Chapter 2 - Parliamentary Privilege: immunities and powers of the Senate

Immunity of proceedings from impeachment and question

The immunity of parliamentary proceedings from impeachment and question in the courts is the only immunity of substance possessed by the Houses and their members and committees.

There are two aspects of the immunity. First, there is the immunity from civil or criminal action and examination in legal proceedings of members of the Houses and of witnesses and others taking part in proceedings in Parliament. This immunity is usually known as the right of freedom of speech in Parliament. Secondly, there is the immunity of parliamentary proceedings as such from impeachment or question in the courts.

This immunity is in essence a safeguard of the separation of powers: it prevents the other two branches of government, the executive and the judiciary, calling into question or inquiring into the proceedings of the legislature (cf US v Johnson 1966 383 US 169;Hamilton v Al Fayed 1999 3 All ER 317).

Members of the Houses and other participants in proceedings in Parliament, such as witnesses giving evidence before committees, are immune from all impeachment or question in the courts for their contributions to proceedings in Parliament. As those contributions consist mainly of speaking in debate in the Houses and speaking in committee proceedings, this immunity has the significant effect that members and witnesses cannot be prosecuted or sued for anything they say in those forums. Thus the common designation of the immunity as freedom of speech. It has long been regarded as absolutely essential if the Houses of the Parliament are to be able to debate and to inquire utterly fearlessly for the public good. The immunity has a wider scope, however, and a question of interpretation of that wider scope led to the statutory declaration and codification of the immunity which is outlined below.

The other important effect of the immunity is that the courts may not inquire into or question proceedings in Parliament as such. The courts will not invalidate legislative or other decisions of the Houses on the grounds that the Houses did not properly adhere to their own procedures, nor will they grant relief to persons claiming to be disadvantaged by the improper application of those procedures. Even where a statutory provision relates to parliamentary procedure, such as the provisions for the disallowance of delegated legislation in Commonwealth statutes, the courts have held that specified procedural steps are not mandatory (Dignan v Australian Steamships Pty. Ltd. 1931 45 CLR 188). The two Houses are thus free to regulate their internal proceedings as they think fit.

The immunity is modified in Australia by constitutional law: where the Constitution provides that certain parliamentary procedures must take place for legislation to be validly enacted, as in section 57 of the Constitution, the High Court will inquire and determine whether those procedures have been properly carried out to determine the validity of the resulting legislation (Victoria v Commonwealth 1975 7 ALR 1).

The immunity of parliamentary proceedings from question in the courts is regarded as necessary for the two Houses to carry out their functions without the fear of their proceedings being restricted or regulated by actions in the courts.

In the United Kingdom the immunity was given a statutory form in the Bill of Rights of 1689, which has been interpreted and applied by the courts in a number of cases. That body of law became part of the law in Australia by virtue of section 49 of the Constitution.

The Constitution of the United States provides that “Senators and Representatives ... for any Speech or Debate in either House ... shall not be questioned in any other Place” (Article I, s. 6). The immunity thus applies to members, not to proceedings, and only to speech or debate, and therefore appears at first sight to be much narrower than its United Kingdom equivalent. The provision has been interpreted, however, as conferring a wide immunity on members in respect of their participation in legislative activities (US v Johnson 1966 383 US 169; US v Brewster 1972 408 US 501; Gravel v US 1972 408 US 606). The immunity, because it is expressed to apply to members, does not protect congressional witnesses in respect of their evidence, which is a difference from the Australian law. Congressional witnesses are granted certain immunities by legislation, but they may be prosecuted for perjury.

Immunity of parliamentary proceedings from scrutiny in the courts was formerly supported by a parliamentary practice of not allowing reference to the records of those proceedings in the courts without the approval of the House concerned. This practice was sometimes mistakenly regarded as the full extent of the immunity which it was designed to protect. Because in recent times the courts have usually been scrupulous to observe the law and to refrain from questioning parliamentary proceedings, the practice was unnecessary, and was abolished by the Senate in 1988 (see below). As a residual safeguard, however, senators and Senate officers are required to seek the approval of the Senate before giving evidence in respect of proceedings of the Senate or a Senate committee (SO 183).

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