Harry Jenkins (Speaker) Share this | Hansard source

On 14 February the honourable member for Sturt drew to my attention concerns that had been expressed about whether parliamentary privilege would attach to the sittings of the House scheduled to be held on Fridays. On 18 February he drew to my attention the case Marquet v Attorney-General (WA) (Supreme Court of Western Australia and High Court), and copies of the judgements have been obtained. The honourable member referred to legal advice that had been mentioned by the Leader of the House. I can advise the honourable member for Sturt that I have not seen that legal advice but I have consulted the Clerk of the House, as I told him I would.

The amendments to the standing orders made last week provide that, if attention is drawn to the state of the House during a sitting on a Friday, the Speaker shall announce that he or she will count the House following the conclusion of grievance debate, if the member who has called the quorum then so desires.

The Clerk is not aware of any case concerning parliamentary privilege in respect of either house which has been decided on the basis of whether a quorum had been present when words were spoken or actions taken.

Standing order 54 requires that the Speaker cannot read prayers to commence a meeting of the House unless a quorum is present. This provision will apply on scheduled sittings on Fridays.

The provisions for the counting of the House during sittings on Fridays are set out in standing order 55, paragraph (c). These provisions reflect the concept embodied in standing order 55, paragraph (b), which has applied in respect of the counting of the House on Monday and Tuesday evenings. Certainly no relevant cases in which privilege has been an issue have arisen since those provisions have been operative.

Members will be aware that the House often conducts proceedings when a quorum is not present. Unless a division is required neither the votes and proceedings nor the Hansard record will show whether a quorum has been present when a decision has been made—for example, on the third reading of a bill. The Clerk is not aware of a case concerning either house when a decision made in such circumstances has been held to be invalid on the ground that a quorum was not present when the decision was made.

The Parliamentary Privileges Act 1987 provides for the continuation of the provisions of article 9 of the Bill of Rights, 1688. Subsection 16(2) of that act provides, in part:

For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to the transacting of the business of a House or of a committee ...

It is clear that words spoken and acts done in the course of proceedings of a house are protected, and it may be held that words spoken and actions taken from the commencement of a sitting until the adjournment of the House form part of ‘proceedings in parliament’. However, even if this view was not accepted as applicable in some circumstances—such as if a quorum was not found to be present when the House was counted—it is not easy to see that words spoken by members or actions taken by them during such proceedings would be found not to be covered by the phrase ‘for purposes of or incidental to the transacting of the business’ of the House.

Naturally, it would be my hope as Speaker that it would never be necessary to adjourn the House on a Friday because it was found that a quorum was not present when the House was counted following the conclusion of the grievance debate as required by the standing orders. If this hope is realised then members will not have cause for concern.

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