Odgers' Australian Senate Practice Thirteenth Edition

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

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Statutory definition of contempt

The 1987 Act contains what amounts to a statutory definition of contempt of Parliament:

4. Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.

Enactment of this provision means that it is no longer open to a House, as it was under the previous law, to treat any act as a contempt. The provision restricts the category of acts which may be treated as contempts, and it is subject to judicial interpretation. A person punished for a contempt of Parliament could bring an action to attempt to establish that the conduct for which the person was punished did not fall within the statutory definition. This could lead to a court overturning a punishment imposed by a House for a contempt of Parliament.

The 1984 report of the Joint Select Committee on Parliamentary Privilege had recommended a nonenforceable review by the High Court of a punishment for contempt imposed by a House. This recommendation was not adopted because such a provision would be unconstitutional, in that it would amount to conferring an advisory jurisdiction on the High Court.[125]

The Senate therefore chose an enforceable judicial review, but a review on a restricted ground. The provision nonetheless opens the way for a court to determine whether particular acts are improper and harmful to the Houses, their members or committees. This means that it will not be possible for the Commonwealth Houses to treat as contempts some acts traditionally so treated in the past. For example, it is doubtful whether the Houses could treat the serving of a writ or other legal process in the precincts on a sitting day as a contempt.

Section 9 of the Act provides that if a House imposes a penalty of imprisonment upon a person, the resolution of the House and the warrant shall set out particulars of the offence. Even without the definition of contempt, this has the effect that a court could determine whether the ground for imprisonment is sufficient in law to amount to a contempt.[126]

Defamation of the Houses and their members

The 1987 Act provides that it is not a contempt to defame or criticise the Houses, their committees or members:

6. (1) Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee or a member.

(2) Subsection (1) does not apply to words spoken or acts done in the presence of a House or a committee.

Controversy in the past about the power of the Houses to punish contempts concentrated not on the question of whether the acts regarded as contempts should be treated as offences, but whether the Houses should have the power to judge and punish those offences, an issue which is addressed below. The offence of defamation of the Houses or of their members was the exception to this: there was some dispute about whether such defamation ought to be regarded as an offence at all.

The rationale of treating defamation of the Houses or of their members as a contempt was not, as was sometimes supposed, to protect the dignity and good name of Parliament and its members, but to prevent published attacks which, by undermining the respect due to Parliament as an institution and diminishing its authority, tend to obstruct or impede the Houses in the performance of their functions. To constitute a contempt a reflection upon an individual member had to relate to the member's capacity as a member and tend to obstruct the performance of the member's duties. This rationale was not always clearly observed, even by parliamentary authorities, and houses of parliaments with the power to punish contempts did not always display the discretion and judgment which ought to accompany that great power. Some defamations, however, are capable of meeting the test for them to be treated as contempts.[127]

Criticism of the treatment of defamatory statements as contempts was based on the proposition that individual members have the same civil remedies available to them as other citizens, and the powers of the Houses should not be invoked as a substitute for such civil remedies.

The 1984 report of the Joint Select Committee on Parliamentary Privilege recommended that it be explicitly provided by statute that defamation of a member or a House may not be punished as a contempt. The select committee made its recommendation notwithstanding submissions that there may be instances in which it is legitimate for defamation or criticism of a House or a member to be treated as a contempt. In the report of the Select Committee of the British House of Commons on Parliamentary Privilege in 1967 one such instance was identified: the allegation of bias against a presiding officer of a House. A submission attached to the report quoted W.E. Gladstone to support a contention that this offence cannot be left to civil action for correction.[128] Shortly before the 1987 Act was passed, the House of Representatives had in fact punished one of its members for criticism, made outside the House, of the Speaker.[129] It appears that it is no longer possible to deal with such conduct, however gross the defamation.

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 contained 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 contained 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.

Year

Contempt

Report

1971

unauthorised publication of draft committee report

1st report (pp 163/1971)

1981

harassment of a senator

6th report (PP 137/1981)

1984

unauthorised publication fo committee evidence taken in camera

7th report (PP 298/1984)

1989

adverse treatment of a witness in consequence of the witness's evidence

21st report (PP 461/1989

1993

charges laid against a witness in consequence of the witness's evidence

42nd report (PP 85/1993)

1994

threats made to a witness by an unknown person

50th report (PP 322/1994)

1995

unauthorised disclosure of submission to a committee by an unknown person

54th report (PP 133/1995)

1997

legal action taken against a person to penalise the person fro providing information to a senator

67th report (PP 141/1997)

1998

disciplinary action taken by a university against a person in consequence of the person's communication with a senator

72nd report (PP 117/1998)

1998

unauthorised disclosures of committee documents

74th report (PP 180/1998)

2000

unauthorised disclosure of a draft committee report

84th report (PP 35/2000)

2001

unauthorised publication of documents provided to committees

99th report (PP 177/2001

100th report (PP 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.[130]

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.[131] Officers of Telstra, then a statutory, government-controlled corporation, were also required to undertake such training.[132]

Contempts and criminal offences

Some contempts are also criminal offences, and there is nothing to prevent proceedings for contempt being undertaken before, during or after criminal proceedings for the same acts. This has not happened, however, and is unlikely to occur in practice, because the Senate would be likely either to choose between contempt proceedings and a prosecution in the courts or to refrain from employing its contempt jurisdiction if a prosecution is in the offing or in train.

Conversely, an act which has been dealt with as a contempt could also be prosecuted as a criminal offence.[133]

In 1997 the Senate had occasion to consider whether it should investigate a possible contempt by a senator, the making of allegedly false statements to the Senate, while police were investigating the subject matter of those statements. The senator's statements could not be the subject of court proceedings because they were protected by parliamentary privilege. Nonetheless the Senate, while referring the statements to the Privileges Committee, determined that the committee's inquiry should not begin until after the conclusion of the police investigations and any consequent legal proceedings.[134]

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.

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.[135] 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.[136] 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.[137]

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.

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.[138] 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.[139]

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.[140] 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.[141]

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.[142]


125. Explanatory memorandum accompanying the bill as passed by the Senate, p. 6.
126. R v Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162.
127. An authoritative exposition of the parliamentary law in this area was contained in the chapter entitled 'Defamation as Contempt of Parliament', by L.A. Abraham, in Wicked, Wicked Libels, ed. M. Rubinstein, London, 1972. Contrary to a common misconception, the Fitzpatrick and Browne case was not about defamation of a member but attempted intimidation of a member: see H. Evans, 'Fitzpatrick and Browne: Imprisonment by a House of Parliament', in H.P. Lee & G. Winterton, eds, Australian Constitutional Landmarks, 2003.
128. HC 34, 1967-8, submission of Louis Abraham at p. 203.
129. HR Debates, 24/2/1987, pp. 580-7.
130. 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.
131. 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.
132. 5/8/2004, J.3836-7; report by Telstra, 7/3/2005, J.398.
133. Compare United States v Traficant, 368 F 3d 646 (6th Cir, 2004); Supreme Court declined to hear appeal, 10/1/2005.
134. 7/5/1997, J.1855-6.
135. Quinn v United States 349 US 155 (1955) at 161.
136. Jurney v MacCracken 294 US 125 (1935) at 147-8, 151.
137. Registrar of the Supreme Court (Equity Division) v McPherson [1980] 1 NSWLR 688.
138. PP 163/1971. The Senate adopted this report. See also the 8th report of the Committee of Privileges, PP 239/1985.
139. 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.
140. 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.
141. 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.
142. 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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