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

Rights of witnesses

Subject to what is said above about possible constitutional limitations, there is no limitation on the power of the Houses to compel the attendance of witnesses, the giving of evidence and the production of documents.

There are, however, safeguards against any misuse of this power. The Senate has a range of practices designed to safeguard the rights of witnesses and of people who may be accused of wrongdoing in the course of committee proceedings.

These practices were codified by the Privilege Resolutions, passed by the Senate on 25 February 1988. (The resolutions are contained in appendix 2 and were explained in an explanatory memorandum tabled in the Senate and incorporated in SD, 17/3/1987, pp 796-9.) The first of those resolutions provides a code of procedures for Senate committees to follow for the protection of witnesses. These procedures are based on practices adopted by Senate committees in the past, but under the resolution Senate committees are bound to adopt those practices.

The procedures confer a number of rights on witnesses, particularly the right to object to questions put in a committee hearing and to have such objection duly considered. Witnesses are to be supplied with copies of the procedures, and may appeal to the Senate if a committee fails to observe the procedures.

Section 12 of the 1987 Act provides statutory witness protection provisions. It is a criminal offence punishable by fine or imprisonment to interfere with a parliamentary witness. Section 13 makes it a criminal offence to disclose without authorisation parliamentary evidence taken in camera. This was thought to be a logical extension of the witness protection provisions (explanatory memorandum, p. 8).

A difficulty with this sort of provision has already been noted: the successful prosecution of the offences may well require a House to some extent to waive, in effect, the immunity of its proceedings from examination in the courts.

The rights and protection of witnesses are more fully set out in Chapter 17 on Witnesses.

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