Australia and the Iraq war

The Iraq Inquiry report was released at 11.30 am 6 July 2016 GMT ( 9.30 pm AEST UTC + 10 hrs)

The report is accessible online. The complete report consists of 12 volumes and costs £767 to order.

Implications for Australia

The Iraq Inquiry report was commissioned to investigate matters arising from UK involvement in the Iraq War. It has no remit to investigate actions by Australia. The only reference to Australia that could be located by searching the Inquiry web page in late 2015 was a record of a courtesy meeting in Washington between the Inquiry members and the Australian Ambassador to the US, Mr Kim Beazley.

However, the scope of the inquiry in relation to the UK is directly relevant to Australia as another member of the US led coalition in the war.

Australian forces suffered two non-operational deaths and many casualties. However, the experience of Australian forces in the theatre of war was markedly different from those of UK forces who suffered the loss of 179 service personnel. While of course, relevant to how Australian troops were engaged and may be engaged in future conflicts, the findings by the Iraq Inquiry about the deployment of UK forces will have specific relevance to the nature of their deployment.

General findings on the protection of troops deployed and findings on the treatment of returned service personnel are directly relevant to an analysis of the performance of the Australian government.

Many other aspects of the Iraq Inquiry will involve matters directly relevant to Australia’s own involvement. As James Brown wrote in June 2016:

But in Australia the ADF has spent comparatively little time learning lessons from the deployment of thousands of troops across five years. An official war history has just been commissioned; if past form is any guide, it will be at least a decade before it is completed, and in any event its brief is to ­recount what took place, not to ­reflect on whether it was the best course of action for Australia.
There are legitimate questions to be asked about Australia’s military strategy in Iraq: how it was the mission slowly crept forward and Australia chose to commit more troops across time; whether our military officers ­became so close to their US counter­parts that they could not distinguish between ­coalition interests and our own; what benchmarks for success were set by the government and whe­ther they were achieved; and what the true cost of sending troops was to Australia.

But they have not been asked or satisfactorily ­answered. Few concrete solutions have been proposed. Instead, they await the ­conclusion of an interminable grand political debate, with its highly charged, often ideological positions.

As a result, our thinking on how we go to war barely has evolved: Iraq remains the template for how Australia responds to any new crisis that may require military ­deployment.

Particular issues to look out for include:

  • legality of the war
  • 'tortuous' legal advice used to justify the war
  • manufactured, false or unreliable intelligence used to justify the war
  • a possible early commitment agreement by Blair or John Howard to enter the war
  • ill-advised entry into war without a clear objective
  • ill-advised entry into war without a clear exit strategy
  • prosecuting war to help George Bush
  • enormous costs of war for those who joined in
  • far greater costs borne by the Iraqi people
  • whether the war and the subsequent damage to Iraqi society led to the emergence of ISIS
  • whether the war created a massive failed state in Iraq that the warring forces could never repair
  • whether having got involved, the warring parties failed to maintain the effort to protect the Iraqi people
  • treatment of service personnel
  • treatment of the families of service personnel

In addition, Australians can consider:

  • whether they were properly informed about the decision to go to war and whether the advice and review processes in Australia are adequate
  • whether Australia requires a security strategy that is independent of US interests
  • whether the US alliance is protective of our interests - as critiqued by the late Malcolm Fraser.

Interestingly, Mr Andrew Wilkie returns to the parliament as an independent following the July election. His decision to resign in protest at the actions of the Howard government is likely to be well and truly vindicated. He is also now in the parliament that we should expect to take over where Chilcot leaves off for a review of the decisions made by the Australian government to also take us to war.

A 2004 House of Representatives Inquiry report canvassed the poor intelligence surrounding the allegations of weapons of mass destruction in Iraq. The government also commissioned the Flood Inquiry into intelligence agencies which reported in 2004. Questions about Australia joining the Iraq War persist as noted by Charles Sampford and Ramesh Thakur in 2012. 

Appendices A-C set out some of the issues that affect the possibility of the parliament instituting an inquiry concerning whether to censure members of the Howard government for misbehaviour. Even if that is not an option, the question will remain – what is the Australian parliament - and the Australian government - going to do to turn the spotlight on what Australia did, and why?

Background

The Inquiry was stablished by Gordon Brown PM in 2009

These are the Terms of reference as relayed by Sir John Chilcot at the inquiry launch (emphasis added)

"Our terms of reference are very broad, but the essential points, as set out by the Prime Minister and agreed by the House of Commons, are that this is an Inquiry by a committee of Privy Counsellors. It will consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath.  

We will therefore be considering  

the UK's involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned.  

Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country." 

 https://web.archive.org/web/20160508033920/http://www.iraqinquiry.org.uk/about.aspx

Inquiry launch details:

http://news.bbc.co.uk/2/hi/8100432.stm

Things to note in the 2009 report of the launch of the inquiry:

Sir John Chilcot, 70, is a former permanent under-secretary of state at the Northern Ireland Office who sat on the Butler Inquiry into the intelligence on Iraq's weapons of mass destruction.

Tory leader David Cameron said there was a danger the public would believe the process had been "fixed to make sure the government avoids having to face up to any inconvenient conclusions".

Mr Cameron said membership of the inquiry "looks quite limited" and complained its terms of reference were "restrictive", adding it should have taken place sooner.

The reasons for going to war in Iraq - including the now discredited claim that Saddam Hussein had weapons of mass destruction which could be used within 45 minutes of an order being given - have been a source of long-standing controversy.

Two inquiries - the Hutton and Butler inquiries - have already been held into aspects of the Iraq war.

The Butler inquiry looked at intelligence failures before the war while the Hutton inquiry examined the circumstances leading to the death of former government adviser David Kelly.

In 2008 the government defeated Conservative attempts to force a public inquiry, saying it would be a "diversion" for UK troops serving in Iraq.

In February Justice Secretary Jack Straw vetoed the publication of minutes of cabinet meetings discussing the legality of the war in the run-up to the invasion. 

Why did Gordon Brown commission the inquiry?

The Inquiry was a way for Brown to respond to growing complaints, particularly from the relatives of soldiers who died in the Iraq theatre of operations. There was a combination of anger over the decision to go to war and the poor equipping of UK military particularly the lightly armoured vehicles that were highly susceptible to improvised explosive devices (IEDs). Brown was seeking to defuse the issue in the run-up to a general election. Newsweek reported in January 2010 that this decision may have back-fired as Brown was just as likely to come under negative scrutiny in the inquiry:

When Gordon Brown last year announced an inquiry into Britain's role in the Iraq War, commentators were quick to applaud his political savvy. For the prime minister, this was a risk-free gesture to history and public opinion. It would be a chance to learn the lessons of the conflict without an embarrassing final report appearing right before the election coming in the next few months. (The commission wraps up later.) Better still, attention would focus not on Brown but on Tony Blair, Brown's old rival and predecessor, who marched an unwilling country into war. With luck, the inquiry would bury both Blair and Iraq.

But Brown hadn't reckoned with the undead of Westminster politics, the tribe of former colleagues with scores to settle or reputations to salvage. Over the last seven years, Brown has deftly managed to distance himself from responsibility for the conflict, quietly suggesting he was no more than a loyal but unwilling supporter of the invasion. Yet that's not the picture emerging from the latest testimony. On Friday, Tony Blair takes the stand, and the spotlight, at the inquiry—and Brown is going to get burned by the glare.

http://www.newsweek.com/britains-iraq-war-inquiry-haunts-gordon-brown-70829

http://www.iraqinquirydigest.org/?page_id=1959

The idea of openness:

In August 2009, shortly after the inquiry started work, one of its members, the historian of British government Sir Martin Gilbert, wrote an unusually frank article explaining his involvement. “Much of the past has so often been deliberately and dangerously hidden from a public that needs to know,” he said. “I see the Iraq inquiry as an important milestone in government willingness to confront contentious issues.”

https://www.theguardian.com/uk-news/2016/jul/04/chilcot-inquiry-iraq-war-whitewash

Inquiry timeline

http://www.bbc.com/news/uk-politics-12224606

Expectations of the inquiry:

Four things to watch – what Blair said to Bush; was intelligence subservient? Why did the occupation fail? What will happen politically?

http://www.ft.com/cms/s/0/f0bbb3de-42a0-11e6-9b66-0712b3873ae1.html#axzz4DaTBzsPr

Also this piece from the Guardian:

https://www.theguardian.com/uk-news/2016/jul/04/chilcot-inquiry-iraq-war-whitewash 

2.6 million words

12 volumes

Full report cost £767

Executive summary to be published free on inquiry website

Fears of whitewash

Topics

  • “the effect of 9/11” on the UK’s Iraq policy;
  • “the UK’s understanding of Iraq’s WMD [weapons of mass destruction] capability”;
  • the UK government’s “production of the September [2002] dossier” on the supposed existence of those weapons;
  • “the legal advice to the government” over going to war with Iraq;
  • “the UK’s role in the invasion”;
  • “the UK’s preparedness and actions” in Iraq “as an occupying power”;
  • “the human cost” of the revolt against that occupation, and of the Iraqi civil war that followed;
  • “the physical and psychological injuries sustained” by British soldiers; and
  • the adequacy or otherwise of their equipment

The Guardian adds that an issue hanging over the inquiry is whether the war lead to the eventual emergence of ISIS? It also lists (with links) other critiques and self-justifications.

It is said that those expected to be criticised include:

  • General Sir Nicholas Houghton, then head of military operations and now chief of defence staff”,
  • “the then head of the army, General Sir Mike Jackson”,
  • “former defence secretary Geoff Hoon” and “former international development secretary Clare Short”.

Last month, the Sun predicted that Chilcot would criticise

  • the British military for leaving troops “vulnerable to roadside bombs … by not equipping them with heavy-duty vehicles quickly enough”.

Also in June, the Independent forecast that

“Blair’s former spin doctor Alastair Campbell is … set to escape serious criticism”, despite “having a role in the creation of the infamous ‘dodgy dossier’” on Iraq’s WMD.

It is also suggested that moves against current left-leaning Labor leader Corbyn are an attempt to prevent him from joining suggested parliamentary action to impeach Tony Blair.

It is suggested that the inquiry applied a soft approach; was ‘amateurish’; devoid of cross-examination; and potentially flawed as an example of ‘Whitehall investigating itself’.

Against this it is noted that the inquiry may well be stronger than some have reckoned – citing the conduct of public hearings; the battles to report sensitive Cabinet material; and to report correspondence between Blair and President Bush.

The Guardian concludes:

But it would be a mistake to see the report mainly in those terms. At least 100,000 Iraqi civilians were killed during the period Chilcot covers. Let’s hope the report finds room in its 2.6m words to emphasise that.

 

Legality of the 2003 invasion of Iraq

Was the invasion ‘legal’?

In the end, the justification for going to war will be a critical aspect of the Iraq Inquiry report although the inquiry was not asked to rule on this.

However, the Inquiry spent much time reviewing how Blair and others formed the view that the invasion was legal according to international law. It went to unprecedented lengths to forensically examine this question using Cabinet notes, documents and diary entries. Much of this information has been available on the Inquiry website.

The question of whether Resolution 1441 provided lawful authority for invasion involves two issues:

1.      The first is whether the UN resolution allowed for military intervention without further reference and approval from the UN Security Council? This is a question of law.

2.      The second is whether, if there was scope to lawfully take further action by way of military intervention, were there grounds to justify taking such drastic action? This is a question of fact.

The questioning before the Inquiry introduced another layer, which was a mixture of law and fact. The inquiry asked witnesses - once they formed the view that there was some form of lawful authority and some evidence to establish the grounds for using that authority – whether the decision to invade was itself grossly imprudent? In other words, even if a legal justification was found - however strong or tenuous it may be – was the decision to invade so recklessly stupid that it should have prevented such action being taken.

On this point, many witnesses were prepared to concede that they might have acted differently with full knowledge after the event. This appears to be the way in which those responsible will seek to evade any criticism along the lines of ‘if we only knew then, what we know now’.

Against this defence there are two critiques.

1.      The first is that going to war is such a grave and serious step that it should only happen in the most extreme circumstances and with certainty of cause and certainty of purpose. The questioning before the inquiry suggested that the issues of the legality of going to war was being inextricably linked to an assessment of whether it was an appropriate course of action at the time. This then linked to inquiry questioning about whether there was any strategy beyond invading Iraq to cover subsequent occupation and ultimate withdrawal. In other words – how do you decide to go to war if you are not prepared for that war and you do not have an exit strategy?

2.      The second is that the notion of the leaders of the ‘Coalition of the willing’ actually deciding to go to war at a point of last resort appears to be a fiction if there was a pre-existing commitment to take military action no matter what. The details of conversations between Blair and Bush are vital to the examination of this. 

Another issue that has been drawn out in examining the key players and Cabinet and other documentation is the fact that the initial advice from the UK Attorney-General on the legality of invasion was to say that it could not be lawfully justified. This advice changed. It is noted in this Guardian article that attention for some, will focus on why the advice changed:

Philippe Sands QC, a practising barrister and professor of international law, will be looking into whether the report explains why Peter Goldsmith, the attorney general at the time, changed his legal advice, which was against war, after a hastily arranged trip to Washington shortly before the invasion.

“The question is: is there anything to indicate whether pressure was put on Goldsmith to change his legal advice,” Sands said. There was no change in the facts to allow a last-minute change to take place, he added.

“So I want to see how Chilcot deals with that change of advice. If he fails to adequately explain what the reason for that last-minute change was, then it would have critically undermined its credibility and authority.”

The Chilcot inquiry has heard how on 11 February 2003, less than a month before the invasion, Lord Goldsmith met John Bellinger, a legal adviser in the Bush White House. Sands was told that Bellinger later recounted: “We had trouble with your attorney. We got him there eventually.”

               https://www.theguardian.com/uk-news/2016/jul/05/case-against-tony-blair-over-iraq-war-a-legal-impossibility-says-qc 

 

Are prosecutions possible?

Will anyone be prosecuted if there are adverse findings?

The inquiry is not a criminal investigation. It is not a disciplinary investigation. It may recommend that prosecutions be considered for the actions of a number of people. The terms of reference do not specifically require such recommendations to be made.

The Telegraph in the UK reported that criminal prosecution before the ICC has been ruled out. The  office of the prosecutor for the ICC makes it clear that is not so. However, it is also made clear that:

the specific question of the legality of the decision to resort to the use of force in Iraq in 2003 – or elsewhere – does not fall within the legal mandate of the Court, and hence, is not within the scope of its preliminary examination

The office of the prosecutor issued this press release to counter the suggestion that leaders would not be considered for investigation but that soldiers could be. The office also points out that:

parameters also require the Court to exercise jurisdiction only when a state is unable or unwilling to genuinely investigate and prosecute the perpetrators.

See also

http://www.jurist.org/paperchase/2016/07/icc-will-not-prosecute-tony-blair-for-war-crimes-over-iraq-war.php

https://www.thesun.co.uk/news/1389470/david-cameron-says-international-prosecutors-have-no-right-to-investigate-our-boys-for-war-crimes-when-chilcot-inquiry-report-is-released/ 

So far, much attention has been focused on whether Tony Blair might face possible prosecution for war crimes under international law, or face sanction through impeachment by the parliament he once led. There is a high likelihood of the report having serious implications for continued investigation by the ICC into the Iraq war. This may involve many people most of whom are not politicians.

A matter to be considered will be the degree to which activities within Iraq may or may not come under the jurisdiction of the International Criminal Court. The potential implications of this may be of much greater significance in the long term than whether Tony Blair or other politicians are called to account in some way. 

Prosecution under international law

ICC cannot prosecute the decision to go to war (even if war can be described as ‘illegal’ in international law:

http://www.globalresearch.ca/the-international-criminal-court-icc-will-not-prosecute-tony-blair-others-are-planning-to/5534046 

Geoffrey Robertson QC says that prosecution is impossible but recommends changes to the law to allow for prosecution of leaders in the future:

https://www.theguardian.com/commentisfree/2016/jul/05/tony-blair-in-the-dock-fantasy-wars-aggression 

Robertson writes that there is no doubt the invasion was illegal in international law but there is no criminal sanction available:

There is little doubt that the US/UK invasion of the sovereign state of Iraq in 2003 was an unlawful breach of the UN charter, which permits such force only in self-defence, ie when there is an imminent threat of an armed attack, or (less certainly in 2003) a case for humanitarian intervention. But a breach of the charter does not mean that those who lead it are guilty of a war crime – which must, like any other crime, be both clearly defined and justiciable by an available court.

The problem is the failure of states to agree on this aspect in the Rome Statute until years after the invasion took place:

But its jurisdiction to bring aggressors to justice was postponed. Article 5 of the convention says that the court shall not “exercise jurisdiction over the crime of aggression” until member states agree on its modern definition. They did not agree until 2010, and then decided that offenders should not be prosecuted under it until further agreement in 2017.

Robertson then considers possible prosecution under a domestic UK version of the Nuremburg principle and concludes that that option has been shut off by the UK Supreme Court:

While accepting that the crime of aggression had existed in international law since 1945, Lord Bingham firmly refused to allow it to become part of UK law without parliamentary sanction. “It is for those representing the people of the country in parliament, not the executive and not the judges to decide [what conduct should be criminal].”

Robertson says that the UK parliamentarians should ensure that the UK ratifies the ICC convention.

Robertson rejects the notion of ‘pre-emptive self defence’ to justify the war as ‘a preposterous legal argument’. The claimed justification for ‘regime change’ was ‘rightly rejected’ at the time by Blair’s then Attorney-General Lord Goldsmith. 

The reliance on an overly stretched interpreting UN Resolution 1441 involved a ‘pettifogging’ point that it ‘might allow “all necessary means” to remove Saddam without any further security council motion.’ Robertson says this ‘took us backwards towards a lawless world.’ 

On the issue of enforcing the UN Resolution 1441 Robertson quotes Blair: 

Blair announced that: “Regime change alone could not be and was not our justification for war. Our primary purpose was to enforce UN resolutions over Iraq and WMDs.” 

https://www.theguardian.com/uk-news/2016/jul/05/case-against-tony-blair-over-iraq-war-a-legal-impossibility-says-qc 

Impeachment by Parliament?

Talk of impeachment of Blair

A 2004 report for Adam Price MP establishes the idea: A Case to Answer A first report on the potential impeachment of the Prime Minister for High Crimes and Misdemeanours in relation to the invasion of Iraq. This was produced By Glen Rangwala and Dan Plesch and canvasses the basis for impeaching by parliament.

Is impeachment possible?

It is reported that some UK MPs are considering the impeachment of former Prime Minister Tony Blair:

http://www.theguardian.com/politics/2016/jul/03/tony-blair-may-face-impeachment-on-release-of-chilcot-report

UK Parliamentary practice

A research briefing prepared in 2011 is no longer on the www.parliament.uk website

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN02666

The 2011 briefing is replaced by a new paper published on 6 June 2016. The new paper was prepared by a single officer of the Parliamentary Library and appears to circumvent any motion similar to the motion first put in 2004 calling for impeachment proceedings against Tony Blair, the new paper says:

Impeachment was a means by which Parliament could prosecute and try individuals, normally holders of public office, for high treason or other crimes and misdemeanours. Impeachment is considered obsolete, as it has been superseded by other forms of accountability, and the rules underpinning the procedure have not been adapted to modern standards of democracy or procedural fairness (p. 3)

In giving reasons for saying the procedure is obsolete, the paper records recent attempts to enact a law to abandon the right to impeach and states:

The impeachment process described above cannot easily be transposed into a modern parliamentary or judicial context. The process, last attempted in 1806, has not been revised to reflect the fundamental changes that have occurred in Parliament. It is by no means clear whether the judicial elements of the procedure would meet any modern procedural standards of fairness. (p. 7)

Despite the views expressed in the research paper above it seems clear that it is a matter for the members of parliament to decide whether impeachment is appropriate and there are no legal constraints on using that process.

Some other references to possible impeachment:

http://www.telegraph.co.uk/news/2016/07/05/tony-blairs-testimony-at-the-chilcot-inquiry-five-key-moments/  

http://time.com/4392913/chilcot-inquiry-iraq-war-tony-blair/ 

https://www.rt.com/op-edge/344235-blair-iraq-impeachment-war/ 

http://www.abc.net.au/pm/content/2016/s4494400.htm 

http://www.theweek.co.uk/chilcot-inquiry/63414/chilcot-inquiry-will-tony-blair-face-any-consequences 

How would impeachment work?

What is it? http://news.bbc.co.uk/2/hi/programmes/bbc_parliament/3622380.stm

1806 impeachment of Viscount Melville https://books.google.com.au/books?id=3n00AQAAMAAJ&pg=PT310&lpg=PT310&dq=Article+of+Impeachment+house+of+commons&source=bl&ots=cqjz2nHMm9&sig=aEN1NlgMbHo-CQRYpKy6zaeiNiA&hl=en&sa=X&ved=0ahUKEwjirtrD2t3NAhVMxGMKHWhlArM4ChDoAQggMAE#v=onepage&q=Article%20of%20Impeachment%20house%20of%20commons&f=false

1701 Lord Halifax

https://books.google.com.au/books?id=RRgwAAAAYAAJ&pg=PT683&lpg=PT683&dq=Article+of+Impeachment+house+of+commons&source=bl&ots=yWTFEeki7P&sig=2G0wsw9SVCJ4FO5PwO3lyJsuEVE&hl=en&sa=X&ved=0ahUKEwjirtrD2t3NAhVMxGMKHWhlArM4ChDoAQgxMAQ#v=onepage&q=Article%20of%20Impeachment%20house%20of%20commons&f=false

1648 Oliver Cromwell

https://books.google.com.au/books?id=84c-AQAAMAAJ&pg=PA7&lpg=PA7&dq=Article+of+Impeachment+house+of+commons&source=bl&ots=zjRxTexIl7&sig=bZ4a07Mfd79FN4x3FvOJ8pUxRpc&hl=en&sa=X&ved=0ahUKEwjirtrD2t3NAhVMxGMKHWhlArM4ChDoAQg7MAc#v=onepage&q=Article%20of%20Impeachment%20house%20of%20commons&f=false

https://inews.co.uk/explainers/mps-impeach-tony-blair-iraq-war/

https://inews.co.uk/essentials/news/politics/chilcot-jeremy-corbyn-may-call-tony-blair-put-trial-war-crimes/ 

Overall

What does it all mean?

The Financial Times draws out the issues of inaccurate intelligence, ‘dodgy dossiers’, falling support for the war, voter disillusionment and the failure of foreign policy – in relation to which the report might prompt some re-thinking and change for the future

http://www.ft.com/cms/s/0/1e48e728-3f6c-11e6-8716-a4a71e8140b0.html

Timelines

http://content.time.com/time/specials/packages/0,28757,1967340,00.html

https://www.theguardian.com/world/2004/mar/03/usa.iraq 

http://www.bbc.com/news/world-middle-east-14546763 

The Chilcot inquiry in numbers

http://www.ibtimes.co.uk/chilcot-report-what-you-need-know-about-iraq-inquiry-numbers-video-1526394

2.6 million-word report

200 cabinet documents and meetings

7 year inquiry

5 years since last hearing in February 2011

http://www.express.co.uk/news/world/686508/Chilcot-inquiry-what-is-report-on-Iraq-War-findings-facts-Tony-Blair-invasion-UK-role

1500 documents to be published

 

Appendix A Parliamentary privilege in Australia

Parliament continues to have the powers, privileges and immunities provided under section 49 of the Constitution unless expressly provided otherwise in the Parliamentary Privileges Act 1987

http://www.austlii.edu.au/au/legis/cth/consol_act/ppa1987273/s5.html

Section 49 of the Constitution 

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. 

The Parliamentary Privileges Act 1987 includes a test for conduct constituting an offence against a House – 

amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member 

http://www.austlii.edu.au/au/legis/cth/consol_act/ppa1987273/s4.html

Penalties

The penalty for a matter dealt with before parliament in relation to privilege is limited to no more than 6 months imprisonment or a fine of $5000 http://www.austlii.edu.au/au/legis/cth/consol_act/ppa1987273/s7.html

However, there is no longer a power of expulsion of a member - Section 8 of the Parliamentary Privileges Act 1987

http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/practice/chapter5

Detailed information

The detailed parliamentary guide to the operation of parliamentary privilege is extracted at Appendix C http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/practice/chapter19#exp

 

Appendix B Parliamentary prosecution of misbehaviour

While the Library of the UK parliament has produced a briefing paper to say that impeachment by parliament is now considered obsolete, the same cannot be said of the Australian or Canadian parliaments which directly inherited the model from Westminster. The role of parliament as a body to review alleged misbehaviour has been entrenched by the practice built up for the supervision of judicial misbehaviour. For that reason, it is worth noting some aspects of how parliament deals with allegations against members of the judiciary. This practice establishes a framework for the exercise of the power to impeach. The power to impeach does not appear to simply apply to persons who are currently in office. 

The example of parliamentary supervision of the judiciary

Section 72 of the Constitution provides that Justices of the High Court and of the other courts:

(ii)  shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

The investigation of alleged judicial misbehaviour is discussed by Michael Kirby in a 1990 paper. The Bills Digest for the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 records ‘three separate inquiries were commenced in the Parliament’s committee system and criminal proceedings in the Supreme Court of New South Wales were also initiated.’ 

The Commonwealth parliament set up an inquiry under the Parliamentary Commission of Inquiry Act 1986 (Cth) to investigate the behaviour of Murphy. Murphy sought an injunction from the High Court to stop the inquiry proceeding in 1986. In Murphy v Lush the High Court did not halt the inquiry. Justice Murphy was terminally ill and the inquiry was halted.

The procedures in Australia for parliamentary inquiries into behaviour have been honed by developing practice for sanctioning judges. This history culminated at the federal level in the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012.  

Parliamentary privilege for behaviour in parliament bars external scrutiny

A reason for considering impeachment as a continuing power of the parliament is the immunity afforded to parliamentarians for what happens in parliament. Without impeachment and other proceedings to discipline members of parliament at the bar, there would potentially be no accountability at all. 

The World Bank provides this summary of parliamentary privilege in the UK for the protection of parliamentary business from scrutiny outside parliament: 

28           Members of Parliament (MPs) Civil Immunities Immunity from civil liability is specified by law.                            

British parliamentarians cannot be questioned in any court or place outside of Parliament for their statements or actions in the proceedings in Parliament.  Case law and parliamentary rules also regulate the freedom of speech. The freedom of speech and debates or proceedings in Parliament ought not tobe impeached or questioned in any court or place outside Parliament.’ It therefore covers not only Parliamentarians but those who speak before Parliament or one of its committees. An attempt to change this law as far as corruption cases are concerned was made in the Corruption Bill 2003 but failed. The Government's concern was that in practice there is no way of dealing with a witness who speaks to a Committee as a result of a corrupt bargain if, as may well be the case, his words are essential to the prosecution.

According to Hiss v. Bartlett, Members of Parliament are immune from arrest on civil process while the legislature is in session.

SO 82 provides members of the House of Lords with the privilege to attend parliamentary sessions without interference.  It says that at relevant times "no Lord of Parliament is to be imprisoned or restrained without sentence or order of the House, unless upon a criminal charge".  Arrest or restraint without criminal charge is most unlikely.

MPs are not given ‘immunity’ while travelling but cannot be interfered with at that time (except on criminal charges) ie., protection of papers that either House orders to be published, freedom from arrest in civil cases, and exemption from subpoenas to be a court witness, freedom from service of court documents in certain cases.

A similar provision is in an amendment to the Defamation Act (1996), allows members of parliament to waive their immunity or privilege accorded by Art 9 of Bill of Rights in matters concerning defamation. Article 9 of the Bill of Rights (1689)

Hiss v. Bartlett; Standing Order 82; Defamation Act (1996),

 

Appendix C House of Representatives Practice (5th Edition) Chapter 19

Punishment of Members
 
In respect of Members whom the House determines have committed contempts, the House’s power to punish includes commitment or reprimand but has a further dimension, namely, suspension for a period from the service of the House. In some cases an apology by the Member concerned may forestall further action.
Action taken by the House to discipline its Members for offensive actions or words in the House186 may be regarded as based on the concept of privilege, but in practice the offences are dealt with as matters of order (offences and penalties under the standing orders) rather than as matters of privilege or contempt.187
Apology
A Member has apologised for remarks reflecting on the Chairman of Committees which were published in a newspaper, and in view of the apology a motion that he be suspended from the service of the House was withdrawn.188 When (before the enactment of the Parliamentary Privileges Act) a Member reflected on the Speaker outside the House, a motion was moved that the comments constituted a breach of the privileges of the House. The motion was withdrawn by leave when the Member again withdrew the remarks and apologised.189
 
Manner of dealing with privilege and contempt
Raising of matter
A Member may raise a matter of privilege at any time during a sitting. The Member raising a matter must be prepared to move without notice, immediately or subsequently, a motion declaring that a contempt or breach of privilege has been committed, or referring the matter to the Committee of Privileges.195
When a Member raises a matter of privilege the Speaker may reserve the matter for further consideration, or may give the matter precedence and invite the Member to move one of the above motions.196 It is the practice of the House that no seconder is required for either of these motions.
If the matter is given precedence, consideration and decision of every other question is suspended until the matter of privilege has been disposed of, or until debate on any motion related to the matter of privilege has been adjourned.197
In order to grant precedence to a privilege motion over other business the Speaker must be satisfied that:
·        a prima facie case of contempt or breach of privilege has been made out, and
·        the matter has been raised at the earliest opportunity.198
If a matter of privilege related to the proceedings of the Main Committee is raised in the Main Committee, the Chair must suspend the proceedings and report the matter to the House at the first opportunity.199
The Member raising and stating the matter of privilege or contempt may speak on the matter, although the Speaker may intervene to indicate that sufficient information has been provided. The Speaker may also permit another Member to speak to the matter.200Although it is irregular for debate to ensue on the matter raised until a motion has been moved,201 for the purposes of clarification Members have sometimes been allowed to speak by leave or indulgence to a matter raised, before the Speaker’s opinion has been given and without a motion having been moved.202 The Speaker may obtain information or advice to assist in clarification of an issue.203 A Member may refer to a matter of privilege without raising a formal complaint.204
 

http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/practice/chapter19#exp

 

Presented as a matter of public interest on the questions arising from the Chilcot Inquiry on the accountability of politicians and the operation of parliament.

Prepared by Associate Professor Tony Krone, School of Law and Justice, University of Canberra and based on research work commenced while an honourary visiting fellow at University College London in 2014