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

Statutory definition of contempt

The 1987 Act contains what amounts to a statutory definition of contempt of Parliament:

4. Conduct (including the use of words) does not constitute an offence against a House unless it 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.

Enactment of this provision means that it is no longer open to a House, as it was under the previous law, to treat any act as a contempt. The provision restricts the category of acts which may be treated as contempts, and it is subject to judicial interpretation. A person punished for a contempt of Parliament could bring an action to attempt to establish that the conduct for which the person was punished did not fall within the statutory definition. This could lead to a court overturning a punishment imposed by a House for a contempt of Parliament.

The 1984 report of the Joint Select Committee on Parliamentary Privilege had recommended a non‑enforceable review by the High Court of a punishment for contempt imposed by a House. This recommendation was not adopted because such a provision would be unconstitutional, in that it would amount to conferring an advisory jurisdiction on the High Court (explanatory memorandum accompanying the bill as passed by the Senate, p. 6).

The Senate therefore chose an enforceable judicial review, but a review on a restricted ground. The provision nonetheless opens the way for a court to determine whether particular acts are improper and harmful to the Houses, their members or committees. This means that it will not be possible for the Commonwealth Houses to treat as contempts some acts traditionally so treated in the past. For example, it is doubtful whether the Houses could treat the serving of a writ or other legal process in the precincts on a sitting day as a contempt.

Section 9 of the Act provides that if a House imposes a penalty of imprisonment upon a person, the resolution of the House and the warrant shall set out particulars of the offence. Even without the definition of contempt, this has the effect that a court could determine whether the ground for imprisonment is sufficient in law to amount to a contempt (R. v Richards ex parte Fitzpatrick and Browne 1955 92 CLR 157 at 162).

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