“Waiver” of privilege
From time to time suggestions are made of a House or its members “waiving their privilege”, for example, by allowing the examination of particular parliamentary proceedings by a court in a particular case. Such suggestions are misconceived. It is not possible for either a House or a member to waive, in whole or in part, any parliamentary immunity. The immunities of the Houses are established by law, and a House or a member cannot change that law any more than they can change any other law.
This was clearly indicated by a case in the Senate in 1985. A petition by solicitors requesting that the Senate “waive its privilege” in relation to evidence given before a Senate committee was not acceded to, principally on the ground that the Senate does not have the power to waive an immunity established by law (SD, 16/4/1985, pp 1026-30).
The enactment of the 1987 Act made it clear that privilege could not be waived (see Hamsher v Swift 1992 33 FCR 545).
In 1996 the British Parliament passed an amendment of the Defamation Act to provide that, in a defamation action, a person could waive the protection of parliamentary privilege in so far as it protected that person. This provision was passed without proper consideration of the inroad which it made on the law of parliamentary privilege, and under the misapprehension that the main effect of the Prebble judgment (see above, under Is the 1987 Act too restrictive?) was to prevent members of parliament suing journalists for defamation. This amendment of the law has no effect at the federal level in Australia. (For a judicial construction of the provision, see Hamilton v Al Fayed 1999 3 All ER 317, and the same case in the House of Lords on appeal, 2000 2 WLR 609.)
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