When Prince William of Orange and his Dutch army invaded Britain in 1688, King James II fled. The British parliament declared James had abdicated and offered the vacant throne to William, along with a manuscript that would make him a king.
That document became the 1689 Bill of Rights and it is the reason independent senator Lidia Thorpe could make allegations of sexual assault against Liberal senator David Van in parliament without fear of legal repercussions.
Thorpe used parliamentary privilege, a powerful protection available to politicians. But why does it exist and how does it work?
What is parliamentary privilege?
Australia incorporated the British Bill of Rights into its own legislation, including the parliamentary privilege of freedom of speech. “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 bill states.
Parliamentary privilege is the protection from prosecution – including for defamation, contempt of court and breaching secrecy provisions – that applies to parliamentarians and others involved in proceedings in the Houses of Parliament.
They have immunity and special legal rights granted to them because of “the need to be able to debate matters of importance freely to discuss grievances and to conduct investigations effectively”.
“The privilege is thus a very great one,” the parliament itself notes. “And it is recognised that it carries with it a corresponding obligation that it should always be used responsibly.
“Pressure from other members, the public and the media would be brought to bear on members who made accusations unfairly in the parliament.”
Parliamentary privilege allows whistleblowers – who have some protections under Australian law (though many would argue not enough) – to safely channel allegations of wrongdoing.
The media are also covered by parliamentary privilege and can report on what is said, although those reports only have qualified privilege, while in parliament it is absolute.
Who has used it in the past?
In March, the independent MP Andrew Wilkie used parliamentary privilege to accuse megachurch Hillsong of money laundering and tax evasion. (Hillsong has disputed the allegations.)
When he was a senator, Nick Xenophon used the protection to accuse the Church of Scientology of being “a criminal organisation” after talking to former members. (The church declared the comments an “outrageous abuse of parliamentary privilege”).
In another matter that was very widely seen as an abuse of parliamentary privilege, Liberal senator Bill Heffernan stood up in parliament 20 years ago and accused high court justice Michael Kirby of using taxpayer-funded cars to pick up young male prostitutes.
It was outrageous and entirely untrue.
Heffernan stood in the Senate days later to apologise to Kirby and withdraw the allegations. He had believed it to be true all the same, he said, but found out he had been relying on fake evidence.
A gracious Kirby accepted the apology.
In 1997 in the New South Wales parliament, Franca Arena questioned why David Yeldham – a retired supreme court judge – and former MP Frank Arkell were not investigated by a royal commission into police corruption, which also investigated paedophilia. Arkell was later murdered, and Yeldham took his own life. Both had denied the suggestions.
Senator Derryn Hinch used his maiden speech to name child sexual abuse offenders whose names had been suppressed by the courts.
The former Labor leader Mark Latham, who is now the NSW One Nation leader, used it to call a journalist a “skanky ho”.
Can it be misused?
If an allegation is made in parliament against another member, the aggrieved MP can raise a “breach of privilege” with the speaker, who will decide whether to refer it to the committee of privileges and members’ interests. The committee can recommend action.
People outside parliament who feel they’ve been unfairly targeted have a citizen’s right of reply – they have to go to the speaker requesting that a response be published. Again, the committee will look at it.
Back to Wilkie, who is one of the most prolific users of parliamentary privilege but warns that although it is a critical protection, it can be misused.
“I have relied on it on many occasions to give voice to whistleblowers on a range of issues,” he said.
“It’s a very important, powerful mechanism, and I think a very important part of our democratic system as long as it’s used responsibly.”
Wilkie famously revealed evidence from whistleblower Troy Stolz about ClubsNSW’s failure to comply with anti-money laundering laws, then successfully argued that parliamentary privilege should extend to Stolz (although the legal case dragged on).
Wilkie says this was important as a precedent in an area where there’s “very little case law”, leading people to make assumptions about parliamentary privilege that may be inaccurate and are rarely tested.
So with the recent Hillsong matter, he was able to ensure that he, the documents he tabled and the whistleblower who provided them were all protected.
“It’s very powerful,” he says. “It mustn’t be misused, you can’t abuse it.
“It’s really important. I wouldn’t have got so much into the public sphere without it.”
And it all started with a centuries-old manuscript that made a prince into a king.
