911 (1owera and Privilege ) Ordinal
(No. 35 of 1985)
Commentary
A1
Part 1 Origins
law, the powers and privileges of the
Legislative Council were defined by the doctrine of inherent necessity. The leading authority on this subject
is the Privy Council decision in CHENARD AND COMPANY v. JOACHIM ARISSOL (1949) AC 127 in which the parliamentary law applicable to colonial legislatures was examined and explained.
2.
The doctrine of inherent necessity is the principle whereby colonial legislatures (including the Legislative Council) are vested with the powers that Parliament possesses under parliamentary law. Under this doctrine, colonial legislatures have all the powers and privileges of Parliament SO far as they are reasonably necessary to enable each such legislature to function as a legislature. The status of the Legislative Council under common law was therefore modelled on Parliament, and its powers and privileges paralleled those of Parliament under parliamentary law.
3.
The essence of Parliamentary privilege is the need to exempt the legislature and its members from ordinary law (and to provide safeguards and protections) in order to enable them to discharge their functions; and to support the authority and dignity of the legislature.
4.
The unique privileges enjoyed by Parliament may be summarised as follows
(a)
freedom of speech and debate;
(b)
protection of members;
(c)
protection of proceedings;
(d)
power to call and examine witnesses;
(e)
5.
power to punish for breach of privilege (or contempt).
The doctrine of inherent necessity does not automatically confer on colonial legislatures all of the foregoing privileges. The exception is the power to punish for contempt; a colonial legislature could only claim to have such a power if it expressly enacted legislation