House of Representatives Practice, 6th edition – HTML version

19 - Parliamentary privilege

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Limitations and safeguards in the use of privilege

An important duty rests with each Member, and the House as a whole, to refrain from any course of action prejudicial to the privilege of freedom of speech or prejudicial to continued respect for its other rights and immunities. This duty can be expressed in the following ways:

  • First, the existence of Members’ privileges imposes a responsibility on Members not to abuse them, for example, by raising trivial matters as matters of privilege or contempt. Speaker Snedden stated in 1979:

The privileges of the House are precious rights which must be preserved. The collateral obligation to this privilege of freedom of speech in the Parliament and the essential complementary privileges of the House will be challenged unless all members exercise the most stringent responsibility in relation to them. I reiterate …that when matters of privilege are raised I will consider them but if I come to the conclusion that there is clearly no basis whatever for the claim of privilege then I will have to report to the House that I believe that the member has misused its forms.[290]

  • Secondly, and analogous to the previous point, is the obligation on Members not to use the privilege of freedom of speech to be unfairly critical of the character or conduct of individuals in debate.[291] This view, however, requires some qualification and an added perspective was given by Speaker Snedden in the following statement:

In regard to freedom of speech, I think it is important for us to understand that there are occasions on which a Member in this House, exercising the freedom of absolute privilege of what he says in this House, can and does attack persons who apparently are defenceless. This privilege in the past has been used outrageously by individual Members. But …there is a fundamental sense of justice in a House and if a Member is acting badly the House will recognise it and treat him accordingly. The public will also recognise it and rob him of his credibility. So I feel that we do not need to invent any rules whereby a Speaker or anybody else should make the judgment as to whether a Member should be allowed to proceed with his privileged attack on an individual. It would not be within the capacity of a Speaker to make the right judgment because he would not have the facts. He would not know. Therefore the person raising the matter must bear the consequences himself. But I would not like to see that privilege limited or diminished in any way. All of us can think of not one, but many examples where, if it had not been for the freedom of speech and the attack on an individual in Parliament crime would have gone undetected and unpunished. Some people who were being seriously disadvantaged by rapacious people would not have been protected had it not been for the freedom and absolute privilege that this Chamber has to raise matters and to ventilate them so that inquisitorial efforts could be taken by other people and so that the matter could be circulated with the qualified privilege of the media.[292]

  • The Joint Select Committee on Parliamentary Privilege recommended the adoption of resolutions stressing the need to exercise the privileges of Parliament in a responsible manner. In a 1994 report the Committee of Privileges, having noted that the judgment exhibited by a Member in raising certain allegations in the House had been questioned, stated:

…In the final analysis, however, it is for the Member to resolve whether or not it is in the public interest to raise a matter in the House, and his or her actions will be judged accordingly.[293]

  • Thirdly, the House should exercise or invoke its powers in respect of matters of contempt and privilege sparingly.[294] As noted, the Joint Select Committee on Parliamentary Privilege recommended the adoption by the House of a policy of restraint in these matters. Although this recommendation has not been formally adopted by the House, the Committee of Privileges[295] and Speakers[296] have had regard to the policy.
  • Finally, the House should be careful to ensure that, in exercising its power to punish for contempt, its punitive action is appropriate to the offence committed (see comment on previous point).

290. H.R. Deb. (8.11.1979) 2819–20.
291. See Chs on ‘Motions’ and ‘Control and conduct of debate’ for rules imposed by the House on the control of speech in the House.
292. Report of 5th Conference of Commonwealth Speakers and Presiding Officers, Govt Pr., Canberra, 1978, pp. 70–1 (see also comments by Speaker Thomas at p. 62).
293. PP 407 (1994) 5 (for lengthier quotation see p. 1028). See also comments by Committee of Privileges on Members’ obligations; PP 609 (2002) 16.
294. From the establishment of the Committee of Privileges in 1944 to July 2010, 47 matters were referred to the committee; of these matters 20 were found to contain some kind of breach of privilege or contempt; and of these in only six cases did the House impose or insist on any significant punitive measure; namely, in one case imprisonment, in two other cases a form of reprimand and in the other three the demand of a suitable apology; and see Appendix 25.
295. E.g. H.R. Deb. (23.10.86) 2700–1, PP 282 (1986); PP 122 (1994); PP 376 (1995).
296. E.g. H.R. Deb. (9.11.1983) 2461; H.R. Deb. (29.4.1986) 2698; H.R. Deb. (16.9.1986) 759; H.R. Deb. (16.5.1990) 684; H.R. Deb. (23.10.2008) 10169–70; H.R. Deb. (18.3.2010) 3011: and see J 1987–89/520, 536.