PREFACE

This present report of the Committee of Privileges is in effect the third edition of the committee’s report on its operations. The first, report no. 35 tabled in the Senate on 2 December 1991, was produced after almost four years of experience of operating under the Parliamentary Privileges Act 1987 and the Senate privilege resolutions of 25 February 1988.

The primary purpose of the Act was to declare legislatively what had long been understood to be the scope of freedom of speech in Parliament. The necessity for the declaration derived from unusual judicial interpretations, by two judges of the Supreme Court of New South Wales, of the position concerning the use of proceedings in Parliament during court proceedings. Unlike previous judgments on the question, the two judgments indicated that words spoken in parliamentary proceedings could be used against a person in subsequent court proceedings.

While the need to make a corrective declaration provided the impetus for the passage of the Act, opportunity was also taken to bring into effect changes to the law partly based on recommendations of the Joint Select Committee on Parliamentary Privilege, tabled in the Senate and the House of Representatives in October 1984, which required legislation for their operation.

In addition, on 25 February 1988 the Senate passed a series of resolutions relating to parliamentary privilege. These resolutions were intended to be complementary to the Parliamentary Privileges Act 1987 and were also partly based on recommendations in the report of the joint committee.

The 35th report gave an outline of the general principles governing the cases which the committee had considered, paying particular attention to an innovative process adopted by the Senate to permit a right of reply to persons adversely referred to in the Senate.

Another purpose of that report was to place on the public record, in an easily accessible form, documents governing the operation of privilege in the Senate, together with a thematic summary of the committee’s reports, advices and other matters to give guidance to persons who might be affected by the Senate’s contempt jurisdiction. It also briefly described the meaning of privilege, immunity and contempt and the basis of the powers of each House of Parliament under section 49 of the Constitution.

Between the passage of the Parliamentary Privileges Act 1987 and the tabling of the 35th report, the committee had produced 24 reports, of which 14 involved right of reply matters and the remaining 10 dealt with possible contempts, including a general report by the committee on the question whether the circulation of petitions was covered by parliamentary privilege.

On 28 June 1996, the committee completed and presented to the President of the Senate what it regards as a second edition of the earlier report. The President tabled the report in the Senate on 21 August 1996. This 62nd report updated the earlier report and again gave easy access to the core privilege documents of the Senate and its committees. In addition to the normal hard-copy publication of the report, it was also placed on the Parliamentary Database and the Internet. The report covered a further 26 reports, several of which went to the heart of the relationship between the Parliament and the executive, and many of which raised new aspects of parliamentary privilege.

An interesting feature of the report was that it recorded a diminution in the number of right of reply reports, with only eight of the 26 reports tabled since 1993 dealing with right of reply matters. The committee also described in this report an examination of a private senator’s bill, the first and so far only inquiry into legislation the committee has undertaken. However, the report on the bill continued a trend in the operations of successive privileges committees, since the establishment of the original committee in 1966, of giving what might be regarded as advisory reports on matters affecting the operations of the Senate and its committees, a trend which is reflected in the present report.

The 62nd report also placed the work of the committee in the context of the operation of privilege since the formation of the Commonwealth of Australia in 1901. This aspect of the report illustrated the continuity of the Senate’s approach to privilege since federation, despite the codification of privilege rules and proceedings and the increasing quantity and complexity of the cases which the Committee of Privileges has in recent years been required to consider. It also included as appendices a resume of each committee report and its outcome, together with a full list of committee members, chairs and deputy chairs, an index to all committee reports and a brief statistical summary of the work of the committee.

The purpose of this present report, which covers a further 13 reports, is to update the statistical data contained in the 62nd report, to report to the Senate, as required under Privilege Resolution 5, on a decision not to consider a right of reply submission, and also to make comment on developments in parliamentary privilege since its last general report. The committee understands that considerable use has been made of its earlier general reports, particularly the 62nd which constituted a compendium of privilege case studies and documents, and has therefore decided that this report will incorporate and update all relevant materials contained in the previous two reports. It, too, will be placed on Internet, and extra copies will be printed both for general use, and for use in and distribution at seminars for public servants and statutory officials of the Senior Executive Service and above. These seminars are now regularly conducted by the Public Service and Merit Protection Commission, as well as by the Department of the Senate, in response to recommendations made in several committee reports and adopted by the Senate.