By a resolution agreed to by the Senate and the House of Representatives, a Joint Committee of members of those Houses has been appointed ‘to examine current expenditure defrayed out of moneys voted by the Parliament for Defence Services and other Services directly connected with the war and to report what, if any, economies consistent with the execution of the policy decided on by the Government may be effected therein.’ The Committee has power to send for persons, papers and records.

The Chairman of the Committee has asked for my advice on certain questions relating to the privilege attaching to statements made to the Committee and to its members.

At the outset it will be convenient to refer to section 49 of the Constitution, which reads as follows:

49. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

As no declaration has been made by the Parliament relevant to the subject matter of this Opinion, it is necessary to consider the corresponding privileges and immunities of the House of Commons, and of its members and committees, as existing on 1st January, 1901.

Questions 1, 2 and 3

The first three questions for advice are as follows:

1. Is a communication made to either House of the Parliament privileged?
2. Is a communication or statement made to a Select Committee of either House, or to a Joint Committee of both Houses, of the Parliament privileged?
3. Is there any distinction between a communication or statement made voluntarily and one so made by a person summoned to the Bar of either House or to give evidence before a Committee?

It will be convenient to answer the first three questions together.

Public policy and convenience require that statements made on certain occasions shall be absolutely privileged, i.e. shall not form the subject of proceedings for defamation. Absolute privilege attaches to certain statements made in the course of parliamentary proceedings. Such statements, if made in the House, may be made either by a member or by a witness appearing to give evidence before the House.

It is clear that statements made by members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. (Per Cockburn C.J. in Ex parte Wason, L.R. 4 Q.B. 573, at p. 576).

It has been held that an absolute privilege attaches to any statement made by a witness summoned to give evidence before a Select Committee of the House of Commons, while under examination by the Committee:

When a select committee, having power to insist on evidence being given on oath, receives such evidence from a witness whom it has summoned, … such witness is protected. (Per Manisty J. in Goffin v. Donelly, 50 L.J.Q.B. 303, at p. 305⁽¹⁾).

In my opinion, there is no distinction, for this purpose, between evidence given before a Select Committee of one House and evidence given before the House itself or before a Joint Committee of both Houses.

It will be noted that the judgment of Manisty J. in Goffin v. Donelly specifically refers to evidence from a witness whom the Select Committee has summoned. I have been unable to find any case where a Court has had to consider whether evidence given before either House of the Parliament or before a Select or Joint Committee by a witness who has appeared voluntarily without being summoned is privileged. The privilege which attaches to the evidence of witnesses in judicial proceedings extends to witnesses who appear voluntarily as well as to witnesses who are summoned. I am unable to see any distinction in principle between witnesses in judicial proceedings and witnesses in parliamentary proceedings and I am, therefore, of opinion that equal protection is given to the evidence of a voluntary witness in parliamentary proceedings.

I am further of opinion that it is immaterial whether the evidence is given on oath or not.

These questions should, therefore, be answered as follows:

Question 1. Yes.

Question 2. Yes.

Question 3. In my opinion, there is no such distinction.

Question 4

This question is as follows:

4. Is a statement made to a member of the Parliament or of any such Committee which is disclosed in either House of the Parliament or to the Committee privileged so that protection is afforded to–

1. the person making the statement to a member of the Parliament or Committee; and
2. the member of the Parliament or Committee disclosing the statement?

Dealing first with paragraph (b) of the question, I have stated in considering question 1 that any statement made by a member in the House is absolutely privileged. I have not, however, been able to find any decided case or any reference in the text books as to the position with respect to statements made by a member of a Select or Joint Committee to the Committee. The reason for this may be that it would not be usual for statements of a hearsay nature to be received in evidence before such a Committee. Any statement made by a witness in evidence would, as stated in answer to question 2, be absolutely privileged. However, I am of opinion that a statement made by a member of a Committee would, if the Committee saw fit to receive it, also be absolutely privileged.

Turning to paragraph (a) of the question, I think it is clear that absolute privilege is not accorded to a statement so made. It is, however, necessary to consider whether the statement would receive qualified privilege.

It has been said that a statement is the subject of qualified privilege when it is made without malice on an occasion where the person making it has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it (see Adam v. Ward, (1917) A.C. 309, per Lord Atkinson, at p. 334). An ordinary example of the rule is where a former master gives a ‘character’ to his late servant to a person contemplating engaging the servant. Another example is where reports and references are made as to the commercial credit of a person with whom the enquirer proposes to do business.

There is no general rule as to what occasions are privileged and what are not. Great difficulty has been found by the Courts in defining what kind of social or moral duty, or what quantum of interest, will make an occasion privileged. There appears, however, to be a tendency for the Courts to extend the application of the rule. Each case must be considered on its own facts.

The position as to statements made to a member of Parliament has come before the Courts on several occasions. In Dickson v. Earl of Wilton (1 F. & F. 419; 175 E.R. 790) the plaintiff, who was Lieutenant-Colonel of a regiment, had been displaced from his command. The defendant was his colonel and had made complaints against him. A member of the House of Commons put a question on the notice paper on the subject. Before the day on which the question was asked the defendant called on the member to explain the matter and, in so doing, made a statement on which was subsequently based this action for slander. Lord Campbell C.J. said (175 N.R. at p. 794):

With respect to the conversation, I say again the law will justify anything which the defendant might bona fide say to Mr. Duncombe as a member of the House of Commons, for his information as such member. If Lord Wilton went to Mr. Duncombe and spoke the words bona fide and with the view to put him in possession of the real facts of the case, he is protected …; but if his object was to prejudice Mr. Duncombe against the plaintiff, and he had the indirect purpose of preventing him from putting his question in the House of Commons, he was not protected.

In Graham v. Crozier (44 Up. Can. Q.B. 378) an action for libel was brought in the Court of Queen’s Bench of Ontario in the following circumstances. The defendant wrote a letter to the member of parliament for the county in which the parties resided requesting him to have the plaintiff, a postmaster, removed from office, as his roguery was unbearable and the defendant was unable to trust his bank-book through the post lest the plaintiff should go to the bank and draw or keep the money. The defendant had previously applied to the Post Office Department at Ottawa to have the plaintiff removed. Hagarty C.J. said (at p. 382):

I have arrived at the conclusion that the learned Judge was right in holding that the libel in the case before us was not privileged. It is taken out of the class of cases rested on the doctrine of an honest mistake as to the proper quarter in which to seek redress for alleged misconduct, by the statement contained in it that the defendant had already applied, or was applying, to the Post Office Department at Ottawa to have plaintiff removed from his office of postmaster. I think it impossible to hold that because it is addressed to Mr. Ross, as the local member of Parliament, it is therefore privileged.

It in no way professes to refer to any existing parliamentary inquiry or proceeding. Calling on Mr. Ross as his representative in Parliament to have ‘the scoundrel removed’, and charging plaintiff in the most violent and intemperate language with crime, cannot, in my judgment, be tortured, by any liberality of concession to free discussion, into a privileged communication.

The defendant shows that he knew the proper quarter to apply to. He has no right, I think, to send a furious charge of crime to the local or any other member of Parliament. On the same principle he could call upon every representative to do what he asks Mr. Ross to do. There is no trace, that I can find, of any authority going that length. In the case noticed, of Dickson v. Lord Wilton, a question was to be put in Parliament, and the defendant waited on the member who was to put it, and to him used the words complained of. This was held privileged, so far as the words were used in good faith to put the member in possession of the real facts of the case. But how would it have been if the defendant had voluntarily, and without any question pending, have addressed either this member, Mr. Duncombe, or all or any other of the six hundred and odd members of the Commons, with a violently worded attack on the plaintiff?

I think we should establish a most vicious precedent if we were to hold such a document as that before us privileged, by the fact of its being addressed to a member of Parliament, the writer having already stated his complaint to the proper authority.

I can understand a case in which, all redress being refused or unreasonably delayed by the authorities, a person having an interest applies in good faith to his representative in Parliament to ask a question as to the delay, or to bring the matter before Parliament.

Nothing of the kind is suggested here.

It is clear from the cases cited that each case must be considered on its merits and that it is impossible to lay down any general rule that a statement made to a member of the Parliament is or is not privileged.

The position is, I think, different where the statement is made to a member of a Parliamentary Committee enquiring into a particular matter. It may be said that it is the duty of every one, in the public interest, to bring any public abuse to the notice of the proper authority for investigation, and any information so given, though volunteered, is privileged, provided it is made in good faith to the body which has power to inquire into the subject matter of the complaint (See Gatley on Libel and Slander, 2nd edition, pp. 243 and 244).

This question should, therefore, be answered as follows:

Question 4(a) If the statement is made bona fide to a member of a Parliamentary Committee enquiring into a matter relevant to the statement, Yes. If the statement is made to some other member of the Parliament, the matter is one depending on the particular facts.’

Question 4(b) Yes.

Question 5

This question is as follows:

5. Has a Select Committee or Joint Committee power to summon persons to give evidence and to administer oaths to witnesses?

Reference to Chapter XXII of the Standing Orders of the Senate and
Chapter 25 of the Standing Orders of the House of Representatives makes it quite clear that a Select Committee may be empowered to send for persons, papers and records. If it is so empowered it may, in my opinion, summon witnesses to give evidence. I have not, however, been able to find any provision in the Standing Orders authorizing a Select Committee to administer an oath to a witness.

Provision is made by the Parliamentary Witnesses’ Oaths Act, 1871 of Great Britain empowering any Committee of the House of Commons to administer an oath to the witnesses examined before the Committee. The question arises whether that power is one of the powers preserved to the Senate and the House of Representatives under section 49 of the Constitution.

The Act in question is entitled an Act for enabling the House of Commons and any Committee thereof to administer oaths to witnesses. Section 1 of the Act expressly empowers the House of Commons to administer an oath to the witnesses examined at the bar of the House and empowers any Committee of the House to administer an oath to the witnesses examined before the Committee. In my opinion, therefore, the Act confers a substantive power on the House of Commons and its Committees and by virtue of section 49 of the Constitution that power is conferred on each House of the Commonwealth Parliament and on the Committees of each such House.

The Act does not, however, confer on Joint Committees of the Lords and Commons power to administer an oath. Even if the Act did confer such power it is very doubtful whether that power would be preserved under section 49 of the Constitution, as it is not a power of a Committee of the Commons.

Question 5 should, therefore, be answered as follows:

A Select Committee or a Joint Committee authorized to send for persons, papers and records has power to summon witnesses. A Select Committee also has power to administer oaths to witnesses. It is doubtful whether a Joint Committee has that power.

Question 6

This question is as follows:

6. If any communications or statements of the kind specified in the preceding questions are not privileged, could privilege be afforded thereto by regulation under the National Security Act 1939–1940?

Section 5 of the National Security Act 1939–1940 authorizes the making of regulations for securing the public safety and defence of the Commonwealth, and for prescribing matters which are necessary or convenient to be prescribed for the more effectual prosecution of any war in which His Majesty is or may be engaged. In my opinion, if the matter in respect of which a Select Committee or Joint Committee is appointed is one relating to the war, privilege (in so far as it does not already exist) as to communications and statements of the kind referred to in this question could be given by regulations under the National Security Act 1939–1940.

[Vol. 34, p. 206]

(1) (1881) LR 6 QBD 307.