PARLIAMENTARY PRIVILEGE AND THE COURTS: QUESTIONS OF JUSTICIABILITY

Authors: GROVES, MATTHEW; CAMPBELL, ENID

Source: Oxford University Commonwealth Law Journal, Volume 7, Number 2, 2007 , pp. 175-214(40)

Publisher: Hart Publishing

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Abstract:

Much of the history of the doctrine of parliamentary privilege is one of dispute between parliaments and the courts. One source of dispute has been the disagreement between parliaments and the courts about which body may make the final pronouncement on questions of parliamentary privilege. The 1839 case of Stockdale v Hansard represented a modern landmark in this dispute because it suggested that parliaments and the courts could occupy different complimentary roles. In Stockdale the court claimed the jurisdiction to determine questions about the existence and ambit of parliamentary privileges, but disclaimed the jurisdiction to rule upon the exercise once it has been held to exist. But the dividing line between a case concerning the existence or ambit of a privilege of parliament and one concerning the exercise of a privilege is difficult to draw. This article examines the basis upon the courts claim the jurisdiction to determine the existence and ambit of parliamentary privileges. It also analyses three modern Australian cases in which courts have been required to rule upon questions of parliamentary privilege. These cases suggest that uncertainty remains about the jurisdiction of courts to rule upon questions of parliamentary privilege.

Document Type: Research Article

Publication date: January 1, 2007

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