Odgers' Australian Senate Practice Thirteenth Edition

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

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Powers of the Houses

There are three distinct powers adhering to the two Houses of the Parliament by virtue of section 49 of the Constitution: the power of the Houses to determine their own constitution; the power to conduct inquiries; and the power to punish contempts.

Power of the Houses to determine their own constitution

Each House of the Parliament has the power to determine its own constitution, in so far as it is not determined by constitutional or statutory law. In Australia, this power, though explicitly recognised in section 47 of the Constitution, is of limited significance because the Constitution and the statutory law provide for the qualification and disqualification of members of the Houses and a method whereby disputed elections may be referred to the High Court.[97]

Before 1987 each House could exercise the power of determining its own constitution by the expulsion of members who were regarded as unfit to remain members. The expulsion of a member did not of itself prevent the re-election of that member, since eligibility for election is determined by law.

The 1984 report of the Joint Select Committee on Parliamentary Privilege recommended that the power of a House to expel its members be abolished. The rationale of this recommendation was that the disqualification of members is covered by the Constitution and by the electoral legislation, and if a member is not disqualified the question of whether the member is otherwise unfit for membership of a House should be left to the electorate. The committee was also influenced by the only instance of the expulsion of a member of a House of the Commonwealth Parliament, that of a member of the House of Representatives in 1920 for allegedly seditious words uttered outside the House. This case had long been regarded as an instance of improper use of the power.[98]

The recommendation, and the consequent provision in section 8 of the 1987 Act, was opposed in the Senate. It was argued that there may well be circumstances in which it is legitimate for a House to expel a member even if the member is not disqualified. It is not difficult to think of possible examples. A member newly elected may, perhaps after a quarrel with the member's party, embark upon highly disruptive behaviour in the House, such that the House is forced to suspend the member for long periods, perhaps for the bulk of the member's term. This would mean that a place in the House would be effectively vacated, but the House would be powerless to fill it. Other circumstances may readily be postulated. The Houses, however, denied themselves the protection of expulsion.

Power to conduct inquiries

Each House of the Parliament has the power to require the attendance of persons and production of documents and to take evidence under oath. This power supports one of the major functions of the Houses: that of inquiring into matters of concern as a necessary preliminary to debating those matters and legislating in respect of them. The power has long been regarded as essential for a legislature. The power is, in the last resort, dependent upon the power to punish contempts, in so far as that penal power is the means by which the Houses may enforce the attendance of witnesses, the answering of questions and the production of documents.

The power to conduct inquiries by compelling the attendance of witnesses, the giving of evidence and the production of documents is conferred by section 49 of the Constitution.

Inquiry powers also have another possible source. In the United States it was found that these powers are inherent in the legislature.[99]

Something of this inherent powers doctrine was adopted in a state. The New South Wales Court of Appeal in Egan v Willis (1996) 40 NSWLR 650 found that although the New South Wales Parliament lacks an equivalent of section 49 of the Constitution, the Legislative Council possesses an inherent power to require the production of documents and to impose sanctions on a minister in the event of non-compliance. The Council had made an order for documents and suspended the Treasurer from the Council when he failed to produce the required documents. The High Court rejected an appeal against this judgment, while not indicating whether the Council possesses full inquiry powers: Egan v Willis (1998) 195 CLR 424. The Court of Appeal subsequently found that claims of legal professional privilege and of public interest immunity could not protect the executive government against the Council's power: Egan v Chadwick (1999) 46 NSWLR 563. The Council does not possess a general power to punish contempts. The limitation of the power of the Council in respect of documents recording the deliberations of cabinet, found by the Court of Appeal, would not apply to the Commonwealth Houses in the presence of the constitutional bases of their powers.

The power to conduct inquiries is usually not exercised by the Houses themselves, but is delegated to committees by giving those committees the power to require the attendance of witnesses and the production of documents. A major concomitant of that delegation is that proceedings in parliamentary committees are proceedings in Parliament, and the immunity from impeachment or question in the courts attaches to words uttered in committee proceedings by members and witnesses and to the production of documents to committees, as declared by the 1987 Act.

It is not determined whether the Houses can delegate their power to conduct inquiries to a person other than their own members, although there are some old precedents in Britain for such a delegation.[100]

The power may be confined to inquiries into subjects in respect of which the Commonwealth Parliament has the power to legislate. There is judicial authority for the proposition that the Commonwealth and its agencies may not compel the giving of evidence and the production of documents except in respect of subjects within the Commonwealth's legislative competence Attorney-General (Cth) v Colonial Sugar Refining Co Ltd,[101] and, if the matter were litigated, the High Court might well hold that this limitation applies to the inquiry powers of Senate committees. The United States Supreme Court so held in relation to the Congress.[102] This would not mean that an inquiry would have to be linked with any particular legislation.[103]

Although the question has not been adjudicated, there is probably an implicit limitation on the power of the Houses to summon witnesses in relation to members of the other House or of a house of a state or territory legislature. Standing order 178 provides that if the attendance of a member or officer of the House of Representatives is required by the Senate or a Senate committee a message shall be sent to the House requesting that the House give leave for the member or the officer to attend. This standing order reflects a rule of courtesy and comity between the Houses, and as such it ought properly to be observed in relation to houses of state and territory parliaments. It may be that these limitations on the power to summon witnesses in relation to other houses have the force of law, and may extend to officers of state and territory governments. The basis of such a legal doctrine in relation to the states would be High Court judgments to the effect that the Commonwealth may not impede the essential functioning of the states.[104]

The Select Committee on the Australian Loan Council, in its interim report in March 1993, accepted advice by the Clerk of the Senate that it could not summon as witnesses members of the House of Representatives and of the houses of state parliaments.[105] The committee recommended that the Senate ask the various houses to require their members to attend and give evidence before the committee. The advice also indicated that the houses have the power so to compel their members, but that question also has not been adjudicated. The Senate passed a resolution and requests were sent to the various houses accordingly. The various houses declined to compel their members to attend.[106] Similar advice was provided to, and accepted by, the Select Committee on Unresolved Whistleblower Cases.[107] The Senate has given an instruction to a committee to invite the Prime Minister and another minister to give evidence.[108]

The Select Committee on the Victorian Casino Inquiry presented a report on 5 December 1996 indicating that it had decided not to continue its inquiry because of advice provided by the Clerk of the Senate and by Professor Dennis Pearce in relation to limitations on the Senate's powers to compel evidence from state members of parliament and other state office-holders. The committee's report provided a comprehensive analysis of this matter and copies of the advices.[109]

A reference to the Economics Committee in 2008 required it to "call for" documents in the possession of the Western Australian government, a phrase interpreted to mean that the committee would request the state government to produce the documents.[110]

In the United States the view is taken that each House of the Congress and its committees may summon members and officers of state governments, provided that this is for the purposes of inquiries into matters within the legislative power of the Congress. The question has not been adjudicated, but there are precedents for the summoning of state officers and their responding. It must be noted, however, that differing constitutional provisions may reduce the persuasive value of the American law for Australian purposes; for example, article iv, section 4 of the US Constitution, whereby the United States guarantees to every state a republican form of government, gives the Congress a general power of supervision of state governments which the Australian Parliament does not possess.

The Supreme Court of the Province of Prince Edward Island, in Canada, held that officers of a federal government agency had no immunity from a summons issued by a committee of the Legislative Assembly of the province in the course of an inquiry into a matter within the legislative power of the province. This decision was not appealed and the officers subsequently appeared before the committee.[111]

The power to summon witnesses and the power to require the production of documents are one and the same; any limitations on one therefore apply equally to the other.

The immunity of other houses' proceedings from impeachment and question before other tribunals (the Bill of Rights, article 9 immunity which most Australian Houses possess) is regarded as preventing any inquiries into their proceedings by the Senate or its committees.[112]

The inability to compel members of other houses has been regarded as preventing findings of contempt against them, except for Commonwealth ministers in that capacity.[113] This principle might be held to be applicable to state and territory office-holders.

Possible and mooted limitations on the Senate's power to compel evidence were summarised in 'The Senate's power to obtain evidence and parliamentary "conventions"', paper by the Clerk of the Senate published by the Finance and Public Administration References Committee, September 2003.[114]

Subject to the observance by the courts of parliamentary immunities, there is nothing to prevent judicial proceedings involving the same facts and circumstances as have been examined in a parliamentary inquiry.[115]

For the application of the sub judice convention to inquiries by the Senate, see Chapter 10, Debate, under Sub judice convention, and Chapter 16, Committees, under Privilege of proceedings.

Rights of witnesses

Subject to what is said above about possible constitutional limitations, there is no limitation on the power of the Houses to compel the attendance of witnesses, the giving of evidence and the production of documents.

There are, however, safeguards against any misuse of this power. The Senate has a range of practices designed to safeguard the rights of witnesses and of people who may be accused of wrongdoing in the course of committee proceedings.

These practices were codified by the Privilege Resolutions, passed by the Senate on 25 February 1988.[116] The first of those resolutions provides a code of procedures for Senate committees to follow for the protection of witnesses. These procedures are based on practices adopted by Senate committees in the past, but under the resolution Senate committees are bound to adopt those practices.

The procedures confer a number of rights on witnesses, particularly the right to object to questions put in a committee hearing and to have such objection duly considered. Witnesses are to be supplied with copies of the procedures, and may appeal to the Senate if a committee fails to observe the procedures.

Section 12 of the 1987 Act provides statutory witness protection provisions. It is a criminal offence punishable by fine or imprisonment to interfere with a parliamentary witness. Section 13 makes it a criminal offence to disclose without authorisation parliamentary evidence taken in camera. This was thought to be a logical extension of the witness protection provisions.[117]

A difficulty with this sort of provision has already been noted: the successful prosecution of the offences may well require a House to some extent to waive, in effect, the immunity of its proceedings from examination in the courts.

The rights and protection of witnesses are more fully set out in Chapter 17 on Witnesses.

Power to punish contempts

Each House of the Parliament possesses the power to declare an act to be a contempt and to punish such act, even where there is no precedent of such an act being so judged and punished. As was pointed out above, the power does not depend on the acts judged and punished being violations of particular immunities. This power to deal with contempts of either House is the exact equivalent of the power of the courts to punish contempts of court.

The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.

Particular contempts are sometimes discussed as if they have been regarded as offences simply because they are affronts to the dignity of the Houses. This, however, is a misconception. Acts judged to be contempts in the extensive modern case law of both the Senate and the British House of Commons have been so judged and treated because of their tendency, directly or indirectly, to impede the performance of the functions of the Houses. Although the power to punish contempts was originally essentially discretionary, the types of acts liable to be treated as contempts were reasonably fully delineated by that case law, just as contempt of court has been delineated by the courts.

The power of the Houses to punish contempts was recognised and upheld by the courts as part of the ordinary law. This recognition lay in the refusal of the courts to release persons committed for contempt, and in the rule that the courts would not inquire into a parliamentary warrant for the committal of a person for contempt where the warrant did not specify the contempt,[118] but this law is changed by the 1987 Act.[119]

Just as the power to conduct inquiries may not extend to members and officers of other houses of Australian legislatures, or to state office-holders, the power to punish contempts may similarly be limited.[120]

That the power of a legislature to punish contempts is regarded as inherent in the legislative function is best demonstrated by an examination of the American law. In the United States it has been held that each House of the Congress and of the state legislatures possesses the power to punish acts which obstruct the performance of the duties of a legislature in spite of the absence of any express provision in the United States Constitution; it is an inherent power, springing from the legislative function. The power is not impaired by the enactment by Congress in 1857 of a statute making it a criminal offence to refuse to answer a question or produce documents before either House or a committee. (It is now also a criminal offence to give false evidence to Congress.) A person already punished by either House for such a contempt may be prosecuted and convicted under the statute. The removal of an obstruction does not deprive the Houses of the power to punish the act causing the obstruction.[121] Dealing with a case in 1972 concerning the punishment by a house of a state legislature of a person for contempt, Chief Justice Burger of the United States Supreme Court observed:

The past decisions of this Court expressly recognising the power of the Houses of the Congress to punish contemptuous conduct leave little question that the Constitution imposes no general barriers to the legislative exercise of such power ... There is nothing in the Constitution that would place greater restrictions on the States than on the Federal Government in this regard.[122]

In referring to "general barriers", the Chief Justice was leaving aside other explicit constitutional limitations, such as those on the power of Congress to legislate and the requirement for due process.

It is clear that in enacting a statute for the punishment by ordinary criminal process of certain contempts, the Congress did not intend to renounce its inherent power; the reason for passing the statute was to enable the imposition of penalties not restricted to the life of any session of the Congress.[123] The Houses of Congress now prefer to proceed under the statute rather than under the inherent power, while keeping the inherent power in reserve, which avoids cluttering the proceedings of the Houses with allegations of contempt.[124]

97. See Chapter 4, Elections for the Senate, under Disputed returns and qualifications and Chapter 6, Senators, under Qualifications of senators.
98. See, for example, E. Campbell, Parliamentary Privilege in Australia, first edition, MUP, 1966, pp. 104-5.
99. McGrain v Daugherty 273 US 135 (1927).
100. See also under Preparation and publication of documents, above; and Chapter 20, Relations with the Judiciary, under The second Senate committee.
101. Colonial Sugar Refinery Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182; Attorney-General (Cth) v Colonial Sugar Refinery Co Ltd (1913) 17 CLR 644; Lockwood v Commonwealth (1954) 90 CLR 177 at 182-3.
102. Quinn v United States 349 US 155 (1955).
103. Compare Eastland v United States Servicemen's Fund 421 US 491 (1975).
104. For an examination by the High Court of what has come to be known as the "Melbourne Corporation doctrine", that the Commonwealth may not interfere with the governmental functions of states, see Austin v Commonwealth (2003) 215 CLR 185.
105. PP 78/1993.
106. 5/10/1993, J.566; 7/10/1993, J.608; 20/10/1993, J.657; 21/10/1993, J.683; see also Chapter 17, Witnesses.
107. Report, PP 344/1995, pp. 138-40.
108. 9/3/1995, J.3063-4.
109. PP 359/1996.
110. 28/8/2008, J.748-9.
111. Attorney General (Canada) v MacPhee (2003) 221 Nfld & PEIR 164.
112. See the 54th report of the Committee of Privileges, PP 133/1995.
113. See Chapter 19, Relations with the executive government, under Ministerial accountability and censure motions.
114. Updated in 2009 and published as 'The Senate's Power to Obtain Evidence', Papers on Parliament, Number 50, Department of the Senate, March 2009, pp. 139-147.
115. Compare Hamilton v Al Fayed [1999] 3 All ER 317; a different view of the particular case, though not of the law, was taken by the House of Lords on appeal, [2001] 1 AC 395; also Mees v Roads Corporation (2003) 128 FCR 418.
116. The resolutions are contained in appendix 2 and were explained in an explanatory memorandum tabled in the Senate and incorporated in SD, 17/3/1987, pp. 796-9.
117. Explanatory memorandum, p. 8.
118. R v Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157.
119. See below, under Statutory definition of contempt.
120. See under Power to conduct inquiries, above.
121. Jurney v MacCracken 294 US 125 (1935).
122. Groppi v Leslie 404 US 496 (1972).
123. Quinn v United States 349 US 155 (1955) at 169.
124. See M. Rosenberg and T. Tatelman, Congress's Contempt Power: Law, History, Practice and Procedure, CRS Report for Congress, 2007.