Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Immunity of proceedings from impeachment and question
The immunity of
parliamentary proceedings from impeachment and question in the courts is the
only immunity of substance possessed by the Houses and their members and
committees.
There are two
aspects of the immunity. First, there is the immunity from civil or criminal
action and examination in legal proceedings of members of the Houses and of
witnesses and others taking part in proceedings in Parliament. This immunity is
usually known as the right of freedom of speech
in Parliament. Secondly, there is the immunity of parliamentary proceedings as
such from impeachment or question in the courts.
This immunity is in
essence a safeguard of the separation of powers: it prevents the other two
branches of government, the executive and the judiciary, calling into question
or inquiring into the proceedings of the legislature (cf US v Johnson 1966 383 US 169;
Hamilton v Al Fayed 1999 3 All ER 317).
Members of the Houses and other participants in proceedings in
Parliament, such as witnesses giving evidence before committees, are immune
from all impeachment or question in the courts for their contributions to
proceedings in Parliament. As those contributions consist mainly of speaking in
debate in the Houses and speaking in committee proceedings, this immunity has
the significant effect that members and witnesses cannot be prosecuted or sued
for anything they say in those forums. Thus the common designation of the
immunity as freedom of speech. It has long been regarded as absolutely
essential if the Houses of the Parliament are to be able to debate and to
inquire utterly fearlessly for the public good. The immunity has a wider scope,
however, and a question of interpretation of that wider scope led to the
statutory declaration and codification of the immunity which is outlined below.
The other important
effect of the immunity is that the courts may not inquire into or question
proceedings in Parliament as such. The courts will not invalidate legislative
or other decisions of the Houses on the grounds that the Houses did not
properly adhere to their own procedures, nor will they grant relief to persons
claiming to be disadvantaged by the improper application of those procedures.
Even where a statutory provision relates to parliamentary procedure, such as
the provisions for the disallowance of delegated legislation in Commonwealth
statutes, the courts have held that specified procedural steps are not
mandatory (Dignan v Australian Steamships Pty. Ltd. 1931 45 CLR 188).
The two Houses are thus free to regulate their internal proceedings as they
think fit.
The immunity is modified in Australia by constitutional law: where the
Constitution provides that certain parliamentary procedures must take place for
legislation to be validly enacted, as in section 57 of the Constitution, the
High Court will inquire and determine whether those procedures have been
properly carried out to determine the validity of the resulting legislation (Victoria
v Commonwealth 1975 7 ALR 1).
The immunity of parliamentary proceedings from question in the courts
is regarded as necessary for the two Houses to carry out their functions
without the fear of their proceedings being restricted or regulated by actions
in the courts.
In the United Kingdom the immunity was
given a statutory form in the Bill of Rights of 1689, which has been
interpreted and applied by the courts in a number of cases. That body of law
became part of the law in Australia by virtue of section 49 of the Constitution.
The Constitution of the United States provides that “Senators and Representatives ... for any
Speech or Debate in either House ... shall not be questioned in any other
Place” (Article I, s. 6). The immunity thus applies to members, not to
proceedings, and only to speech or debate, and therefore appears at first sight
to be much narrower than its United Kingdom equivalent. The provision has been interpreted,
however, as conferring a wide immunity on members in respect of their
participation in legislative activities (US v Johnson 1966 383 US 169; US
v Brewster 1972 408 US 501; Gravel
v US 1972 408
US 606). The immunity, because it is expressed to apply to members, does
not protect congressional witnesses in
respect of their evidence, which is a difference from the Australian law.
Congressional witnesses are granted certain immunities by legislation, but they
may be prosecuted for perjury.
Immunity of parliamentary proceedings from scrutiny in the courts was
formerly supported by a parliamentary practice of not allowing reference to the
records of those proceedings in the courts without the approval of the House
concerned. This practice was sometimes mistakenly regarded as the full extent
of the immunity which it was designed to protect. Because in recent times the
courts have usually been scrupulous to observe the law and to refrain from
questioning parliamentary proceedings, the practice was unnecessary, and was
abolished by the Senate in 1988 (see below). As a residual
safeguard, however, senators and Senate officers are required to seek the
approval of the Senate before giving evidence in respect of proceedings of the
Senate or a Senate committee (SO 183).
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