Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
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 set out 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 shown 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.
1971 unauthorised
publication of draft committee report (1st report of committee
PP 163/1971)
1981 harassment
of a senator (6th report of committee PP 137/1981)
1984 unauthorised
publication of committee evidence taken in camera (7th report of committee
PP 298/1984)
1989 adverse
treatment of a witness in consequence of the witness’s evidence (21st
report of committee PP 461/1989)
1993 charges laid
against a witness in consequence of the witness’s evidence (42nd
report of committee PP 85/1993)
1994 threats
made to a witness by an unknown person (50th report of committee
PP 322/1994)
1995 unauthorised
disclosure of submission to a committee by an unknown person (54th report
of committee PP 133/1995)
1997 legal
action taken against a person to penalise the person for providing information
to a senator (67th report of committee PP 141/1997) (for the
significance of this case, see above under Provision of information to members)
1998 disciplinary
action taken by a university against a person in consequence of the person’s
communication with a senator (72nd report of committee PP 117/1998)
(see also above under Provision of information to members)
1998 unauthorised
disclosures of committee documents (74th report of committee
PP 180/1998)
2000 unauthorised
disclosure of a draft committee report (84th report of committee
PP 35/2000)
2000 disciplinary
action taken by a local government body against an employee in consequence of
his participation in proceedings of a committee (85th report of
committee, PP 36/2000)
2001
unauthorised
publications of documents provided to committees (99th and 100th
reports of committee, PP 177/2001, 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. (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.)
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
(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). Officers of Telstra, then
a statutory, government-controlled corporation, were also required to undertake
such training (5/8/2004, J.3836-7; report by Telstra, 7/3/2005, J.398).
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