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

Criticisms of the power of the Houses to deal with contempts

The common criticisms of the power of the Houses to deal with contempts under the present law fall into four groups: the lack of specification of offences; the alleged impropriety of the Houses acting as judges in their own cause; the alleged unsuitability of the Houses to act as judicial bodies; and the effect on the rights of accused persons.

First, it is contended that offenders are given little guidance as to the acts likely to constitute contempts and to be visited with punishment. It is therefore said that the power to punish contempts should be replaced by a codification containing specific offences. The enactment of section 4 of the Parliamentary Privileges Act 1987 and the specification by the Senate by resolution of the acts which may be treated as contempts have largely overcome this criticism.

The lack of complete codification is a feature of the law of contempt of court. So far as is known, the complete codification of the law of contempt of court has not been achieved in any common law jurisdiction. The difficulty which occurs in any attempt to enumerate contempts is that it is the effect or tendency of an act (to interfere with the course of justice or to obstruct the work of the Houses) which constitutes the offence, and it is therefore impossible to specify with precision all acts which constitute contempts. Codification has to rely on catch-all offences, that is, provisions referring to any obstructive act, as in section 4 of the 1987 Act and paragraph (1) of the Senate’s resolution.

In contempt of Parliament, as in contempt of court, the case law and authoritative expositions of it do in fact provide a good guide to acts which may be held to be offences. The Senate Committee of Privileges has now established a substantial body of case law which, together with the Senate’s Privilege Resolutions, provide as much guidance as is reasonably possible.

The second major criticism of the power of the Houses to punish contempts is that in exercising this power the Houses are acting as judges in their own cause, contrary to the principles of natural justice. Again, the same difficulty arises with contempt of court: no incongruity is seen in courts judging and punishing such contempts. The fact that there is a right of appeal in respect of contempt of court does not affect the matter: the appeal is to another court. Moreover, there is just as effective an appeal in respect of a contempt of Parliament, from the Privileges Committee to the whole House. Just as the courts are the best judge of what interferes with the administration of justice, the Houses may be the best judge of acts which interfere with the performance of their functions and obstruct their members in the performance of their duties.

Thirdly, it is said that in judging and punishing contempts of Parliament, the Houses are exercising a judicial function, and as political bodies they are unfit to exercise a judicial function. It is clear that the Houses are political bodies and that they are by constitution not adapted to act as courts of law, but the very premise of this criticism is questionable. The question of what acts obstruct the Houses in the performance of their functions may well be seen as essentially a political question requiring a political judgment and political responsibility. As elected bodies, subject to electoral sanction, the Houses may be seen as well fitted to exercise a judgment on the question of improper obstruction of the political processes embodied in the legislature.

Fourthly, it is said that in dealing with alleged contempts, the Houses do not allow to accused persons the normal rights allowed by the processes of the ordinary law. There is validity in this criticism. The Houses were originally not bound to recognise any rights of accused persons at all.

This criticism has been largely overcome in the Senate by the adoption of procedures for privilege inquiries and proceedings before the Privileges Committee. These procedures are outlined below.

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