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

Prosecution of members

The words and actions of members are immune from impeachment and question by way of legal proceedings only in so far as they are part of proceedings in Parliament or are for purposes of or incidental to such proceedings. Members may be prosecuted for actions constituting criminal offences and falling outside this protected area.

This is so even where the actions concerned are clearly performed in the capacity of a member and are linked to the actions of a member in the course of proceedings in Parliament. For example, section 73A of the Crimes Act 1914 made it an offence for a member to ask for or obtain a bribe in return for exercising the functions of a member in a particular way. If there were to be a prosecution of a member for this offence, say for receiving a bribe in return for asking certain questions in Parliament, the act prosecuted would be the receipt of the bribe; it would be neither lawful nor necessary for the prosecution to tender evidence of what the member said or did in the course of proceedings in Parliament. This was confirmed by section 15E of the Act, which explicitly provides that parliamentary privilege is not affected by the Act. (This provision was subsumed by a provision of more general application in section 141.1 of the Criminal Code Act.) (In this connection see US v Brewster 1972 408 US 501; R. v Greenway, 1992, not reported, Public Law, Autumn 1998, pp 356-63.) (See Supplement)

For the unlawful admission in evidence before a court of evidence given before a parliamentary committee, leading to the setting aside of an initial judgment, see Commonwealth and Chief of Air Force v Vance 2005 ACTCA 35 (23/8/2005).

For the unlawful cross-examination of a member of the House of Representatives, a defendant in a criminal case, on his statements in the House, which did not, however, change the outcome of the case, see R. v Theophanous 2003 VSCA 78.

A member may be prosecuted for an offence which has also been dealt with as a contempt of a House (cf US v Traficant, US Court of Appeals, 19/5/2004, not reported; Supreme Court declined to hear appeal, 10/1/2005.)

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