 |
Chapter 16 - Committees
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:
-
the giving
of evidence before a House or a committee, and evidence so given;
-
the
presentation or submission of a document to a House or a committee;
-
the
preparation of a document for purposes of or incidental to the transacting of
any such business; and
-
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 (SO 33, meetings during
sitting), 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 (see Chapter 2, Parliamentary Privilege, under
Immunities of the Houses). 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.
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 (see Chapter 10, Debate,
under Sub judice convention). 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 (McGrain v Daugherty 1927 273 US 135; Sinclair
v US 1929 279 US 263; Hutcheson
v US 1962 369 US 599).
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 (see Chapter 2, Parliamentary
Privilege, under Immunities of the Houses). 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
(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). 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 (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).
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.
Previous page | Contents | Next page
Website feedback: web.senate@aph.gov.au
Last reviewed 31 July 2009 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
 |
