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

Other tribunals

The immunity of parliamentary proceedings from any impeachment or question applies in respect of other tribunals as well as the ordinary courts. This is expressly declared by the 1987 Act, which in section 16 refers to “any court or tribunal”. Section 3 of the Act defines “tribunal” to include any person or body having the power to examine witnesses on oath, including a royal commission or other commission of inquiry. This reflects the terms of article 9 of the Bill of Rights of 1689, which refers to “any court or place out of Parliament”.

Just as the wide definition of “impeached or questioned” does not exhaust the meaning of that phrase, the definition of “tribunal” does not exhaust the category of bodies before which parliamentary proceedings must not be impeached or questioned. This is because section 16 provides that article 9 has the effect of the provisions of the section “in addition to any other operation” (emphasis added). This means that it is open to a court to find that other activities, possibly not covered by the Act in itself, before other bodies, not included in the Act’s definition of tribunal, are contrary to the law of parliamentary privilege as embodied in article 9. If, for example, a member’s participation in parliamentary proceedings is used against the member in some sense before some body which, though not a tribunal within the statutory definition, has the power to impose some detriment on the member, a court could well hold that this is unlawful. The question would be determined by the nature of the body, of its proceedings and of the detriment imposed on the member. The court would have to distinguish between mere withdrawal of political support, which would not be unlawful, from anything in the nature of a penalty imposed on the member.

In this connection it should be noted that some procedures by which political parties impose party discipline on their members may well be unlawful when imposed because of the members’ activities in Parliament, although this is generally accepted as part of the party system.

In 2002 the Privileges Committee reported on a case in which a senator’s party had withdrawn his endorsement because he did not follow a party instruction on how he should cast his vote in the Senate. The senator had taken legal action against his party, and had settled this action after the party took certain steps required by him. The committee found that the actions of the party had been reckless and ill-judged, but in view of the settlement did not find a contempt of the Senate. (Case of Senator Tambling, 103rd report of the committee, PP 308/2002.)

In 1919 the Presiding Officers made statements in each House rejecting any attempt by a royal commission to inquire into the internal affairs of the Houses (for the terms of these statements, see ASP, 6th ed., at pp 1043-4). Although the matters into which it was apprehended the commission might inquire were not proceedings in the Houses as such, the case illustrates the extension of the principle to executive government-appointed commissions of inquiry. (See also documents tabled by the President, 4 May 1993, J.45, concerning an inquiry by a person appointed by the Attorney-General into matters the responsibility of a parliamentary department.)

In 1983 the Royal Commission on Australia’s Security and Intelligence Agencies accepted, in the course of its proceedings, that it did not have the power to inquire into statements made in Parliament (Report of the Commission, 6 December 1983, PP 323/1983, p. 9).

The question has been raised whether the immunity operates in respect of private arbitration tribunals, which are usually established under a law of a state or territory and which operate by the parties contracting to be bound by their decisions. Most such bodies appear to fall within the definition of tribunal in the 1987 Act, in that they have the power to take evidence on oath, and therefore section 16 of the Act would apply. It would also appear not to be possible for the immunity as a matter of law to be negated by a contract.

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