Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Activities incidental to proceedings
The 1987 Act did
not explicitly extend the immunity of freedom of speech to activities of
members not related to their participation in proceedings of the Houses and
committees. This reflected a considered view that the extension of the immunity
to such matters is not warranted. In relation to correspondence of members, it
also conformed with the decision of the British House of Commons in the Strauss case, in
which the House, contrary to the finding of its Privileges Committee, declared
that members’ correspondence with ministers is not part of proceedings in
Parliament (this case was discussed in the Senate in 1958: SD, 16/9/1958,
pp 322-4).
Members’ activities may, however, be held to be part of proceedings in
Parliament, and therefore absolutely privileged, if it can be shown that they
are “for purposes of or incidental to” proceedings in a House or a committee,
within the meaning of section 16 of the 1987 Act. For example, if a senator
writes a letter seeking information for the purposes of a debate in the Senate,
the writing of the letter could well be covered by that provision. The
particular circumstances would probably determine the result. There are as yet
no definitive court judgments.
It has been noted that in the United States the equivalent of parliamentary privilege has been held
to cover the legislative activities of members, and this principle is followed
where such activities are not actually part of proceedings in a house or a
committee. Australian courts could, if the question arose, adopt similar
reasoning.
In 1995 the Western Australian government appointed a royal commission
to inquire into the circumstances surrounding the presentation of a petition to
the Legislative Council of that state (Royal Commission
into Use of Executive Power). At least some of the matters inquired into by the
commission were incidental to the presentation of the petition and therefore
protected by parliamentary privilege (see under Other tribunals, below).
Unfortunately this aspect was not properly considered either by the commission
or by the courts before which the commission’s powers were challenged (see
advices to the President of the Senate by the Clerk, presented to the Senate on
29/11/1995, J.4287).
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