Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
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 (PP 163/1971. The
Senate adopted this report. See also the 8th report of the Committee of
Privileges, PP 239/1985). 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 (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.)
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 (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). 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. (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.)
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. (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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