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Odgers' Australian Senate Practice Thirteenth Edition

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

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Parliamentary precincts

Section 15 of the 1987 Act declares, for the avoidance of doubt, that, subject to the law relating to parliamentary powers and immunities, a law in force in the Australian Capital Territory applies in the parliamentary precincts according to its tenor.

The Parliamentary Precincts Act 1988 defines the parliamentary precincts, provides that the Presiding Officers have management and control of the precincts, and makes other provisions for the administration of the precincts.

For many years before these two Acts were passed discussion of parliamentary privilege was bedevilled by confusion of questions relating to the immunities of the Houses, their committees and members with questions relating to the parliamentary precincts. There is no connection between the precincts of Parliament, however defined, and the ordinary law or the law relating to parliamentary immunities. Many people were confused into thinking that there was some such connection; in particular, there was a persistent idea that the ordinary law did not apply in the precincts.

There was never any ground for doubt that the ordinary criminal law applied in the parliamentary precincts, however defined, as it applies anywhere else in the jurisdiction.[155]

Words or acts which might otherwise constitute criminal offences are immune from prosecution if they are said or done in the course of proceedings in Parliament. This, however, has nothing to do with the parliamentary precincts. The immunity adheres to words spoken or acts done outside the precincts, for example, words spoken in the proceedings of a committee sitting anywhere in the country, or an assault committed by an officer of either House while carrying out a lawful order of that House for the arrest of a person anywhere in the country.

The issue was further confused by the fact that it is an essential element of some criminal acts that they be done in a public place; that is, such acts are offences only if they are committed in a public place. There was some doubt about whether the courts regarded any part of Parliament House as a public place. Again, this had nothing to do with the precincts, although the courts might have regard to the question of what are the precincts in determining whether a particular act was done in a public place. Most criminal offences do not depend for their status as offences upon their being done in a public place.

It was an element of some contempts of Parliament that they were done in the parliamentary precincts; that is, the acts concerned were contempts only if they were done in the precincts. For example, it was long held to be a contempt for any authority to attempt to execute any criminal or civil process in the parliamentary precincts on a sitting day. The powers of the Houses to deal with contempts do not, however, depend upon any declaration of the precincts.

Thus the declaration of what are the parliamentary precincts is an administrative matter, which has no connection with the operation of either the ordinary law or the law of parliamentary immunities.

The whole matter was therefore cleared up and placed beyond doubt by the 1987 and 1988 legislation.


Police powers in the precincts

Section 15 of the 1987 Act indicates that the police may exercise in the precincts the powers which they possess under the ordinary law.

By long-established practice, however, police do not conduct any investigations, make arrests, or execute any process (e.g., search warrants) in the parliamentary precincts without consultation with the Presiding Officers.

Section 8 of the Parliamentary Precincts Act provides for the Australian Federal Police to arrest and hold in custody persons required to be detained by order of either House, under general arrangements agreed to by the Presiding Officers and the minister responsible for the police.

Section 9 provides for members of the Australian Protective Service to perform functions in the precincts in accordance with general arrangements made between the Presiding Officers and the minister responsible for the service.

Section 10 provides for the functions of the Director of Public Prosecutions in relation to offences committed in the precincts to be performed in accordance with general arrangements agreed to by the Presiding Officers and the Director of Public Prosecutions.

Arrangements made under these provisions were laid before the Senate on 28 February 1989.[156]

See also above, under Subpoenas, search warrants and members, for the execution of search warrants in the premises of senators.

In 1978 the Committee of Privileges examined security measures for Parliament House introduced by the Presiding Officers. The Committee considered that the measures did not affect the powers or immunities of the Senate.[157]

155. See Rees v McCay (1975) 7 ACTR 4, and the authorities referred to in that case.
156. J.1384.
157. 3rd report, PP 2/1978.