House of Representatives Factsheet No. 5

Revised June 1996

What is parliamentary privilege?

The term parliamentary privilege refers to particular legal rights which apply to each House of the Parliament, its committees and Members. These provisions are part of the law of the Commonwealth. This Factsheet deals with the subject from the perspective of the House of Representatives, but the major details also apply in relation to the Senate.

Why is it necessary?

The Houses of the Commonwealth Parliament, in common with other legislatures, are given a special legal status because it is recognised that the tasks they have to perform require additional powers and protections. Special rights and immunities are necessary because of the functions of the House, for example, the need to be able to debate matters of importance freely, to ventilate grievances and to conduct investigations effectively.

Main features of the law and practice

Section 49 of the Commonwealth Constitution provides that, until declared, the powers, privileges and immunities of the Senate and the House of Representatives and the Members and committees of each House shall be those of the British House of Commons at the time of Federation (1901). It was not until 1987, and following a thorough review of the whole subject by a joint select committee, that the Commonwealth Parliament passed comprehensive legislation in this area.

The main features of the arrangements in the Commonwealth Parliament are as follows:

The privilege of freedom of speech

The privilege of freedom of speech is often described as the most important of all privileges. Its origins date from the British Bill of Rights of 1688. Article 9 of the Bill of Rights provides:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

As this was one of the privileges of the House of Commons in 1901, it was inherited by the House and the Senate under the terms of the Commonwealth Constitution. Section 16 of the Parliamentary Privileges Act preserves the application of the traditional expression of this privilege, but spells out in some detail just what may be covered by the term 'proceedings in Parliament'.

The practical effect of this is that those taking part in proceedings in Parliament enjoy absolute privilege. It is well known that Members may not be sued if they make defamatory statements when taking part in debates in the House, but the privilege is wider than that and, for instance, protects Members from being prosecuted if in a debate they make a statement that would otherwise be a criminal offence.

The privilege of freedom of speech has been described as a privilege of necessity. It enables Members to raise in the House matters they would not otherwise be able to bring forward (at least not without fear of the legal consequences). The privilege is thus a very great one, and it is recognised that it carries with it a corresponding obligation that it should always be used responsibly.

It should also be noted that the privilege of freedom of speech is not confined to Members of Parliament; it also applies to others taking part in 'proceedings in Parliament'. The most obvious example of others who may enjoy absolute privilege are witnesses who give evidence to committees. In this regard it is important to note that the privilege only applies to evidence given to properly constituted parliamentary committees, and does not, for instance, apply to party committees.

There is a difference between absolute and qualified privilege. Qualified privilege exists where a person is not liable for an action for defamation if certain conditions are fulfilled, for example, if a statement is not made with malice. Newspapers which report debates in Parliament rely on qualified privilege. Absolute privilege, on the other hand, exists where no action may be taken at all, even if, for example, a statement is made with malice.

As well as proceedings in Parliament being absolutely privileged, the House, and properly constituted committees, may confer absolute privilege on various papers. Resolutions may be moved under the Parliamentary Papers Act to authorise the publication of papers. The Parliamentary Papers Act also extends absolute privilege to the Hansard record of proceedings. The Parliamentary Proceedings Broadcasting Act does the same in relation to the official broadcast, but absolute privilege does not apply to the broadcast of excerpts of proceedings.

Other privileges

Other privileges have also been enjoyed traditionally by Members. Members may not be required to attend before courts or tribunals as witnesses or arrested or detained in civil matters on sitting days and for five days before and after sitting days. Such immunities also apply when a Member is a member of a committee which is meeting. People required to attend as witnesses before committees may not be required to appear as witnesses before a court or tribunal or arrested or detained in a civil cause on days they are required to give evidence to the committee. Members and certain officers are also exempt from jury service. All such immunities are justified on the ground that the first duty of Members, and others involved, is to Parliament and that this overrides other obligations.

The ability to deal with offences (contempts)

The House has the power to deal with persons or organisations breaching particular rights or immunities, but it may also take action concerning matters which, whilst they do not breach any particular legal power or immunity, obstruct or impede the House in the performance of its functions or Members or officers in the discharge of their duties, or which have a tendency to do this. This is known as the ability to punish for contempt.

This power gives the House a flexibility to protect itself and its Members against new or unusual threats. Matters can be dealt with under this authority even if there is no precedent for them. A safeguard against misuse of this considerable power is provided in section 4 of the 1987 Act which states that conduct does not constitute an offence unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or a committee of its authority or functions, or with the free performance by a Member of his or her duties as a Member. Successive Speakers have also referred to the importance of restraint in the use of the House's powers to deal with contempts. In addition, the 1987 Act prevents action being taken in cases where the only offence was that words or actions were defamatory or critical of the House or a committee or a Member. This removed a category under which many complaints had been raised over the years.

One of the most important effects of the power to punish contempts is that the House may protect its committees and their witnesses. Committees usually have substantial powers to help them to obtain evidence and so on, but they do not themselves have power to take action against any person or organisation who is obstructing or hindering them. If it is misled or obstructed, or if witnesses are punished or intimidated, a committee may bring the matter to the attention of the House which, in the ultimate, may punish for contempt.

The raising of complaints

Complaints of breach of privilege or contempt may only be raised by Members. A person who believes that there has been an offence must ask a Member to raise it in the House. The normal course is for a Member to seek the call 'on a matter of privilege' and to immediately outline the complaint briefly. The Speaker then considers the matter privately. If satisfied that it has been raised at the first available opportunity, and that there is some substance in it (the technical term being that a prima facie case exists) the Speaker may allow priority to a motion on the matter. Usually such a motion would be that the issue be referred to the Committee of Privileges, although other motions could be proposed, or a Member might advise the House that he or she did not wish to pursue the matter further. Whether or not a matter is sent to the Committee of Privileges for investigation is thus for the House itself to decide.

Committee of Privileges

The House has had a Committee of Privileges since 1944. Currently the committee consists of 11 Members and, like other committees, government Members form a majority, although it is traditional that matters of privilege are not considered on a party basis. The committee has the power to send for persons, papers and records, that is, it can compel the production of material and the attendance of witnesses. Witnesses, including Members, may be asked to make an oath or affirmation before giving evidence.

Traditionally, the committee has met in private. Major changes in procedure were made during an inquiry in 1986-87 relating to the unauthorised disclosure of material relating to a joint select committee. During that inquiry, for the first time, evidence was taken in public and witnesses were permitted to be assisted by legal counsel or advisers.

The committee itself cannot impose penalties. Its role is investigatory and advisory. In its report to the House the committee usually makes a finding as to whether or not a breach of privilege or contempt has been committed, and it usually recommends to the House what action, if any, should be taken. (A list of inquiries by the Committee of Privileges appears at the end of this Factsheet.)

Consideration by the House

Normally when a report from the Committee of Privileges is presented, and especially if there is the possibility of further action, the practice is to consider the report at a future time so that Members may study the report and the issues before making decisions on it. The House is not bound to follow the committee's recommendations, and any motion moved is subject to amendment.

Penalty options

It has long been recognised that the House has the power to imprison people, but there has been considerable uncertainty as to whether it had the power to impose fines because of doubt as to whether the House of Commons itself had this power in 1901. These doubts were removed by the 1987 Act. Under the Act the House may impose a penalty of imprisonment not exceeding six months on a person, or a fine not exceeding $5,000, or not exceeding $25,000 in the case of a corporation.

Under section 9 of the Act, if the House imposes a penalty of imprisonment, the resolution imposing the penalty and the warrant must set out particulars of the offence. The effect of this is that a court could be asked to determine whether the ground for the imprisonment was sufficient in law to amount to a contempt. On only one occasion has the House imposed penalties of imprisonment. This was in 1955 when Mr R. E. Fitzpatrick and Mr F. C. Browne were found guilty of a serious breach of privilege by publishing articles intended to influence and intimidate a Member in his conduct in the House. They were each imprisoned for three months.

Inquiries by the Committee of Privileges of the House of Representatives

Suggestions for further reading

Parliamentary Privileges Act 1987 (Act No. 21 of 1987).

House of Representatives Practice, 2nd edn. A.G.P.S., Canberra, 1989. pp 682–733.

Final Report. Joint Select Committee on Parliamentary Privilege (October 1984). Parliamentary Paper 219 of 1984.

Last updated: 25 June 1996