Parliamentary Privilege

House of Representatives Infosheet No. 5

Revised 8 October 1998

Page Menu : What is parliamentary privilege? | Why is it necessary? | Main features of the law and practice | The privilege of freedom of speech | Other privileges | The ability to deal with offences (contempts) | The raising of complaints | Committee of Privileges | Consideration by the House | Penalty options | Inquiries by the Committee of Privileges of the House of Representatives | Suggestions for further reading

What is parliamentary privilege?

The term parliamentary privilege refers to particular legal rights which apply to each House of the Parliament, its committees and Members. These provisions are part of the law of the Commonwealth. This Infosheet deals with the subject from the perspective of the House of Representatives, but the major details also apply in relation to the Senate.

Why is it necessary?

The Houses of the Commonwealth Parliament, in common with other legislatures, are given a special legal status because it is recognised that the tasks they have to perform require additional powers and protections. Special rights and immunities are necessary because of the functions of the House, for example, the need to be able to debate matters of importance freely, to ventilate grievances and to conduct investigations effectively.

Main features of the law and practice

Section 49 of the Commonwealth Constitution provides that, until declared, the powers, privileges and immunities of the Senate and the House of Representatives and the Members and committees of each House shall be those of the British House of Commons at the time of Federation (1901). It was not until 1987, and following a thorough review of the whole subject by a joint select committee, that the Commonwealth Parliament passed comprehensive legislation in this area.

The main features of the arrangements in the Commonwealth Parliament are as follows:

• each House, its committees and Members enjoy certain rights and immunities (exemptions from the ordinary law), such as the privilege of freedom of speech;

• each House has the power to deal with offences—contempts—which interfere with its functioning;

• each House has the power to reprimand, imprison or impose fines for offences;

• complaints are dealt with internally (within Parliament)—they may be considered by the Committee of Privileges which will report to the House which may then act on the matter in light of the committee's report;

• there is a limited ability for decisions by the House to imprison people to be reviewed in court; and

• the Parliamentary Privileges Act 1987 creates a special category of criminal offence to bolster the protection available to witnesses who give evidence to parliamentary committees.

The privilege of freedom of speech

The privilege of freedom of speech is often described as the most important of all privileges. Its origins date from the British Bill of Rights of 1688. Article 9 of the Bill of Rights provides:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

As this was one of the privileges of the House of Commons in 1901, it was inherited by the House and the Senate under the terms of the Commonwealth Constitution. Section 16 of the Parliamentary Privileges Act preserves the application of the traditional expression of this privilege, but spells out in some detail just what may be covered by the term 'proceedings in Parliament'.

The practical effect of this is that those taking part in proceedings in Parliament enjoy absolute privilege. It is well known that Members may not be sued if they make defamatory statements when taking part in debates in the House, but the privilege is wider than that and, for instance, protects Members from being prosecuted if in a debate they make a statement that would otherwise be a criminal offence.

The privilege of freedom of speech has been described as a privilege of necessity. It enables Members to raise in the House matters they would not otherwise be able to bring forward (at least not without fear of the legal consequences). The privilege is thus a very great one, and it is recognised that it carries with it a corresponding obligation that it should always be used responsibly.

It should also be noted that the privilege of freedom of speech is not confined to Members of Parliament; it also applies to others taking part in 'proceedings in Parliament'. The most obvious example of others who may enjoy absolute privilege are witnesses who give evidence to committees. In this regard it is important to note that the privilege only applies to evidence given to properly constituted parliamentary committees, and does not, for instance, apply to party committees.

There is a difference between absolute and qualified privilege. Qualified privilege exists where a person is not liable for an action for defamation if certain conditions are fulfilled, for example, if a statement is not made with malice. Newspapers which report debates in Parliament rely on qualified privilege. Absolute privilege, on the other hand, exists where no action may be taken at all, even if, for example, a statement is made with malice.

As well as proceedings in Parliament being absolutely privileged, the House, and properly constituted committees, may confer absolute privilege on various papers. Resolutions may be moved under the Parliamentary Papers Act to authorise the publication of papers. The Parliamentary Papers Act also extends absolute privilege to the Hansard record of proceedings. The Parliamentary Proceedings Broadcasting Act does the same in relation to the official broadcast, but absolute privilege does not apply to the broadcast of excerpts of proceedings.

If individuals are offended by remarks Members have made about them during parliamentary debate, they may seek to have a response published in the parliamentary record—see Infosheet No. 17— Protection of persons referred to in the House.

Other privileges

Other privileges have also been enjoyed traditionally by Members. Members may not be required to attend before courts or tribunals as witnesses or arrested or detained in civil matters on sitting days and for five days before and after sitting days. Such immunities also apply when a Member is a member of a committee which is meeting. People required to attend as witnesses before committees may not be required to appear as witnesses before a court or tribunal or arrested or detained in a civil cause on days they are required to give evidence to the committee. Members and certain officers are also exempt from jury service. All such immunities are justified on the ground that the first duty of Members, and others involved, is to Parliament and that this overrides other obligations.

The ability to deal with offences (contempts)

The House has the power to deal with persons or organisations breaching particular rights or immunities, but it may also take action concerning matters which, whilst they do not breach any particular legal power or immunity, obstruct or impede the House in the performance of its functions or Members or officers in the discharge of their duties, or which have a tendency to do this. This is known as the ability to punish for contempt.

This power gives the House a flexibility to protect itself and its Members against new or unusual threats. Matters can be dealt with under this authority even if there is no precedent for them. A safeguard against misuse of this considerable power is provided in section 4 of the 1987 Act which states that conduct does not constitute an offence unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or a committee of its authority or functions, or with the free performance by a Member of his or her duties as a Member. Successive Speakers have also referred to the importance of restraint in the use of the House's powers to deal with contempts. In addition, the 1987 Act prevents action being taken in cases where the only offence was that words or actions were defamatory or critical of the House or a committee or a Member. This removed a category under which many complaints had been raised over the years.

One of the most important effects of the power to punish contempts is that the House may protect its committees and their witnesses. Committees usually have substantial powers to help them to obtain evidence and so on, but they do not themselves have power to take action against any person or organisation who is obstructing or hindering them. If it is misled or obstructed, or if witnesses are punished or intimidated, a committee may bring the matter to the attention of the House which, in the ultimate, may punish for contempt.

The raising of complaints

Complaints of breach of privilege or contempt may only be raised by Members. A person who believes that there has been an offence must ask a Member to raise it in the House. The normal course is for a Member to seek the call 'on a matter of privilege' and to immediately outline the complaint briefly. The Speaker then considers the matter privately. If satisfied that it has been raised at the first available opportunity, and that there is some substance in it (the technical term being that a prima facie case exists) the Speaker may allow priority to a motion on the matter. Usually such a motion would be that the issue be referred to the Committee of Privileges, although other motions could be proposed, or a Member might advise the House that he or she did not wish to pursue the matter further. Whether or not a matter is sent to the Committee of Privileges for investigation is thus for the House itself to decide.

Committee of Privileges

The House has had a Committee of Privileges since 1944. Currently the committee consists of 11 Members and, like other committees, government Members form a majority, although it is traditional that matters of privilege are not considered on a party basis. The committee has the power to send for persons, papers and records, that is, it can compel the production of material and the attendance of witnesses. Witnesses, including Members, may be asked to make an oath or affirmation before giving evidence.

Traditionally, the committee has met in private. Major changes in procedure were made during an inquiry in 1986-87 relating to the unauthorised disclosure of material relating to a joint select committee. During that inquiry, for the first time, evidence was taken in public and witnesses were permitted to be assisted by legal counsel or advisers.

The committee itself cannot impose penalties. Its role is investigatory and advisory. In its report to the House the committee usually makes a finding as to whether or not a breach of privilege or contempt has been committed, and it usually recommends to the House what action, if any, should be taken. (A list of inquiries by the Committee of Privileges appears at the end of this Infosheet.)

Consideration by the House

Normally when a report from the Committee of Privileges is presented, and especially if there is the possibility of further action, the practice is to consider the report at a future time so that Members may study the report and the issues before making decisions on it. The House is not bound to follow the committee's recommendations, and any motion moved is subject to amendment.

Penalty options

It has long been recognised that the House has the power to imprison people, but there has been considerable uncertainty as to whether it had the power to impose fines because of doubt as to whether the House of Commons itself had this power in 1901. These doubts were removed by the 1987 Act. Under the Act the House may impose a penalty of imprisonment not exceeding six months on a person, or a fine not exceeding $5,000, or not exceeding $25,000 in the case of a corporation.

Under section 9 of the Act, if the House imposes a penalty of imprisonment, the resolution imposing the penalty and the warrant must set out particulars of the offence. The effect of this is that a court could be asked to determine whether the ground for the imprisonment was sufficient in law to amount to a contempt. On only one occasion has the House imposed penalties of imprisonment. This was in 1955 when Mr R. E. Fitzpatrick and Mr F. C. Browne were found guilty of a serious breach of privilege by publishing articles intended to influence and intimidate a Member in his conduct in the House. They were each imprisoned for three months.

Inquiries by the Committee of Privileges of the House of Representatives

• 1944—The censorship of correspondence addressed to Members.
• 1948—Alleged wrongful use of parliamentary privileges (gold pass) by member while a prisoner of war.
• 1951—Article in the Sun regarding members' purchase in the parliamentary refreshment rooms.
• 1951—Newspaper report concerning an alleged criticism of the House Committee by the Prime Minister at a party meeting.
• 1954—Article in the Century—Allegation that confidential Hansard proofs had been made available to newspaper.
• 1955—Article in the Bankstown Observer—allegation that Member involved in immigration racket.
• 1955—Remarks by Member and report in the Argus alleging that a Member had peddled matter to newspapers.
• 1955—Remarks by Member reported in the Argus that a Member had attempted to sell caucus secrets.
• 1959—Statements in circulated lettergram alleging that Member had acted improperly.
• 1965—Advertisement in the Canberra Times and other newspapers containing photograph of the House in session.
• 1971—Commitment to prison of Member who had not paid court costs awarded against him.
• 1971—Article in the Daily Telegraph concerning 'count out' of the House.
• 1971—Letter to the editor published by the Australian accusing Members of accepting bribes etc.
• 1973—Premature publication in article in the Sun of matter relating to the contents of a draft report of a parliamentary committee.
• 1973—Article in the Daily Telegraph regarding letter allegedly written by the Secretary of the Department of Aboriginal Affairs referring to actions of a Minister and a parliamentary committee.
• 1973—Allegation that a letter to the editor of the Sun News Pictorial was fraudulently written in a Member's name.
• 1978—Editorial in the Sunday Observer concerning events of the opening week of the 31st Parliament.
• 1979—Use of House records in court (issue raised following order of Supreme Court of NSW in case involving a Member).
• 1980—Alleged discrimination against and intimidation of a witness who had given evidence to a parliamentary sub-committee.
• 1981—An article concerning Members appearing in the Daily Mirror.
• 1981—Advertisement on front page of the Melbourne Herald.
• 1986—Disruption caused to work of electorate office of Member as a result of telephone calls made in response to false advertisements in the Sydney Morning Herald.
• 1986—Press reports relating to purported contents of report of joint select committee yet to be presented to House.
• 1989—Allegation made by Member during the grievance debate concerning another Member.
• 1990—Letter to Member which allegedly interfered with his duties as a Member.
• 1990—Article published in the Sunday Herald (Melbourne) which appeared to reveal knowledge of a confidential submission to a joint standing committee.
• 1991—Intimidatory threats to a person as a result of his submission to a standing committee.
• 1991—Possible misleading evidence given by a witness to a standing committee.
• 1992—Letter concerning representations by Member to a Minister on behalf of a constituent.
• 1993—Articles in the Australian and the Financial Review which made reference to a draft report of a joint committee, and article in the Financial Review and an item on WIN television evening news purporting to reveal private proceedings of the committee.
• 1993—Writ served on a Member seeking damages for libel arising out of a letter from him to a Minister.
• 1993—Action by the Communication Workers' Union regarding mail services to Members of Parliament.
• 1994—Allegations that a witness before a committee had been denied access to defence premises on the grounds that he had appeared before the committee.
• 1994—Articles in the Canberra Times, the Australian Financial Review and the Australian which appeared to reveal a knowledge of the contents of a draft report and/or deliberations of a standing committee.
• 1994—Allegation that defamation writs served on two people constituted improper interference in the performance of his duties by a Member who had quoted information supplied by one of the people in the House.
• 1994—Appropriateness of legislation to transfer to the Federal Court certain responsibilities in relation to disputed claims for public interest immunity.
• 1995—Execution of a search warrant on the electorate office of a Member.
• 1997—Alleged unauthorised disclosure of the report of a joint committee or of other information concerning the committee's inquiry.