Parliamentary privilege is controversial because of its potential for abuse; a member can use privilege to make damaging allegations that would ordinarily be discouraged by defamation laws, whether or not those allegations have a strong foundation.
Unlike other Australian Parliaments, the New South Wales Parliament did not inherit, nor has it ever passed, legislation conferring upon itself the powers, privileges and immunities of the House of Commons.
Recourse is therefore made to the common law and certain relevant statutory provisions to determine its privileges. This means that the Parliament’s privileges are uncertain and open to adaptation to contemporary conditions by the courts.
It is argued that the New South Wales Parliament, not having legislated generally in respect of privilege, has only the following privileges:
1. Such powers and privileges as are implied by reason of necessity;
2. Such privileges as were imported by the adoption of the Bill of Rights;
3. Such privilege as is conferred by the Defamation Act 2005; and
4. Such privilege as is conferred by other legislation such as the Parliamentary
5. Evidence Act 1901.
If a member of the House is in contempt or a breach of the rules of privilege then he/she can be suspended or expelled from the House.
The House is able to direct the Attorney General to prosecute contempt in the courts, where it is also punishable under the general law. Such a direction may be given whether or not the House takes action itself.
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