Definition and purpose
Parliamentary privilege comprises the rights, powers and immunities accorded to Parliament and to parliamentarians to enable them to fulfill their parliamentary functions without interference or obstruction[i]. Privileges include:
- freedom of speech in Parliament and its committees;
- freedom from arrest in civil cases;
- exemption from jury duty and appearance as a witness in a court case; and
- in general, freedom from obstruction and intimidation.
The most fundamental privilege of Parliament is the right for a house to regulate its affairs, in other words, to establish its own rules of procedure and enforce them. Any action that violates these rights can constitute a breach of privilege. There are also general offences against the authority and dignity of Parliament that may not fall within specifically defined privileges and are considered contempts of Parliament.[ii] Both breaches of privilege and contempts may be raised as questions of privilege.
There are five ways in which a question of privilege can be raised in the Senate. They are as follows:
- pursuant to rule 13-3, with written and oral notices (most frequently used method);
- pursuant to rules 5-5(j) and 13-2(2), as a substantive motion;
- pursuant to rule 13-4(a), without notice for matters arising after the time for giving written notice has passed or during the course of a sitting;
- pursuant to Appendix IV to the Rules of the Senate relating to the unauthorized disclosure of confidential committee reports, documents or proceedings; and
- by way of a committee report bringing a possible issue of privilege or contempt, relating to a committee, to the Senate’s attention.
This procedural note explains the most frequently used method of raising a question of privilege in the Senate, which is at the earliest opportunity with written notice being given before the Senate meets.[iii]
Process of Raising a Question of Privilege at the Earliest Opportunity
The basic steps for raising a question of privilege in this manner are the following:
- Written notice of a question of privilege is given by a senator prior to a sitting of the Senate.
- Oral notice is given by the senator during Senators’ Statements.
- Later in the sitting, the matter is explained by the senator and other senators may intervene to provide advice or alternative views to the Speaker.
- The Speaker renders a decision on whether there is a prima facie (at first glance) case of privilege.
- If the Speaker accepts that there is a case of privilege, a motion is proposed by the senator who raised the issue for the Senate to take action or to refer the matter to the Standing Committee on Rules, Procedures and the Rights of Parliament for investigation and report.
- The motion is debated.
- If the motion is adopted, the Senate takes action on the matter or the committee begins an investigation into the matter as the case may be.
Requirements to raise a question of privilege
The Rules of the Senate provide several criteria that a question of privilege must meet before it is given priority over other matters before the Senate. These criteria are: [iv]
- it must be raised at the earliest opportunity;
- it must be a matter directly concerning the privileges of the Senate, of any Senate committee or of any senator;
- it must be raised to correct a grave and serious breach; and
- it must be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available.
If a question of privilege is not raised at the earliest opportunity, a senator may still proceed by giving notice of a motion; however, he or she cannot use the procedure outlined here.[v]
Written and oral notice [vi]
A senator who wishes to raise a question of privilege must send a written notice to the Clerk of the Senate at least three hours before the Senate is scheduled to meet (or no later than 6 p.m. on a Thursday for a Friday sitting). The Clerk has the notice translated and distributed to the offices of all senators. The senator who has given the notice is recognized during “Senators’ Statements” to give oral notice of the question of privilege. As with other Senators’ Statements, the senator is limited to an intervention of three minutes when giving oral notice. In the written and oral notices, the senator must clearly identify the subject matter that shall be raised as a question of privilege. In the oral notice the senator also indicate that, if there is found to be a case of privilege, he or she will either move a motion for action by the Senate or to refer the issue to the Standing Committee on Rules, Procedures and the Rights of Parliament.
Consideration of question of privilege [vii]
The consideration of a question of privilege for which notice was given will take place as soon as the Senate has completed the Orders of the Day, but no later than 8 p.m. the same day (or no later than 12 noon on a Friday). If multiple notices on distinct questions of privilege have been received on the same day, the Senate will deal with them in the order that written notice was received by the Clerk.
The Speaker decides when there has been enough debate on the matter to determine whether there is a prima facie question of privilege.[viii] The Speaker then makes a ruling on the matter. The Speaker may rule immediately or take the matter under advisement for a ruling later. The Speaker’s ruling — which can be appealed — must be supported by reasons and references to any rules, practices or relevant written authorities.[ix]
Consideration of case of privilege [x]
If it is determined that there is a prima facie case of privilege, the senator who raised the matter may move a motion, immediately after the decision, asking the Senate to take action on the issue or to refer it to the Standing Committee on Rules, Procedures and the Rights of Parliament for investigation and report.[xi] Although this motion is moved immediately after the decision, debate only begins after the completion of Orders of the Day or at 8 p.m. (or 12 noon on Friday), whichever comes first. The debate can last no more than three hours, at which time the Speaker puts the question to a vote. During the debate, a senator may only speak once for a maximum of 15 minutes. This motion can be amended, and in most circumstances debate can be adjourned.