19. PRIVILEGE
The term parliamentary privilege refers in general to the special legal rights and immunities (exemptions from the ordinary law) which apply to each House of the Parliament, its committees and Members, and to other participants in its proceedings, and to the power that each House has to deal with offences—contempts—which interfere with its functioning. These powers derive from section 49 of the Constitution and the Parliamentary Privileges Act 1987.
The following is a limited introduction to parliamentary privilege, provided so that procedures in the House relating to privilege matters can be better understood.
The privilege of freedom of speech
The most important privilege is that of freedom of speech. It is important because it enables the Parliament to debate and investigate any matter without legal restriction.
Members taking part in proceedings in Parliament enjoy absolute privilege. They are protected from what might otherwise be successful court action if when taking part in debates in the House they make defamatory statements, or if in a debate they make a statement that would otherwise be a criminal offence. The privilege of freedom of speech is not confined to Members. It also applies to others taking part in proceedings in Parliament, for example, to witnesses giving evidence to parliamentary committees. The Hansard record of proceedings and the official broadcast are absolutely privileged. However, only qualified privilege applies to reports other than the official Hansard record and to the broadcast of excerpts of proceedings.
Documents forming part of parliamentary proceedings—papers presented to the House and documents received and accepted as evidence by a committee—are also absolutely privileged. Their wider publication is also privileged if authorised for publication by the House or a committee. Nowadays, all documents presented to the House are authorised for publication (S.O. 320), but publication of committee evidence must be authorised by a motion of the committee (S.O. 346).
Right of reply
The privilege of freedom of speech is a very significant one, and it is recognised that it carries with it a corresponding obligation that it should always be used responsibly. Nevertheless, sometimes individuals are offended by remarks Members of the House have made about them during parliamentary debate. The right of reply procedure, established by resolution of the House on 27 August 1997, gives people an opportunity to respond to such remarks and to have their responses published in the parliamentary record. The resolution is reproduced in full as an appendix to the standing orders.
The process commences by the aggrieved person making a written submission to the Speaker, who, if satisfied that the matter is not frivolous, refers the matter to the Committee of Privileges. The committee may discuss the matter with the person who made the submission, or with the Member who made the statement in the House. After considering the matter, the committee reports to the House either that no further action be taken by the House, or that a response by the person, in terms specified in the report and agreed by the person and the committee, be published by the House or incorporated in Hansard. The committees role is merely to recommend whether the response should be published. It does not make any judgment on the merits of the original statement or of the proposed response.
Other privileges
Members may not be summonsed 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. This protection also applies to witnesses to parliamentary committees on days they are required to give evidence to the committee. Members (and certain officers) are also exempt from jury service (some State legislation specifically excludes them). These immunities are justified on the ground that the first duty of Members, and others involved, is to Parliament and that this overrides other obligations.
Contempt
Contempts are actions which obstruct or impede the House in the performance of its functions, or Members or officers in the discharge of their duties, including misleading committees or interfering with witnesses.
While contempts are often loosely referred to as breaches of privilege, they are not confined to breaches of privilege. An action which obstructs the House may be a contempt even though it does not breach any established privilege.
Raising a matter of privilege in the House
Complaints of breach of privilege or contempt may only be raised by Members. Other people who believe that there has been an offence must ask a Member to raise it in the House.
Any Member may rise at any time to speak on a matter of privilege suddenly arising. In doing so he or she must be prepared to move (without notice) a motion declaring that a contempt or breach of privilege has been committed, or referring the matter to the Committee of Privileges (S.O. 95). A matter of privilege takes precedence over and suspends other business being considered by the House, but only if in the Speakers opinion a prima facie case has been made out and the matter has been raised at the earliest opportunity (S.O. 96).
The normal practice is for a Member to seek the call on a matter of privilege and to outline the complaint briefly. The Speaker then responds that he or she will consider the matter and report back to the House. Later, possibly on the same day, the Speaker makes a statement to the House on the matter. If satisfied that the matter has been raised at the first available opportunity, and that there is sufficient substance to it (a prima facie case), the Speaker states that he or she will allow priority to a motion on the matter. Usually the Member concerned then moves that the matter be referred to the Committee of Privileges, although other motions are possible. Alternatively the Member might advise the House that he or she does not wish to take the matter further. Debate on any motion moved may take place immediately, or may be adjourned.
If the complaint of a breach of privilege relates to a statement in a newspaper, book, or other publication, the Member is required to produce and hand in at the Table a copy of the publication, and give the name of the printer or publisher (S.O. 97).
Matter raised when House not sitting
If a matter of privilege arises while the House is not sitting and is not expected to meet for at least two weeks, a Member proposing that the matter should be referred to the Committee of Privileges may bring it to the Speakers attention. If satisfied that a prima facie case of breach of privilege has been made out and the matter is one upon which urgent action should be taken, the Speaker then refers the matter directly to the Committee of Privileges and reports the referral to the House at its next sitting. The Member who raised the matter must then move immediately, without notice, that the referral be endorsed by the House. If the motion is negatived, the Committee of Privileges can take no further action on the matter (S.O. 97A).
Report by the Committee of Privileges
The Committee of Privileges is established at the start of each Parliament to inquire into and report on complaints of breach of privilege referred to it by the House or by the Speaker (S.O. 325). 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.
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 involved before making decisions on it. The House is not bound to follow the committees recommendations, and any motion moved in relation to the matter is subject to amendment.
The House for various reasons may decide not to proceed against the offenders or it may take punitive action. Punishment may be by way of imprisonment or fine, public reprimand, requirement of an apology or exclusion from the parliamentary precincts.
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