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

Matters constituting contempts

One of the 1988 Privilege Resolutions of the Senate sets out, for the guidance of the public, acts which may be treated by the Senate as contempts.

The resolution, Resolution 6, is set out in appendix 2. As the preamble to the resolution indicates, it is not intended to be an exhaustive or all-inclusive list of contempts, but provides guidance on the types of acts which may be treated by the Senate as contempts, and does not derogate from the Senate’s power to determine that particular acts constitute contempts.

The formulation covers all the traditional contempts, but as has already been noted is subject to the statutory restriction of the category of contempts provided by the 1987 Act. This is significant in relation to one provision of the resolution: paragraph (6) relating to the service of writs in the precincts. It has already been observed that this contempt may not meet the test of section 4 of the Act. The other contempts set out in the resolution clearly meet that test.

The Committee of Privileges has reported to the Senate on a number of matters giving rise to allegations that contempts may have been committed. Most of these reports have been presented since the Privilege Resolutions were adopted. The reports, and the action taken on them by the Senate, provide a body of case law showing how the power to adjudge and punish contempts is exercised.

A full list of reports of the Privileges Committee and the action taken by the Senate in relation to each report is shown in appendix 3.

It is significant that only in the following cases has the Privileges Committee reported, and the Senate determined, that contempts were committed.

1971 unauthorised publication of draft committee report (1st report of committee PP 163/1971)

1981 harassment of a senator (6th report of committee PP 137/1981)

1984 unauthorised publication of committee evidence taken in camera (7th report of committee PP 298/1984)

1989 adverse treatment of a witness in consequence of the witness’s evidence (21st report of committee PP 461/1989)

1993 charges laid against a witness in consequence of the witness’s evidence (42nd report of committee PP 85/1993)

1994 threats made to a witness by an unknown person (50th report of committee PP 322/1994)

1995 unauthorised disclosure of submission to a committee by an unknown person (54th report of committee PP 133/1995)

1997 legal action taken against a person to penalise the person for providing information to a senator (67th report of committee PP 141/1997) (for the significance of this case, see above under Provision of information to members)

1998 disciplinary action taken by a university against a person in consequence of the person’s communication with a senator (72nd report of committee PP 117/1998) (see also above under Provision of information to members)

1998    unauthorised disclosures of committee documents (74th report of committee PP 180/1998)

2000 unauthorised disclosure of a draft committee report (84th report of committee PP 35/2000)

2000 disciplinary action taken by a local government body against an employee in consequence of his participation in proceedings of a committee (85th report of committee, PP 36/2000)

2001     unauthorised publications of documents provided to committees (99th and 100th reports of committee, PP 177/2001, 195/2001).

In only two cases, those of 1971 and 2001, were penalties imposed by the Senate, and the penalties were reprimands. In the other cases no penalty was imposed, the committee usually concluding that no further action should be taken by the Senate, usually because of apologies offered or other remedial action by the persons concerned. In some cases the person responsible could not be identified. In all other cases referred to it the committee concluded that contempts had not been committed, often because of the lack of a culpable intention on the part of persons concerned. This record reinforces what is said elsewhere in this chapter: the power to deal with contempts has been exercised with great circumspection. The record also shows that the Senate’s investigation of privilege matters has been confined to serious matters potentially involving significant obstruction of the Senate, its committees or senators.

The Privileges Committee now regards a culpable intention on the part of the person concerned as essential for the establishment of a contempt. This is in contrast to contempt of court: certain contempts of court can be proved and punished without there being any culpable intention on the part of the perpetrator. (See, for example, the 64th report of the committee, PP 40/1997.) (See also report of the United Kingdom House of Commons Standards and Privileges Committee, HC 447 2003-04, for a contempt found, against a minister (the Lord Chancellor), in the absence of a culpable intention.)

The committee has found that contempts have been committed by public officials due to ignorance of parliamentary processes, and in 1993 the Senate adopted a recommendation that officers should have training in those processes to avoid such problems (21/10/1993, J.684; resolution reaffirmed, with requirement that departments report on compliance, 1/12/1998, J.225-6; 42nd, 64th, 73rd, 89th reports of the committee, PP 85/1993, 40/1997, 118/1998, 79/2000). Officers of Telstra, then a statutory, government-controlled corporation, were also required to undertake such training (5/8/2004, J.3836-7; report by Telstra, 7/3/2005, J.398).

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