A Charles Sturt University (CSU) academic has called for parliamentarians to show more caution when using the law of parliamentary privilege when naming individuals in parliament.

 

The recent naming in federal parliament of a Catholic priest, Monsignor Ian Dempsey, by Senator Nick Xenophon, has highlighted the need for restraint, according to Australian constitutional expert and CSU academic, Dr Bede Harris. 

 

“Senator Xenophon identified the priest as the person whom Anglican Archbishop John Hepworth alleges raped him several decades ago. Senator Xenophon justified his identification of Dempsey by saying the Catholic Church was too slow in investigating the allegations against Dempsey,” he said.

 

“Because the senator’s statement was made during parliamentary proceedings, Dempsey is not able to sue for defamation, and therein lies the controversy.”

 

Parliamentary privilege is a body of law, partly common law and partly statutory, that protects the functioning of parliament from outside interference. It prohibits conduct such as bribing or threatening parliamentarians, or disrupting parliamentary proceedings.  

 

“Dempsey cannot sue because one rule in parliamentary privilege is that no-one outside parliament, including the courts, can inquire into anything said as part of parliamentary proceedings, a rule that dates back to the 1600s, when the English parliament and the monarch fought two civil wars over what powers the English Crown had over parliament.

 

“One tactic the Crown had used against parliamentarians was to arrest and charge MPs with treason if they criticised the monarch. When parliament defeated the monarchy at the end of the 17^th century, parliament passed the Bill of Rights in 1688 which included a provision that nothing said in parliament could be used in proceedings in the courts.”

 

This rule became part of Australian law when the Commonwealth Constitution was enacted in 1901, and was re-stated by the Commonwealth Parliament in 1987.

 

“Importantly, parliamentary privileges can cover anyone mentioned in parliamentary proceedings, including people who send letters to or appear before parliamentary committees. This is so that in a democracy, there would be absolute freedom for parliament to engage in debate and to receive information – even if the content of that debate or information would otherwise expose the person making the statement to criminal prosecution or a civil suit for defamation.”

 

Dr Harris believes, however, that the privilege can also be abused.

 

“The most notorious example of this is provided by the case of Liberal Senator Bill Heffernan, who, under the protection of parliamentary privilege, made wholly untrue accusations against then High Court Justice Michael Kirby,” Dr Harris said.

 

“The only remedy is for the defamed person to ask the parliamentary privileges committee to investigate whether privilege has been abused, and if it has, to reprimand the person who abused the privilege and require them to apologise.

 

“However, if parliament does not choose to discipline its member, there is nothing that the aggrieved person can do.”

 

Dr Harris said that parliamentarians should be extremely cautious in using privilege in naming disputes between private individuals where the law provides ways of resolving them. 

 

“Intervention by a parliamentarian should occur only if there is no alternative to having an issue resolved. In the case of Hepworth and Dempsey, if the church was failing to act, a complaint could have been made by Archbishop Hepworth to the police.