When Senator and Crikey contributor Derryn Hinch was elected to the Senate back in July of last year, the question on everyone’s lips (including Crikey‘s Michael Bradley) was “what on earth will The Human Headline do with parliamentary privilege?“.
Hinch had spent time in jail for habitually breaching suppression orders around sex offenders and paedophiles. So what was he going to do in a forum that took jail time out of the equation? You guessed it. Way more of the same.
But how does parliamentary privilege work? Is it really an infallible get-out-of-jail-free card?
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What parliamentary privilege actually is
According to the Australian Parliament House website, “the term parliamentary privilege refers to special legal rights and immunities which apply to each House of the Parliament, its committees and Members.”
Members of both the House of Representatives and the Senate (and any committees they form) have access to parliamentary privilege, albeit slightly different versions. Members enjoy exemptions from the ordinary law that limits what Joe Bloggs can shout from his soapbox out the front of the State Library, in that they are granted “the ability to speak freely in Parliament without fear of prosecution (known as the privilege of freedom of speech)”. So nothing a politician says in Parliament can be used as the basis for civil (say defamation) or criminal (say the release of confidential information) prosecution.
Is it just available to politicians?
No. When the ATO’s Chris Jordan was asked about the affairs of actor Paul Hogan at a recent Press Club event, he wryly smiled and said he’d answer next time he was subject to parliamentary privilege. The privilege of freedom of speech extends to non-members taking part in “proceedings in Parliament”. Most commonly, this means witnesses required to give evidence — verbally or through documents — to parliamentary committees.
It also extends to news organisations who may repeat any allegations. However, this is under the principle of qualified privilege, which requires certain conditions, such as an absence of malice. Politicians who enjoy absolute privilege can be as malicious as they like, apparently.
Members can also decline to attend courts or tribunals as witnesses, and can’t or be arrested or detained in civil matters on sitting days and for five days before and after sitting days (however they can be arrested for criminal matters) or if they are a member of a committee that is meeting.
The privilege of freedom of speech
No wonder politicians are always banging on about freedom of speech; they enjoy a level of access to it that practically no one else in Australia dares dream of. Like most of our parliamentary privilege laws, it comes from British Law: the British Bill of Rights of 1689. Article 9 of the Bill of Rights says:
“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.”
The argument follows that MPs need to be able to bring up sensitive, and otherwise potentially legally dicey, topics about individuals in the process of undertaking their duties, without facing possible prosecution for it. As Professor John Uhr told The Conversation back in 2011: “it is more an immunity from prosecution on the basis of the need for frank and fearless speech by elected members”.
Hmmm — does it work like that, though?
How is used? Can it be misused?
The uses of privilege vary greatly. It can be as simple as cashing in on the current news (see Julie Bishop’s swipe at Labor frontbencher Joel Fitzgibbon over his links to China, an interaction which ultimately gave us the “Julie Bishop Glorious Foundation”). It can be to make a broad call for reform, like when Senator Sam Dastyari called for a Senate inquiry into some of Australia’s biggest corporations, naming companies and individuals he alleged were involved in foreign bribery (a call that, let’s face it, hasn’t aged well).
It can also be used to make genuinely explosive claims, such as when Clive Palmer said Mal Brough had asked for his financial help to “destroy” Peter Slipper.
But weirdly enough, the rule that exempts people from rules is occasionally used in ways that don’t work out brilliantly.
While Hinch faced the accusation that his was a misuse of parliamentary privilege, perhaps the most famous case in recent years that turned out to be unfounded was the accusation (made under parliamentary privilege) from then-senator Bill Heffernan that then-High Court judge Michael Kirby had used Commonwealth cars to procure young men for sex. Heffernan resigned his post as parliamentary secretary, withdrew the claims and following this statement, was censured by the Senate. But that’s it. Because Parliamentary Privilege.
Not only that …
As well as being an all-purpose shield for MPs and senators whose actions could constitute criminal and/or civil offences outside Parliament, parliamentary privilege also gives the House of Reps and the Senate the power to “reprimand, imprison or impose fines” for offences like contempt, which interfere with the relevant house’s functioning. That’s right, not only can pollies say what they like, when they like, about you, but they can stomp you for talking smack about them.
This ability is rarely invoked. Neither house has never imposed a fine, and only the lower house has ever imprisoned someone — and even then, this only happened on one occasion. That was in 1955 when R.E. Fitzpatrick and F.C. Browne (owner and editor of The Bankstown Observer respectively) 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” and were both imprisoned for three months.
Now, as mentioned yesterday, we wonder if Sam Dastyari is nervously waiting to see if this will be invoked a second time.