What Is Parliamentary Privilege?

Parliamentary privilege exists so that members can say what needs saying without fear of being sued or prosecuted for it. Section 115 of the Constitution sets out the privileges, and their limits.

Section 115(1) — the source

The powers (other than legislative powers), privileges and immunities of the Parliament, its members and its committees are as prescribed by or under section 115 and by any other provision of the Constitution. There is no imported body of privilege operating outside the written law.

Section 115(2) — freedom of speech and debate

The consequence is that what is said in Parliament cannot found a claim in defamation, cannot be prosecuted, and cannot be used to attack a member in court. The only forum in which parliamentary speech is answerable is Parliament itself.

Sections 115(3)–(5) — immunity

• (3) No member is subject to the jurisdiction of any court in respect of the exercise of their powers or the performance of their functions, duties or responsibilities as such — but this does not affect the operation of the Leadership Code.
• (4) No member is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing brought by petition, question, bill, resolution, motion or otherwise, or said before or submitted to the Parliament or a committee.
• (5) No member or other person is so liable by reason of (a) an act done under the authority of the Parliament or under an order of the Parliament or a committee, or (b) words spoken or used, or a document made or produced, under an order or summons made or issued under the authority of the Parliament or a committee.

Subsection (5) is important for witnesses. A person who gives evidence or produces documents to a parliamentary committee under summons is protected — which is what makes committees such as the Public Accounts Committee workable.

Sections 115(6) and (7) — arrest and service of process

• (6) Members are free from arrest for civil debt during meetings of the Parliament, and during the period commencing three days before and ending three days after a meeting, when travelling from their electorates to attend or returning to them.
• (7) No civil process shall be served or executed through the Speaker, an officer of the Parliament or a member of the Parliamentary Service, or within the precincts of the Parliament while it is sitting.

Note the limits. Subsection (6) covers arrest for civil debt only — it is not immunity from arrest for a criminal offence. Subsection (7) is about civil process and about the precincts and the parliamentary channel; it does not create a general sanctuary.

Section 115(8) — further privileges by Act

The law-making power in section 109 extends to laws (a) declaring further powers (other than legislative powers), privileges and immunities of the Parliament, its members and committees, and (b) providing for how those powers, privileges and immunities may be exercised or upheld. The principal statute is the Parliamentary Powers and Privileges Act (Chapter 24).

Section 115(9) — Parliament cannot punish

The powers and privileges conferred by or under section 115 do not and shall not include the power to impose or provide for the imposition of a fine, imprisonment, forfeiture of property or other penalty of a criminal nature — but this does not prevent the creation of offences triable within the National Judicial System.

This is a significant departure from the Westminster tradition of a parliamentary contempt power. In Papua New Guinea, punishment for contempt of Parliament belongs to the courts, not to the House.

The Speaker and the precincts

Under section 108(1), the Speaker is responsible for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act. Section 112(2) provides that no Minister may preside in the Parliament or in a Committee of the Whole, and section 107(4) provides that no Minister or Parliamentary Leader of a registered political party may be Speaker or Deputy Speaker.