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Odgers' Australian Senate Practice / Edited by Harry Evans and Rosemary Laing Odgers’ Australian Senate Practice Thirteenth Edition Odgers’ Australian Senate Practice Thirteenth Edition edited by Harry Evans and Rosemary Laing Clerk of the Senate Department of the Senate Canberra © Commonwealth of Australia 2012 ISBN 978 1 74229 620 3 First published 1953 Second edition 1959 Third edition 1967 (Also published as Parliamentary Paper 1967, No.1) Fourth edition 1972 (Also published as Parliamentary Paper 1972, No.28) Fifth edition 1976 (Also published as Parliamentary Paper 1976, No.1) Sixth edition 1991 Seventh edition 1995 Eighth edition 1997 Ninth edition 1999 Tenth edition 2001 Eleventh edition 2004 Twelfth edition 2008 Thirteenth edition 2012 This book is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission. Requests and inquiries concerning reproduction rights should be directed to the Clerk of the Senate, Parliament House, Canberra ACT 2600. National Library of Australia Cataloguing-in-Publication data: Author: Odgers, J. R. (James Rowland), 1914-1985. Title: Odgers' Australian Senate practice / edited by Harry Evans and Rosemary Laing. Edition: 13th ed. ISBN: 9781742296203 (hbk.) Notes: Includes index. Subjects: Australia. Parliament. Senate--Rules and practice. Other Authors/Contributors: Evans, Harry, 1946- Laing, Rosemary, 1956- Australia. Parliament. Dept. of the Senate. Dewey Number: 328.94 Printed by CanPrint Communications Pty Limited, Canberra Available at www.aph.gov.au Odgers’ Australian Senate Practice Contents Abbreviations .....................................................................................................................xxi Preface to the thirteenth edition .......................................................................................xxiii CHAPTER 1 | THE SENATE AND ITS CONSTITUTIONAL ROLE .......................................................1 The Senate, bicameralism and federalism ...............................................................................2 Bases of the two Houses ........................................................................................................4 Rationale of bicameralism .....................................................................................................5 Rationale of federalism .........................................................................................................8 The Senate and representation ............................................................................................10 Table 1: Votes and seats in elections, 1949–2010 ...........................................................................14 Table 2: Party affiliations in the Senate, 1901–2010 ......................................................................19 Functions of the Senate .......................................................................................................25 Legislative powers ................................................................................................................27 Other powers ......................................................................................................................28 Composition of the Senate ..................................................................................................28 Casual vacancies ..................................................................................................................30 Rotation of senators and terms of office ...............................................................................31 The nexus ............................................................................................................................33 Rules and orders ..................................................................................................................34 CHAPTER 2 | PARLIAMENTARY PRIVILEGE: IMMUNITIES AND POWERS OF THE SENATE .................39 Parliamentary privilege and the Senate ................................................................................39 Constitutional basis .............................................................................................................39 Privileges: immunities .........................................................................................................40 Relationship between immunities and powers .....................................................................41 Immunities and powers part of ordinary law .......................................................................42 i Odgers’ Australian Senate Practice Executive privilege ...............................................................................................................43 Immunities of the Houses ...................................................................................................43 Immunity of proceedings from impeachment and question ...........................................................43 Statutory declaration of freedom of speech: background of the 1987 Act ...............................45 Effect of the 1987 Act ............................................................................................................49 Is the 1987 Act too restrictive? ...............................................................................................53 Activities incidental to proceedings ........................................................................................56 Repetition of parliamentary statements ..................................................................................57 Provision of information to members .....................................................................................58 Subpoenas, search warrants and members ..............................................................................59 Prosecution of members .........................................................................................................63 Circulation of petitions ..........................................................................................................63 Freedom of speech in state parliaments ..................................................................................64 Other tribunals ......................................................................................................................64 Parliamentary privilege and statutory secrecy provisions .........................................................65 Preparation and publication of documents .............................................................................70 Qualified privilege .........................................................................................................................72 Minor immunities .........................................................................................................................72 Detention of senators ....................................................................................................................73 Powers of the Houses ...........................................................................................................74 Power of the Houses to determine their own constitution .............................................................74 Power to conduct inquiries ............................................................................................................75 Rights of witnesses ........................................................................................................................79 Power to punish contempts ...........................................................................................................80 Statutory definition of contempt .........................................................................................81 Defamation of the Houses and their members ...............................................................................82 Matters constituting contempts .....................................................................................................84 Contempts and criminal offences ..................................................................................................86 Criticisms of the power of the Houses to deal with contempts .......................................................86 Should the power to deal with contempts be transferred to the courts? ..........................................87 Penalties for contempts ..................................................................................................................90 ii Odgers’ Australian Senate Practice Procedural matters ...............................................................................................................92 Raising of matters of privilege .......................................................................................................92 ‘Waiver’ of privilege .......................................................................................................................93 Proceedings before the Privileges Committee .................................................................................94 Abuse of parliamentary immunity: right of reply ...........................................................................95 Reference to Senate proceedings in court proceedings ...................................................................96 Parliamentary precincts .......................................................................................................97 Police powers in the
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