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

Abuse of parliamentary immunity: right of reply

One of the Privilege Resolutions of 1988 (Resolution 5) provides an opportunity for a person who has been adversely referred to in the Senate to have a response incorporated in the parliamentary record. A person aggrieved by a reference to the person in the Senate may make a submission to the President requesting that a response be published. The submission is scrutinised by the Privileges Committee, which is not permitted to inquire into the truth or merits of statements in the Senate or of the submission, and provided the suggested response is not in any way offensive and meets certain other criteria, it may be incorporated in Hansard or ordered to be published.

The resolution refers only to responses by natural persons, and does not contemplate responses by corporations or other bodies. The Senate has, however, accepted responses from board members and staff of a corporation on the basis that they claimed to be adversely affected by references to the corporation (80th report of the Privileges Committee, adopted 21/10/1999, J.1986). Similarly, foreigners are not precluded from exercising the right of reply (65th, 132nd reports of the committee, PP 48/1997, 173/2007, adopted 25/3/1997, J.1759; 17/9/2007, J.4389). (See Supplement)

The remedy can, in favourable circumstances, be exercised speedily. On 28 June 2001 a submission was received by the President, referred to the Privileges Committee, considered by the committee, reported on by the committee and published by the Senate, all on the same day (28/6/2001, J.4458).

The availability of this remedy does not prevent a senator presenting directly a response by persons adversely reflected upon in debate (see SD, 8/9/2003, p. 14399).

Resolution 5 was opposed in the Senate and was agreed to only after a division, with cross‑party voting by senators. The main grounds of the opposition were that persons referred to in the Senate had the normal political avenues open to them to respond, the suggested procedures could be over‑used and the President and the Privileges Committee could be unduly occupied by these submissions.

These criticisms have not been justified by experience so far, as many cases of such responses have been dealt with by the Privileges Committee and the Senate without the apprehended difficulties.

Another of the Privilege Resolutions (Resolution 9) enjoins senators to exercise their freedom of speech responsibly.

These resolutions were adopted after a great deal of attention had been given to the possibility that members of the Parliament may abuse the absolute immunity which attaches to their parliamentary speeches by grossly and unfairly defaming individuals who have no legal redress and who, if they are not themselves members, have no forum for making a widely-publicised rebuttal. Much of the controversy about this matter was generated by attacks in other houses by members upon other members, which, if made in the Senate, would have been ruled out of order under standing order 193, which forbids offensive references to members of the Commonwealth Parliament or of state or territory parliaments.

Unless the absolute immunity of parliamentary proceedings is to be modified, which would defeat the purpose of that immunity, the solution to this problem of the possibility of the abuse of freedom of speech lies in the way in which the Houses of Parliament regulate their proceedings through their own procedures. In any proposals for new forms of such internal regulation there is a danger of a majority using procedures designed to prevent defamation of individuals as a means of suppressing embarrassing or inconvenient debate. The remedy which has been favoured, therefore, is giving aggrieved individuals a right of reply. This is the remedy adopted by the Senate’s resolution.

The Senate’s procedures have, since their adoption, also been adopted by many other houses.

Persons reflected upon adversely in committee proceedings have a right to respond to such evidence (see Chapter 17, Witnesses).

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