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

Defamation of the Houses and their members

The 1987 Act provides that it is not a contempt to defame or criticise the Houses, their committees or members:

6. (1) Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee or a member.

(2) Sub‑section (1) does not apply to words spoken or acts done in the presence of a House or a committee.

Controversy in the past about the power of the Houses to punish contempts concentrated not on the question of whether the acts regarded as contempts should be treated as offences, but whether the Houses should have the power to judge and punish those offences, an issue which is addressed below. The offence of defamation of the Houses or of their members was the exception to this: there was some dispute about whether such defamation ought to be regarded as an offence at all.

The rationale of treating defamation of the Houses or of their members as a contempt was not, as was sometimes supposed, to protect the dignity and good name of Parliament and its members, but to prevent published attacks which, by undermining the respect due to Parliament as an institution and diminishing its authority, tend to obstruct or impede the Houses in the performance of their functions. To constitute a contempt a reflection upon an individual member had to relate to the member’s capacity as a member and tend to obstruct the performance of the member’s duties. This rationale was not always clearly observed, even by parliamentary authorities, and houses of parliaments with the power to punish contempts did not always display the discretion and judgment which ought to accompany that great power. Some defamations, however, are capable of meeting the test for them to be treated as contempts. An authoritative exposition of the parliamentary law in this area was contained in the chapter entitled ‘Defamation as Contempt of Parliament’, by L.A. Abraham, in Wicked, Wicked Libels, ed. M. Rubinstein, London, 1972. (Contrary to a common misconception, the Fitzpatrick and Browne case was not about defamation of a member but attempted intimidation of a member: see H. Evans, ‘Fitzpatrick and Browne: Imprisonment by a House of Parliament’, in H.P. Lee & G. Winterton, eds, Australian Constitutional Landmarks, 2003.)

Criticism of the treatment of defamatory statements as contempts was based on the proposition that individual members have the same civil remedies available to them as other citizens, and the powers of the Houses should not be invoked as a substitute for such civil remedies.

The 1984 report of the Joint Select Committee on Parliamentary Privilege recommended that it be explicitly provided by statute that defamation of a member or a House may not be punished as a contempt. The select committee made its recommendation notwithstanding submissions that there may be instances in which it is legitimate for defamation or criticism of a House or a member to be treated as a contempt. In the report of the Select Committee of the British House of Commons on Parliamentary Privilege in 1967 one such instance was identified: the allegation of bias against a presiding officer of a House. A submission attached to the report quoted W.E. Gladstone to support a contention that this offence cannot be left to civil action for correction (HC 34, 1967-8, submission of Louis Abraham at p. 203). Shortly before the 1987 Act was passed, the House of Representatives had in fact punished one of its members for criticism, made outside the House, of the Speaker (HR Debates, 24 February 1987, pp 580-7). It appears that it is no longer possible to deal with such conduct, however gross the defamation.

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