Chapter 2 - Parliamentary Privilege: immunities and powers of the Senate

Power to punish contempts

Each House of the Parliament possesses the power to declare an act to be a contempt and to punish such act, even where there is no precedent of such an act being so judged and punished. As was pointed out above, the power does not depend on the acts judged and punished being violations of particular immunities. This power to deal with contempts of either House is the exact equivalent of the power of the courts to punish contempts of court.

The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.

Particular contempts are sometimes discussed as if they have been regarded as offences simply because they are affronts to the dignity of the Houses. This, however, is a misconception. Acts judged to be contempts in the extensive modern case law of both the Senate and the British House of Commons have been so judged and treated because of their tendency, directly or indirectly, to impede the performance of the functions of the Houses. Although the power to punish contempts was originally essentially discretionary, the types of acts liable to be treated as contempts were reasonably fully delineated by that case law, just as contempt of court has been delineated by the courts.

The power of the Houses to punish contempts was recognised and upheld by the courts as part of the ordinary law. This recognition lay in the refusal of the courts to release persons committed for contempt, and in the rule that the courts would not inquire into a parliamentary warrant for the committal of a person for contempt where the warrant did not specify the contempt (R. v Richards ex parte Fitzpatrick and Browne 1955 92 CLR 157; but this law is changed by the 1987 Act: see below, under Statutory definition of contempt).

Just as the power to conduct inquiries may not extend to members and officers of other houses of Australian legislatures, or to state office-holders, the power to punish contempts may similarly be limited (see under Power to conduct inquiries, above).

That the power of a legislature to punish contempts is regarded as inherent in the legislative function is best demonstrated by an examination of the American law. In the United States it has been held that each House of the Congress and of the state legislatures possesses the power to punish acts which obstruct the performance of the duties of a legislature in spite of the absence of any express provision in the United States Constitution; it is an inherent power, springing from the legislative function. The power is not impaired by the enactment by Congress in 1857 of a statute making it a criminal offence to refuse to answer a question or produce documents before either House or a committee. (It is now also a criminal offence to give false evidence to Congress.) A person already punished by either House for such a contempt may be prosecuted and convicted under the statute. The removal of an obstruction does not deprive the Houses of the power to punish the act causing the obstruction (Jurney v MacCracken 1935 294 US 125). Dealing with a case in 1972 concerning the punishment by a house of a state legislature of a person for contempt, Chief Justice Burger of the United States Supreme Court observed:

The past decisions of this Court expressly recognising the power of the Houses of the Congress to punish contemptuous conduct leave little question that the Constitution imposes no general barriers to the legislative exercise of such power ... There is nothing in the Constitution that would place greater restrictions on the States than on the Federal Government in this regard. (Groppi v Leslie 1972 404 US 496)

In referring to “general barriers”, the Chief Justice was leaving aside other explicit constitutional limitations, such as those on the power of Congress to legislate and the requirement for due process.

It is clear that in enacting a statute for the punishment by ordinary criminal process of certain contempts, the Congress did not intend to renounce its inherent power; the reason for passing the statute was to enable the imposition of penalties not restricted to the life of any session of the Congress (Quinn v US 1955 349 US 155 at 169). The Houses of Congress now prefer to proceed under the statute rather than under the inherent power, while keeping the inherent power in reserve, which avoids cluttering the proceedings of the Houses with allegations of contempt. (See M. Rosenberg and T. Tatelman, Congress's Contempt Power: Law, History, Practice and Procedure, CRS Report for Congress, 2007.)

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