Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Other tribunals
The immunity of
parliamentary proceedings from any impeachment or question applies in respect
of other tribunals as well as the ordinary courts. This is expressly declared
by the 1987 Act, which in section 16 refers to “any court or tribunal”. Section
3 of the Act defines “tribunal” to include any person or body having the power
to examine witnesses on oath, including a royal commission or other commission
of inquiry. This reflects the terms of article 9 of the Bill of Rights of 1689,
which refers to “any court or place out of Parliament”.
Just as the wide definition of “impeached or questioned” does not
exhaust the meaning of that phrase, the definition of “tribunal” does not
exhaust the category of bodies before which parliamentary proceedings must not
be impeached or questioned. This is because section 16 provides that article 9
has the effect of the provisions of the section “in addition to any other
operation” (emphasis added). This means that it is open to a court to find
that other activities, possibly not covered by the Act in itself, before other
bodies, not included in the Act’s definition of tribunal, are contrary to the
law of parliamentary privilege as embodied in article 9. If, for example, a
member’s participation in parliamentary proceedings is used against the member
in some sense before some body which, though not a tribunal within the
statutory definition, has the power to impose some detriment on the member, a
court could well hold that this is unlawful. The question would be determined
by the nature of the body, of its proceedings and of the detriment imposed on
the member. The court would
have to distinguish between mere withdrawal of political support, which would
not be unlawful, from anything in the nature of a penalty imposed on the
member.
In this connection it should be noted that some procedures by which
political parties impose party discipline on their members may well be unlawful
when imposed because of the members’ activities in Parliament, although this is
generally accepted as part of the party system.
In 2002 the Privileges Committee reported
on a case in which a senator’s party had withdrawn his endorsement because he did
not follow a party instruction on how he should cast his vote in the Senate.
The senator had taken legal action against his party, and had settled this
action after the party took certain steps required by him. The committee found
that the actions of the party had been reckless and ill-judged, but in view of
the settlement did not find a contempt of the Senate. (Case of Senator
Tambling, 103rd report of the committee, PP 308/2002.)
In 1919 the Presiding Officers made statements in each House rejecting any
attempt by a royal commission to inquire into the internal affairs of the
Houses (for the terms of these statements, see ASP, 6th ed., at pp
1043-4). Although the matters into which it was apprehended the commission
might inquire were not proceedings in the Houses as such, the case illustrates
the extension of the principle to executive government-appointed commissions of
inquiry. (See also documents tabled by the President, 4 May 1993, J.45,
concerning an inquiry by a person appointed by the Attorney-General into
matters the responsibility of a parliamentary department.)
In 1983 the Royal Commission on Australia’s Security and Intelligence Agencies accepted, in the
course of its proceedings, that it did not have the power to inquire into
statements made in Parliament (Report of the Commission, 6 December 1983,
PP 323/1983, p. 9).
The question has been raised whether the immunity operates in respect
of private arbitration tribunals, which are usually established under a law of
a state or territory and which operate by the parties contracting to be bound
by their decisions. Most such bodies appear to fall within the definition of
tribunal in the 1987 Act, in that they have the power to take evidence on oath,
and therefore section 16 of the Act would apply. It would also appear not to be
possible for the immunity as a matter of law to be negated by a contract.
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