Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Immunities
and powers part of ordinary law
In Australia parliamentary
immunities and powers are part of the ordinary law by virtue of section 49 of the
Constitution. The only way in
which the Houses can definitely alter their immunities or powers is by passing
legislation, as authorised by that section. The courts uphold parliamentary
immunities by preventing any violation of those immunities in the course of
proceedings before the courts, and they uphold parliamentary powers, especially
the power to punish contempts, in any test of the legality of the exercise of
those powers.
This reflects the evolution of the law in the United Kingdom. The law in
respect of the immunities and powers of the Houses of the British Parliament
was originally formulated by the two Houses. They also claimed to be the only
courts which could interpret and apply that law. The ordinary courts rejected
this claim, and maintained that the law of parliamentary immunities and powers
was part of the ordinary law and could be interpreted and applied by the
courts.
There were some famous clashes between the Houses and the courts
resulting from this difference of view. After the middle of the 19th
century, however, the Houses tacitly abandoned their claim and acquiesced in
the view of the courts that the law is indivisible. For their part, the courts
accepted and adopted the law as it had been expounded by the Houses. It is now
regarded as firmly established in Britain that parliamentary immunities and powers are part of
the ordinary law and are interpreted and upheld by the courts. This means that
many of the resolutions and other precedents belonging to that earlier period
are now irrelevant. For example, the declaration by the British Houses in 1704
that they could create no new privileges is sometimes given great importance in
discussions in Australia. That resolution, however, belongs to the period when
the Houses regarded themselves as courts formulating their own law, and it is
now of no significance, because only the courts can say what powers and
immunities exist and what is their extent.
In a few rare cases in recent times the British House of Commons has
determined the extent of parliamentary immunities. One instance was the Strauss case in 1957, in
which the House decided, contrary to the finding of its Committee of
Privileges, that the writing of a letter to a minister was not included in
proceedings in Parliament. Had the question been determined in court, the court
might have taken a different view; if a court had made the decision, it would
have been binding as a matter of law, unless overturned by a higher court.
The law of parliamentary immunities and powers is therefore not
different from other branches of the law. Law and parliamentary practice,
however, are distinct. The Senate’s Privilege
Resolutions, for example, which regulate the practices of the Senate in
relation to privilege matters, are not part of the law and are not subject to
interpretation or application by the courts.
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