The paper examines the law and practice of parliamentary privilege in Australia and in other jurisdictions. It also contains a discussion of the historical background to parliamentary privilege and examines the issues and tensions associated with parliamentary privilege. The paper features a 12 page bibliography.
The authors comment that -
While many issues prevail regarding the law of parliamentary privilege there is one area which is rarely contested, and that is the significance and centrality of parliamentary privilege to parliamentary democracies. Parliamentary privilege has long been considered essential in enabling parliaments to perform their functions as representative institutions, in creating effective legislation and in scrutinising government activity. As discussed in this paper, these privileges, which are an exception to ordinary law, are comprised of freedom of speech and debate, freedom from arrest, exclusive cognisance of the Houses, and the power of Houses to punish contempt. Immunities, belonging to individual Members acting in a collective capacity, such as freedom of speech, are seen as protections that allow parliamentarians to perform their duties without fear of intimidation or constraint. The powers belonging to a House of Parliament to punish contempts and regulate its own constitution are, as noted in Erskine May, 'for the protection of its own authority and dignity'.
As this paper has demonstrated, the law and practice of parliamentary privilege is complex and many issues and tensions have arisen from its practice. Issues such as sub judice, search warrants and subpoenas, the power of Houses to punish contempts, citizen’s right of reply, immunity of non-Members and the scope of freedom of speech have, on occasion, brought parliaments in conflict with constituents and the executive and have resulted in numerous court cases. However, as Griffith notes, ‘Recent cases on parliamentary privilege may not point in any discernible direction or reveal any definite trend, turning as most of them do on the particular facts at issue’.
The structure and practice of privilege in other jurisdictions has elucidated the conflicts and tensions that exist in maintaining an effective separation of power between legislatures, the judiciary and the executive. Centuries of developing statutory and procedural frameworks with regard to privilege have still left many uncertainties as to the role each arm of government is intended to perform. Presumably, the only certainty is that these ambiguities will continue to exist. Indeed, the idea that parliamentary privilege is a complex topic of which there are still persistent 'grey areas', some of which may never be resolved is echoed in the literature and resources examined throughout this paper, such as in Erskine May, Campbell and Griffith and Ryle. Governments based on the principle of separation of powers will inevitably encounter tensions in striving to attain an ideal balance between accountability, transparency and effective governance.
