Freedom from arrest
Section 14 of the Parliamentary Privileges Act provides that a Member of either House shall not be arrested or detained in a civil cause on any day on which the House of which he or she is a Member meets, on any day on which a committee of which he or she is a member meets or on any day within five days before or after such days.
The following comment has been made about the retention of such an immunity:
The justification…is the need of Parliament to the first claim on the services of its Members, even to the detriment of civil rights of third parties.
Freedom from arrest in civil matters is one of the earliest privileges. The immunity is confined to civil arrest; there is no immunity from arrest for crime.
The imprisonment of a Member was the subject of an inquiry by the Committee of Privileges in 1971. Mr T. Uren MP had been committed for 40 days after his failure to pay costs awarded against him in respect of an unsuccessful action he had brought against a policeman for alleged assault. He was released after serving only a short period when the balance of the costs was paid by another person. The particular question for determination by the Committee of Privileges was whether the commitment of Mr Uren was one in a case which was of a civil or criminal character. Clearly, if the commitment was one in a case which was of a civil character, a breach of parliamentary privilege had occurred. However, if the commitment arose out of a case of a criminal character or which was more of a criminal than a civil character, the Member enjoyed no immunity and no breach of parliamentary privilege had occurred.
The committee received conflicting legal advice, but reported to the House that it had found that the commitment to prison of Mr Uren constituted a breach of parliamentary privilege. It recommended however that:
…having regard to the complexities and circumstances of the case …the House would best consult its own dignity by taking no action in regard to the breach of Parliamentary Privilege which had occurred.
On 23 August 1971 the House agreed to take note of the report. During the course of the debate the Minister representing the Attorney-General presented correspondence from the New South Wales Premier and the New South Wales Attorney-General which expressed the strong view that the committee’s finding was inconsistent with decisions of New South Wales courts which held that imprisonment for costs was ‘criminal in nature’.
House to be informed of the detention of a Member
The committal of a Member for any criminal offence, or in any civil matter, including contempt of court, should be notified to the Speaker by the committing judge or magistrate or some other competent authority. When Mr Uren was committed for 40 days for his failure to pay court costs (see above), advice of his imprisonment (and subsequent release) was conveyed to the Speaker and reported to the House at its next sitting.
The Senate has agreed to a resolution relating to the right of the Senate to receive notification of the detention of its members.
In 1984 the Joint Select Committee on Parliamentary Privilege recommended that the court or officer having charge of a detained Member should inform the relevant Presiding Officer but no specific action was taken by the House on this recommendation.
Extension of privilege to others
Section 14 of the Parliamentary Privileges Act also extends the immunity from arrest in civil causes to employees and witnesses in the following terms:
(2) An officer of a House:
(b) shall not be arrested or detained in a civil cause;
(c) on which a House or a committee upon which that officer is required to attend meets; or
(d) which is within 5 days before or 5 days after a day referred to in paragraph (c).
(3) A person who is required to attend before a House or a committee on a day:
(b) shall not be arrested or detained in a civil cause;
Exemption from jury service
Based on the House’s prior claim to the services of its Members, they are excused from service on juries. This exemption has been incorporated in the Jury Exemption Act 1965, which provides that Members of Parliament are not liable, and may not be summoned, to serve as jurors in any Federal, State or Territory court. Certain employees of the Parliament are also exempted from attendance as jurors in Federal, State and Territory courts by regulations made under the Act.
Exemption from attendance as a witness
Section 14 of the Parliamentary Privileges Act provides that Members shall not be required to attend before a court or tribunal on any day on which the House of which the Member is a member meets, on any day on which a committee of which he or she is a member meets or on any day within five days before or after such days. The exemption is also extended to employees of the House required to attend upon the House or a committee and applies on days on which the House or the committee upon which the officer is required to attend meets, or on days within five days before or after such days. Witnesses, that is, ‘persons required to attend before a house or a committee on a day’, shall not be required to attend before a court or tribunal on that day.
The Parliament claims the right of the service of its Members and employees in priority to a subpoena to attend as a witness in court ‘…upon the same principle as other personal privileges, viz, the paramount right of Parliament to the attendance and service of its Members’. In the House of Representatives, when a Member has received a subpoena requiring his or her attendance in court on a day on which a Member could not be compelled to attend, it has been common for the Speaker to write to the court authorities asking that the Member be excused.
Subsection 15(2) of the Evidence Act 1995 provides that a Member of a House of an Australian Parliament is not compellable to give evidence if this would prevent the Member from attending a sitting of his or her House, or a joint sitting, or a meeting of a committee of which he or she is a member.