Odgers' Australian Senate Practice Thirteenth Edition

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

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Procedural matters

Raising of matters of privilege

A senator raises a matter by writing addressed to the President. The President considers the matter and rules whether a motion relating to the matter should have precedence. In so ruling the President is required to have regard to the principle that the Senate's power to deal with contempts should be used only in cases of improper acts tending substantially to obstruct the Senate, its committees or its members, and to the availability of another remedy.[143]

The President gives precedence to a motion relating to a matter of privilege if the matter is capable of being regarded by the Senate as meeting the first of the prescribed criteria, and if there is no other remedy readily available. For a full list of matters of privilege raised under the procedures and the rulings of the President on those matters, see appendix 4.

The motion arising from a matter of privilege is to allow the Privileges Committee to investigate a matter. No other motion can be given precedence. That committee then investigates the matter and reports to the Senate.

This is an appropriate procedure. A committee is better fitted than the whole Senate to undertake an inquiry. It has no power to act itself, but can only make recommendations to the Senate. The system whereby a recommendation is made to the Senate by a committee provides, in effect, an appeal procedure, in that the Senate is not bound to accept the findings or recommendations of the committee.

Another of the Privilege Resolutions (no. 3) provides criteria for the Senate and the Privileges Committee to take into account when determining whether a contempt has been committed, similar to the criteria provided for the President but incorporating reference to the intention of any offender and the defence of reasonable excuse.

Standing orders 81 and 197 allow for the normal procedures for raising matters of privilege to be dispensed with and for a matter of privilege to be laid before the Senate at once if such a matter arises suddenly in relation to proceedings before the Senate.[144]

It is a fundamental principle that a matter of privilege is a matter for the Senate, and should not be dealt with in committee of the whole. A matter of privilege arising in committee of the whole is therefore reported to the Senate.

'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.[145]

The enactment of the 1987 Act made it clear that privilege could not be waived.[146]

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 was to prevent members of parliament suing journalists for defamation.[147] This amendment of the law has no effect at the federal level in Australia.[148]

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 crossexamine 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.

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 and representatives of organisations on the basis that they claimed to be adversely affected by references to the corporation or organisation.[149] Similarly, foreigners are not precluded from exercising the right of reply.[150]

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.[151] Other cases have been dealt with by the following day.[152]

The availability of this remedy does not prevent a senator presenting directly a response by persons adversely reflected upon in debate.[153]

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 overused 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.[154]

Reference to Senate proceedings in court proceedings

One of the Privilege Resolutions (no. 10) declares that the permission of the Senate is not required for reference in court proceedings to proceedings in the Senate, and abolishes the former practice of petitioning for permission, while enjoining the courts to have regard to the restrictions imposed upon them in relation to the use which may be made of evidence of parliamentary proceedings.

143. SO 81; Privilege Resolutions nos 4 and 7.
144. See 22/11/2011, J.
145. SD, 16/4/1985, pp. 1026-30.
146. See Hamsher v Swift (1992) 33 FCR 545.
147. See above, under Is the 1987 Act too restrictive?
148. 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, [2001] 1 AC 395.
149. 80th report of the Privileges Committee, adopted 21/10/1999, J.1986; see also 127th report of the committee, PP No. 122/2006, adopted 21/6/2006, J.2328; 135th report, PP No. 338/2008, adopted 24/9/2008, J.940; 137th report, PP No. 5/2009, adopted 10/2/2009, J.1579; 138th report, PP No. 176/2009, adopted 14/9/2009, J.2467; 143rd report, PP No. 9/2010, adopted 4/2/2010, J.3147-48; 145th report, PP No. 133/2010, adopted 22/6/2010, J.3663; 146th report, PP No. 134/2010, adopted 22/6/2010, J.3663.
150. 65th, 132nd reports of the committee, PP 48/1997, 173/2007, adopted 25/3/1997, J.1759; 17/9/2007, J.4389.
151. 28/6/2001, J.4458.
152. For example, 147th Report, adopted 22/9/2011, J.1562.
153. See SD, 8/9/2003, p. 14399.
154. See Chapter 17, Witnesses.