Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Procedural Matters
Raising of matters of privilege
A senator raises a
matter by writing addressed to the President. The President
considers the matter and rules whether a motion relating to the matter should
have precedence. In so ruling the President is required to have regard to the
principle that the Senate’s power to deal with contempts should be used only in
cases of improper acts tending substantially to obstruct the Senate, its
committees or its members, and to the availability of another remedy. (SO 81; Privilege
Resolutions nos 4 and 7.)
The President gives precedence to a motion relating to a matter of
privilege if the matter is capable of being regarded by the Senate as meeting
the first of the prescribed criteria, and if there is no other remedy readily
available. For a full list of matters of privilege raised under the procedures
and the rulings of the President on those matters, see appendix 4.
The motion arising from a matter of privilege is to allow the
Privileges Committee to investigate a
matter. No other motion can be given precedence. That committee then
investigates the matter and reports to the Senate.
This is an appropriate procedure. A committee is better fitted than the
whole Senate to undertake an inquiry. It has no power to act itself, but can
only make recommendations to the Senate. The system whereby a recommendation is
made to the Senate by a committee provides, in effect, an appeal procedure, in
that the Senate is not bound to accept the findings or recommendations of the
committee.
Another of the Privilege Resolutions (no. 3) provides criteria for the
Senate and the Privileges Committee to take into account when determining
whether a contempt has been committed, similar to the criteria provided for the
President but incorporating reference to the intention of any offender and the
defence of reasonable excuse.
Standing orders 81 and 197 allow for the
normal procedures for raising matters of privilege to be dispensed with and for
a matter of privilege to be laid before the Senate at once if such a matter
arises suddenly in relation to proceedings before the Senate.
It is a fundamental principle that a matter of privilege is a matter
for the Senate, and should not be dealt with in committee of the whole. A
matter of privilege arising in committee of the whole is therefore reported to
the Senate.
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