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House of Representatives                                Ch 18                                                 p 673

Protection in legal proceedings

Standing order 256 states ‘Any witness giving evidence to the House or one of its committees is entitled to the protection of the House in relation to his or her evidence’. The protection available to witnesses however also has another source—it derives from Article 9 of the Bill of Rights (applying by virtue of section 49 of the Constitution and re-asserted by the Parliamentary Privileges Act) which declares that . . . ‘proceedings in Parliament ought not to be impeached or questioned in any court . . .’. The term ‘proceedings in Parliament’ includes committee proceedings, ¹ and witnesses giving evidence to a committee are protected from legal proceedings on account of that evidence (for a more complete coverage see Chapter on ‘Parliamentary privilege’). However, it is important that a committee is properly constituted at the time of a hearing, to remove any possible concerns as to the protection of parliamentary privilege.

The protection afforded a witness in relation to oral evidence given before a committee also applies to documentary evidence that the witness may give. ² This protection is now conferred explicitly under the Parliamentary Privileges Act. The protection of parliamentary privilege applies as equally to the evidence of a voluntary witness as it does to the evidence of a witness summonsed by the committee. It is immaterial whether the evidence is given on oath or not. ³

The absolute privilege derived from the Bill of Rights and enhanced by the Parliamentary Privileges Act applies essentially only to oral or written statements which form part of parliamentary proceedings, although some related actions may also be covered. The Parliamentary Papers Act provides absolute protection to the publisher of documents, including submissions and transcripts, whose publication is authorised by the House or its committees. While a statement made by a witness in the course of committee proceedings is absolutely privileged, the same statement repeated by that witness elsewhere is not. Similarly, the separate publication of a document presented to a committee is not absolutely privileged unless publication has been authorised by the House or the committee.

Parliamentary Privileges Act 1987 , s. 16(2). The enactment of the Parliamentary Privileges Act followed, and sought to reverse, judicial decisions which had allowed witnesses before Senate committees to be examined in court as to their committee evidence. See also May , 22nd edn, pp. 95-7.

Parliamentary committees: powers over and protection afforded to witnesses , Paper prepared by I. J. Greenwood and R. J. Ellicott, PP 168 (1972) 31.

Opinion of Solicitor-General, dated 8 August 1941.