House of Representatives Practice, 6th edition – HTML version

19 - Parliamentary privilege

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Acts constituting breaches of privilege and contempts

By virtue of section 49 of the Constitution, the House has the ability to treat as a contempt:

…any act or omission which obstructs or impedes…(it)…in the performance of its functions, or which obstructs or impedes any Member or officer…in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results…even though there is no precedent of the offence.[115]

Whilst the House thus has a degree of flexibility in this area, section 4 of the Parliamentary Privileges Act imposes a significant qualification:

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.

This provision should be taken into account at all stages in the consideration of possible contempts. It is important also to recognise that the Act does not codify or enumerate acts or omissions that may be held to constitute contempts.[116]

Section 6 of the Act provides that 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, thus abolishing a previous category of contempt. This provision does not apply to words spoken or acts done in the presence of a House or a committee. The Act also contains specific provisions dealing with the protection of witnesses (see page 757) and the unauthorised disclosure of evidence (see page 758).

In 1984 the Joint Select Committee on Parliamentary Privilege recommended the adoption, by resolution, of detailed guidelines which, whilst they would not prevent the House from pursuing a matter not covered by their provisions, would indicate matters that may be treated as contempts. Whilst draft guidelines were presented in the House in 1987,[117] action was not taken to adopt them. The committee also recommended the adoption of a policy of restraint in the exercise of the penal jurisdiction, proposing that each House should exercise its powers in this area only when satisfied that to do so was essential in order to provide reasonable protection for the House, its Members, its committees or its officers from such improper obstruction, or attempt at or threat of obstruction such as was causing, or likely to cause, substantial interference with their respective functions.[118] Although no action was taken by the House to implement this recommendation, successive Speakers, in giving decisions on complaints raised, have had regard to the policy of restraint and have indicated support for it.[119]

The following paragraphs are confined mainly to a note of matters highlighted in May and a record of those matters which the House of Representatives has determined to be acts or conduct constituting breaches of privilege or contempt, some occurring before enactment of the Parliamentary Privileges Act. The experience of the House is not comprehensive and for precedents of acts found to constitute contempt by the UK House of Commons, reference is made to May.[120] In assessing the relevance to future cases of the precedents which do exist in the Commonwealth Parliament (and in the House of Commons), regard must be had to the provisions of the Parliamentary Privileges Act and, in particular, to section 4. Appendix 25 contains a full listing of complaints raised in the House.

Misconduct

In the presence of the House or a committee

The most frequent example of disorderly conduct on the part of strangers is the interruption or disturbance of the proceedings of the House by visitors in the galleries, generally seeking to publicise some political cause. In practice, disorderly conduct of this nature would not normally be pursued as a possible contempt but rather dealt with by other means (see Chapter on ‘Parliament House and access to proceedings’).

It should also be noted that section 15 of the Parliamentary Privileges Act provides:

…for the avoidance of doubt, that, subject to the provisions of section 49 of the Constitution and this Act, a law in force in the Australian Capital Territory applies according to its tenor (except as otherwise provided by that or any other law) in relation to:

  1. any building in the Territory in which a House meets; and
  2. any part of the precincts as defined by subsection (3)(1) of the Parliamentary Precincts Act 1988.

Section 11 of the Parliamentary Precincts Act 1988 provides that the Public Order (Protection of Persons and Property) Act 1971 applies to the precincts as if they were Commonwealth premises within the meaning of that Act.

Disobedience to the rules or orders of the House

Examples of this type of contempt include the refusal of a witness or other person to attend the House or a committee after having been summoned to attend and refusing to leave the House or a committee when directed to do so. ‘To prevent, delay, obstruct or interfere with the execution of the orders of a committee (or of either House) is also a contempt’.[121]

Curtin Case (1953): On 17 March 1953 the House resolved that contempt of its ruling and authority had taken place by a Member who had failed to observe an order for his exclusion from the Parliament building following his suspension from the House for using an unparliamentary expression. Following the resolution the Member made an apology to the House which the House resolved to accept and no further action was taken.[122]

Abuse of the right of petition

May states ‘Any abuse of the right of petition may be treated as a contempt by either House’.[123] Precedents in this area include:

  • frivolously, vexatiously or maliciously submitting a petition containing false, scandalous or groundless allegations against any person, whether a Member of such House or not, or contriving, promoting and prosecuting such a petition;
  • inducing persons to sign petitions by false representations.[124]
Forged or falsified documents

The presenting of a forged, falsified or fabricated document to either House or to a committee, with intent to deceive, has been treated as a contempt.[125]

In 1907 a committee of the House of Representatives reported that signatures to a petition were found to be forgeries and the House requested the Crown law authorities to take action with a view to criminal prosecution. The House was later advised, however, that prosecution for forgery would be unsuccessful.[126] In 1974 a letter published in a newspaper in the name of a Member was found by the Committee of Privileges to be a forgery and therefore appeared to constitute a criminal offence. As the author of the letter was unknown, no legal action could be taken.[127]

Conspiracy to deceive

To conspire to deceive either House or a committee of either House could be punished as a contempt. The abuse of the right of petition and forging or falsifying documents could be examples of this type of contempt.

Deliberately misleading the House

May states:

The Commons may treat the making of a deliberately misleading statement as a contempt. In 1963 the House resolved that in making a personal statement which contained words which he later admitted not to be true, a former Member had been guilty of a grave contempt.[128] (Profumo’s Case, CJ (1962–63) 246)

The circumstances surrounding the decision of the House of Commons in Profumo’s Case are of importance because of the guidance provided in cases of alleged misrepresentation by Members. Mr Profumo had sought the opportunity of making a personal statement to the House of Commons to deny the truth of allegations made against him. Later he was forced to admit that in making his personal statement of denial to the House, he had deliberately misled the House. As a consequence of his actions, he resigned from the House which subsequently agreed to a resolution declaring him guilty of a grave contempt.

Whilst claims that Members have deliberately misled the House have been raised as matters of privilege or contempt, the Speaker has not, to date, granted priority to a motion in respect of such a claim.

On 21 May 2012 a Member made a statement to the House refuting certain allegations relating to his conduct prior to becoming a Member. On 22 May the question as to whether the Member had deliberately misled the House was raised as a matter of privilege. While the Speaker found that a prima facie case had not been made and did not grant precedence to the matter, he stated that it was still open to the House to determine a course of action. A motion, moved by leave, was then agreed to, referring the matter to the Committee of Privileges and Members’ Interests.[129]

On 16 September 1986 Speaker Child advised the House that she had appraised a statement to the House on 22 August by a Member, following her reference to remarks critical of her attributed to the Member. The Speaker, having examined the transcripts of the remarks in question, claimed that he had misled the House and said this action, in her opinion, constituted a contempt of the House. The Member then addressed the House on the matter. The Chairman of Committees then moved a motion to the effect that the Member’s statement to the House on 22 August had misled the House, and thus constituted a contempt of the House. After debate, and the Member having again withdrawn the remarks to which attention had been drawn, and having again apologised, the motion was withdrawn, by leave.[130] The House has agreed to motions censuring[131] and condemning[132] Members for ‘misleading the House’ and for having ‘intentionally misled the House’, but in neither case was it said that a contempt had been committed. (See also ‘Apology by Member’ at page 765, and Chapters on ‘The Speaker, Deputy Speakers and officers’ and ‘Motions’.)

Corruption in the execution of their office as Members

Section 141.1 of the Criminal Code deals with the offences of bribery of Commonwealth public officials. It provides for penalties of 10 years imprisonment for both giving and receiving bribes. Members of Parliament are encompassed by the term ‘Commonwealth public official’.[133]

As well as being a crime, corruption in connection with the performance of a Member’s duties as a Member could also be punished as a contempt.

May states:

The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to either House, or to a committee is a contempt.[134]

In Australia section 45 of the Constitution also applies—see ‘Qualifications and disqualifications’ in Chapter on ‘Members’.

Lobbying for reward or consideration

May records that in 1995 the House of Commons, adding to a 1947 resolution, resolved that:

no Members of the House shall, in consideration of any remuneration, fee, payment, reward or benefit in kind, direct or indirect, …advocate or initiate any cause or matter on behalf of any outside body or individual; or urge any Member of either House of Parliament, including Ministers, to do so, by means of any speech, Question, Motion, introduction of a bill, or amendment to a Motion or Bill.[135]

In Australia section 45 of the Constitution also applies—see ‘Qualifications and disqualifications’ in Chapter on ‘Members’.

Improper interference with and obstruction of Members and House employees in the discharge of their duty

Improper interference with the free performance by a Member of his or her duties as a Member is a contempt.[136] An example of this category of offence is the issuance of documents fraudulently and inaccurately written in a Member’s name.[137]

The arrest of a Member in a civil cause during periods when the immunity conferred by the Parliamentary Privileges Act applies could be pursued as a contempt (see page 1043); so too could molestation of a Member while attending, coming to, or going from the House.

In 1986 the Committee of Privileges considered a case in which the work of a Member’s electorate office had been disrupted as a result of a considerable number of telephone calls received in response to false advertisements in a newspaper. The committee’s report stated that the actions in question were to be deprecated; that in all the circumstances it did not believe that further action should be taken; but that harassment of a Member in the performance of his or her work by means of repeated or nuisance or orchestrated telephone calls could be judged a contempt.[138]

The Committee of Privileges has also considered the effect of industrial action which involved bans on mail services to Members’ electorate offices. It found that the actions had disrupted the work of electorate offices, and impeded the ability of constituents to communicate with Members, but that as the actions were not taken with any specific intention to infringe the law concerning the protection of Parliament an adverse finding should not be made.[139]

In 1995 the committee reported on a complaint following the execution, by officers of the Australian Federal Police, of a search warrant on the electorate office of a Member. The committee concluded that, although the work of the Member’s electorate office had undoubtedly been disrupted, and that although the actions complained of amounted to interference in the free performance by the Member of his duties as a Member, the interference could not be regarded as improper interference as required by section 4 of the Act and so no contempt had been committed.[140]

The Parliamentary Privileges Act also confers, by section 14, immunity from arrest in civil causes of officers required to attend on a House or a committee for certain periods (see page 1042). The obstruction of House employees in the execution of their duty, or other people entrusted with the execution of its orders, or the molestation of those people on account of their having carried out their duties, could be found to be a contempt. To commence proceedings against such people for their conduct in obedience to the orders of the House could be pursued as a possible contempt.

Attempts by improper means to influence Members in the performance of their duties

The offer of a benefit or bribe

As well as being a criminal offence,[141] punishable by 10 years imprisonment, the offering of bribes to Members to influence them in their parliamentary conduct is a contempt.

Intimidation etc. of Members

To attempt to influence a Member in his or her conduct as a Member by threats, or to molest any Member on account of his or her conduct in the Parliament, is a contempt. So too is any conduct having a tendency to impair a Member’s independence in the future performance of his or her duty, subject, since 1987, to the provisions of the Parliamentary Privileges Act.

‘Bankstown Observer’ (Browne/Fitzpatrick) Case

On 8 June 1955 the Committee of Privileges reported to the House that it had found:

  • That Messrs Fitzpatrick and Browne were guilty of a serious breach of privilege by publishing articles intended to influence and intimidate a Member (Mr Morgan), in his conduct in the House, and in deliberately attempting to impute corrupt conduct as a Member against him, for the express purpose of discrediting and silencing him. The committee recommended that the House should take appropriate action.
  • That there was no evidence of improper conduct by the Member in his capacity as a Member of the House.
  • That some of the references to the Parliament and the Committee of Privileges contained in the newspaper articles constituted a contempt of the Parliament. However, the committee considered the House would best consult its own dignity by taking no action in this regard.[142]

The committee’s inquiry and report followed a complaint made by a Member (Mr Morgan) on 3 May 1955 that an article published on 28 April 1955 in a weekly newspaper known as the Bankstown Observer, circulating in his electorate, had impugned his personal honour as a Member of Parliament and was a direct attack on his integrity and conduct as a Member of the House.[143]

The committee’s report and findings were considered by the House on 9 June 1955 and a motion moved by the Prime Minister ‘That the House agrees with the Committee in its Report’ was agreed to without division. On a further motion of the Prime Minister it was resolved that Messrs Browne and Fitzpatrick be notified that at 10 a.m. the following day the House would hear them at the Bar before proceeding to decide what action it would take in respect of their breaches of privilege.[144]

On being brought to the Bar of the House the following morning[145] Mr Fitzpatrick sought permission for his counsel to act on his behalf. The request was refused by the Speaker and Mr Fitzpatrick apologised to the House for his actions and withdrew. Mr Browne was then brought to the Bar and addressed the House at some length without apologising and withdrew.

Following a suspension of 51 minutes, the House resumed and the Prime Minister moved motions in respect of Messrs Browne and Fitzpatrick to the effect that, being guilty of a serious breach of privilege, they should be imprisoned for three months and that the Speaker should issue warrants accordingly. The Leader of the Opposition moved, as an amendment, that both motions be amended to read:

That this House is of opinion that the appropriate action to be taken in these cases is the imposition of substantial fines and that the amount of such fines and the procedure of enforcing them be determined by the House forthwith.

Following considerable debate, the amendment was defeated, on division, and the motions of the Prime Minister agreed to, on division.

The action taken by the legal representatives of Messrs Browne and Fitzpatrick to apply to the High Court for writs of habeas corpus and their subsequent petition to the Judicial Committee of the Privy Council for special leave to appeal against the decision of the High Court is refferred to earlier (see page 1024).

Case involving Hon. G. Scholes MP

In 1990 the Committee of Privileges reported on actions taken by a solicitor in respect of the Hon. G. Scholes MP. Mr Scholes had distributed certain information within his electorate, and had subsequently received a letter from a solicitor acting on behalf of a client affected by the information. The letter, inter alia, asked that Mr Scholes refrain from making such statements in the future, and stated that if assurances sought were not forthcoming, the solicitor would advise his client to initiate proceedings. Mr Scholes argued that the threat would inhibit him in carrying out his duties as a Member, but the committee found that there was not sufficient evidence to lead it to a conclusion that the statement should be found to constitute an attempt by improper means to influence Mr Scholes in respect of his participation in proceedings in Parliament.[146]

Cases involving letters written by Members

In the Nugent Case (1992) and the Sciacca Case (1994) the Committee of Privileges considered complaints about actions or threatened actions to sue Members on account of statements made in letters to Ministers. The substance of the Members’ complaints was that they had been subject to improper interference in the performance of their duties as Members. In the case of Mr Nugent, the committee found that the terms of the letter containing the threat and the circumstances of its receipt had a tendency to impair Mr Nugent’s independence in the performance of his duties, although it did not find that a contempt had been committed.[147] The House subsequently resolved that the persons responsible should be required to apologise[148] and they did so.[149] In the case of Mr Sciacca, the committee found that although Mr Sciacca had felt constrained, there was no evidence of an attempt to interfere improperly in the performance of his duties and a finding of contempt should not be made.[150]

Case involving Mr Katter MP

In this case the committee considered a complaint that action to sue a person who had sworn a statutory declaration and given it to a Member (who had used it in the course of proceedings in the House) amounted to improper interference in the performance of the Member’s duties. The committee concluded that no evidence had been produced which would establish that the actions complained of amounted to or were intended or likely to amount to improper interference in the free performance by Mr Katter of his duties as a Member. Accordingly, it found that a contempt had not been committed.[151]

Brown case (UK)

In 1947 the House of Commons Committee of Privileges inquired into a complaint that certain actions of the Executive Committee of a union were calculated, improperly, to influence a Member (Mr Brown) in the exercise of his parliamentary duties. The Member had for many years been employed by the union. On his election to Parliament, the union entered into a contractual relationship with him that, whilst remaining a Member, he would hold an appointment with the union and would continue to receive a salary and certain other advantages, although his contract entitled him ‘to engage in his political activities with complete freedom’. The Member complained that the effect of a sequence of events was such as to bring pressure on him to alter his conduct as a Member and to change the free expression of his views under the threat that, if he did not do so, his position as an official of the union would be terminated or rendered intolerable. The Committee of Privileges found that, in the particular circumstances, the action of the union did not in fact affect the Member in the discharge of his parliamentary duties. However, in its report the committee stated:

Your Committee think that the true nature of the privilege involved in the present case can be stated as follows:

It is a breach of privilege to take or threaten action which is not merely calculated to affect the Member’s course of action in Parliament, but is of a kind against which it is absolutely necessary that Members should be protected if they are to discharge their duties as such independently and without fear of punishment or hope of reward.[152]

Chairman of the Sydney Stock Exchange Case

The House resolved on 28 March 1935 that a letter written by the Chairman of the Sydney Stock Exchange, allegedly making a threat and reflecting on the motives and actions of a Member, did not amount to a breach of privilege but was, in effect, an exercise of the right of an individual to defend himself. The House considered, however, that the Chairman was in error in addressing a letter to the Speaker instead of direct to the Member concerned.[153]

Offences against witnesses

Standing order 256 states that:

Any witness giving evidence to the House or one of its committees is entitled to the protection of the House in relation to his or her evidence.

As well as being able to be punished as a statutory offence (see below), intimidation, punishment, harassment of or discrimination against witnesses or prospective witnesses can be punished as a contempt and, technically, there is no prohibition on a person being punished for such a contempt as well as being prosecuted under the Parliamentary Privileges Act. May states:

It is a contempt to deter prospective witnesses from giving evidence before either House or a committee, or to molest any persons attending either House as witnesses, during their attendance in such House or committee.  …On the same principle, molestation or threats against those who have previously given evidence before either House or a committee will be treated as a contempt.[154]

Both Houses will treat the bringing of legal proceedings against any person on account of any evidence which he may have given in the course of any proceedings in the House or before one of its committees as a contempt.[155]

Section 12 of the Parliamentary Privileges Act provides that a person shall not, by fraud, intimidation, force or threat, by the offer or promise of any inducement or benefit, or by other improper means, influence another person in respect of any evidence given or to be given before a House or a committee, or induce another person to refrain from giving any such evidence. Further, under the Act a person shall not inflict any penalty or injury upon, or deprive of any benefit, another person on account of the giving or proposed giving of any evidence or any evidence given or to be given, before a House or a committee. The penalties, in each case, are $5 000 for natural persons and $25 000 for corporations. These provisions do not prevent the imposition of a penalty in respect of an offence against an Act establishing a committee.[156]

Breach of the immunity of persons required to attend before the House or a committee from arrest in civil causes (and from compulsory attendance before a court or a tribunal as a witness) on days when they are required by the House or committee could be regarded as a contempt.[157]

Berthelsen Case and other cases

A matter of alleged discrimination against and intimidation of a witness who had given evidence to a parliamentary subcommittee was referred to the Committee of Privileges in 1980.[158] Although the committee was not satisfied, on the evidence, that a breach of privilege had been proved against any person, it found that the witness had been disadvantaged in his career prospects in the public service. The House, on the recommendation of the committee, and being of the opinion that the report be given full consideration early in the 32nd Parliament, resolved that the Public Service Board be requested to do all within its power to restore the career prospects of the witness and ensure that no further disadvantage was suffered as a result of the case. A document from the Public Service Board informing the House of action taken in respect of Mr Berthelsen was presented on 24 February 1981.[159]

On three other occasions the Committee of Privileges has considered allegations that witnesses had been discriminated against or penalised on account of their participation in committee inquiries, but in no case did the committee find that a contempt had been committed.[160] The Senate Committee of Privileges has also reported on a number of complaints of this nature.[161] (And see Chapter on ‘Parliamentary committees’).

Acts tending indirectly to obstruct Members in the discharge of their duty

Reflections on Members

Following a recommendation of the Joint Select Committee on Parliamentary Privilege, the Commonwealth Parliament, in 1987 with the enactment of the Parliamentary Privileges Act, ‘abolished’ the previous category of contempt constituted by reflections on Parliament, a House or a Member. Section 6 of the Act provides:

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.

This provision does not apply to words spoken or acts done in the presence of a House or a committee. This qualification would enable a House or a committee to take action if, for instance, a member of the public made insulting or offensive remarks during a sitting or meeting. Under the Act words or acts could also be pursued if, for example, they constituted intimidation. The section is confined to preventing the punishment of defamatory or critical remarks by reason only that they are defamatory or critical.

Premature publication or disclosure of committee proceedings, evidence and reports

Standing order 242 provides (in part) that:

(b) A committee’s or subcommittee’s evidence, documents, proceedings and reports may not be disclosed or published to a person (other than a member of the committee or parliamentary employee assigned to the committee) unless they have been:

  1. reported to the House; or
  2. authorised by the House, the committee or the subcommittee.

The standing order further provides that a committee may resolve to publish press releases, discussion or other papers or preliminary findings. It also provides that a committee may resolve to divulge evidence, documents, proceedings or reports on a confidential basis to persons for comment.[162] In addition, the standing order allows a committee to resolve to authorise Members to give public briefings on matters related to an inquiry. The committee must determine the limits of the authorisation.[163] A Member must not disclose proceedings, evidence or documents not specifically authorised.

Most evidence taken by parliamentary committees is taken in public and publication of the evidence is expressly authorised. However, the publication or disclosure of evidence taken in private, of private deliberations and of draft reports of a committee before their presentation to the House, have been pursued as matters of contempt.

A Member wishing to raise a complaint in this area must raise it in the House at the first appropriate opportunity. The Member is not required to go into the detail of the matter, but must identify the committee and the nature of the concern. The committee in question must then consider the matter—in particular it must consider whether the matter has caused or is likely to cause substantial interference with its work, with the committee system or with the functioning of the House. It must also take whatever steps it can to ascertain the source(s) of the disclosure(s). The committee must inform the House of the results of its consideration and, if it finds that substantial interference has occurred, it must explain why it has reached that conclusion.[164] The issue is then considered by the Speaker, who determines whether or not to allow precedence to a motion on the matter. Should a committee conclude that substantial interference has not occurred the House should be informed accordingly.[165]

Joint committees in these circumstances follow a similar process in accordance with the Senate procedural order of continuing effect relating to unauthorised disclosure of committee proceedings, documents or evidence.[166]

Appendix 25 contains a list of complaints in this area and a precis of the committee’s findings in each case referred to the Committee of Privileges (Privileges and Members’ Interests from 2008). The committee’s reports indicate the difficulty of reaching a satisfactory outcome in such inquiries. The committee has expressed the view that complaints in this area should not be given precedence unless the Speaker is of the opinion that there is sufficient evidence to enable the source(s) of disclosure to be identified or that there are such special circumstances (for example, the protection of sources or witnesses) as would warrant reference to the committee.[167]

The Parliamentary Privileges Act provides that:

A person shall not, without the authority of a House or a committee, publish or disclose—

  1. a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera; or
  2. any oral evidence taken by a House or a committee in camera, or a report of any such oral evidence,

unless a House or a committee has published, or authorised the publication of, that document or that oral evidence.[168]

Penalties under the section are $5 000 in the case of a natural person and $25 000 in the case of a corporation. Technically, a breach could be pursued both as a contempt and a statutory offence, but this is unlikely in most circumstances.

See also Chapter on ‘Parliamentary committees’.

Other offences

May states:

Other acts besides words spoken or writings published reflecting upon either House or its proceedings which, though they do not tend directly to obstruct or impede either House in the performance of its functions, yet have a tendency to produce this result indirectly by bringing such House into odium, contempt or ridicule or by lowering its authority may constitute contempts.[169]

An instance of this type of contempt would be disorderly conduct within the precincts of either House while such House is sitting or during committee proceedings, although, as indicated earlier in this chapter, such conduct is usually dealt with by other means. In the assessment of any complaint in this area, regard would need to be had to the provisions of section 4 of the Parliamentary Privileges Act.

May also cites in this category of contempt ‘serving or executing civil or criminal process within the precincts of either House while the House is sitting without obtaining the leave of the House’.[170] Parliament House is not considered to be an appropriate place in which to serve such documents and, for example, service, or attempted service, on a Member on a sitting day, or on a day on which a Member was to participate in a committee meeting, could be complained of as a contempt.

On 6 October 1922 a complaint was made that a summons had been served on a Member in the precincts of the House while the House was sitting.[171] The Attorney-General expressed the opinion that it was not desirable to proceed further in the case but that ‘those entrusted with the service of process of the Court should take steps to have summonses served in the ordinary way, as it is not a desirable practice that service should, under any circumstances, be made within the precincts of this House while the House is sitting’.

Interference with the administration of the Parliament

On 24 October 1919 the Speaker drew to the attention of the House a matter concerning the Economies Royal Commission ‘as it affected the privileges of Parliament’. The Royal Commission proposed to investigate expenditure in connection with parliamentary services and the Speaker said that as it had no authority from the Parliament to interfere in any way with the various services of Parliament, it was his duty to call attention to the proposed serious encroachment on the rights and privileges of Parliament by a tribunal to inquire into matters over which the legislature had absolute and sole control. The Government gave an assurance that no privileges of the Parliament would be in any way infringed by the operation of the Royal Commission.[172]


115. May, 24th edn, p. 251.
116. It is sometimes said that the list of possible contempts is not closed. For judicial comment on s. 4 see R v. Theophanous [2003] VSCA 70; see also Enid Campbell, Parliamentary privilege, Federation Press, Sydney, 2003, pp. 97–98, 211–2.
117. Proposed resolution incorporated in Hansard at H.R. Deb. (5.5.1987) 2632. The Senate adopted a resolution to give effect to the recommendation on 25 February 1988.
118. PP 219 (1984) 83; H.R. Deb. (5.5.1987) 2632–3.
119. E.g. H.R. Deb. (9.11.1983) 2461; H.R. Deb. (29.4.1986) 2698; H.R. Deb. (16.9.1986) 759; H.R. Deb. (23.10.2008) 10169–70. The Senate has adopted resolutions on this matter, J 1987–89/520–1, 536.
120. May, 24th edn, pp. 250–71. It is stated at p. 250 ‘It is therefore impossible to list every act which might be considered to amount to a contempt’.
121. May, 24th edn, p. 839.
122. VP 1951–53/609, 611.
123. May, 24th edn, p. 253.
124. May, 24th edn, p. 253 (footnote 23).
125. May, 24th edn, p. 253 (footnote 23).
126. VP 1907–08/165, 267.
127. House of Representatives Committee of Privileges, Report relating to a letter fraudulently written in the name of the honourable Member for Casey published in the Sun-News Pictorial on 6 December 1973, PP 65 (1974); VP 1974/98.
128. May, 24th edn, p. 254.
129. VP 2010–12/1451, 1467, 1468–9. Appendix 25 has more detail. The committee had not reported at the date of publication.
130. VP 1985–87/1089, 1090, 1101–2.
131. VP 1993–5/1906.
132. VP 1993–5/2345.
133. Formerly covered by s. 73A of the Crimes Act 1914. In June 2002 a person was convicted and imprisoned for a number of offences, including a breach of section 73A, committed when he had been a Member, although an appeal succeeded in respect of one charge (R v. Theophanous, County Court, Victoria). And see p.1034 for comments re subsection 16(3) of the Parliamentary Privileges Act.
134. May, 24th edn, p. 254. See also May, p. 257.
135. May, 24th edn, p. 79.
136. Parliamentary Privileges Act 1987, s. 4.
137. VP 2005–07/1954 (House resolution agreeing with Committee of Privileges recommendation).
138. House of Representatives Committee of Privileges, Disruption caused to the work of the electorate office of the honourable Member for Wentworth made in response to false advertisements in the Sydney Morning Herald of 20 September 1986, PP 282 (1986) 5–6.
139. PP (122) 1994.
140. PP 376 (1995); and see p. 1030 re the status of Members’ records.
141. Criminal Code Act 1995, s. 141.1.
142. H of R 2 (1954–55) 7. For a full account of this case see J. A. Pettifer, ‘The case of the Bankstown Observer’, The Table XXIV, 1955, pp. 83–92.
143. VP 1954–55/184; H.R. Deb. (3.5.1955) 352–5.
144. VP 1954–55/267.
145. For proceedings on this day see VP 1954–55/269–71; H.R. Deb. (10.6.1955) 1625–65.
146. PP 428 (1990) 7.
147. PP 118 (1992).
148. VP 1990–92/1487, 1540, 1551.
149. VP 1990–92/1633.
150. PP 78 (1994).
151. PP 407 (1994). (See also p. 1030).
152. House of Commons Committee of Privileges, Report, HC 118 (1947) xii.
153. VP 1934–37/149–50.
154. May, 24th edn, p. 840.
155. May, 24th edn, p. 841.
156. Parliamentary Privileges Act 1987, s. 12(3).
157. Section 14 of the Parliamentary Privileges Act provides that persons required to attend before a House or a committee, shall not be required to attend before a court or a tribunal, or be arrested or detained in a civil cause, on that day.
158. House of Representatives Committee of Privileges, Report relating to the alleged discrimination and intimidation of Mr David E. Berthelsen in his public service employment because of evidence given by him in a subcommittee of the Joint Committee on Foreign Affairs and Defence, PP 158 (1980); VP 1978–80/1372, 1375, 1417, 1422, 1672–3.
159. VP 1981–83/80.
160. PP 455 (1991); PP 136 (1994); PP (208) 2001.
161. See Senate Committee of Privileges, Parliamentary privilege: Precedents, procedure and practice in the Australian Senate 1966—2005, PP 3 (2006); and see Odgers.
162. S.O. 242(c).
163. S.O. 242(d).
164. These requirements were first applied in 1990, but were set out more comprehensively in a statement by Speaker McLeay in 1992—H.R. Deb. (17.9.1990) 1989–90; H.R. Deb. (7.5.1992) 2661–2; VP 1990–92/ 187; 1489; for precedents see, for example, H.R. Deb. (18.9.1990), 2087–8; H.R. Deb. (27.10.1993) 2654; H.R. Deb. (8.11.1997) 10630–1; H.R. Deb. (24.3.1999) 4268–9; H.R. Deb. (9.11.2000) 22635–7.
165. H.R. Deb. (7.5.1992) 2661–2. For precedents see e.g. H.R. Deb. (23.11.1993) 3401–2; H.R. Deb. (5.5.1994) 367; H.R. Deb. (2.10.1997) 9104 (2). A detailed statement has been made on such an occasion—H.R. Deb. (29.6.1994) 2292–3.
166. For example, see Parliamentary Standing Committee on Public Works, Unauthorised disclosure of committee proceedings and evidence, PP 41 (2010).
167. PP 26 (1995) 7.
168. Parliamentary Privileges Act 1987, s. 13.
169. May, 24th edn, p. 261.
170. May, 24th edn, p. 261.
171. VP 1922/190, 201; H.R. Deb. (6.10.1922) 3337–8; H.R. Deb. (11.10.1922) 3555.
172. VP 1917–19/587; see also Ch. on ‘Parliament House and access to proceedings’.

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