Penal jurisdiction of the House
Power and source
By section 49 of the Constitution the House of Representatives acquired the powers, privileges and immunities of the UK House of Commons as at 1 January 1901, until the Parliament otherwise declared. In the absence of such a declaration of those powers, privileges and immunities until 1987 with the enactment of the Parliamentary Privileges Act, they remained those of the House of Commons as at 1 January 1901.
The High Court judgment in the case of Browne and Fitzpatrick (see page 757) left no doubt that the House of Representatives possessed all of the powers, privileges and immunities of the Commons, and the Parliamentary Privileges Act provides that, except to the extent that the Act expressly provides otherwise, the powers, privileges and immunities of each House, and the committees and Members of each House, as in force under section 49 before the commencement of the Act, continue.
The power of the House to punish by means of imposing a fine on persons found to have committed a breach of privilege or a contempt was problematic, but the issue was resolved by the provisions of section 7 of the Parliamentary Privileges Act (see page 765).
The means by which the Houses may enforce the observance of their privileges and immunities, and punish people found guilty of contempt, include:
commitment to prison (see page 764);
imposition of a fine (see page 765);
(public) reprimand or admonishment (see page 766);
exclusion from the precincts (see page 767); or
requirement for an apology—publicly, if appropriate (see page 766).
In a case in which an offence may be adjudged a breach of privilege or a contempt but also an offence at law, or in which penalties available to the House are considered inadequate, or for some other reason, the House may choose not to exercise its power of punishment. Alternatively, it would be open to a House to request government law officers to prosecute an alleged offender and it would also be possible to initiate a private prosecution. Section 10 of the Parliamentary Precincts Act 1988 provides that the functions of the Director of Public Prosecutions in respect of offences committed in the precincts shall be performed in accordance with general arrangements agreed between the Presiding Officers and the Director of Public Prosecutions.
There is no case of the House directing or requesting the law officers to prosecute, per se. In 1907 a committee of the House 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. 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.
Although the House may consider that a breach of privilege or a contempt has been committed it may take no further action or it may decide, having regard to the circumstances of the case, to ‘consult its own dignity’ by taking no punitive action (and see Browne/Fitzpatrick Case at page 757).
Another course of action adopted by the House in respect of enforcing its decision on a matter of privilege was by resolution requesting that remedial action be taken by the Public Service Board to restore the career prospects of a public service witness who was found by the Committee of Privileges to have been disadvantaged as a result of his involvement with a parliamentary committee.
Section 7 of the Parliamentary Privileges Act provides that the House may impose a penalty of imprisonment for a period not exceeding six months for an offence against it. Such a penalty is not affected by prorogation or dissolution. Before the enactment of this provision, the House, under section 49 of the Constitution, possessed the same power in this area as the House of Commons in 1901; the Commons was considered to be without the power to imprison for a period beyond the session, although apart from this constraint there were no other limits in terms of the length of committal.
On the only occasion when the House of Representatives has exercised its power of commitment (see page 757), Messrs Browne and Fitzpatrick, in 1955, were committed for three months. No prorogation or dissolution of the Parliament intervened during the period of their imprisonment and they served the full period of their commitment.
Form of warrant
Section 9 of the Parliamentary Privileges Act states:
Where a House imposes on a person a penalty of imprisonment for an offence against that House, the resolution of the House imposing the penalty and the warrant committing the person to custody shall set out particulars of the matters determined by the House to constitute that offence.
In the House of Commons warrants for commitment issued by the Speaker on the order of the House have sometimes been expressed in general terms to the effect that the person is committed for a ‘high contempt’ or a breach of privilege. On other occasions, particular facts constituting the contempt have been stated. If the form of the warrant is general, it has been held that it is not competent for the courts to inquire further into the matter. If the particular facts have been stated on the warrant, the courts have taken divergent views as to their duty of inquiry.
The High Court decision in the Browne/Fitzpatrick Case (1955) stated:
If the warrant specifies the ground of the commitment the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms. This statement of law appears to be in accordance with cases by which it was finally established, namely, the Case of the Sheriff of Middlesex.
Because particulars of the matters determined to constitute the offence must, by virtue of section 9 of the Parliamentary Privileges Act, be set out in the resolution imposing the penalty and the warrant committing the person, the effect of the law that has been established is therefore that a court may review a decision to impose a penalty of imprisonment to determine whether the conduct or action in question was capable of constituting an offence.
Subsection 7(4) of the Act enables the House to delegate to the Speaker the authority to have a person released from prison when the House is not sitting. Such authority could, for example, be used if a person was committed following a refusal to give information to a committee but then, after being committed, agreed to provide the information sought.
Imposition of a fine
The House, under section 7 of the Parliamentary Privileges Act, may impose a fine not exceeding $5,000 in the case of a natural person, and not exceeding $25,000 in the case of a corporation. Subsection 7(6) provides that such fines are debts due to the Commonwealth and may be recovered on behalf of the Commonwealth in a court of competent jurisdiction by any person appointed by the House for that purpose. A fine and imprisonment may not be imposed for the same offence (subsection 7(1)).
For many years there had been substantial doubt as to whether the Houses had the power to impose fines, the issue turning, because of the provisions of section 49 of the Constitution, on whether the House of Commons had such power in 1901. This was because the House of Commons had not imposed fines on persons found guilty of breach of privilege or contempt since 1666. The matter was finally resolved by the insertion of a provision conferring the power to fine in the Parliamentary Privileges Act. At the time of publication neither House had exercised this power.
Reprimand or admonishment
A traditional form of penalty available to the Houses is that of public reprimand, or of admonishment at the Bar of the House or Senate by the Speaker or President, as the case may be. The House has not used the procedure of requiring the attendance of persons at the Bar of the House to receive a reprimand by the Speaker. In 1965 it considered a report from the Committee of Privileges concerning the publication of an advertisement in which a photograph of the Leader of the Opposition addressing the House had been misused. The House resolved that it should ‘ … record its censure of the advertisement and its reprimand of those concerned … ’. In 2007, having considered a report from the Committee of Privileges which had found a person guilty of a contempt, the House agreed to a resolution that it ‘ … finds Ms … guilty of a contempt … and … reprimands Ms … for her conduct’. The reprimand was conveyed by letter from the Clerk of the House.
In 2016, having considered a report from the Committee of Privileges and Members’ interests which had found a former Member guilty of a contempt, the House agreed to a resolution that it ‘ … finds Mr Craig Thomson, the former Member for Dobell, guilty of a contempt of the House in that, in the course of his statement to the House on 21 May 2012, as the then Member for Dobell, he deliberately misled the House; and … reprimands Mr Thomson for his conduct.’ As in the earlier case the reprimand was conveyed by letter from the Clerk of the House. (For more detail of the case see page 754; and see Billson case at page 755.)
In 1971 two people found guilty of a breach of privilege were called to the Bar of the Senate and were reprimanded by the Deputy President. In 2001 the Senate agreed to a motion, taken as formal, that it ‘impose the penalty recommended at paragraph 61(b) of the report of the Committee of Privileges’. (The report had found that a corporation had committed a contempt and recommended that the Senate ‘resolve to administer a serious reprimand’ to the corporation.)
Before the current provisions concerning defamatory contempts were enacted, there were precedents in the House for the publication of a suitable apology from offenders in a class of cases involving reflections on the House or its Members being considered an acceptable action. While not inflicting punishment, in its strict sense, the House presumably considered this course sufficient vindication of its authority.
On a number of occasions under the previous provisions comments published in newspapers or other publications have been regarded by the House as reflections on itself and its Members and those responsible have been adjudged guilty of contempt. An apology may also be considered appropriate in relation to other categories of contempt.
In 1992 the Committee of Privileges reported that the terms of a letter threatening legal action against a Member (following a letter the Member had written to a Minister) and the circumstances of its receipt had had a tendency to impair the Member’s performance of his duties. Although the committee did not make a finding that a contempt had been committed, the House resolved that the persons responsible should be required to apologise, and they did so, a letter of apology being received and reported by the Speaker.
See also ‘Apology by Member’ at page 768.
Exclusion of persons from precincts
In respect of persons working in or using the facilities of the Parliament, including those of the parliamentary press gallery, a person’s pass may be withdrawn, thereby depriving the person or the person’s organisation of access to the Parliament building. Control of access to such facilities is under the authority of the Presiding Officers (and see Chapter on ‘The Speaker, Deputy Speakers and officers’).
In 1912 a notice of motion proposing the exclusion of representatives of the Age newspaper from the press gallery for statements concerning a Member was withdrawn following an apology. Later that year the House agreed, without debate, to a motion concerning misrepresentation of Members in newspapers. The motion proposed that if the House accepted a statement by a Member to the effect that an article was erroneous, misleading or injurious, representatives of the newspaper concerned should be excluded from the premises until the newspaper published the Member’s explanation.
In June 1942 the President as ‘custodian of the rights and privileges of the Senate’ demanded an apology from certain newspaper representatives for the publication of an article reflecting on the Senate. When no apology was forthcoming, action was taken to exclude the persons from the precincts of the Senate, after which similar action was taken by the Speaker in respect of the precincts of the House.