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

Penalties for contempts

Section 7 of the 1987 Act empowers either House to impose fixed terms of imprisonment and fines for contempts of Parliament. The Act provides that a fine is a debt due to the Commonwealth.

Among the powers adhering to the Houses under section 49 of the Constitution before the 1987 Act was the power to imprison offenders for contempt of Parliament.

A problem which existed until 1987 was that a House could imprison an offender only for the duration of a session, which depends upon the prorogation of the Parliament or the dissolution of the House of Representatives or of both Houses by the Governor-General.

Another difficulty which existed until 1987 in respect of penalties was the doubt about the power of the House of Commons, and therefore of the Commonwealth Houses, to impose fines. It was suggested that because the House of Commons had not imposed a fine for many years the courts might hold that the power to impose fines no longer existed. The Senate Committee of Privileges in its 1st report in 1971 did not accept this argument, and recommended that the Senate consider imposing fines for future offences (PP 163/1971. The Senate adopted this report. See also the 8th report of the Committee of Privileges, PP 239/1985). The 1967 House of Commons report accepted the claim that the power to fine had lapsed, and recommended that the power be statutorily revived, while the 1977 report recommended that the power to imprison should be abolished. These recommendations were not adopted.

The 1987 Act removed these difficulties by codifying the power to impose penalties.

As has already been noted, the Senate imposed penalties for contempts only twice, and the penalties were reprimands. In other cases the Senate found that contempts were committed, but took no further action.

There has been only one case of a penalty of imprisonment imposed by a House of the Commonwealth Parliament. In 1955 the House of Representatives imprisoned two persons for attempting to intimidate a member. The action of the House was examined and upheld by the High Court (R. v Richards ex parte Fitzpatrick and Browne 1955 92 CLR 157; the law expounded in this case is changed by the 1987 Act: see above under Statutory definition of contempt). (For this case, see also H. Evans, ‘Fitzpatrick and Browne: Imprisonment by a House of Parliament’, in H.P. Lee & G. Winterton, eds, Australian Constitutional Landmarks, 2003.)

Houses of state parliaments which possess the power to punish contempts have occasionally exercised that power. On 24 June 1999 the Legislative Council of Western Australia imposed a fine of $1 500 on a public servant who failed to appear before a committee when summoned. In April 2006 the New Zealand House of Representatives imposed a substantial fine on a television company for the contempt of penalising a witness.

Resolution 8 of the Senate’s Privilege resolutions, and standing order 82, require seven days’ notice of any motion in the Senate to determine that a person has committed a contempt, or to impose a penalty for a contempt.

It is a fundamental principle that one House of the Parliament has no authority over the members of the other House except in the immediate conduct of its own proceedings or those of its committees (for example, if a member of one House is appearing as a witness before a committee of the other House — for such occasions see Chapter 17 on Witnesses). A House therefore cannot impose any penalty on a member of the other House. A contempt by a member can be dealt with only by the member’s own House. (Rulings on matters of privilege of President Sibraa, 17/5/1988, J.711; of President Beahan, 19/9/1994, J.2151; 22/9/1994, J.2219. See also statement by Senator Chamarette, SD, 30/3/1995, pp 2490-1.)

An alleged contempt by a minister acting in the capacity as a minister, however, may be investigated by the Senate, even though the minister is a member of the other House and therefore cannot be compelled to give evidence or punished by the Senate, and the Senate cannot inquire into proceedings in the House. (See 51st report of the Committee of Privileges, PP 4/1995; in its 60th report, PP 9/1996, the committee dealt with a statement by a minister when it was not clear that the statement was an exercise of ministerial functions; see also reference to the committee 2/10/1997, J.2611-2; determination by President Reid, SD, 23/10/1997, pp 7901-2.)

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