Freedom of speech – the right to freedom of opinion and expression – is a fundamental universal human right. But what does it mean within the parliamentary context? 

Freedom of speech allows Legislative Council members to speak freely during proceedings in the House or in a committee, without fear of prosecution or being sued for what they say. Freedom of speech is essential in allowing the Houses of Parliament to debate and inquire into matters without fear of interference.

Freedom of speech and the Bill of Rights

Did you know that the right of Legislative Council members to freedom of speech goes back to the adoption of a law in England back in 1689?

The Bill of Rights 1689 is a landmark act borne from the struggle between the English Parliament and the Crown. It sets out certain basic civil rights, including the right of members to freedom of speech without interference from the Crown, who had routinely used the courts to impede the House of Commons. Among other things, the bill also established free elections, the right of petition, and no right of taxation without Parliament’s agreement.

The influence of the Bill of Rights 1689 is far reaching, serving as a model for documents such as the United Nations Declaration of Human Rights and the European Convention on Human Rights.

So what does this mean for the Legislative Council?

In 1969, New South Wales adopted into law Article 9 of the Bill of Rights 1689 which states “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”.

Before 1969, we can go back as far as 1881 to discover that the New South Wales Supreme Court considered that freedom of speech was inherent in all legislative bodies as it was considered necessary for the conduct of the business of Parliament.

While freedom of speech in debate is the most well-known immunity for members of the Legislative Council from the general law, it is not absolute. There are certain checks and balances, that have evolved over time to make sure that members use the privilege of freedom of speech responsibly, with one of these being a process for citizen’s right of reply. This is a process that provides people with an avenue to raise concerns about comments made about them in the House.

What led to the Legislative Council’s adoption of a citizen’s right of reply procedure?

The issue of freedom of speech in parliament, and potential avenues for citizen’s right of reply, arose in the Council in October 1996, when the Hon Franca Arena made allegations about a former member of Parliament and a former judge in connection with the Royal Commission into the New South Wales Police Service.

The incident attracted considerable parliamentary attention concerning Mrs Arena’s use of freedom of speech. This led to a November 1997 report of the Standing Orders Committee that considered procedures for a person to respond to allegations made about them in the House. The Committee found that “there [was] a need for a clear and uncomplicated method for persons claiming to have been adversely referred to in debate in the House to have a right of reply to those allegations”.

The House responded to the Committee’s report by adopting provisions for citizen’s right of reply, based on Senate practice. These were initially adopted in November 1997 as a resolution of continuing effect, and ultimately incorporated into the standing orders in 2004 (standing orders 202 and 203).

So how does citizen’s right of reply work?

The process operates as follows:

  • A concerned citizen may make a submission to the President of the Legislative Council stating their grounds of concern and requesting that their response be published in Hansard
  • The President is to determine whether to refer the matter to the Privileges Committee 
  • The Privileges Committee, having considered the submission, may in its report recommend that a response from the person be published or that no further action be taken
  • If the Privileges Committee recommends the publication of a response, the House will consider a motion to adopt the report
  • When the House adopts the committee’s report, the response is published in Hansard.  

Since 1997, 46 requests for a right of reply have been considered by the Privileges Committee.

A person adversely mentioned in the proceedings of a committee may write to the committee concerned, which decides on any appropriate action.

Looking for more information?

For further reading, please see…

  • Privileges Committee: Citizen’s right of reply brochure
  • Annotated standing orders of the Legislative Council, Want and Moore, Chapter 34, Citizen’s Right of Reply
  • NSW Legislative Council Practice, 2nd edition, Frappell and Blunt, Chapter 2, Parliamentary Privilege in New South Wales

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