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

Proceedings before the Privileges Committee

Resolution 2 of the Privilege Resolutions of 1988 prescribes procedures to be followed by the Privileges Committee in inquiring into matters referred to it, and confers rights on all persons involved in those inquiries.

A witness before the Committee of Privileges is given the right to be accompanied by counsel and to cross‑examine other witnesses in relation to evidence concerning the witness. The committee has to ensure, as far as practicable, that a person is informed of any allegations made against the person before the committee and is given the right to be present during the hearing of any evidence containing anything adverse to the person. Witnesses are also given the right to make submissions in relation to the committee’s findings before those findings are presented to the Senate. The provisions for the protection of witnesses in ordinary committee inquiries also apply to the Privileges Committee, but the special provisions prevail to the extent of any inconsistency.

Noting that the lack of procedures for the protection of persons accused of contempts before privileges committees has always been one of the most significant grounds of criticism of the law and practice of parliamentary privilege, the 1984 report of the Joint Select Committee on Parliamentary Privilege recommended that special procedures be adopted for protection of persons in privileges committee inquiries. The committee recommended, in effect, the adoption of the criminal trial model, which would involve giving a person alleged to have committed a contempt the protections available to an accused person in criminal proceedings.

The Senate resolution did not adopt this recommendation, for the reason that in a privileges committee inquiry it is not always clear what is the charge or who is the accused. A privileges committee combines the functions of a preliminary investigative agency and a court of first hearing in a criminal matter, so that a witness may, in the course of the inquiry, become the accused.

Because of this the resolution adopts what might be called the commission of inquiry model. It gives to all persons appearing before the Privileges Committee greater rights than are possessed by persons appearing in court proceedings.

The Privileges Committee has conducted most of its inquiries under these procedures, because most of the cases referred to the committee have arisen since the resolution was passed in 1988. In its successive general reports to the Senate, the committee reviewed the procedures and found that they worked successfully.

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