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Title

Ch19 Parliamentary privilege / OTHER PRIVILEGES / Freedom from arrest

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

Parliamentary privilege

Chapter No.

Chapter 19

Page

724

Section No.

 

System Id

procedural/practcer/chapter19.28.doc


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Ch19 Parliamentary privilege / OTHER PRIVILEGES / Freedom from arrest



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House of Representatives                                Ch 19                                                 p 724

 

Parliamentary privilege / OTHER PRIVILEGES

 

Freedom from arrest

Section 14 of the Parliamentary Privileges Act provides that a Member of either House shall not be arrested or detained in a civil cause on any day on which the House of which he or she is a Member meets, on any day on which a committee of which he or she is a member meets or on any day within five days before or after such days.

The following comment has been made about the retention of such an immunity:

The justification . . . is the need of Parliament to the first claim on the services of its Members, even to the detriment of civil rights of third parties. 1

Freedom from arrest in civil matters is one of the earliest privileges. The immunity is confined to civil arrest; there is no immunity from arrest for crime.

The imprisonment of a Member of the House of Representatives was the subject of an inquiry by the Committee of Privileges in 1971. In April 1971 Mr T. Uren, MP was committed for 40 days after his failure to pay costs awarded against him in respect of an unsuccessful action he had brought against a policeman for alleged assault. He was released after serving only a short period when the balance of the costs was paid by another person. The particular question for determination by the Committee of Privileges was whether the commitment of Mr Uren was one in a case which was of a civil or criminal character. Clearly, if the commitment was one in a case which was of a civil character, a breach of parliamentary privilege had occurred. However, if the commitment arose out of a case of a criminal character or which was more of a criminal than a civil character, the Member enjoyed no immunity and no breach of parliamentary privilege had occurred.

The committee received conflicting legal advice, but reported to the House on 7 May 1971 (a.m.) that it had found that the commitment to prison of Mr Uren constituted a breach of parliamentary privilege but recommended that:

. . . having regard to the complexities and circumstances of the case . . . the House would best consult its own dignity by taking no action in regard to the breach of Parliamentary Privilege which had occurred. 2

On 23 August 1971 the House agreed to take note of the report. During the course of the debate the Minister representing the Attorney-General presented correspondence from the New South Wales Premier and the New South Wales Attorney-General which expressed the strong view that the committee’s finding was inconsistent with decisions of New South Wales courts which held that imprisonment for costs is ‘criminal in nature’. 3



Joint Select Committee on Parliamentary Privilege, Report , PP 219 (1984) 70.



House of Representatives Committee of Privileges , Commitment to prison of Mr T. Uren, M.P. , PP 40 (1971) 6.



VP 1970-72/667; H.R. Deb. (23.8.71) 526-9.