Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Rights
of witnesses
Subject to what is
said above about possible constitutional limitations, there is no limitation on
the power of the Houses to compel the attendance of witnesses, the giving of
evidence and the production of documents.
There are, however, safeguards against any misuse of this power. The
Senate has a range of practices designed to safeguard the rights of witnesses
and of people who may be accused of wrongdoing in the course of committee
proceedings.
These practices were codified by the Privilege
Resolutions, passed by the Senate on 25 February
1988.
(The resolutions are contained in appendix 2 and were explained in an
explanatory memorandum tabled in the Senate and incorporated in SD, 17/3/1987,
pp 796-9.) The first of those resolutions provides a code of procedures for
Senate committees to follow for the protection of witnesses. These procedures
are based on practices adopted by Senate committees in the past, but under the
resolution Senate committees are bound to adopt those practices.
The procedures confer a number of rights on witnesses, particularly the
right to object to questions put in a committee hearing and to have such
objection duly considered. Witnesses are to be supplied with copies of the
procedures, and may appeal to the Senate if a committee fails to observe the
procedures.
Section 12 of the 1987 Act provides statutory witness protection
provisions. It is a criminal offence punishable by fine or imprisonment to
interfere with a parliamentary witness. Section 13 makes it a criminal offence
to disclose without authorisation parliamentary evidence taken in camera. This
was thought to be a logical extension of the witness protection provisions (explanatory
memorandum, p. 8).
A difficulty with this sort of provision has already been noted: the
successful prosecution of the offences may well require a House to some extent
to waive, in effect, the immunity of its proceedings from examination in the
courts.
The rights and protection of witnesses are more fully set out in
Chapter 17 on Witnesses.
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