Queensland Parliamentary Library.

I commend the report to the House.

Mr Ray Hopper MP

Chair July 2012

Executive summary Criminal Law (False Evidence Before Parliament) Amendment Bill 2012

vi Legal Affairs and Community Safety Committee

Executive summary

The Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 (Bill) was referred to the Legal Affairs and Community Safety Committee (Committee) on 19 June 2012, and the Committee is required to report to the Legislative Assembly by 2 July 2012.

This report examines the Bill in terms of policy considerations and the application of the fundamental legislative principles, namely, the rights and liberties of individuals and the institution of parliament.

The Bill reintroduces section 57 (False evidence before Parliament) into the Criminal Code Act 1899; making it a criminal offence to knowingly give false evidence to Parliament or its committees. The proposed provision will apply to Members and non‐members.

While the reintroduction of this offence affects the rights and liberties of individuals, the proposed amendment criminalises conduct that is currently prohibited and punishable under the Standing Orders and Rules of the Queensland Legislative Assembly and the Parliament of Queensland Act 2001.

The institution of Parliament is granted due consideration in that the amendments allow the Legislative Assembly to retain the right to decide whether particular conduct should be dealt with as contempt of Parliament, or whether it should be prosecuted under the proposed new law.

Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 Recommendations

Legal Affairs and Community Safety Committee vii

Recommendations

Recommendation 1 2

The Committee recommends that the Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 be passed, subject to the following terms being defined in the Act: ‘examination’; ‘answer’; ‘lawful and relevant’.

Recommendation 2 11

The Committee recommends that Clause 3 be amended to include a sub‐clause to prevent an incidence of a contempt also being prosecuted as an offence under section 57.

Recommendation 3 13

The Committee recommends that the Bill be amended to clarify that the Crime and Misconduct Commission must report (under section 49 of the Crime and Misconduct Act 2001) findings regarding breaches of section 57 to the Attorney‐General.

Recommendation 4 14

The Committee recommends that the Attorney‐General investigate reinstating section 56 and section 58 into the Criminal Code.

viii Legal Affairs and Community Safety Committee

Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 Introduction

Legal Affairs and Community Safety Committee 1

1 Introduction

1.1 Role of the Committee

The Legal Affairs and Community Safety Committee (Committee) is a statutory portfolio committee of the 54th Parliament of Queensland established on motion of the House on 17 May 2012. The Committee’s primary areas of responsibility include:

Department of Justice and Attorney‐General;

Department of Police; and

Department of Community Safety.

Section 93(1) of the Parliament of Queensland Act 2001 (Act) provides that a portfolio committee is responsible for examining each Bill and item of subordinate legislation in its portfolio areas to consider:

the policy to be given effect by the legislation;

the application of fundamental legislative principles; and

for subordinate legislation – its lawfulness.

The Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 (Bill) was referred to the Committee on 19 June 2012, and the Committee is required to report to the Legislative Assembly by 2 July 2012.

1.2 Inquiry process

On 20 June 2012, the Committee wrote to the Department of Justice and Attorney‐General (Department) seeking advice on the Bill, and invited stakeholders and subscribers to lodge written submissions.

The Committee received written advice from the Department on 25 June 2012, and received 6 submissions (see Appendix A).

1.3 Policy objectives of the Criminal Law (False Evidence Before Parliament) Amendment Bill 2012

The objectives of the Bill are to amend the Criminal Code Act 1899 (Criminal Code) to re‐introduce the repealed section 57 (False evidence before Parliament), with amendment, to make it an offence to knowingly give false evidence to Parliament or its committees.3

The Bill implements the Liberal National Party’s (LNP) pre‐election commitments to introduce amendments to make it illegal to lie to Parliament.4

The amendments expressly reflect the intention that the parliamentary privilege of freedom of speech and debate is abrogated to the extent required by the offence, and clarify that the offence applies to Members of Parliament as well as non‐members.5

The Legislative Assembly will retain the right to decide whether particular conduct should be dealt with as contempt of Parliament or whether it should be prosecuted under the new offence.6

3 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 1. 4 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 1. 5 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 1. 6 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 1.

Introduction Criminal Law (False Evidence Before Parliament) Amendment Bill 2012

2 Legal Affairs and Community Safety Committee

Recommendation 1

The Committee recommends that the Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 be passed, subject to the following terms being defined in the Act: ‘examination’; ‘answer’; ‘lawful and relevant’.

Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 Examination of the Bill


2 Examination of the Criminal Law (False Evidence Before Parliament) Amendment Bill 2012

This section discusses the issues raised during the Committee’s examination of the Bill. The Committee considered the historical treatment of false evidence before Westminster parliaments, the Criminal Code Amendment Act 2006, the 2008 and 2009 attempts to reintroduce the provision, and the practical implications of its proposed reintroduction.

2.1 False evidence before Parliament

A survey of the practice of the United Kingdom House of Commons, the Australian House of Representatives, the Australian Senate and the New Zealand House of Representatives shows that the various Houses may treat the making of a deliberately misleading statement by a Member as contempt of parliament.7

The Act provides that conduct is not contempt unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by the Assembly or a committee, of its authority or functions; or the free performance by a member of the member’s duties.8

The Act provides that whether particular conduct is contempt of the Assembly, as defined under section 37, is a matter for the Assembly to decide, acting on any advice it considers appropriate.9

Currently, the Assembly’s power to deal with a person for contempt is the same as the power of the House of Commons at 1 January 1901, and includes the power to fine the person and impose imprisonment on the person in default of the payment of the fine.10

The Act also provides that, subject to section 38, proceedings for punishment by the Assembly of contempt are to be taken in accordance with standing rules and orders.11

The Assembly may order a person found by it to have committed contempt to pay a fine of an amount not more than an amount stated in the standing rules and orders.12

Currently, if a fine is not paid within a reasonable time stated by the Assembly, the Assembly may order the person to be imprisoned as directed by it, until the fine is paid, or until the end of the session of the Assembly or a part of the session.13

The Standing Orders of the Legislative Assembly provide that the House may treat deliberately misleading the House or a committee by way of a submission, statement, evidence or petition, as contempt.14

2.2 Repealed section 57

Prior to the commencement of the Criminal Code Amendment Act 2006 and the repeal of section 57 of the Criminal Code on 1 June 2006, it was an offence to knowingly give a false answer to any lawful and relevant question put to the person in the course of an examination before the Legislative Assembly or a committee of the Legislative Assembly.

7 Limon, D. (Ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 22nd

ed., 1997, p. 111‐112. 8 Parliament of Queensland Act 2001, section 37. 9 Parliament of Queensland Act 2001, section 38. 10 Parliament of Queensland Act 2001, section 39. 11 Parliament of Queensland Act 2001, section 40(1). 12 Parliament of Queensland Act 2001, section 40(2). 13 Parliament of Queensland Act 2001, section 40(3)(4). 14 Standing Rules and Orders of the Legislative Assembly of Queensland, SO 266(2).

Examination of the Bill Criminal Law (False Evidence Before Parliament) Amendment Bill 2012


Section 57 was included in Sir Samuel Griffith’s Criminal Code as it was enacted in 1899. The Parliamentary Privilege Act 1861 made it a misdemeanour, to be punished in the same manner as wilful and corrupt perjury, to give a wilfully false answer to any lawful and relevant question put in the course of examination before either House or a committee of either House.15 When the laws relating to the Constitution of Queensland were consolidated in 1867, the section was relocated to the Constitution Act 1867,16 before its final relocation to the Criminal Code in 1899. The Committee benefited from the history regarding section 57 of the Criminal Code provided in the submission received from The Clerk of the Parliament (Clerk).

The Department suggests that the repealed section 57 may have originally been included in the Criminal Code for ‘reasons apparently concerning the limitation on powers of colonial legislatures to punish for contempt’.17 Questions have also been raised about whether, when it was originally enacted, it was intended to apply to members of parliament.18

The Crime and Misconduct Commission (CMC) note that there is no developed jurisprudence surrounding section 57 of the Criminal Code in its previous incarnation, and that on the sole occasion an alleged breach of section 57 (as it previously existed) came to be investigated, it was investigated by the CMC.19

False evidence before Parliament is still an offence in the Western Australian Criminal Code.20 Other jurisdictions have statutory offences relating to giving false evidence to a parliamentary committee.21

Section 57 of the Criminal Code was repealed by the Criminal Code Amendment Act 2006. The Explanatory Notes issued with the 2006 Bill noted that, because giving false answers to parliament is also contempt of Parliament to be dealt with by Parliament, ‘the confusion caused by these contradictory processes needs to be rectified.’22 The Explanatory Notes also stated:

Section 57 of the Criminal Code is also inconsistent with the fundamental tenet of the Westminster system, embodied in section 8 of the Parliament of Queensland Act 2001, that debates or proceedings in Parliament can not be impeached or questioned in any court or place out of the Parliament. A criminal provision such as section 57, which allows the possibility of the prosecution of a Member for what the Member says in the House, is inconsistent with the principle established by Article 9 of the Bill of Rights (1688).23

15 Parliamentary Privilege Act 1861, section 13. 16 Constitution Act 1867, section 57. 17 Letter from the Department of Justice and Attorney‐General, 22 July 2012, p. 2. 18 Lohe, Conrad ‘The origins of section 57 of the Criminal Code of Queensland’ in Justice According to Law: A

Festschrift for the Honourable Mr Justice BH McPherson CBE, 2007 p. 600; Transcript of Proceedings, 9 December 2005 at p. 4722 and Paper (undated) by R Atkinson, Commissioner of Queensland Police in response to the Crime and Misconduct Commission report titled Allegations concerning the Honourable Gordon Nuttall MP, December 2005, tabled 9 December 2005 at paragraph 73.

19 Crime and Misconduct Commission, Submission 2, p.1. In 2005, the CMC investigated statements made by the former Minister for Health, Mr Gordon Nuttall, to an estimates committee. Mr Nuttall was prosecuted under section 442B (secret commissions) of the Criminal Code. On 12 May 2011, Queensland Parliament passed a motion finding Mr Nuttall guilty of contempt of Parliament for failing to disclose payments in his Register of Interests.

20 Criminal Code Act Compilation Act 1913, section 57. 21 Parliamentary Evidence Act 1901 (NSW), section 13; Parliamentary Privilege Act 1858 (Tas), section 2A;

Public Accounts and Audit Committee Act 1951 (Cth), section 18; Public Works Committee Act 1969 (Cth), section 31.

22 Criminal Code Amendment Bill 2006, Explanatory Notes, p. 1. 23 Criminal Code Amendment Bill 2006, Explanatory Notes, p. 1.



Article 9 of the United Kingdom Bill of Rights 1688 provides ‘that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’ This privilege is incorporated in section 8 of the Act.

In an appeal from a decision of a New Zealand court, the Privy Council stated that the rationale for the privilege of freedom of speech is ‘the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say’.24 The privilege also avoids conflict between the parliament and the courts. The Privy Council made the point:

…to allow it to be suggested in cross‐examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non‐intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness has misled the House there would be a serious risk of conflicting decision on the issue.25

When the Criminal Code Amendment Act 2006 was debated, the then Leader of the Opposition, Mr Lawrence Springborg MP stated:

We all know that the reality of adversarial politics in Australia is that the government of the day has the numbers to determine any question before the parliament and any of its committees, including the question as to whether any particular set of circumstances constitutes a contempt of the parliament. This bill is seeking to enable a government with control of the numbers on the floor of the parliament to use those numbers to legitimise lying and falsehoods by its members and ministers.

At the same time, the government is also being empowered to prosecute and punish any person whose evidence before parliament and its committees it does not like or might find embarrassing.26

The Clerk also expresses support for the reintroduction of section 57.27 With reference to the repeal of section 57 in 2006, The Clerk states ‘this Bill broke a long uninterrupted period of bipartisanship on legislative and regulatory matters pertaining to the Parliament, its powers and privileges and its ethical framework.’28

In making this statement, The Clerk also referred to the process which surrounded the decision by Parliament on 9 December following the tabling of the CMC Report, Allegations concerning the Honourable Gordon Nuttall MP on 7 December 2005.29

The Clerk also submitted:

The issue at the heart of this matter is the relationship between the courts and Parliament. More specifically, the issue is whether contempts of Parliament should be dealt with by the courts by way of criminal proceedings or by the Parliament by way of contempt proceedings. In one way the matter goes directly to issues of separation of powers.

24 Prebble v Television New Zealand [1994] 3 All ER 407 at 415. 25 Prebble v Television New Zealand [1994] 3 All ER 407 at 415. 26 Criminal Code Amendment Bill 2006, Second Reading, 25 May 2006, p.2022. 27 The Clerk of the Parliament, Submission 6. 28 The Clerk of the Parliament, Submission 6, p. 4. 29 Dated December 2005.



With the benefit of almost 20 years experience in the Parliamentary Service, I believe that:

1. Parliament should always retain the powers, rights and privileges traditionally held by the House of Commons, including the power to deal with both members and non‐members.

2. There should be a range of criminal and regulatory offences enforceable in the courts that include many matters that could also be a contempt of Parliament, but which are more appropriately and expeditiously dealt with in court proceedings.

3. That a double jeopardy provision allowing a matter to be dealt with by way of an offence or contempt but providing it cannot be proceeded with in both ways is appropriate (as per s.47 of the Parliament of Queensland Act 2001).

4. Generally, non‐members are best dealt with by criminal and regulatory offences enforceable in the courts. We need to accept that:

a. contempt proceedings are relatively cumbersome and onerous on committees, members and offenders

b. there is a real risk that public perceptions will end up (perversely) favouring the offender, given that contempt of Parliament proceedings can easily be portrayed as being oppressive

c. there is a risk of odium to the Parliament, being seen to be judge in its own matter.

5. Generally, Members are best dealt with by contempt proceedings, except for the most serious offences (such as bribery). It cannot be forgotten that most contempts vis a vis members are essentially breaches of the Assembly’s code of standards for members.

In response to the Clerk’s submission, the Department advised:

The Bill ensures that the Legislative Assembly will retain the right to decide whether particular conduct should be dealt with as contempt of Parliament or whether it should be prosecuted under the new offence.

Chapter 3, Part 2 of the Parliament of Queensland Act 2001 sets out the provisions relating to contempt of the Legislative Assembly.

Section 38 provided that whether particular conduct is contempt is a matter for the Legislative Assembly to decide, acting on advice it considers appropriate. Subject to section 38, proceedings for punishment of contempt are to be taken in the way stated in the Standing Rules.

Section 47(2) of the Parliament of Queensland Act 2001 allows the Assembly, by resolution, to direct the Attorney‐General to prosecute a person, in circumstances where a person’s conduct is both a contempt of the Assembly and an offence against anther Act.

Importantly, section 47(1) expressly prevents ‘double punishment’ from occurring in the same circumstances.30

In 2008, the then Leader of the Opposition, Mr Lawrence Springborg MP, introduced into Parliament the Criminal Code (Truth in Parliament) Amendment Bill 2008 which sought to reintroduce section 57. The Bill failed. A further private Member’s Bill, The Criminal Code (Honesty and Integrity in Parliament) Amendment Bill 2009 was introduced in 2009 by the then Leader of the Opposition, Mr John‐Paul Langbroek MP. This Bill was also defeated. 31

30 Letter from the Department of Justice and Attorney‐General, 27 July 2012, pp. 2‐3. 31 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 3.



2.3 Terminology

The Explanatory Notes state that the new section 57 in effect re‐inserts former section 57 with minor changes to the language of the original section to reflect modern drafting practices.32

The Queensland Council for Civil Liberties (QCCL) provided that:

The section is a little unclear about what is an ‘examination’, an ‘answer’ and what makes the answers ‘lawful and relevant’. These matters were discussed in the CMC report on Mr Nuttall.

The changes appear to relate to modern drafting expression and to preserving Parliamentary choice of how the matter proceeds.

… the section appears wide enough to cover an answer that misleads the listener by deliberately not answering it or by providing any information which, while truthful, is designed and calculated to be a ‘false answer’ to the question put. The degree of ‘falseness’ is derived from the Question, not from the answer. Therefore a completely true statement could be a false answer to a question which it did not answer.33

The Clerk also expressed concerns regarding the term ‘examination’ before the Legislative Assembly or a committee, and notes that the term is not defined in the provision, the Code or the Acts Interpretation Act 1954.34

The Clerk submits that a definition of ‘examination’ is desirable in the proposed section 57 and that consideration should extend to persons appearing at the bar of the House in their defence and whether it is necessary for a person to have taken an oath or affirmation for it to amount to an ‘examination’.35

The Department provided:

The term ‘examination’ is not defined in the Bill and that this approach is consistent with the repealed section 57. It will be a matter for the tribunal of fact to determine having regard to all of the evidence before it.

However, given section 57 is a punitive provision, when interpreting the term ‘examination’, the Department contemplates that more than mere answers given in the everyday operations of the Legislative Assembly (or a committee) would be construed as falling within the ambit of section 57.

It is acknowledged that examination under oath or affirmation before the Legislative Assembly or a committee is not mandatorily required by the Parliament of Queensland Act 2001 (section 31). As such, the concept of examination is not restricted to evidence given on oath or affirmation.

Further, the offence requires that the false answer is given to a ‘lawful and relevant question’ put to the person during the examination.

Whether a question is both lawful and relevant to the examination is a matter best resolved by the court having regard to the available evidence and the particular circumstances of the case.

32 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 3. 33 Queensland Council of Civil Liberties, Submission 5, pp. 1‐3. 34 The Clerk of the Parliament, Submission 6, p. 5. 35 The Clerk of the Parliament, Submission 6, p. 6.



Clause 3 of the Bill is consistent with the repealed section 57 of the Criminal Code; but with minor changes to the language of the original section to reflect modern drafting practices.36

2.4 Committee comment

The Committee considered the benefits of defining terminology to avoid ambiguity. This issue is also addressed in advice provided by the Technical Scrutiny of Legislation Secretariat advice discussed in section 3.1 of this Report.

The Committee agreed that defining the terms: ‘examination; ‘answer’; and ‘lawful and relevant’, would avoid ambiguity and help to further realise the policy objectives of the Bill.

2.5 Clause 3 – reintroduction of new section 57

Clause 3 of the Bill inserts new section 57 (False evidence before Parliament) in to the Criminal Code which makes it an offence to knowingly give false evidence to Parliament or its committees.

The offence applies where the false evidence is given during an examination before the Legislative Assembly or a committee. The Explanatory Notes acknowledge that examination under oath or affirmation before the Legislative Assembly or a committee is not mandatorily required, as such; the concept of examination is not restricted to evidence given on oath or affirmation.37

Subsection (3)

Subsection (3) expressly provides that despite the operation of section 8 of the Act, evidence of anything said or done during proceedings in the Legislative Assembly may be given in a proceeding against a person for an offence under the proposed section 57, to the extent necessary to prosecute the person for the offence.38

Subsection (6)

Subsection (6) contains definitions relevant to new section 57. The terms ‘committee’ and proceeding in the Assembly’ are consistent with the Act. The term ‘person’ is defined to include a member of the Legislative Assembly, making it clear that new section 57 applies to both Members of Parliament and non‐members.39

The LNP expresses support for the Bill, stating the aforementioned reasoning of Mr Springborg during the 2006 debate.40

The Queensland Law Society (QLS) also makes reference to the Criminal Code Amendment Act 2006 in its submission to the Committee:41

When s 57, Criminal Code Act 1899 was repealed in 2006 the Explanatory Notes to the amending legislation stated at page 1:

The powers, rights and immunities which are collectively referred to as “parliamentary privilege” took centuries to evolve and were won incrementally by the English Parliament, in particular by the House of Commons, after numerous power struggles with the Crown and the courts. The Bill of Rights (1688) confirmed the paramountcy of Parliament over the Crown and Article 9 provided that “the freedom of speech and

36 Letter from the Department of Justice and Attorney‐General, 27 June 2012, pp. 4‐5. 37 Criminal Code Amendment Bill 2006, Explanatory Notes, p. 3. 38 Criminal Code Amendment Bill 2006, Explanatory Notes, p. 3. 39 Criminal Code Amendment Bill 2006, Explanatory Notes, p. 4. 40 Liberal National Party, Submission 3, p. 2. 41 Queensland Law Society, Submission 1, p. 1.



debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

Section 8(1) of the Parliament of Queensland Act 2001 states that the freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of Assembly. To remove doubt, section 8(2) declares that subsection (1) is intended to have the same effect as Article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection.42

The QLS, in recognising the proposed section 57(3) represents a departure from these well‐established principles, acknowledges that section 57 had been part of the Criminal Code for some time prior to its omission in 2006, but did not deal with the issue of privilege and evidence for a prosecution under this section.43

Likewise, the QCCL provided that:

In 2005 when the previous government decided to amend the Criminal Code to remove section 57 the Council’s Vice‐President, Terry O’Gorman, made the following comment:

‘To put any Parliamentarian, including a Minister, on a criminal charge for an answer given in Parliament or in answer to a chairman of a committee’s questioning is, in our view, unheard of, and it’s unacceptable because it would chill free speech in Parliament.’

This remains the Council’s view.

It remains our view that these matters, which are quite often inherently political, should continue to be dealt with by the political process. To do otherwise runs the risk of involving the courts in disputes about political matters in a way which would threaten their independence.

In addition, as noted by Mr O’Gorman, the threat of criminal proceeding might deter members of Parliament from using their Parliamentary privilege. Whilst that privilege is occasionally abused, it is this Council’s view that the benefits which come to society from the freedom of Parliamentarians to speak without fear or favour outweighs those occasional abuses.44

The Department acknowledged the ‘tension between an offence like section 57 and parliamentary privilege of freedom of speech’, the latter embodied in section 8 of the Act, noting however:

The offence contemplated by section 57 can not be prosecuted effectively if evidence can not be produced of the parliamentary proceeding in which the allegedly false evidence was given; as the elements of the offence occur “during the debates or proceedings of the Assembly” use of the evidence would on its face breach the law with respect to parliamentary privilege.45

To address this consideration, Clause 3, proposed section 57(3) expressly provides:

Despite the Parliament of Queensland Act 2001, section 8, evidence of anything said or done during proceedings in the Assembly may be given in a proceeding against a person for an offence under this section to the extent necessary to prosecute the person for the offence.

The LNP state that the Bill will improve the Parliament’s integrity mechanisms without impinging on parliamentary privilege or Members’ freedom of speech. The electorate are entitled to expect that

42 Queensland Law Society, Submission 1, pp. 1‐2. 43 Queensland Law Society, Submission 1, p. 2. 44 Queensland Council of Civil Liberties, Submission 5, p. 1. 45 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 3.



every Member of Parliament and the public should exhibit honesty in their conduct before Parliament, and that there should be firm sanctions for failure to do so.46

The QLS also acknowledge that there is a compelling argument that the:

Assembly should be a place of utmost integrity and be seen to be a place of the utmost integrity. Members of the Assembly and individuals appearing before committees should not be able to knowingly give false answers to questions. … Ultimately, it is a matter for the Parliament to strike an appropriate balance between the freedom of speech and debates or proceedings in the Assembly and public confidence in the institution of the Parliament.47

QLS submit that:

The Bill contemplates that an incidence of giving false evidence could be dealt with either as a contempt of Parliament or as an offence under section 57. The Bill does not appear to prevent an incidence of giving false evidence, which is dealt with as a contempt of Parliament, also being prosecuted as an offence. This does not appear to be an intended outcome of the drafting and could be remedied by the addition of a sub‐clause to section 57 to that effect.48

The Explanatory Notes state:

The Legislative Assembly will retain the right to decide whether particular conduct should be dealt with as a contempt of Parliament or whether it should be prosecuted under the new offence.49

In addressing the issue of ‘double punishment’, the Department provided:

Section 38 provides that whether particular conduct is contempt is a matter for the Legislative Assembly to decide, acting on advice it considers appropriate. Subject to section 38, proceedings for punishment of contempt are to be taken in the way stated in the Standing Orders and Rules of the Legislative Assembly.

Section 47(2) of the Parliament of Queensland Act 2001 allows the Assembly, by resolution, to direct the Attorney‐General to prosecute a person, in circumstances where a person’s conduct is both contempt of the Assembly and an offence against another Act.

Importantly, section 47(1) expressly prevents ‘double punishment’ from occurring in the same circumstances.

It is therefore not considered necessary to make any amendment in this regard.50

The issue of ‘double punishment’ was also addressed by the Clerk:

That a double jeopardy provision allowing a matter to be dealt with by way of an offence or contempt but providing it cannot be proceeded with in both ways is appropriate (as per section 47 of the Parliament of Queensland Act 2001).51

46 Liberal National Party, Submission 3, p. 2. 47 Queensland Law Society, Submission 1, p. 2. 48 Queensland Law Society, Submission 1, p. 2. 49 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 1. 50 Letter from the Department of Justice and Attorney‐General, 27 June 2012, pp. 3‐4. 51 The Clerk of the Parliament, Submission 6, p. 12.



In response to remaining considerations the Department provided:

A central pillar of the Queensland Government’s First 100 Day Action plan is to restore accountability in government. The community expects its Parliamentarians to act responsibly and with the highest integrity.

The re‐introduction of section 57 of the Criminal Code delivers on the Government’s pre‐election commitment to introduce amendments to make it illegal to lie to Parliament.

Knowingly giving false evidence before the Parliament or one of its committees is conduct cutting to the heart of parliamentary privilege and is conduct deserving of criminal sanction. Allowing the courts to deal with such conduct guards against suspicions of political interference and cronyism. The criminal justice system is well equipped to judge the veracity of the person’s evidence while ensuring the person is afforded full procedural fairness.

The scope of clause 3 is consistent with the former section 57.52


Notwithstanding section 47(1) of the Parliament of Queensland Act 2001, the Committee acknowledged the need to avoid ambiguity in order to realise the objectives of the Bill and as such, recommends that Clause 3, proposed section 57, be amended to include an additional sub‐section that clarifies that an incidence of contempt is not also able to be punished as an offence under proposed section 57. The Committee agreed that this would provide clarity for Members and non‐members who may potentially be affected by the provision.

Recommendation 2

The Committee recommends that Clause 3 be amended to include a sub‐clause to prevent an incidence of a contempt also being prosecuted as an offence under section 57.

2.7 Practical consequences

The CMC also noted that the reintroduction of section 57 leads to certain practical consequences in managing its operation. The CMC submit that:

… highly politically charged matters inevitably bring with them the potential for the CMC to receive complaints about alleged breaches of proposed s.57. Members can and will be tempted to make those complains to the CMC, because if proved, those criminal offences may amount to official misconduct within the meaning of section 15 of the Crime and Misconduct Act 2001 (“CM Act”), thereby engaging the CMC’s jurisdiction.

In those circumstances, the CMC may then find itself, by operation of the proposed law, in a difficult position, On the one hand, if it acts on the complaint pursuant to the CM Act, it may fall foul of the apparent intent of the proposed legislation (embodied in s.47 of the [Parliament of Queensland Act 2001]) that the Legislative Assembly have the right to decide whether particular conduct should be dealt with as a contempt of the Parliament or prosecuted under the new offence. On the other hand, criticism could arise if, in recognition of Parliament’s intention, the CMC chose to leave the matter to the Assembly, and was perceived to be “doing nothing”.

It is also possible for there to be parallel action taken – by the Legislative Assembly and the CMC – for the same conduct, with each being ignorant of the other’s actions. Further,

52 Letter from the Department of Justice and Attorney‐General, 27 June 2012, pp. 1‐2.



absent any legislative statement on jurisdiction, there is also the possibility of uncertainty and embarrassment if the bodies have different opinions about the prospect of a conviction.

… [Section] 57 does not resolve the question of whether any investigation of an offence allegedly committed in breach of it is a breach of parliamentary privilege. In addition, if after any such investigation the CMC were to conclude an allegation of a breach of s.57 should proceed, should it be referred to the Director of Public Prosecutions in conformity with ordinary practice (and s.49 of the CM Act), or the Attorney‐General for consideration by Parliament?

This question was addressed in the CMC’s Report into ‘Allegations concerning the Honourable Gordon Nuttall MP’, dated December 2005. At page 3 of that report, the CMC accepted a joint opinion from Messrs JA Logan SC and SJ Gageler SC that any report prepared by the CMC concerning the complaint must be handed to the Attorney‐General for tabling in parliament:

In this instance, the decision as to whether a prosecution is warranted is consigned by s.47(2) of the Parliament of Queensland Act to the House. If the House is of the view, it directs the Attorney‐General to prosecute the person concerned. If the House is of the view that the more appropriate course is to deal with the matter as a contempt, we should expect that the appropriate course would be for the House to refer the matter to the Members’ Ethics and Privileges Committee for examination, investigation and report.

It is because it falls to the Attorney to implement the wishes of the parliament, if prosecution is the course that commends itself, that she is the appropriate person not just to whom to furnish the report but also to bring the report to the attention of the parliament and to seek the parliament’s direction.53

Accordingly, the CMC submitted that any legislation of the sort proposed be accompanied by machinery provisions that resolve what are essentially the priority questions identified above.54

The Bar Association of Queensland also submitted that the provisions have the capacity to create tension between the parliamentary and judicial branches of government. The Bar Association provided that consideration must be given to the role of the CMC, and the mechanics of how a prosecution under the relevant sections would be instigated; whilst acknowledging that it is important that the Parliament retains control of its own proceedings and affairs.55

In respect of instituting prosecutions, the Bar Association provided that it may be worthwhile to consider requirements, for example, that the fiat of the Attorney‐General is required, or that the Attorney‐General be directed by the Parliament to prosecute a particular matter and that the creation of a Parliamentary Commissioner for Standards, similar to the scheme in the United Kingdom, could also be explored.56

In response to these considerations, the Department stated that:

The Parliament of Queensland Act allows the Assembly, by resolution, to direct the Attorney‐General to prosecute a person, in circumstances where a person’s conduct is both contempt of the Assembly and an offence against another Act and ensures against ‘double punishment’ for the same circumstances (section 47).

53 Note – this advice was accepted by the CMC notwithstanding contrary advice received from Mr Hugh

Fraser QC. 54 Crime and Misconduct Commission, Submission 2, pp. 1‐2. 55 Bar Association of Queensland, Submission 4, p. 1. 56 Bar Association of Queensland, Submission 4, p. 1.



The issues raised appear, to the Department of Justice and Attorney‐General, to be operational matters to be resolved by discussion between the relevant parties and that their resolution may also depend upon the circumstances of the particular case.

No further legislative clarification of this issue is considered necessary.57

The Department also noted:


Importantly, section 47(2) of the Parliament of Queensland Act 2001 allows the Assembly, by resolution, to direct the Attorney‐General to prosecute a person, in circumstances where a person’s conduct is both contempt of the Assembly and an offence against another Act.

The issue raised about the role of the CMC appears, to the Department, to be operational, to be resolved by discussion between the relevant parties, dependant on the circumstances of the particular case – no further legislative clarification of the issue is considered necessary.58


The Committee benefitted from the CMC’s submission and its 2005 report. In considering this issue, the Committee agreed that a subsequent amendment would: clarify the CMC’s reporting obligations as set out in section 49 of the Crime and Misconduct Act 2001; and further reflect the objectives of the Bill in clarifying that the Legislative Assembly retain the right to decide whether particular conduct should be dealt with as a contempt of Parliament or whether it should be prosecuted under the new offence.

Recommendation 3

The Committee recommends that the Bill be amended to clarify that the Crime and Misconduct Commission must report (under section 49 of the Crime and Misconduct Act 2001) findings regarding breaches of section 57 to the Attorney‐General.

2.9 Collateral considerations

In addition to repealing section 57, the Criminal Code Amendment Bill 2006 also repealed sections 56 and 58 of the Criminal Code. The Explanatory Notes to the Bill provided:

Section 56 of the Criminal Code provides that it is a misdemeanour to disturb the Assembly and section 58 of the Criminal Code relates to witnesses refusing to attend and give evidence before the Assembly.

Having regard to the level of criminality and the fact that the conduct is able to be dealt with as contempt under the Parliament of Queensland Act 2001, these sections are also repealed.59

The Clerk submits that sections 56 and 58 of the Criminal Code were effectively removed as ‘collateral damage’ in efforts to remove section 57 of the Code.60

57 Letter from the Department of Justice and Attorney‐General, 27 June 2012, p. 5. 58 Letter form the Department of Justice and Attorney‐General, 27 June 2012, pp. 3‐4. 59 Criminal Code Amendment Bill 2006, Explanatory Notes, p. 2.



The Clerk comments:

Currently, there is a less than satisfactory situation whereby it is an offence to create a disturbance when Parliament is not sitting pursuant to section 56A of the Criminal Code but not an offence to create a disturbance when the Parliament is sitting. It is usually the case, and recent disturbances would seem to confirm, that persons seek to promote a grievance or issue when Parliament is sitting, particularly when a Bill is being debated.61

The Clerk cites two instances where criminal action pursuant to that provision would have been, in his view, warranted. To that end, The Clerk submits that sections 56 and 58 of the Criminal Code should be reinstated into the Code to again make it an offence to create a disturbance when parliament is sitting and for a witness to refuse to attend and give evidence before the Assembly or produce material as required by summons.62

The Department advised that the Bill delivers on the Queensland Government’s pre‐election commitment to introduce amendments to make it illegal to lie to Parliament. The re‐introduction of sections 56 and 58 of the Criminal Code is outside the scope of the current proposal and would require further detailed policy consideration.63


The Committee considered the merit in reinstating both section 56 (misdemeanour) and section 58 (witness refusing to attend and give evidence) and notes that, whilst further consideration is beyond the scope of this inquiry, and that such conduct may be treated as a contempt or punished under the Parliamentary Service Act 1988 or the Justices Act 1886, there is merit in referring these considerations to the Attorney‐General.

Recommendation 4

The Committee recommends that the Attorney‐General investigate reinstating section 56 and section 58 into the Criminal Code.

2.11 Part 3 – Amendment of the Parliament of Queensland Act 2001

These amendments are made to ensure consistency of operation within the Act by making it plain that answers given before the Legislative Assembly are treated in the same way as answers given before a committee in terms of their admissibility in a criminal proceeding or a proceeding before the Assembly or its committees.64

The Department advised that currently, section 36 of the Act concerns evidence given in a proceeding before a committee; section 36(1) states that evidence may not be given in any proceeding of answer given by a person before a committee, or of the fact the person produced a document or other thing to a committee. However, exceptions to the immunity are listed in subsection (2) and include a criminal proceeding brought against the person about the falsity, or the misleading, threatening or offensive nature, of the answer, document or other thing.65

60 The Clerk of the Parliament, Submission 6, p. 7. 61 The Clerk of the Parliament, Submission 6, p. 7. 62 The Clerk of the Parliament, Submission 6, p. 8. 63 Letter from the Department of Justice and Attorney‐General, 27 June 2012, p. 5. 64 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 4. 65 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 4.



The Department provided that the Bill (clause 5) amends section 36 of the Act to ensure consistency of operation within the Act by making it plain that answers given before the Legislative Assembly are treated in the same way as answers given before a committee.66

The Department also confirmed that it is intended that the Assembly will retain the right to decide whether particular conduct should be dealt with as a contempt of Parliament or whether it should be prosecuted under the new offence.67

66 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 4. 67 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 4.

Fundamental legislative principles Criminal Law (False Evidence Before Parliament) Amendment Bill 2012


3 Fundamental legislative principles

Section 4 of the Legislative Standards Act 1992 states that ‘fundamental legislative principles’ are the ‘principles relating to legislation that underlie a parliamentary democracy based on the rule of law’. The principles include that legislation has sufficient regard to:

the rights and liberties of individuals, and

the institution of parliament.

3.1 Rights and liberties of individuals

The Explanatory Notes acknowledge that the creation of new criminal offences affects the rights and liberties of individuals; however, they also note that the proposed offence criminalises conduct that is currently prohibited and punished by the rules of Parliament,68 and the Act.69

The Explanatory Notes state that creation of the new offence is justified to give effect to the community’s expectation that Parliamentarians, and other giving evidence before Parliament and its committees, act honestly and responsibly and will serve to enhance the reputation of Parliament.70

The Department advised that while the creation of a new criminal offence affects the rights and liberties of individuals, this offence criminalises conduct that is currently prohibited and punished by the rules of Parliament and the Act. Further, the amendment re‐introduces an offence that existed in the Criminal Code from 1899 until 2006.71

The Department also provided that the creation of the new offence is justified to give effect to the community’s expectation that Parliamentarians, and others giving evidence before Parliament and its committees, act honestly and responsibly and will serve to enhance the reputation of Parliament.72

Clear and precise drafting ‐ section 4(3)(k) Legislative Standards Act 1992

In its report to the Committee, the Technical Scrutiny of Legislation Secretariat stated:

What constitutes a ‘relevant’ question is not specified in the provision, nor in the Explanatory Notes for the Bill. Presumably regard may be had to the Standing Orders of the Parliament to determine what constitutes ‘relevancy’.

It is curious why the ‘relevancy’ of the question was included in this provision as the aim of the provision is to criminalise the intentional giving of a false answer. It is arguable that a person charged under sub‐section 57(1) could refute the charge on the grounds that the question they were asked was not a relevant question, although it would go against the spirit of the legislation to be able to legally give a false answer to a question merely because the person answering believed the question to be irrelevant.

A strict reading of sub‐section 57(1) would suggest that the question put to the accused person needs to be both a lawful and a relevant question before the intentional giving of a false answer amounts to criminal conduct. This seems to be in conflict with the intention of the legislation. Whereas the House may see fit to rule out of order or punish a demonstrably frivolous answer given to a question that the answerer considers to be irrelevant; the intentional giving of a false answer to Parliament or one of its Committees (even in response to an arguably irrelevant question) is the conduct that this amending legislation purports to

68 Standing Rules and Orders of the Legislative Assembly of Queensland. 69 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 2. 70 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, p. 2. 71 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 4. 72 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 5.

Criminal Law (False Evidence Before Parliament) Amendment Bill 2012 Fundamental legislative principles


address. Adding in the further element of ‘relevancy’ to the offence provision seems to unnecessarily complicate the operation of the provision and add an additional element for the prosecution to prove, for little apparent benefit. The intentional giving of a false answer should be the punishable conduct, the relevancy or otherwise of the question to which the answer was given should not need to be proven before the charge can be satisfied.73


The Committee notes the same terminology was used in the repealed section 57. The use of terminology was also discussed at Part 2.3 of this Report, where the Committee recommended that the terms: ‘examination’; ‘answer’; ‘lawful and relevant’, are defined within the Act.

3.3 The institution of Parliament

In considering whether the Bill has sufficient regard to the institution of Parliament, the amendments ensure that the Legislative Assembly will retain the right to decide whether particular conduct should be dealt with as contempt of Parliament or whether it should be prosecuted under the new offence.74 The Department reiterated this advice in a letter to the Committee.75

Penalties

Clause 3 of the Bill inserts a maximum penalty of 7 years imprisonment. The penalty proposed is a potential issue about rights and liberties of individuals. The Committee notes that the proposed penalty is identical to that contained in section 57 which was repealed in 2006.

Parliamentary Privilege

The Technical Scrutiny of Legislation Secretariat addressed the consistency of proposed section 57(3) with section 36 of the Act.

Proposed section 57(3) provides that despite section 8 of the Act, evidence of anything said or done during proceedings in the Assembly may be given in a proceeding against a person for a section 57 offence, to the extent necessary to prosecute the person for the offence. Section 8 is discussed in more detail in Part 2 of this Report.

Clause 3 of the Bill (section 57(4)) makes it clear that section 57(3) does not limit section 36 of the Act.

Section 36(1) of the Act provides for inadmissibility of particular events before a committee. Clause 5 of the Bill will extend this to the Assembly as well as the Committee. The Bill also makes it clear that section 36(1) does not limit sections 8 and 9 of the Act. The proposed amendment to section 36 is also discussed at Part 2.11 of this Report.

Section 36(2) of the Act remains unchanged by this Bill. This section provides that the section 36(1) prohibition does not apply to certain proceedings.


The Committee considered the Technical Scrutiny of Legislation Secretariat advice. On the basis that proposed section 57 provides that section 36 of the Act is not limited, and section 36(2) remains unchanged, the Committee is satisfied that the proposed changes are consistent with the policy objectives of the Bill.

73 Letter from the Technical Scrutiny of Legislation Secretariat, 27 June 2012, pp. 2‐3. 74 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012, Explanatory Notes, pp. 1‐2. 75 Letter from the Department of Justice and Attorney‐General, 22 June 2012, p. 5.

Appendices Criminal Law (False Evidence Before Parliament) Amendment Bill 2012


Appendices

Appendix A – List of Submissions

Sub # Submitter

001 Queensland Law Society

002 Crime and Misconduct Commission

003 Liberal National Party

004 Bar Association of Queensland

005 Queensland Council for Civil Liberties

006 The Clerk of the Parliament

19

Appendix B – Table 1: Summary of Submissions

Clause No.

Policy or initiative Submitter and No. Issues raised in submission Comments / other

003 – Liberal National Party The submission supports the re‐introduction of section 57 of the Criminal Code to ensure that Queensland has a robust framework for ensuring the integrity of accountability of Members of Parliament (and non‐members).

The submission reiterates that in 2006 the then Liberal National Party of Queensland opposed the repeal of section 57 because to do so meant that the only accountability mechanism remaining was contempt of Parliament. Therefore Parliament was left with exclusive jurisdiction to deal with a person who provides false evidence to it or to one of its committees under the Parliament of Queensland Act 2001.

The stakeholder strongly supports the intent and substance of the Bill without amendment.

004 – Bar Association of Queensland

The submission supports in principle the re‐introduction of section 57 of the Criminal Code; such support is conditional upon a more considered review of the criminal offences concerning Parliamentarians and the manner in which they are prosecuted.

The stakeholder supports the Bill in principle.

General submission about the Bill

005 – Queensland Council for Civil Liberties

The submission considers it unacceptable to abrogate the well‐established parliamentary privilege of freedom of speech via the creation of a criminal offence contemplated by proposed section 57. The submission is concerned about the risk of involving the courts in disputes about political matters; and that the threat of criminal proceedings might deter members of Parliament from using their Parliamentary privilege, which would be to the detriment of society.

A central pillar of the Queensland Government’s First 100 day action plan is to restore accountability in government. The community expects its Parliamentarians to act responsibly and with the highest integrity.

The re‐introduction of section 57 of the Criminal Code delivers on the Government’s pre‐election commitment to introduce amendments to make it illegal to lie to Parliament.

Knowingly giving false evidence before Parliament or one of its committees is conduct cutting to the heart of parliamentary privilege and is conduct deserving of criminal sanction. Allowing the courts to deal with such conduct guards against suspicions of political interference and cronyism. The criminal justice system is well equipped to judge the veracity of the person’s evidence while ensuring the person is afforded full procedural fairness.

The scope of clause 3 of the Bill is consistent with the former section 57 of the Criminal Code, which was repealed in 2006 after having been a part of the Criminal Code since 1899. There have been minor changes to the language of the original section to reflect modern drafting practices.

20 Clause No.


001 – Queensland Law Society The submission highlights that section 57(3) represents a departure from the well‐established principles of ‘parliamentary privilege’ and in particular, that the freedom of speech and debates and proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

However, the submission acknowledges the compelling argument that Parliament should be, and be seen to be, a place of utmost integrity.

The submission states that ultimately it is a matter for the Parliament to strike an appropriate balance between the freedom of Parliamentary speech and debate, and public confidence in the institution of the Parliament.

There is a tension between an offence like section 57 and parliamentary privilege of freedom of speech.

Section 9 of the Constitution of Queensland 2001 accords the Legislative Assembly and its members and committees all the powers, right and immunities, held by the House of Commons of the United Kingdom, at the establishment of the Commonwealth.

Section 8 of the Parliament of Queensland Act 2001 reproduces article 9 of the Bill of Rights of 1689 (United Kingdom) and provides that the freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly. “Proceedings in the Assembly” is defined in section 9 as including all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee. This makes it plain that privilege extends to those who give evidence before a Parliamentary committee.

The offence contemplated by section 57 can not be prosecuted effectively if evidence can not be produced of the parliamentary proceeding in which the allegedly false evidence was given; as the elements of the offence occur “during the debates or proceedings of the Assembly” use of the evidence would on its face breach the law with respect to parliamentary privilege.

It can be argued that the enactment of a criminal offence such as section 57 by necessary implication abrogates the parliamentary privilege of freedom of speech and debate provided in section 8 of the Parliament of Queensland Act and would allow a court trying a person on a charge of the offence to receive evidence as to what occurred in the parliamentary proceeding.

Clause 3 sub section (3) explicitly deals with this issue. It expressly provides that despite the operation of section 8 of the Parliament of Queensland Act, evidence of anything said or done during proceedings in the Legislative Assembly may be given in a proceeding against a person for an offence under new section 57 to the extent necessary to prosecute the person for the offence.

A tension between the proposed section 57 of the Criminal Code and the parliamentary privilege of freedom of speech

002 – Crime and Misconduct Commission (CMC)

The submission addresses some of the challenges regarding the practical operation of section 57 of the Criminal Code and summarises the issues raised by the CMC in an earlier report tabled in Parliament on 7

21

Clause No.


December 2005. In particular, that section 57 does not resolve the question of whether any investigation of an offence allegedly committed in breach of section 57 is a breach of parliamentary privilege. It is not clear to the Department of Justice and Attorney‐General whether this is a reference to the former section 57 or clause 3 of the Bill.

A risk of double punishment for a person who gives false evidence before Parliament

001 – Queensland Law Society The submission states that the Bill contemplates that the giving of false evidence before Parliament could be dealt with as contempt of Parliament under the Parliament of Queensland Act 2001 or as an offence under the proposed section 57 of the Criminal Code.

The submission is concerned that the Bill does not appear to prevent an incidence of giving false evidence, which is dealt with as contempt of Parliament, also being prosecuted as an offence under the Criminal Code. The submission suggests that this could be remedied by an amendment to the proposed section 57.

It is correct that the Parliament of Queensland Act 2001 and the Standing Rules and Orders of the Legislative Assembly of Queensland provide that the same behaviour (as contemplated by proposed section 57) is contempt of Parliament, to be dealt with by the Parliament. The punishment for such conduct includes: an apology, suspension from Parliament, the imposition of a fine (not more than $2000) and in default of payment of the fine, a term of imprisonment.

The Bill ensures that the Legislative Assembly will retain the right to decide whether particular conduct should be dealt with a s contempt of Parliament or whether it should be prosecuted under the new offence.

Chapter 3, Part 2 of the Parliament of Queensland Act sets out the provisions relating to contempt of the Legislative Assembly.

Section 38 provides that whether particular conduct is contempt is a matter for the Legislative Assembly to decide, acting on advice it considers appropriate. Subject to section 38, proceedings for punishment of contempt are to be taken in the way stated in the Standing Rules.



It is therefore not considered necessary to make any amendment in this regard.

A need to legislatively provide for the practical operation of proposed section 57 of the Criminal Code

002 – Crime and Misconduct Commission (CMC)

The submission makes no comment on the policy underpinning the proposed amendments but rather is addressed at the practical operation of proposed section 57 of the Criminal Code, with particular reference to the role of the CMC.

The objective of the Bill, is to amend the Criminal Code to re‐introduce the repealed section 57, with amendment, to make it an offence to knowingly give false evidence to Parliament or its committees. The section was repealed in 2006 by the Criminal Code Amendment Act 2006.

22 Clause No.


The submission raised the possibility of Members of Parliament complaining directly to the CMC to investigate whether conduct amounts to an offence under section 57; and the tension for the CMC in deciding whether to act on the allegations (where to do so may be seen as inconsistent with the policy underpinning the Parliament of Queensland Act) or to abstain from acting and leave the matter for the Parliament to resolve (and risk the public perception that the CMC has not acted).

The submission also suggests that a legislative statement of jurisdiction to overcome the risk of parallel investigations being undertaken by the CMC and the Legislative Assembly but unbeknown to the other.

The submission expresses uncertainty as to whether, in practice, the CMC would refer a breach of section 57 to the Director of Public Prosecution or to the Attorney‐General for consideration.

The Bill implements part of the Queensland Government’s First 100 Day Action Plan to once again make it illegal to lie to Parliament.

As detailed above, the same behaviour as contemplated under section 57 is also a contempt of Parliament. The Bill ensures that the Assembly retains the right to decide whether particular conduct should be dealt with as contempt of Parliament or whether it should be prosecuted under the new offence.

Whether particular conduct is contempt is a matter for the Legislative Assembly to decide, acting on advice it considers appropriate (section 38 Parliament of Queensland Act 2001).

The Parliament of Queensland Act allows the Assembly, by resolution, to direct the Attorney‐General to prosecute a person, in circumstances where a person’s conduct is both contempt of the Assembly and an offence against another Act and ensures against ‘double punishment’ for the same circumstances (section 47).

The issues raised appear, to the Department of Justice and Attorney‐General, to be operational matters to be resolved by discussion between the relevant parties and that their resolution may also depend upon the circumstances of the particular case.

No further legislative clarification of this issue is considered necessary.

004 – Bar Association of Queensland

The submission notes that consideration must be given to the role of the Crime and Misconduct Commission, and the mechanics of how a prosecution under proposed section 57 would be instigated. The submission notes the importance, from a constitutional perspective, that the Parliament retains control of its own proceedings and affairs. It is suggested, regarding commencing prosecutions, that it may be worthwhile considering requirements, for example, that the fiat of the Attorney‐General is required, or that the Attorney‐General be directed by the Parliament to prosecute a particular matter.

As noted above, the Bill ensures that the Legislative Assembly will retain the right to decide whether particular conduct should be dealt with as contempt of Parliament of whether it should be prosecuted under the new offence.

Importantly, section 47(2) of the Parliament of Queensland Act 2001 allows the Assembly, by resolution, to direct the Attorney‐General to prosecute a person, in circumstances where a person’s conduct is both contempt of the Assembly and an offence against another Act.

The issues raised about the role of the Crime and Misconduct Commission appear, to the Department of Justice and Attorney‐General, to be operational matters to be resolved by discussion between the relevant parties and that their resolution may also depend upon the circumstances of the particular case.

No further legislative clarification of this issue is

23

Clause No.


considered necessary.

Contempt of Parliament or an offence under section 57 of the Criminal Code

006 – The Clerk of the Parliament

The submission considers that the issue at heart of the re‐introduction of section 57 of the Criminal Code is the relationship between the courts and Parliament. In particular, whether contempt of Parliament should be dealt with by the courts by way of a criminal proceeding or by the Parliament by way of a contempt proceeding.


Chapter 3, Part 2 of the Parliament of Queensland Act sets out the provisions relating to contempt of the Legislative Assembly.

Section 38 provides that whether particular conduct is contempt is a matter for the Legislative Assembly to decide, acting on advice it considers appropriate. Subject to section 38, proceedings for punishment of contempt are to be taken in the way stated in the Standing Rules.



005 – Queensland Council for Civil Liberties

The submission makes comment on the drafting of proposed section 57 of the Criminal Code, in particular that the section is thought to be a little unclear about what is meant by the terms ‘examination’, ‘answer’ and ‘lawful and relevant’.

Comments on the drafting of clause 3 of the Bill – the re‐introduction of section 57 of the Criminal Code


The submission notes that the term ‘examination’ is not defined in the Bill. The submission considers that the inclusion of such a definition in proposed section 57 is desirable and that consideration should be given to whether the definition extends to persons appearing at the bar of the House in their defence and whether it is necessary for a person to have taken an oath or affirmation for it to amount to an ‘examination’.

The offence applies where the false answer is given during and ‘examination’ before the Legislative Assembly or a committee.

The term ‘examination’ is not defined in the Bill. This approach is consistent with the repealed section 57. It will be a matter for the tribunal of fact to determine having regard to all of the evidence before it.

However, given section 57 is a punitive provision, when interpreting the term ‘examination’, the Department of Justice and Attorney‐General contemplates that more than mere answers given in the everyday operations of the Legislative Assembly (or committee) would be construed as falling within the ambit of section 57.

It is acknowledged that examination under oath or affirmation before the Legislative Assembly or a committee is not mandatorily required by the Parliament of Queensland Act 2001 (section 31). As such, the concept of examination is not restricted to evidence given on oath or affirmation.

Further, the offence requires that the false answer is given to a ‘lawful and relevant question’ put to the person during the examination.

24 Clause No.


Whether a question is both lawful and relevant to the examination is a matter best resolved by the court having regard to the available evidence and the particular circumstances of the case.

Clause 3 of the Bill is consistent with the repealed section 57 of the Criminal Code; but with minor changes to the language of the original section to reflect modern drafting practices.

The re‐introduction of section 56 (Disturbing the Legislature) and section 58 (Witness refusing to attend or give evidence before Parliament or Parliamentary Committee) of the Criminal Code.


The submission advocates for the re‐introduction of repealed sections 56 and 58 of the Criminal Code and considers that their removal was effectively ‘collateral damage’ to the efforts to remove section 57. The two provisions should be re‐introduced as it is preferable that non‐members be dealt with by criminal and regulatory offences enforceable by the courts rather than as contempt under the Parliament of Queensland Act 2001.

Further, the submission flags that it is currently a criminal offence to create a disturbance when Parliament is not sitting (under section 56A of the Criminal Code) but no longer a Criminal Code offence to create a disturbance when the Parliament is sitting.

The Bill delivers on the Queensland Government’s pre‐election commitment to introduce amendments to make it illegal to lie to Parliament. The re‐introduction of sections 56 and 58 of the Criminal Code is outside the scope of the current proposal and would require further detailed policy consideration.

criminal law (false evidence before parliament) amendment

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