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

Activities incidental to proceedings

The 1987 Act did not explicitly extend the immunity of freedom of speech to activities of members not related to their participation in proceedings of the Houses and committees. This reflected a considered view that the extension of the immunity to such matters is not warranted. In relation to correspondence of members, it also conformed with the decision of the British House of Commons in the Strauss case, in which the House, contrary to the finding of its Privileges Committee, declared that members’ correspondence with ministers is not part of proceedings in Parliament (this case was discussed in the Senate in 1958: SD, 16/9/1958, pp 322-4).

Members’ activities may, however, be held to be part of proceedings in Parliament, and therefore absolutely privileged, if it can be shown that they are “for purposes of or incidental to” proceedings in a House or a committee, within the meaning of section 16 of the 1987 Act. For example, if a senator writes a letter seeking information for the purposes of a debate in the Senate, the writing of the letter could well be covered by that provision. The particular circumstances would probably determine the result. There are as yet no definitive court judgments.

It has been noted that in the United States the equivalent of parliamentary privilege has been held to cover the legislative activities of members, and this principle is followed where such activities are not actually part of proceedings in a house or a committee. Australian courts could, if the question arose, adopt similar reasoning.

In 1995 the Western Australian government appointed a royal commission to inquire into the circumstances surrounding the presentation of a petition to the Legislative Council of that state (Royal Commission into Use of Executive Power). At least some of the matters inquired into by the commission were incidental to the presentation of the petition and therefore protected by parliamentary privilege (see under Other tribunals, below). Unfortunately this aspect was not properly considered either by the commission or by the courts before which the commission’s powers were challenged (see advices to the President of the Senate by the Clerk, presented to the Senate on 29/11/1995, J.4287).

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