Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Prosecution
of members
The words and
actions of members are immune from impeachment and question by way of legal
proceedings only in so far as they are part of proceedings in Parliament or are
for purposes of or incidental to such proceedings. Members may be prosecuted
for actions constituting criminal offences and falling outside this protected
area.
This is so even where the actions concerned are clearly performed in
the capacity of a member and are linked to the actions of a member in the course
of proceedings in Parliament. For example, section 73A of the Crimes Act
1914 made it an offence for a member to ask for or obtain a bribe in return
for exercising the functions of a member in a particular way. If there were to
be a prosecution of a member for this offence, say for receiving a bribe in
return for asking certain questions in Parliament, the act prosecuted would be
the receipt of the bribe; it would be neither lawful nor necessary for the
prosecution to tender evidence of what the member said or did in the course of
proceedings in Parliament. This was confirmed by section 15E of the Act, which explicitly
provides that parliamentary privilege is not affected by the Act. (This
provision was subsumed by a
provision of more general application in section 141.1 of the Criminal Code
Act.) (In this connection see US v
Brewster 1972 408 US 501; R.
v Greenway, 1992, not reported,
Public Law, Autumn 1998, pp 356-63.) (See Supplement)
For the unlawful
admission in evidence before a court of evidence given before a parliamentary
committee, leading to the setting aside of an initial judgment, see Commonwealth
and Chief of Air Force v Vance 2005 ACTCA 35 (23/8/2005).
For the unlawful
cross-examination of a member of the House of Representatives, a defendant in a
criminal case, on his statements in the House, which did not, however, change
the outcome of the case, see R. v Theophanous 2003 VSCA 78.
A member may be
prosecuted for an offence which has also been dealt with as a contempt of a
House (cf US v Traficant, US Court of Appeals, 19/5/2004,
not reported; Supreme Court declined to hear appeal, 10/1/2005.)
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