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Criminal Code Amendment Bill 2006
Criminal Code Amendment Bill 2006
Explanatory Notes
Objectives of the Bill
To repeal sections 56, 57 and 58 of the Criminal Code.
Reasons for the Bill
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 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 the 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.
Section 57 of the Criminal Code provides that any person who knowingly
gives false evidence, in the course of an examination before the Legislative
Assembly or a committee of the Legislative Assembly, is guilty of a crime
and is liable to seven years imprisonment.
The Parliament of Queensland Act 2001 provides that the same behaviour
is contempt of Parliament, to be dealt with by the Parliament. The
confusion caused by these contradictory processes needs to be rectified.
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
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Criminal Code Amendment Bill 2006
inconsistent with the principle established by Article 9 of the Bill of Rights
(1688).
Achievement of the Objectives
The Bill repeals section 57 of the Criminal Code to ensure that the
principle inherent in Article 9 of the Bill of Rights (1688) is preserved and
reinforced. For Members, this will bring Queensland into line with the
position in the House of Commons, the Commonwealth Houses of
Parliament and the Parliaments of other States and Territories. For non-
Members, the position will be the same as for the Commonwealth Houses
of Parliament.
Members and non-Members will remain liable to be dealt with for
contempt of Parliament under the Parliament of Queensland Act 2001.
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.
Consequential amendments are also made to section 36 (2)(b) and (2)(c) of
the Parliament of Queensland Act 2001. These sections refer in their
footnotes to sections 57 and 58 of the Criminal Code.
Alternative Ways of Achieving Objectives
Limiting the operation of section 57 to non-Members would preserve the
principle inherent in Article 9 of the Bill of Rights (1688), but this option is
not supported because such a proposal is inherently unfair and inequitable.
The result would be that a member of the public who has to attend and give
evidence before the Parliament may be subject to a criminal offence
carrying 7 years imprisonment whilst a Member of Parliament would not.
Limiting the application of section 57 to evidence given on oath does not
address the fundamental issue of whether it is appropriate for section 57 to
apply to Members.
Repealing section 57 ensures that Members and non-Members are treated
equally.
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Criminal Code Amendment Bill 2006
Estimated Cost for Government Implementation
Nil.
Consistency with Fundamental Legislative Principles
The amendments are consistent with fundamental legislative principles.
Consultation
The Crown Solicitor provided advice on the proposed amendments. The
Clerk of the Parliament and the Office of the Queensland Parliamentary
Counsel were consulted in relation to technical issues.
Notes on Provisions
Part 1 Preliminary
Clause 1 provides that the short title is the Criminal Code Amendment Act
2006.
Part 2 Amendment of the Criminal Code
Clause 2 provides that this Part amends the Criminal Code.
Clause 3 omits section 56 (Disturbing the Legislature)
Clause 4 omits section 57 (False evidence before Parliament) and section
58 (Witnesses refusing to attend or give evidence before Parliament or
parliamentary committee).
Clause 5 inserts a new Chapter 80 (Transitional provisions for Criminal
Code Amendment Act 2006).
In order to put it beyond doubt that a person cannot be prosecuted for these
repealed offences, new section 717 specifically provides that after
commencement of the amending law, a person cannot be charged with,
prosecuted for, convicted of or punished for any of the repealed offences.
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Criminal Code Amendment Bill 2006
However, a person may still be dealt with for contempt under the
Parliament of Queensland Act 2001.
Part 3 Amendment of Parliament of
Queensland Act 2001
Clause 6 provides that this part amends the Parliament of Queensland Act
2001.
Clause 7 amends section 36 (Inadmissibility of particular events before a
committee) by omitting footnotes 4 and 5.
© State of Queensland 2006