Privilege

On 25 February 1988 the Senate passed 11 resolutions, setting out procedures and making declarations in relation to matters of parliamentary privilege. These resolutions are in a separate section of this volume.

35 Witnesses – powers of the Senate

  1. The Senate affirms that it possesses the powers and privileges of the House of Commons as conferred by section 49 of the Constitution and has the power to summon persons to answer questions and produce documents, files and papers.
  2. Subject to the determination of all just and proper claims of privilege which may be made by persons summoned, it is the obligation of all such persons to answer questions and produce documents.
  3. The fact that a person summoned is an officer of the Public Service, or that a question related to his departmental duties, or that a file is a departmental one does not, of itself, excuse or preclude an officer from answering the question or from producing the file or part of a file.
  4. Upon a claim of privilege based on an established ground being made to any question or to the production of any documents, the Senate shall consider and determine each such claim.

(16 July 1975 J.831)

36 Interference with witnesses

The Senate—

  1. reaffirms the long-established principle that it is a serious contempt for any person to attempt to deter or hinder any witness from giving evidence before the Senate or a Senate committee, or to improperly influence a witness in respect of such evidence; and
  2. warns all persons against taking any action which might amount to attempting to improperly influence a witness in respect of such evidence.

(13 September 1984 J.1129)

Note: See also the Privilege Resolutions, 25 February 1988, no. 6, paragraphs (10) and (11).

37 Detention of senators

  1. The Senate reaffirms its resolutions of 26 February 1980, as follows:
    1. It is the right of the Senate to receive notification of the detention of its members.
    2. Should a senator for any reason be held in custody pursuant to the order or judgment of any court, other than a court martial, the court ought to notify the President of the Senate, in writing, of the fact and the cause of the senator's being placed in custody.
    3. Should a senator be ordered to be held in custody by any court martial or officer of the Defence Force, the President of the Senate ought to be notified by His Excellency the Governor-General of the fact and the cause of the senator's being placed in custody.
  2. Where a senator is arrested, and the identity of the senator is known to the arresting police, the police ought to notify the President of the Senate of the fact and the cause of the senator's arrest.

(18 March 1987 J.1693)

38 Meetings after dissolution of House of Representatives

The Senate declares that where the Senate, or a committee of the Senate which is empowered to do so, meets following a dissolution of the House of Representatives and prior to the next meeting of that House, the powers, privileges and immunities of the Senate, of its members and of its committees, as provided by section 49 of the Constitution, are in force in respect of such meeting and all proceedings thereof.

(22 October 1984 J.1276)

38A  Seizure of material by executive agencies

That the Senate—

  1. notes that:
    1. the law of parliamentary privilege is intended to protect the ability of legislative Houses, their members and committees, to exercise their authority and perform their duties without undue external interference, and
    2. an aspect of that law is the protection of the legislature against improper interference by the judiciary and the executive;
  2. further notes and affirms that:
    1. the powers, privileges and immunities of the Senate and the House of Representatives are secured through s.49 of the Constitution, and include the traditional freedoms formulated in Article 9 of the Bill of Rights 1688, protecting speech and debates in Parliament against being impeached or questioned in any court or place out of Parliament,
    2. the protection of privileged material in proceedings of courts and tribunals, descended from Article 9, is declared and enacted in s.16 of the Parliamentary Privileges Act 1987,
    3. the protections recited in Article 9 and secured through s.49 are not confined to courts and tribunals, but also encompass the protection of privileged material against incursion by the executive and executive agencies,
    4. the protection of privileged material against seizure by executive agencies under warrant is acknowledged and secured by a settlement between the legislature and the executive, whose purpose is to ensure that search warrants are executed without improperly interfering with the functioning of Parliament, and
    5. the National AFP Guideline developed under this settlement is intended to enable informed claims of privilege to be made and determined, with seized material sealed with a third party until those claims are resolved;
  3. declares, for the avoidance of doubt:
    1. that the right of the Houses to determine claims of privilege over material sought to be seized or accessed by executive agencies adheres regardless of the form of the material, the means by which those agencies seek seizure or access, and the procedures followed, and
    2. in particular, that these rights adhere against the covert use of intrusive powers, by which agencies may seek to seize or access information connected to parliamentary proceedings without the use or presentation of warrants;
  4. requires the executive and executive agencies to observe the rights of the Senate, its committees and members in determining whether and how to exercise their powers in matters which might engage questions of privilege; and
  5. calls on the Attorney-General, as a matter of urgency, to work with the Presiding Officers of the Parliament to develop a new protocol for the execution of search warrants and the use by executive agencies of other intrusive powers, which complies with the principles and addresses the shortcomings identified in reports tabled in the 45th Parliament by the Senate Committee of Privileges and the House of Representatives Committee of Privileges and Members Interests.
(6 December 2018 J.4483-84)

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