The Commonwealth Parliament’s privilege powers
This chapter does not attempt to record the history of the development of the law, practice and procedure of privilege, nor does it attempt to treat in detail all questions of privilege that may arise. It is limited to a general description and a summary of the more important aspects of the subject.
The Commonwealth Parliament derives its privilege powers from section 49 of the Constitution which provides that:
The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.
In addition, section 50 of the Constitution provides that:
Each House of the Parliament may make rules and orders with respect to—
- The mode in which its powers, privileges, and immunities may be exercised and upheld.
- The order and conduct of its business and proceedings either separately or jointly with the other House.
Reference to House of Commons practice
Whilst the Commonwealth Parliament has passed legislation in this area, and although the House has developed its own practice and created its own precedents in respect of most of its operations, in the area of parliamentary privilege the practice and precedents of the UK House of Commons are of continuing interest.
The Parliamentary Privileges Act 1987 is an enactment under the head of power constituted by section 49 of the Constitution. It provides that, except to the extent that the Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the Members and the committees of each House, as in force under section 49 immediately before the commencement of the Act, continue in force. The provisions of the Act are described in detail in this chapter.
In addition, the Parliament has enacted a number of other laws in connection with some specific aspects of its operations, although it has been said that certain of these may be ‘more properly …referred’ to section 51(xxxix) of the Constitution, which deals with the power to make laws with respect to matters which are incidental to the execution of any power vested, inter alia, in the Parliament or either House.
Judicial interpretation of section 49
The original privilege powers of the Commonwealth Parliament were tested and confirmed in a significant High Court judgment arising from the case of Browne and Fitzpatrick. On 10 June 1955 the House of Representatives judged Mr F. C. Browne and Mr R. E. Fitzpatrick guilty of a serious breach of privilege (see page 754 for details of this case). On the warrant of the Speaker the two men were committed to gaol for three months. Subsequently, action was taken by the legal representatives of the offenders to apply to the High Court for writs of habeas corpus. The High Court heard the argument between 22 and 24 June and delivered its judgment on 24 June.
The Chief Justice first dealt with the question of whether the warrants issued by the Speaker were a sufficient return to the writs of habeas corpus. He held that such warrants if issued in England by the Speaker of the House of Commons would have constituted sufficient answer, being drawn up in accordance with the law there which was finally established in the case of the Sheriff of Middlesex in 1840.
The Court stated that:
…it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. The judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms.
The warrants issued by the Speaker stated the contempt or breach of privilege in general terms and not in particular terms but accorded with the law, as each stated that the person concerned had been guilty of a serious breach of privilege, recited the resolution of the House to that effect and stated the terms of committal.
Having established that it was not necessary to go behind the warrant, it remained for the court to determine whether the law as stated above was applicable to the Commonwealth Parliament through section 49 of the Constitution.
Arguments advanced by counsel for Browne and Fitzpatrick urging a restrictive construction or modified meaning of the words of section 49 were, broadly:
- that the Constitution of Australia was a rigid federal Constitution and it was the duty of the courts to consider whether any act done in pursuance of the power given by the Constitution, whether by the legislature or executive, was beyond the power assigned to that body by the Constitution;
- that the Constitution adopted the theory of the separation of powers and that the power of committal by warrant belonged to the judicial power and ought not to be conceded upon the words of section 49 to either House of the Parliament;
- that the power contained in section 49 was a transitional power which ceased when the Parliament declared some of its powers, privileges, and immunities in the Parliamentary Papers Act 1908 and the Parliamentary Proceedings Broadcasting Act 1946;
- that the powers under section 49 were contingent upon the Houses exercising their authority under section 50, which provides that each House might make rules and orders with respect to:
- the mode in which its powers, privileges, and immunities might be exercised and upheld, and
- the order and conduct of its business and proceedings.
The High Court rejected, in turn, each of these arguments. In relation to the first proposition, the court declared:
The answer, in our opinion, lies in the very plain words of s. 49 itself. The words are incapable of a restricted meaning…It is quite incredible that the framers of s. 49 were not completely aware of the state of the law in Great Britain and, when they adopted the language of s. 49, were not quite conscious of the consequences which followed from it.
In relation to the second argument on the separation of powers, the court stated that:
…in unequivocal terms the powers of the House of Commons have been bestowed upon the House of Representatives. It should be added to that very simple statement that throughout the course of English history there has been a tendency to regard those powers as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate, proper for its protection …It is sufficient to say that they were regarded by many authorities as proper incidents of the legislative function, notwithstanding the fact that considered more theoretically—perhaps one might even say, scientifically—they belong to the judicial sphere.
Then, in relation to the third contention, the court made it clear that it did not regard the Parliamentary Papers Act and the Broadcasting of Parliamentary Proceedings Act as affecting the operation of section 49. The court held that section 49:
…contemplates not a single enactment dealing with some very minor and subsidiary matter as an addition to the powers or privileges; it is concerned with the totality of what the legislature thinks fit to provide for both Houses as powers, privileges and immunities.
Finally, in relation to the argument on the interrelationship of sections 49 and 50, the court declared that it was clear that section 49 had an operation independent of the exercise of the power of section 50. In a final summing-up, the court declared:
…all the arguments which have been advanced for giving to the words of s. 49 a modified meaning, and the particular argument for treating them as not operating, fail.
Browne and Fitzpatrick petitioned the Judicial Committee of the Privy Council for special leave to appeal against the decision of the High Court. However, the decision of the Privy Council was that the judgment of the Chief Justice of Australia was unimpeachable and leave to appeal was refused.
No new privilege may be created except by legislation
The rights and immunities of the Houses, their committees and Members are part of the law of the Commonwealth, and the law may only be changed by the passage of legislation by the three component parts of the Parliament. Subject to the constraints imposed by the Constitution, it would however be possible for the Commonwealth Parliament to enact legislation which varied an existing right or immunity or created a new one.
Within the framework set by the Constitution and relevant legislation it is within the competence of each House to expound the law of privilege and apply that law to the circumstances of each case as it arises. To suggest, as has on occasions been done, that the existing privileges of the Parliament have been extended in some particular case, is incorrect.
In the following sections, the principal rights and immunities of the House are described. While they have been enjoyed since Federation by virtue of the provisions of section 49, the Parliamentary Privileges Act 1987 has modified the detail or provided amplification in some respects so that the provisions better meet the needs of the modern Houses.