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Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Constitutional basis
Section 49 of the
Australian Constitution provides:
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.
The effect of this provision is to incorporate into the constitutional
law of Australia a branch of the
common and statutory law of the United Kingdom as it existed in 1901, and to empower the Commonwealth
Parliament to change that law in Australia by statute. The framers of the Australian Constitution,
unlike their United States counterparts, did not attempt to fix the law of
parliamentary privilege in the Constitution, although, as will be seen, the law
in the two federations has remained substantially the same. Even in Australia,
notwithstanding the power to legislate in section 49, some aspects of that law
may be constitutionally entrenched as essential to a legislature, and therefore
not amenable to change by statute (see Arena v Nader 1997 71 ALJR 1604).
The power of the Parliament to legislate under section 49 was employed
by the passage of the Parliamentary
Privileges Act 1987. The powers, privileges and immunities attaching to the
two Houses under the section and the statute are extensive. The principal
privilege, or immunity, is the freedom of parliamentary debates and proceedings
from question and impeachment in the courts, the best known effect of which is
that members of Parliament cannot be sued or prosecuted for anything they say
in debate in the Houses. The principal powers are the power to compel the
attendance of witnesses, the giving of evidence and the production of
documents, and to adjudge and punish contempts of the Houses.
The Parliamentary Privileges Act 1987 arose partly from a
critical examination of parliamentary privilege as it existed under section 49.
In 1984 a joint select committee of the
Houses, after a comprehensive review of the subject, recommended a number of
changes to the law and to the practices of the Houses in matters of privilege,
partly based on earlier British reports and partly based on practices adopted
by the Senate (Joint Select Committee on Parliamentary Privilege, Final Report,
PP 219/1984; Report of the Select Committee on Parliamentary Privilege, HC 34,
1966-67; see also a review in 1977 by the Committee of Privileges of the 1967
recommendations, HC 417 1976-77).
The 1987 Act made
the changes to the law recommended by the select committee, but with a number
of significant modifications. The bill for the Act was introduced into the
Senate by the President, the first such
bill so introduced, in circumstances
described below. In February 1988 the Senate passed resolutions (known as the
Privilege Resolutions) making the
suggested changes in its practices, again with modifications. (The texts of the
Act and the resolutions are in appendices 1 and 2.) The House of
Representatives has not adopted the resolutions. The changes made by the Act
and the resolutions are outlined in this chapter in relation to the particular
aspects of the law and practice affected.
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