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