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House of Representatives                                Ch 19                                                 p 711

The privilege of freedom of speech

By the 9th Article of the Bill of Rights 1688 it was declared:

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. ¹

The provisions of Article 9 became part of the law applying to the Commonwealth Parliament by virtue of section 49 of the Constitution. ²

The privilege has been variously described as one which has always been regarded as most valuable and most essential , ³ and as the only privilege of substance enjoyed by Members of Parliament. ⁴ Unquestionably, freedom of speech is by far the most important privilege of Members.

Members are absolutely privileged from suit or prosecution in respect of anything they might say in the course of proceedings in Parliament. Provided their statements are in accord with the rules and practices of the House, Members are able to express themselves as they judge fit. It is, however, incumbent upon Members not to abuse the privilege. The House itself, by its rules of debate and disciplinary powers, has the ability to deal with abuse ( see Chapter on ‘Control and conduct of debate’, and see p. 753).

The Committee of Privileges has stated:

Allegations of wrongdoing are often made to Members of Parliament. Members enjoy very special rights—rights greater than those enjoyed by ordinary citizens. The privilege of freedom of speech is the greatest of these, but its very significance is such, where the reputation or welfare of persons may be an issue, that it should be used judiciously. If a Member is of the opinion that it is in the public interest to disclose such allegations, he or she should make all reasonable inquiries as to the truth of the allegations. The raising of a matter, in full detail, in the House is only one of the options available to Members . . . It is for the Member to resolve whether or not it is in the public interest to raise a matter in the House, and his or her actions will be judged accordingly. ⁵

In 1989 the Committee of Privileges reported on a reference concerning an allegation made in the House by one Member against another. While it did not find that a contempt had been committed, it concluded that having regard to the experience of the Member who had made the allegation he had offended against the rules of the House. It recommended that he be required to apologise and withdraw. ⁶ The House agreed to a motion calling on the Member to withdraw and apologise, but he declined to do so and was subsequently suspended by the House for two sitting days. ⁷

While there is no doubt that, ultimately, Members can be called to account by the House for their actions and statements, the cases cited above show the difficulties that can arise. ⁸ The Joint Select Committee on Parliamentary Privilege considered the issue of misuse of privilege. It commented that if it became the practice to examine formally—as by a reference to the Committee of Privileges—what Members say in the House, the essential freedom could be endangered. It acknowledged the danger of misuse, but concluded that the only practical solution consistent with the maintenance of freedom of speech could lie in allowing persons who had been subject to criticism or attack in either House to apply to have a response incorporated in Hansard. ⁹ ( See p. 751 for details of the procedure adopted).

Absolute privilege does not attach to words spoken by Members other than when participating in ‘proceedings in Parliament’ ( see below ).

1 Will. & Mary, sess. 2, c.2.

For a recent commentary on Article 9 and its application in Australia, see G. M. Kelly, ‘Questioning’ a privilege: article 9 of the Bill of Rights 1688, Australasian Parliamentary Review , v. 16, no. 1, Autumn 2001, pp. 61-99.

J. Hatsell, Precedents of proceedings in the House of Commons with observations , 4th edn, 1818, vol. I, p. 85.

HC 34 (1967-68) 91.

PP 405 (1994) 5.

PP 498 (1989) (the report was accompanied by two dissenting reports).

VP 1987-89/1695-8, and see case of Senator Heffernan (2002).

And see ‘The limits of free speech’, Parliamentarian, LXIII, no. 1, Jan. 1982, pp. 24-7; and Enid Campbell, Parliamentary privilege , Federation Press, 2003, pp. 50-68.

PP 219 (1984), pp. 53-5.