Opinion Number. 289

Subject

PARLIAMENTARY PAPERS EXTENT OF PRIVILEGE PROTECTING PUBLICATION : WHETHER COMMONWEALTH IMMUNE FROM SUIT FOR ISSUE TO PUBLIC : WHETHER COMMONWEALTH HAS POWER TO ALTER REPORT OF ROYAL COMMISSIONER

Key Legislation

ROYAL COMMISSIONS ACT 1902, s. 7 : PARLIAMENTARY PAPERS ACT 1840 (IMP.)

Date
Client
The Acting Prime Minister

The following paragraph occurs in the report(1) of Mr O. C. Beale, made to the Governor-General in pursuance of a Commission, and laid before both Houses of the Parliament:

A woman asked a pharmacist in an Australian city, 'Where is A.B. & Go's?' 'What do you want them for?' 'I want to buy some of their number - pills', stating the catalogue number. These are called 'Improved Emmenagogue' and are composed of ergotin, aloes, oil of savin, black hellebore, ferrous sulphate, and extract of savine. A whole page of the catalogue is filled with a list of these homicidal preparations, offered at low prices. It would hardly accord with public interests to publish a copy of it; but the nature of the drugs, their deplorable consequences, and the absolute fatuity of taking them for the criminal purpose which is the ordinary cause of their sale, cannot be too widely known. As shown herein, they are commonly repacked and sold as secret medicines by persons who obtain a living by the traffic, and by pharmacists. The pills purchased by my instructions from pharmacists, openly for the purpose of foeticide, were analysed by the Government Analyst of New South Wales. In one case the analysis corresponds with the formula of A.B. & Co. particularly instanced above.

Messrs Sly & Russell, Solicitors for Messrs A.B. & Co. take exception to the para-graph and request that it be eliminated from the report and not published in future editions, and that no more copies of the report already printed be distributed with the statement above contained therein.

The Acting Prime Minister asks for advice regarding the matter.

Without offering any opinion as to whether the paragraph is libellous or not, I am of opinion that Mr Beale is fully protected against any action for including the para-graph in his report by section 7 of the Royal Commissions Act 1902, which enacts that a Royal Commissioner in the exercise of his duty as a Commissioner shall have the same protection and immunity as a Justice of the High Court.

Secretary, Attorney-General's Department

I am of opinion that the Commonwealth Government has a right to lay the report before Parliament, and that the Parliament has a right to print the report for the use of members. This is so well established that no elaboration is necessary.

The only question requiring consideration is whether the Commonwealth has the right, assuming the paragraph is libellous, to issue the report with the paragraph in to the public.

In Addison on Torts it is laid down that information printed merely for the use of members of Parliament and circulated amongst them is privileged; but reports con-taining defamatory matter, though printed for the use of members, could not at com-mon law be lawfully circulated amongst those who were not members of Parliament. See Addison on Torts, 7th edn p. 199, citing Stockdale v. Hansard 9 A. & E. 1; 48 R.R. 326.

In consequence of the decision in Stockdale v. Hansard, an Act of Parliament, 3 & 4 Vic. c. 9(2), was passed to protect the publication of reports and papers published under the authority of either House. The Act is entitled 'An Act to give summary Pro-tection to Persons employed in the Publication of Parliamentary Papers' and expressly enacts that nothing therein contained shall be deemed or taken or held or construed di-rectly or indirectly by implication or otherwise to affect the privileges of Parliament in any manner whatsoever.

This Act does not, in my opinion, apply to Australia, and the only protection avail-able in the Commonwealth, in the absence of Commonwealth legislation, to protect the publishers of Commonwealth parliamentary papers is the common law. As that protec-tion has been found insufficient in the United Kingdom, it would not be safe to rely upon it in the Commonwealth.

I recommend therefore that legislation on the lines of the Imperial Act be introduced into Parliament.(3)

As the report may contain matter which is technically defamatory, I think that its further distribution should be withheld pending the passing of legislation to protect its publication.

I think that Messrs Sly & Russell should be informed that the Government cannot eliminate any portion of the report of a Royal Commissioner.

[Vol. 6, p. 127]

(1) Report of the Royal Commission on Secret Drugs, Cures, and Foods. dated 3 August I907, published in
Commonwealth of Australia, Parl. Papers I907-I908, Vol. IV, p. 61.

(2) Parliamentary Papers Act 1840 ( lmp.).

(3) See the Parliamentary Papers Ac: I908.