Manner of dealing with privilege and contempt
Raising of matter
A Member may raise a matter of privilege at any time during a sitting. The Member raising a matter must be prepared to move without notice, immediately or subsequently, a motion declaring that a contempt or breach of privilege has been committed, or referring the matter to the Committee of Privileges and Members’ Interests.
When a Member raises a matter of privilege the Speaker may reserve the matter for further consideration, or may give the matter precedence and invite the Member to move one of the motions above. It is the practice of the House that no seconder is required for either of these motions.
If the matter is given precedence, consideration and decision of every other question is suspended until the matter of privilege has been disposed of, or until debate on any motion related to the matter of privilege has been adjourned.
In order to grant precedence to a privilege motion over other business the Speaker must be satisfied that:
a prima facie case of contempt or breach of privilege has been made out, and
the matter has been raised at the earliest opportunity.
If a matter of privilege related to the proceedings of the Federation Chamber is raised in the Federation Chamber, the Chair must suspend the proceedings and report the matter to the House at the first opportunity.
The Member raising and stating the matter of privilege or contempt may speak on the matter, although the Speaker may intervene to indicate that sufficient information has been provided. The Speaker may also permit another Member to speak to the matter. Although it is irregular for debate to ensue on the matter raised until a motion has been moved, for the purposes of clarification Members have sometimes been allowed to speak by leave or indulgence to a matter raised, before the Speaker’s opinion has been given and without a motion having been moved. The Speaker may obtain information or advice to assist in clarification of an issue. A Member may refer to a matter of privilege without raising a formal complaint. Two separate matters have been raised by a Member at the same time.
It has been held that a Member may not raise a matter on behalf of another Member. However, the Speaker has considered a matter raised by the Leader of the House relating to another Member, after the Member concerned had also spoken on the matter by indulgence, indicating support for the matter being raised. The Speaker, normally by way of a statement, has also raised matters coming within his or her knowledge for the consideration and action of the House as it deems necessary. It has also been held that a matter should not be raised by way of a question to the Chair. A personal explanation should not be made under the guise of a matter of privilege. A matter of order or a matter coming within the standing orders or practice should not be raised as a matter of privilege. Likewise, if a question of privilege is raised, it must be in connection with something affecting the House or its Members in their capacity as such.
A matter may be raised at any time. While the standing orders refer to complaints being raised at the earliest opportunity, it is often more convenient, with the Speaker’s agreement, for a matter to be raised at an appropriate opportunity later in a day’s proceedings. There have been cases of matters not being granted precedence because they had not been raised at the earliest opportunity. Business before the House has been interrupted to raise matters. An exception to this rule is that a matter of privilege cannot be raised during the course of a division.
If a Member cites a statement in a published document in connection with a contempt or breach of privilege, he or she must present to the House an extract of the publication containing the statement and be able to identify the author, printer or publisher. Leave is not required for a Member to present a document relating to the matter he or she is raising.
Determination of whether a matter can be accorded precedence
When a matter is raised by a Member (unless the Speaker has held that the matter has not been raised at the earliest opportunity) the Speaker may give an opinion immediately as to whether a prima facie case of breach of privilege exists or state that he or she will consider the matter and give an opinion later. This may be later in the same sitting or at a subsequent sitting. Establishing a prima facie case is, in a technical sense, only for the purpose of precedence being given to a motion in relation to the matter, but the practice usually provides the House with some guidance as to the nature and substance of the complaint.
The Speaker may not necessarily use the term ‘prima facie’ in giving his or her opinion on a matter, but simply indicate whether or not precedence will be accorded to a motion. This decision indicates whether or not the requirements of the standing orders for precedence to be given have been met. In addition, since 1990 Speakers have required complaints concerning unauthorised disclosure of information concerning committees to be considered in the first instance by the committees themselves (see page 761). This approach has also been taken in respect of other matters concerning committees, such as the possible intimidation of witnesses.
In determining that a prima facie case exists, the Speaker typically refers to the matter briefly, but does not express concluded views on the issues themselves, as it is for the House to decide, in practice after examination by the Committee of Privileges and Members’ Interests, whether a contempt or breach of privilege has been committed.
An opinion by the Speaker that a prima facie case has been made out does not imply a conclusion that a breach of privilege or a contempt has occurred, or even that the matter should necessarily be investigated. Although the Speaker may find that a prima facie case has been made out, or that precedence may be given to a motion in respect of a complaint, this does not compel the Member who raised the complaint, or any other Member, to move a motion on the matter. For instance, it may be considered inappropriate or inconsistent with the dignity of the House either to give further consideration to a matter or to refer the matter to the Committee of Privileges and Members’ Interests for inquiry.
The Speaker may give reasons or make comments if, in his or her opinion, a prima facie case does not exist. Although not finding a prima facie case, the Speaker may consider the matter sufficiently important to take other action, such as writing to a statutory authority. Even though a matter could be pursued as a matter of privilege, the Speaker may have regard to the availability of other means of dealing with it (for example, as a matter of order).
An opinion by the Speaker on a complaint raised under standing order 51 is not a ruling and so a dissent motion, as provided for in standing order 87, is not in order.
Matter not accorded precedence
Although the Speaker may be of the opinion that a prima facie case has not been made out, this does not prevent a Member from lodging a notice of motion in relation to the matter, but such a motion is not entitled to any precedence. Motions to refer matters for inquiry have also been moved by leave. This has occurred when a matter has not been raised as a complaint with the Speaker, and also after the Speaker has given a decision not to allow precedence.
Matter arising in committee proceedings
If a question of privilege arises in connection with proceedings of a select or standing committee the committee reports the matter to the House, by special report if necessary.
Matter arising when the House is not sitting
During a period when the House is not sitting and is not expected to meet for a further period of at least two weeks, a Member may bring to the attention of the Speaker a matter of privilege which has arisen since the House last met and which he or she proposes should be referred to the Committee of Privileges and Members’ Interests. If satisfied that a prima facie case of breach of privilege has been made out and the matter requires urgent action, the Speaker must refer it immediately to the Committee of Privileges and Members’ Interests and report the referral to the House at its next sitting. Immediately after the Speaker’s report the Member who raised the matter must move (without notice) that the referral be endorsed by the House. If this motion is not agreed to, the Committee of Privileges and Members’ Interests may take no further action on the matter.
The (former) Standing Orders Committee and the Joint Select Committee on Parliamentary Privilege recommended that complaints of breach of privilege or contempt should be raised in writing with the Speaker, in the first instance, with the Speaker then advising the Member whether or not he or she would allow precedence to a matter. The House has not, however, adopted these proposals. For more details see pages 718–19 of the third edition.
Committee of Privileges and Members’ Interests
In order to assist the House in its examination of issues of privilege the House appoints a Committee of Privileges and Members’ Interests at the commencement of each Parliament. The Committee of Privileges was first established, by standing order, on 7 March 1944. The committee’s current name dates from 2008 when it absorbed the functions of the former Committee of Members’ Interests. The committee’s functions in relation to Members’ interests are covered in the Chapter on ‘Members’.
The committee consists of the Leader of the House or his or her nominee, the Deputy Leader of the Opposition or his or her nominee and nine other Members (five government and four non-government). The chair of the committee is normally a backbench Member of considerable parliamentary experience. During the 28th Parliament (1973–74) the chair was also a Minister (Mr Enderby) and the Prime Minister (Mr Whitlam) was a member of the committee. The committee often has a number of lawyers among its members. A member may be discharged from the committee and another appointed in his or her place for the consideration of particular inquiries. This has occurred when a member of the committee has raised the matter being inquired into in the House, and when a member has been expected to be absent for a significant part of the inquiry, or for some other reason such as a member having had some prior involvement in respect of a particular issue. The special procedures adopted in 2009 (see page 774) require that a Member who has instigated an allegation of contempt or who is directly implicated shall not serve as a member of the committee for the inquiry. A member on being elected Speaker withdraws from the committee and another Member is appointed to fill the vacancy. In other cases members have not participated in inquiries (for example, because they were also members of a committee involved in the inquiry), but they have not been replaced. In respect of certain inquiries the committee has resolved that any statements to the press were to be made by the chairman after being authorised by the committee.
Authority and jurisdiction
The committee’s purpose in relation to privilege matters is to inquire into and report on complaints of breach of privilege or contempt referred to it by the House under standing order 51 or by the Speaker under standing order 52 (matters arising when the House is not sitting), or any other related matter referred to it by or in accordance with a resolution of the House. On the basis that privilege questions are matters for each House alone, the committee has no power to confer with the Senate Committee of Privileges, although it has been recommended that the two committees should be empowered to confer. In 1982 the House and the Senate resolved to appoint a joint select committee to review and report whether any changes were desirable, inter alia, in respect of ‘the law and practice of parliamentary privilege as they affect the Senate and the House of Representatives, and the Members and the committees of each House … ’ and substantial changes, described elsewhere in this chapter, followed this inquiry.
The House of Representatives Committee of Privileges has inquired into complaints arising from inquiries conducted by joint committees. In 1973 it inquired into the unauthorised publication of the contents of a draft report of the Joint Committee on Prices; in 1980 the committee gave careful consideration to the question of its jurisdiction before determining that it had the power to inquire into matters arising from an inquiry conducted by a subcommittee of the Joint Committee on Foreign Affairs and Defence; inquiries into matters involving joint committees were also conducted in 1987, 1994 and 2001. The Senate Committee of Privileges has also inquired into matters concerning joint committees.
The committee may investigate not only the specific matter referred but also the facts relevant to it. The committee has also reported on matters arising during, or as a consequence of, its inquiry, such as refusal of witnesses to provide information, without first seeking a separate reference from the House.
The Committee of Privileges and Members’ Interests has not accepted a submission by a Member to the effect that it did not have the authority to assess and comment on her conduct in proceedings in the House beyond determining whether there had been a breach of privilege or contempt.
In the Browne/Fitzpatrick Case (1955) the Committee of Privileges, in a special report to the House, sought and received authority to investigate articles in editions of the Bankstown Observer in addition to the edition referred to it for investigation and report. In the Censorship of Members’ Correspondence Case (1944), the committee regarded itself as having no jurisdiction or authority to report on a number of matters raised during the course of the inquiry. The committee inquiring into the ‘Century’ Case (1954), acting in accordance with the practice of the House of Commons of inquiring into facts surrounding and reasonably connected with the matter of the particular complaint, commented on aspects of the production of Hansard existing at the time. In 1955 two separate but related matters referred by the House were considered together by the committee and one report made.
In the consideration of matters which may involve a contempt, the Committee of Privileges and Members’ Interests is required to observe special procedures for the protection of witnesses in addition to those applying to all House committees. These procedures adopted in 2009 followed a review of procedures that had been adopted by the Committee of Privileges and presented to the House in 2002. The procedures, recognising the significance of inquiries by the Committee of Privileges and Members’ Interests, seek to ensure that principles of natural justice and procedural fairness are observed. Among the special procedures are requirements that persons subject to proposed investigation be notified in advance of the specific nature of allegations against them and be given all reasonable opportunity to respond by making written submissions, giving oral evidence, having other evidence presented and having witnesses examined before the committee. Having considered written submissions received, the committee may then invite persons to appear before it. It has the power to compel persons to attend before it and to require that documents be produced.
It is usual for the Clerk of the House to prepare a memorandum for the consideration of the committee. The Clerk is acknowledged as the committee’s principal adviser on the principles and law of parliamentary privilege and has given evidence to, or conferred informally with, the committee at its request in respect of its inquiries. The Clerk on other occasions has been permitted to attend meetings as an observer. The Speaker and law officers of the Crown have also given evidence to, or conferred informally with, the committee. During its 1980 inquiry into the use of House documents in the courts, a leading barrister served as a specialist adviser to the committee. The special procedures adopted in 2009 allow the committee to appoint counsel to assist it.
Since 1987 the practice of the committee has been to permit witnesses to be accompanied by an adviser when giving evidence. Normally witnesses have chosen to be accompanied by lawyers, but on other occasions persons such as a Member’s assistant or another Member have accompanied witnesses. Witnesses are permitted to consult freely with their advisers when giving evidence. Traditionally advisers were not permitted to make submissions themselves or to question other witnesses, but the special procedures adopted in 2009 allow a person against whom evidence has been given to examine witnesses, by counsel or personally, in relation to the evidence. The committee may authorise, subject to rules determined by the committee, the examination of witnesses by counsel.
Evidence is taken in public except where the committee determines, on its own initiative or at the request of a witness, that the interests of the witness or the interests of the public warrant the hearing of the evidence in private. A witness is not required to answer in public any question where the committee has reason to believe that the answer may incriminate the witness. A person affected by findings determined by the committee must be informed of them and given all reasonable opportunity to make submissions on the proposed findings, and the committee must consider such submissions before making its report to the House. Similar requirements apply in respect of proposals to recommend penalties.
Witnesses, including Members, are normally examined on oath or asked to make an affirmation. The committee is not bound by the rules of evidence applying in courts, although the practice of the committee is to avoid receiving hearsay evidence, and to advise witnesses that it wishes to obtain information from witnesses about matters within their direct or personal knowledge. Witnesses are given the opportunity to make an opening statement if they wish before questioning commences and, at the conclusion of questioning, they are given a further opportunity to make additional comments.
During the course of inquiries into matters concerning joint committees the committee has advised the House by special report or statement that it wished to be able to take evidence from Senators, and it proposed that the House should communicate with the Senate by message asking it to grant leave for Senators to appear. This advice has been acted upon, and Senators have been given leave to appear if they thought fit. The Senate has added qualification to a motion authorising Senators to attend, drawing attention to the principle that one House should not inquire into or adjudge the conduct of a member of the other House.
If the committee is satisfied that a person would suffer substantial hardship due to the costs associated with an inquiry, or if it believes that the interests of justice require it, it may recommend the reimbursement of all or part of the costs incurred by the person.
It is traditionally observed that, in the consideration and determination of privilege matters, members of the committee do not act along party lines. In reaching a decision as to whether a breach of privilege or contempt had been committed in the Daily Telegraph Case, two earlier decisions of the committee were recommitted due to the votes being taken when certain members of the committee were absent.
A report of the Committee of Privileges and Members’ Interests usually makes a finding as to whether or not a breach of privilege or a contempt of the House has been committed and usually recommends to the House what action, if any, should be taken in each case. In the consideration of matters of possible contempts the committee has regard to the requirements of section 4 of the Parliamentary Privileges Act 1987 and to the intentions of the person(s) involved, although technically it is not necessary that culpable intent be established in order for a finding to be made that a contempt has been committed.
The minutes of proceedings of the committee are always presented with its report. (And see page 777 regarding release of the committee’s records.)
Proceedings following report
On presentation of the committee’s report to the House by the chair, the practice is for the report to be ordered to be made a Parliamentary Paper. The House may then order that it be taken into consideration at the next sitting or on a specified day. In order that Members may consider the report and the questions of privilege involved, the practice of the House has been to consider the report at a future time, but in cases where persons have been found by the committee to be guilty of committing a breach of privilege or contempt, early consideration is usually given by the House. However, seven sitting days notice must be given for any motion that makes a finding of contempt or that imposes any sanction for contempt.
If consideration is made an order of the day for a future day, the order of the day takes precedence over other notices and orders of the day. Alternatively, consideration of a report may be scheduled by informal means and a motion moved by leave in connection with it.
A motion or motions may be moved declaratory of the House’s view on the committee’s report and recommendations and in respect of the House’s proposed action. A motion of this kind is normally debated and decided at that time, although debate may be adjourned and resumed later. If the committee finds that no breach of privilege or contempt has been committed, the House may take no action in respect of the report after it has been presented. The House has agreed to a resolution, on the recommendation of the Committee of Privileges, requesting the Speaker to initiate discussions with the Minister for Justice on a matter. The House does not necessarily follow the committee’s findings and recommendations in declaring itself in relation to the matter or any penalty that may be decided. However, where the Committee of Privileges and Members’ Interests makes no finding of contempt, the House cannot make a finding of contempt, and the House cannot impose a penalty which exceeds that recommended by the committee.
Any motion proposed is subject to amendment.
In respect of the reports on two inquiries conducted by the Committee of Privileges in 1980 (the Use of House Records Case and the Berthelsen Case), which were presented towards the end of the 31st Parliament, the House resolved, at its second last sitting, that it was of the opinion that the reports should be considered early in the next Parliament. The general issues were dealt with in the 1984 report of the Joint Select Committee on Parliamentary Privilege.
Records of the committee
The House has agreed to a motion authorising the publication of all evidence or documents taken in-camera or submitted on a confidential or restricted basis and which have been in the custody of the Committee of Privileges or the Committee of Privileges and Members’ Interests for at least 30 years. The motion authorises the transfer of the records to the National Archives of Australia to enable public access. It also provides that, where the Speaker accepts advice that the release of a particular record would affect the national security interest, or represent an unreasonable intrusion upon the personal affairs of any person, alive or dead, or would otherwise be an exempt record under section 33 of the Archives Act if the Act applied, the release and transfer of the record is not authorised. This motion was put forward on the recommendation of the committee.