Today’s correspondent

… recently made a submission to Senate enquiry into Mental Health of First Responders – could contents of such submission be used against me by my employer or is subject to protection such as parliamentary privilege?

Submission to the Senate enquiry

The senate enquiry is an inquiry into ‘The role of Commonwealth, state and territory Governments in addressing the high rates of mental health conditions experienced by first responders, emergency service workers and volunteers’.  It is being conducted by the Education and Employment References Committee.  The Committee is due to report on 14 February 2019.

The Parliament says (Parliament of Australia, How to make a submission to a Senate Committee Inquiry (undated)):

Making a submission is protected by parliamentary privilege. It is an offence for anyone to try to stop you from making a submission by threats or intimidation. It is an offence for anyone to harass you or discriminate against you because you have made a submission. The content of the submission is also protected but only after the committee has accepted it. This means that what you say in the submission, once the committee has accepted it, cannot be used in court against you or anyone else.

What is parliamentary privilege is complex.  Section 49 of the Australian Constitution says:

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 (Cth) s 5 has continued those UK privileges (whatever they may be).  Section 16(1) says that ‘article 9 of the Bill of Rights, 1688’ continues to apply to the Australian Parliament!

Article 9 of the 1688 Act says:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

In essence you cannot sue for what is said in parliament (see also s 16(3)).  In the ongoing case of Hanson-Young v Leyonhjelm, Senator Hanson-Young is suing Senator Leyonhjelm for defamation.   She cannot sue him for what he said in Parliament but can sue him for repeating the things he said outside the parliament.  In Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466, cited in Hanson-Young v Leyonhjelm [2018] FCA 1688, White J said:

The privilege is not concerned simply with protecting parliamentarians from legal action but is intended to ensure that parliamentarians and others can engage in the parliamentary process without concern that those actions may be subject to later scrutiny by the courts.

What follows is that the submission is subject to parliamentary privilege.   A person cannot sue for defamation for the things said in the submission.  Further, it is both a criminal offence and contempt of parliament to ‘inflict any penalty or injury upon, or deprive of any benefit, another person on account of any evidence given or to be given before the Senate or a committee’ (Parliamentary Privileges Act 1987 (Cth) s 12; Parliament of Australia, Procedures to be observed by Senate Committees for the protection of witnesses (undated))

What the above provisions means is that the person cannot be punished for making the submission but whether it can be used against them depends on what ‘used against’ means.   An employer has a duty to ensure that an employee is not exposed to risks to their ongoing health from their work.   If my correspondent has revealed that he or she is mentally unwell and that continued work as an emergency responders is causing harm to his or her mental health, that may come to the employer’s notice. The employer may then have to take action to help mediate that impact.  One might think that the evidence is being used ‘against’ them but another view is that it is being used ‘for’ them.


A submission to a Senate Committee is protected by Parliamentary Privilege.  A person cannot be penalised for making a submission.