The 'Glorious Revolution' Down Under: Parliamentary Privilege and the Bill of Rights 1689 (UK) -- Its Application in Criminal Proceedings Against Members of Parliament: England and Australia Compared

Abstract

One of the enduring constitutional legacies of the Glorious Revolution in 1688 whereby the English forces under William of Orange defeated largely French royalist troops under James II, thereby ending the Stuart monarchies’ use of arbitrary prerogative power, was the Bill of Rights 1689 (UK). Article 7 guaranteed the freedom of speech and immunity from court proceedings in relation to matters connected with Parliamentary proceedings. In 2011, the United Kingdom Supreme Court was asked to rule on whether article 7 or the exclusive inherent of the UK Houses of Parliament prevented prosecution of Members for offences relating to misuse of parliamentary allowances. The Supreme Court concluded that while the allowances were ostensibly provided to allow members to carry out their electoral duties that was not a sufficient basis for denying the of the courts in relation to ordinary criminal offences. The prosecutions were therefore able to proceed.The paper argues that the Supreme Court's decision resolved the possible clash of jurisdictions sensibly and pragmatically, but the Court’s reasoning is far from logically compelling or persuasive. It then notes that currently, similar prosecutions of Members of Parliament have been instituted in Australia. This prompts the question whether Chaytor is relevant in the Australian parliamentary context. Is the privilege and contempt jurisdiction of the Houses of Australian Parliaments necessarily exclusive in such matters? The paper concludes that no easy answer can be given as to whether Chaytor, or, at least, its reasoning, would be followed by Australian courts. Certainly, where an Australian House of Parliament declines to deal with a Member who has misused electoral funds privilege ought not to preclude a criminal prosecution. However, if the House were to institute its own contempt proceedings in relation to the Member, the situation may be far from certain.