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Autor     Gareth Griffith
Titel    Parliamentary privilege: first principles and recent applications
Herausgeber    NSW Parliamentary Library Research Service
Datum    Februar 2009
Nummer    01/09
Reihe    Briefing Paper
ISBN    978 0 7313 18469
ISSN    1325-5142
URL    http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/F6F66D9412EF2968CA25756A00025377/$File/BP%20-%20Parliamentary%20Privilege%202009.pdf

Literaturverz.   

nein
Fußnoten    ja
Fragmente    4


Fragmente der Quelle:
[1.] Wy/Fragment 031 03 - Diskussion
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4.2 Constitutional Functions

If parliamentary privilge [sic] is set in a broader constitutional context, the justification for parliamentary privilge [sic] is that the freedom to control their own proceedings and the freedom of speech in Parliament are necessary if the Houses of Parliamentary [sic] are to fulfill their constitutional functions effectively, that is, to inquire, debate and legislate. In Vaid case, the supreme court of Canada said that parliamentary privilge [sic] is necessary “to protect legislator in discharge of their legislative and deliberative functions, and the legislative assembly’s work in government to account for the conduct of the country’s business.107

The UK Joint Committee had this to say:

Without this protection, Members of Parliament would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a deliberative forum would be diminished.108

4.3 Separation of Powers

[...] Parliamentary privilege can be located [within what has been called the ‘rough’ doctrine of the separation of powers.]


107 Canada (House of Commons) v. Vaid [2005] SCC 30, at para. 41.

108 Joint Committee on Parliamentary Privilege, p.8.

[Seite 6]

2.5 Constitutional functions

In Vaid parliamentary privilege is set in a broader constitutional context. The justification for parliamentary privilege is that the freedom to control their own proceedings and the freedom of speech in Parliament are necessary if the Houses of Parliament are to perform their constitutional functions effectively - that is, to inquire, debate and legislate. The Supreme Court of Canada said that parliamentary privilege is ‘necessary’ to protect legislators in the discharge of their legislative and deliberative

[Seite 7]

functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.26

The UK Joint Committee had this to say:

Without this protection, members of Parliament would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a deliberative forum would be diminished.27

2.6 Separation of powers

Parliamentary privilege can be located within what has been called the ‘rough’ doctrine of the separation of powers that operates in Westminster parliamentary systems.


26 [2005] 1 SCR 667 at para 41.

27 Joint Committee on Parliamentary Privilege, n 6, p 8.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Agrippina1

[2.] Wy/Fragment 032 01 - Diskussion
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[Parliamentary privilege can be located] within what has been called the ‘rough’ doctrine of the separation of powers. As Lamer CJ in New Brunswick Broadcasting v. Nova Scotia said “given its historical development, it is fair to say that its [parliamentary privilege] source is constitutional in the most fundamental sense in that it has everything to do with the relationship between the different branches of government.”110

David McGee also indicate: “Privilege is part of the way in which the separation of powers is delineated…and a principal means of effecting a modus vivendi between the legislature and the other two branches of government…Parliamentary privilege…helps preserve Parliament’s freedom from outside control and to give it and its members the legal tools and confidence they will need to perform their constitutional functions.”111

Historically, in 17th century England, parliamentary privilege was political, not legal, in origin, forged in the conflict between Parliament, the Executive and the courts. The fundamental rights of the House of Commons were asserted against the prerogatives of the Crown and the authority of the courts. The assertion of privilege was a declaration of its independence from the other branches of government.112

McHugh J in Egan v Willis stated: The view of the Tudor and Stuart monarchs was that the House of Commons was summoned only to vote on the appropriations asked of them, to approve legislation submitted to them and to express opinions on matters of policy only when asked.


110 [1993] 1 SCR 319.

111 David McGee, The Scope of Parliamentary Privilege, NZLJ, Vol. 84, 2004.

112 Gareth Griffith, Parliamentary Privilege: First Principles and Recent Applications, www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications.

[Seite 7]

Parliamentary privilege can be located within what has been called the ‘rough’ doctrine of the separation of powers that operates in Westminster parliamentary systems. As Lamer CJ in New Brunswick Broadcasting v Nova Scotia28 said

given its historical development, it is fair to say that its [parliamentary privilege] source is constitutional in the most fundamental sense in that it has everything to do with the relationship between the difference [sic!] branches of government.

In the words of David McGee:

Privilege is part of the way in which the separation of powers is delineated…and a principal means of effecting a modus vivendi between the legislature and the other two branches of government…Parliamentary privilege…helps preserve Parliament’s freedom from outside control and to give it and its members the legal tools and confidence they will need to perform their constitutional functions.29

Historically, in 17th century England, parliamentary privilege was political, not legal, in origin, forged in the conflict between Parliament, the Executive and the courts. The fundamental rights of the House of Commons were asserted against the prerogatives of the Crown and the authority of the courts. The assertion of privilege was a declaration of its independence from the other branches of government.

McHugh J in Egan v Willis stated:

The view of the Tudor and Stuart monarchs was that the House of Commons was summoned only to vote on the appropriations asked of [them, to approve legislation submitted to them and to express opinions on matters of policy only when asked.]

[Seite 8]


28 [1993] 1 SCR 319.

29 David McGee, ‘The scope of parliamentary privilege’ [2004] NZLJ 84.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet. Die Quellenangabe zum 3. Absatz in Fußnote 112 (mit heute nicht mehr funktionierendem Link) lässt die größtenteils wörtlichen Zitate auf der gesamten Seite nicht erkennen.

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[3.] Wy/Fragment 033 01 - Diskussion
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[The House of Commons] would not have become the powerful institution that it is if the views of those

monarchs had prevailed. The importance of Parliament under the Westminster system is in no small part due to the seemingly inconsequential right of the House of Commons to control its business.113

In contemporary terms it is sometimes said that the focus is on the relationship between Parliament and the courts – on the separation of judicial and legislative power - with parliamentary privilege operating “now as a constraint on the judicial arm of government”.114

One might ask whether this particular separation of powers continues to be ‘necessary’ now that the courts are recognised to be independent of the Executive. Do the same constitutional first principles apply in contemporary circumstances as in the past? Are the same immunities required or, stating the issue in another way, should the immunities relating to freedom of speech in Parliament be placed on a different constitutional basis?

A further consideration is that, as the earlier statements from Vaid show, parliamentary privilege also serves to assert Parliament’s independence from the modern day Executive. Parliament’s immunities prevent incursions into parliamentary freedoms, by commissions of inquiry, police questioning or other means. Its powers facilitate the scrutiny of the Executive on behalf of the electorate.

Parallels can also be drawn with the prerogative powers. Like parliamentary privilege, the prerogative consists of special rules that “evolved to enable public [bodies to perform their functions”.115]


113 (1998) 195 CLR 424, p.478.

114 Mees v Roads Corporation (2003) 128 FCR 418, at para.78.

[115 C Munro, Studies in Constitutional Law, Butterworths, 1987, p.136.]

The House of Commons would not have become the powerful institution that it is if the views of those monarchs had prevailed. The importance of Parliament under the Westminster system is in no small part due to the seemingly inconsequential right of the House of Commons to control its business.30

In contemporary terms it is sometimes said that the focus is on the relationship between Parliament and the courts – on the separation of judicial and legislative power - with parliamentary privilege operating ‘now as a constraint on the judicial arm of government’.31

One might ask whether this particular separation of powers continues to be ‘necessary’ now that the courts are recognised to be independent of the Executive? Do the same constitutional first principles apply in contemporary circumstances as in the past? Are the same immunities required or, stating the issue in another way, should the immunities relating to freedom of speech in Parliament be placed on a different constitutional basis?

A further consideration is that, as the earlier statements from Vaid show, parliamentary privilege also serves to assert Parliament’s independence from the modern day Executive. Parliament’s immunities prevent incursions into parliamentary freedoms, by commissions of inquiry, police questioning or other means. Its powers facilitate the scrutiny of the Executive on behalf of the electorate.

Parallels can also be drawn with the prerogative powers. Like parliamentary privilege, the prerogative consists of special rules that ‘evolved to enable public bodies to perform their functions’.32


30 (1998) 195 CLR 424 at 478.

31 Mees v Roads Corporation (2003) 128 FCR 418 at para 78.

32 C Munro, Studies in Constitutional Law, Butterworths, 1987, p 136.

Anmerkungen

Kein Hinweis auf eine Übernahme 1:1.

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(Graf Isolan) Agrippina1

[4.] Wy/Fragment 034 01 - Diskussion
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[Like parliamentary privilege, the prerogative consists of special rules that “evolved to enable public] bodies to perform their functions”.115 In both cases the rules were customary in origin, and were developed and decided in special courts – the Star Chamber or Privy Council where the prerogative powers were concerned, the High Court of Parliament in the case of parliamentary privilege. Dicey wrote:

Between “prerogative” and “privilege” there exists a close analogy: the one is the historical name for the discretionary authority of the Crown; the other is the historical name for the discretionary authority of each House of Parliament.116

At odds as the two doctrines were historically, there may yet be parallels to draw between the ways the courts have brought both species of discretionary powers more and more under the rule of the general law.


115 C Munro, Studies in Constitutional Law, Butterworths, 1987, p.136.

116 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 6th ed., Macmillan, 1902, p.371.

[Seite 8]

Like parliamentary privilege, the prerogative consists of special rules that ‘evolved to enable public bodies to perform their functions’.32 In both cases the rules were customary in origin, and were developed and decided in special courts – the Star Chamber or Privy Council where the prerogative powers were concerned, the High Court of Parliament in the case of parliamentary privilege. AV Dicey wrote:

Between ‘prerogative’ and ‘privilege’ there exists a close analogy: the one is the historical name for the discretionary authority of the Crown; the other is the historical name for the discretionary authority of each House of Parliament.33

At odds as the two doctrines were historically, there may yet be parallels to draw between the way the courts have brought both species of discretionary powers

[Seite 9]

more and more under the rule of the general law.


32 C Munro, Studies in Constitutional Law, Butterworths, 1987, p 136.

33 AV Dicey, Introduction to the Study of the Law of the Constitution, 6th edition, Macmillan 1902, p 371.

Anmerkungen

Kein Hinweis auf die erneut wortwörtliche Übernahme.

Sichter
(Graf Isolan) Agrippina1

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