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

Should the power to deal with contempts be transferred to the courts?

The criticisms of the power of the Houses to deal contempts, though significantly met by the 1987 Act and the Privilege Resolutions of the Senate, lead to the question of whether the power to deal with contempts should be transferred to the ordinary courts. According to the most commonly expressed idea, this would be done by the enactment of a statute specifying offences which would cover acts which have been declared to be contempts of Parliament.

The question of transferring the power to deal with contempts to the courts could be discussed separately from the question of the statutory identification of offences: theoretically it would be possible to enact a statute specifying offences against the Parliament but leaving the two Houses with the power to deal with those offences, and it would also be possible to transfer the power to deal with contempts to the courts without specifying the acts which constitute contempts as specific criminal offences. For all practical purposes, however, the proposal that a statute be enacted specifying criminal offences corresponding to contempts and the proposal that the courts should be empowered to deal with contempts may be regarded as one and the same proposition, since in practice each would necessarily involve the other. Some acts which have been regarded as contempts of Parliament are already criminal offences.

It has already been observed that while the Houses of Parliament, in Britain and Australia, have been judges in their own cause, they have on the whole been lenient judges. Few people have actually been punished for contempts in modern times. If contempts were to be dealt with by a court applying statutorily specified offences and penalties, offenders who would otherwise be dismissed with a reprimand and a warning by a House of the Parliament would probably be convicted and punished by a court. If cases were sent to the courts by the Houses, the Houses would be relieved of responsibility for conviction and punishment of offenders, and such conviction and punishment would be surrounded by the sanctity of court proceedings. The Houses might be more inclined to send cases to the courts and more convictions might result. The great advantage of the present system is that the Houses exercise their powers only in really important cases.

If the Houses were to decide whether to send cases to the courts, they would need to have some procedures for preliminary investigation of allegations to enable them to determine whether such allegations should go to the courts. Inevitably, such procedures would be viewed as committal proceedings, and would attract any criticisms levelled at the way in which the Houses deal with contempts. These criticisms would have even more force because it would be clear that the judgment and punishment of contempts would be a judicial process, and not a matter of political judgment as suggested earlier. In other words, the transfer to the courts of the power to adjudge and punish contempts could have the very effect which it seeks to avoid: that of forcing the Houses to behave as if they were judicial bodies, in the pre-trial procedures. Moreover, inevitably the argument would be raised that the preliminary proceedings in the Houses could prejudice a fair trial.

Any proposal that the Houses surrender the power to punish contempts would have to be carefully considered in relation to the power to commit persons for preventative and coercive reasons. When a disorderly person is removed from the galleries of the Houses and detained until the end of the sitting, the purpose of the detention is not to punish the offender but to prevent the continuance of the offence. When a recalcitrant witness is committed to custody, the purpose is not punishment but to compel the answering of the questions or the production of the documents which the witness has refused to answer or produce. The importance of preventative committal is obvious, and the coercive element of committal for contempt has been recognised by the courts in all common law jurisdictions, including the United States, where it is seen as vital to the ability of the Congress to legislate (Quinn v US 1955 349 US 155 at 161). Theoretically, the power to impose preventative or coercive committal could be retained while giving up to the courts the power actually to punish contempts. The important point is that it would be extremely difficult to transfer to the courts the power to impose preventative or coercive custody, and that it is therefore difficult to sustain the supposed principle that the Houses should not have the power to imprison offenders.

The importance of preventative action is illustrated by the destruction of documents which might constitute evidence in a parliamentary inquiry, which is regarded as a particularly dangerous offence, as it may radically obstruct an inquiry and prevent the discovery of the facts of a matter, and one particularly worthy of resolute action by the legislature. The punishment after the event of other kinds of contempts, such as interference with witnesses, may provide a sufficient remedy, and the harm done can be corrected to a certain extent, for example, by recalling a witnesses. The destruction of evidence, however, cannot be corrected after the event; the offender may be punished, but the evidence is lost. The legislature may therefore be justified in taking remedial action even in advance of complete proof of the offence. A case of destruction of documents provided an occasion on which a House of the United States Congress exercised its power to punish contempts directly rather than prosecute offenders in the courts. A statute of 1857 provides for the prosecution of witnesses who refuse to give evidence, but this procedure is not likely to effect a remedy against destruction of documents, which requires swift preventative action. Thus in 1934, when it appeared that a witness and other persons had allowed the destruction of documents from a file relevant to an inquiry by a Senate committee into air mail contracts, the Senate ordered the arrest and detention of the offender. This action was contested in the courts. The witness conceded that the Senate had the power to punish obstructive acts as contempts, but argued that, as the destruction of the documents had already occurred before the arrest, and relevant documents had been produced, there was no obstruction of the Senate which could still be punished. The Supreme Court held that a House may punish as a contempt an act of a nature to obstruct the legislative process even though the obstruction had been removed or its removal was no longer possible, and the creation of the statutory offence punishable through the courts did not impair this power of the Houses (Jurney v MacCracken 1935 294 US 125 at 147-8, 151). It is well established that, in particular circumstances, a contempt may be committed by the destruction of documents even in advance of a requirement that they be produced. This is illustrated by contempt of court, which operates on the same principles as contempt of Parliament. It is a contempt to destroy documents which are relevant to legal proceedings regardless of whether the documents have been formally required to be produced. This is on the same principle applying to interference with witnesses: it is possible to interfere with a witness in advance of the witness being called to give evidence, for example, by threatening a witness in relation to evidence which the witness might give (Registrar of Supreme Court v McPherson 1980 1 NSWLR 688).

If statutory criminal offences were to replace completely contempts of Parliament, this would raise the difficult question of how the Houses would deal with contempts by their members. The powers of the Houses to discipline their members would seem to provide a far more effective and simple remedy for contempts by members than prosecutions under a criminal statute. It would be anomalous for a House to direct that a prosecution be instituted against one of its members for a contempt when a swifter and more flexible cure is at hand in the procedures of the House. Proceedings in a court may be protracted while the offending member continues to sit and vote in the House concerned, or, if not, an undesirable vacancy in representation may be created.

Similarly, minor contempts, particularly those committed in the sight of a House, may best be dealt with summarily under the powers presently possessed by the Houses. Thus, if a person creates a disturbance in the public galleries, it is a far more effective remedy to have the offender held in custody until the end of the sitting and excluded from the building for a period, than to go through the cumbersome mechanisms of arresting, charging, releasing on bail, and prosecuting the accused. Moreover, as is pointed out above, the present remedy is more effective in preventing repetition of the offence.

Because of the cogency of the arguments here set out, both the 1967 report of the Select Committee on Parliamentary Privilege of the House of Commons and the 1984 report of the Joint Select Committee on Parliamentary Privilege of the Commonwealth Houses recommended that the Houses retain their power to deal with contempts.

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