Parliamentary privilege is under threat

My interpretation is that the two judges took the opportunity to make known their personal views of a parliamentarian for whom they had low regard, based on impressions gained in the media, against a background of low regard for parliament and politicians generally. In apparent defiance of the legislation, both the Bill of Rights and the Parliamentary Privileges Act, they then concluded they were entitled to draw inferences and conclusions from speech and behaviour in parliament.

The concern now is where this leaves parliamentary privilege. If the appeal decision is used as a precedent in future cases, as it probably will be, parliamentary privilege will be substantially diminished.

Parliaments need to be alert to encroachments on their activities by the judiciary. Although there are differences, similar concerns have been raised in relation to the NSW Independent Commission Against Corruption, which has destroyed political careers by using its authority to investigate breaches of the Ministerial Code of Conduct, a wholly parliamentary document with no legal standing.

Such encroachments violate the separation of powers, or the notion that the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid any group having excessive authority. Parliamentary privilege is supposed to bar the judiciary from passing judgement on the speech or actions of politicians in parliament, just as politicians are unable to intervene when there are poor decisions by the judiciary.

This chipping away at parliamentary privilege can only be remedied by parliament amending the Parliamentary Privileges Act to make the type of encroachments that occurred in my case impossible. What occurs in parliament should be a no-go zone for the courts – as the Bill of Rights intended.