81    Privilege motions

A matter of privilege, unless suddenly arising in relation to proceedings before the Senate, shall not be brought before the Senate except in accordance with the following procedures:

1. A senator intending to raise a matter of privilege shall notify the President, in writing, of the matter.
2. The President shall consider the matter and determine, as soon as practicable, whether a motion relating to the matter should have precedence of other business, having regard to the criteria set out in any relevant resolution of the Senate.
3. The President’s decision shall be communicated to the senator, and, if the President thinks it appropriate, or determines that a motion relating to the matter should have precedence, to the Senate.
4. A senator shall not take any action in relation to, or refer to, in the Senate, a matter which is under consideration by the President in accordance with this resolution.
5. Where the President determines that a motion relating to a matter should be given precedence of other business, the senator may, at any time when there is no other business before the Senate, give notice of a motion to refer the matter to the Committee of Privileges, and that motion shall take precedence of all other business on the day for which the notice is given.
6. A determination by the President that a motion relating to a matter should not have precedence of other business does not prevent a senator in accordance with other procedures taking action in relation to, or referring to, that matter in the Senate, subject to the rules of the Senate.
7. Where notice of a motion is given under paragraph (5) and the Senate is not expected to meet within the period of one week occurring immediately after the day on which the notice is given, the motion may be moved on that day.

Amendment history

Adopted: 19 August 1903 as SO 112

Amended: 2 December 1965, J.427 (to take effect 1 January 1966) (addition of a proviso – later superseded – requiring a prima facie case to be made out for a motion to be given precedence)

1989 revision: Old SO 118 renumbered as SO 81 ; substance of old SO 118 superseded by incorporation of Privilege Resolution 7, agreed to on 25 February 1988, J.534–36, relating to raising matters of privilege; addition of proviso concerning questions suddenly arising

Commentary

If there is a Matter of Privilege, it is listed ahead of any Business of the Senate items

Standing order 81 does not cover matters of privilege suddenly arising in the Senate, for which see SO 197.[1] It sets out the process to be followed for raising matters of privilege in all other cases. It was adapted from one of a set of resolutions relating to parliamentary privilege, agreed to by the Senate on 25 February 1988.

The most significant feature of the standing order is its prescription of a strict process for dealing with matters of privilege. It (together with the resolution preceding it) was based on Recommendation 20 of the Joint Select Committee on Parliamentary Privilege.[2] The committee had identified several problems with the existing procedures. In the case of the Senate, these were evident in the proviso to old SO 118 adopted in November 1965 with effect from 1 January 1966:

Provided that precedence over other Business shall not be given to any motion concerning Privilege if, in the opinion of the President, a prima facie case of breach of Privilege has not been made out or the matter has not been raised at the earliest opportunity.

As the Standing Orders Committee pointed out in recommending the adoption of this proviso:

The addition of the proviso would import into the rules the practice of the House of Commons and of the House of Representatives. It would mean that, if the President were not satisfied that a prima facie case of breach of privilege had been made out, or raised at the earliest opportunity, consideration of the matter of privilege would not be entitled to precedence and any further consideration of the proposed question would have to be by motion upon notice in the usual way.[3]

The joint select committee had difficulties with the requirement for the matter of privilege to be raised at the earliest opportunity because it could result in a rushed and ill-considered decision, and because it imported an inappropriate level of inflexibility that would deny precedence, for example, in cases where a senator wanted to check the facts before plunging in with a public allegation. On the other hand, a written complaint to the Presiding Officer would allow proper consideration and reflection without instant potential damage to reputations.

The joint select committee also considered that the requirement for a prima facie case to be made out was open to misinterpretation:

It can easily be interpreted as a ruling of the Presiding Officer not just that there is a case which at first sight requires examination, but that some sort of case has already been made out against the person or organisation the subject of a complaint. Potential for harm to reputations is clear. Moreover, when the Presiding Officer rules that a prima facie case has been made out, and that ruling is not accepted by his House, or is not accepted by the Privileges Committee to which the complaint is normally referred, or is ultimately not accepted when the findings of the Privileges Committee are considered, the possibility of a clash between the Presiding Officer and the House whose procedures he regulates can arise.[4]

Instead of determining whether there was a prima facie case, the committee recommended that the Presiding Officer should rule whether precedence should be accorded to a motion relating to the complaint. The recommendation was adopted by the Senate in Privilege Resolution 7 and its subsequent translation into SO 81.

A separate resolution sets out criteria to be taken into account by the President in determining whether a motion should be given precedence.[5] The criteria are as follows:

• the principle that the Senate’s power to adjudge and deal with contempts should be used only where it is necessary to provide reasonable protection for the Senate and its committees and for senators against improper acts tending substantially to obstruct them in the performance of their functions, and should not be used in respect of matters which appear to be of a trivial nature or unworthy of the attention of the Senate;
• the existence of any remedy other than that power for any act which may be held to be a contempt.

These are the only criteria against which the President may assess a matter raised. The President has a discretion not to inform the Senate of a decision not to give precedence to a motion. The senator who has raised the matter with the President may not take any action or refer to it in the Senate until the President has made a determination. A determination by the President not to grant precedence does not prevent the senator concerned taking any subsequent action, including giving notice to refer the matter to a committee (including the Privileges Committee) or referring to it in debate.

If the President determines to give precedence to a notice of motion for the referral of a matter of privilege to the Privileges Committee, the notice appears at the top of the Notice Paper for the relevant day, under the heading “Matter of Privilege”. It is often dealt with as formal business but if debate is required, a matter of privilege is dealt with ahead of all other categories of business.

Because of the need to deal expeditiously with matters of privilege when they arise, SO 81 provides an exception to the rule in SO 76(10) that no notice has effect for the day on which it is given. If the President has given precedence to a matter, a notice has been given and the Senate is not expected to meet within a week, the motion may be moved on the day on which notice is given.

See chapter 2 of Odgers’ Australian Senate Practice, 12^th edition, for a comprehensive account of parliamentary privilege and the Senate, and Appendix 4 of that work for a list of matters of privilege raised and determinations of the President.