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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 6 - Senators

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Conduct of senators

The standing orders of the Senate prescribe rules governing the conduct of senators during their participation in the Senate proceedings. As these rules relate mainly to the conduct of debate, they are set out in Chapter 10, Debate, under Rules of debate and Conduct of senators.

Matters relating to the conduct of senators are also the subject of the Senate’s Privilege Resolutions.[47] Resolution 6(3) prohibits senators asking for or receiving any benefit in return for discharging their duties in any way. Resolution 9 enjoins senators to exercise their freedom of speech in the Senate with regard to the rights of persons outside parliament and not to make statements reflecting adversely on such persons without proper evidence. Resolution 5 provides for the publication by the Senate of responses by persons who have been adversely affected by references about them in the Senate.

Senators are subject to the contempt jurisdiction of the Senate, and may be adjudged guilty of contempt.[48]

Provisions governing the conduct of senators were collected in a paper prepared by the Clerk for the Finance and Public Administration Legislation committee’s 2001-02 inquiry into various private senator’s bills dealing with political honesty, government advertising and parliamentary entitlements, and subsequently summarised in Brief Guide to Senate Procedure No. 22.

Senators may be censured by the Senate for misconduct.[49] For the censure of ministers and members of other houses, see Chapter 19, Relations with the Executive Government, under Ministerial accountability and censure motions. It has been stated that it is not proper for a House to censure any member other than a minister, but this alleged principle appears to arise from a consideration of the situation in the House of Representatives and other lower houses which are controlled by the government of the day, in that any successful censure motion could only be moved by the government against an Opposition member. If the question is considered apart from that difficulty, however, it may well be concluded that a House properly so called may be justified in censuring its own members, apart from ministers, for unacceptable conduct.

A senator may be prosecuted for an offence which has also been dealt with as a contempt of the Senate.[50]

In 1992, following dispute over the “Marshall Islands affair”, in which a minister was alleged to have sought improperly to influence the president of that country, the Senate passed a resolution relating to the development of a code of conduct for members of the Parliament and ministers.[51] No such code of conduct has yet been recommended to, or adopted by, the Senate although, as a consequence of various agreements on parliamentary reform, entered into after the 2010 election to secure minority government in the House of Representatives, the Senators’ Interests Committee received a reference to inquire into the development of a code of conduct for senators. [52]

47. See Chapter 2, Parliamentary Privilege.
48. See Chapter 2, Parliamentary Privilege; for a Privileges Committee inquiry into the conduct of a senator, see 7/5/1997, J.1855-6.
49. 31/5/1989, J.1762-3; 4/10/1989, J.2083-5; 29/3/1995, J.3182-4; 2/10/1997, J.2618; 11/3/1998, J.3359-60; 19/3/2002, J.216-7 (a parliamentary secretary acting in a non-government capacity).
50. See United States v Traficant, 368 F 3d 646 (6th Cir, 2004); Supreme Court declined to hear appeal, 10/1/2005.
51. 25/6/1992, J.2610-3; 2616-8.
52. 2/3/2011, J.644. The equivalent committee in the House received a parallel reference.