Odgers' Australian Senate Practice Thirteenth Edition

Chapter 16 - Committees

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Privilege of proceedings

Section 16 of the Parliamentary Privileges Act 1987 declares that for the purposes of the immunity of proceedings of the Parliament from impeachment or question before the courts,

"proceedings in Parliament" means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

  1. (a) the giving of evidence before a House or a committee, and evidence so given;
  2. (b) the presentation or submission of a document to a House or a committee;
  3. (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
  4. (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

A committee is defined to include a subcommittee. Proceedings in committees therefore have the same legal status as proceedings in the Houses.

It is arguable that proceedings contrary to the standing orders are not properly constituted "proceedings in Parliament" and are not, therefore, covered by parliamentary privilege. Although only one standing order expressly provides that proceedings contrary to the standing order shall be void,[255] it is arguable that proceedings not presided over by the duly elected chair or deputy chair, or occurring without committee authority or proper notice to the members, or without a quorum available, are also void and may not be protected by the Parliamentary Privileges Act 1987. On the other hand, the procedures of each House are generally not justiciable but are matters for each House.[256] Clearly such a risk is greater where a committee is hearing sensitive evidence in public or members are making controversial statements at a public hearing. The outcome of, for example, a suit or prosecution arising from statements made during proceedings which were contrary to standing orders is not sufficiently certain for any senator or committee to treat the procedural rules for valid committee meetings other than with the strict compliance from which absolute parliamentary privilege will certainly flow.

In 2010, unusual proceedings occurred during consideration by the Foreign Affairs, Defence and Trade Legislation Committee of the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]. The committee did not hold public hearings, claiming that the topic had been under debate for several decades and submissions to the inquiry raised no new issues. The bill's proponent, a member of the committee, took the unusual step of convening a private forum on the bill and inviting experts (some of whom had made submissions to the inquiry) to present their views on the bill. Participants were warned that the forum was not part of official proceedings and may not attract parliamentary privilege at the time but a transcript was taken and included in the senator's dissenting report, meaning that subsequent publication of it in that form does attract privilege.[257]

As noted in Chapter 10, the sub judice convention applies to proceedings in committees, but not so as to prevent an inquiry which the Senate has directed.[258] Committees have the capacity to avoid prejudice to legal proceedings by hearing evidence in camera.

The question of whether a legislative committee may inquire into matters at issue in legal proceedings was the subject of leading cases on legislative powers in the United States, and the courts have consistently held that the legislature and its committees are not inhibited in inquiring into such matters, and may, indeed, examine the executive's conduct of prosecutions and suits.[259]

Committees may, however, indirectly cause difficulties in legal proceedings by generating evidence which, because of parliamentary privilege, cannot be used in any substantive way in the legal proceedings.[260] For example, if a party to legal proceedings makes statements before a committee relevant to those proceedings, the other party may claim that the inability to examine those statements leads to unfairness in the proceedings, perhaps even justifying their termination.[261] Particularly in criminal proceedings, there may be a danger of defendants deliberately placing material before a parliamentary committee in the hope of aborting or disrupting the court proceedings. Committees should therefore be wary of taking evidence relevant to legal proceedings.

On this basis, committees on several occasions have refrained from taking particular evidence. In 2002 the Legal and Constitutional Affairs Committee sustained an objection by the Commissioner of the Australian Federal Police to answering questions put by a senator concerning police investigations of that senator.[262]

The potential difficulty clearly arises where parties to legal proceedings give evidence, but may also exist in relation to other persons involved in proceedings.

The taking of evidence from investigating police and potential defendants during the course of police investigations which have not yet led to prosecutions may also give rise to the potential difficulty.

For a committee refraining from an inquiry while a coroner concluded an examination of a matter, see the case of the Rural and Regional Affairs and Transport Legislation Committee's inquiry into the search for the Margaret J, above, under Disclosure of evidence and documents.

255. SO 33, Meetings during sitting.
256. See Chapter 2, Parliamentary Privilege, under Immunities of the Houses.
257. For other examples of "private inquiries", see Procedural Information Bulletin No. 216, 21/9/2007.
258. See Chapter 10, Debate, under Sub judice convention.
259. McGrain v Daugherty 273 US 135 (1927); Sinclair v United States 279 US 263 (1929); Hutcheson v United States 369 US 599 (1962).
260. See Chapter 2, Parliamentary Privilege, under Immunities of the Houses.
261. See Chapter 2 under Is the 1987 Act too restrictive?, for the point that proceedings may be stayed if the inability to examine privileged material leads to significant difficulty.
262. Transcript of the estimates hearing of the committee, 28/5/2002, and advice from the Clerk of the Senate included in the transcript, pp. 297-8; see also the statement by the Commissioner of the Australian Federal Police at a hearing of the Select Committee on a Certain Maritime Incident, 11/7/2002, transcript pp. 1926-8; estimates hearing of the Employment, Workplace Relations and Education Legislation Committee, 3/6/2005, transcript p. 44; estimates hearing of the Finance and Public Administration Committee, 26/5/2008, pp. 52-3.