The Privileges Committees of the Australian Parliament
| Published date | 01 June 1975 |
| Date | 01 June 1975 |
| DOI | 10.1177/0067205X7500600203 |
| Subject Matter | Comment |
COMMENT
THE
PRIVll...EGES COMMITTEES
OF
THE
AUSTRALIAN
PARLIAMENT
BY
D. C.
PEARCE*
The purpose of this comment
is
not to discuss the law of contempt
of Parliament. This has been dealt with sufficiently elsewhere.1 The
application of that law in the Australian Parliament has not, however,
been so fully documented. This has been due in large part to the fact
that the reports of the Privileges Committees which inquire into alleged
contempts of Parliament have, in the past, not always been readily
available. Only in recent years have they been published
as
parlia-
mentary papers.
It
is
a pity that the reports were not printed
as
a
matter of course
as
they are important documents. In this comment an
attempt will be made to
fill
this gap in available knowledge by describ-
ing and commenting on the inquiries conducted by the Privileges
Committees of the House of Representatives and the Senate.
Before discussing these Committees, it
is
necessary to say something
about parliamentary privilege. The idea that parliamentarians have
certain privileges not accorded to other men may be traced back to the
early years of the development of Parliament in England. The major
privilege
so
enjoyed
is
that of freedom of
speech-a
member of Parlia-
ment cannot be sued criminally or civilly in respect of things said by
him in Parliament. Similarly, a member cannot be arrested to enforce
a civil debt, he
is
not required to serve on juries and he cannot be
subpoenaed to
give
evidence in a court if the Parliament
is
then sitting.
Concurrently with these privileges which are personal to the member,
has developed the idea that certain actions constitute contempt of
Parliament and may be punished by the Parliament. Such misconduct
is
usually referred to
as
a breach of privilege. This expression can be
misleading
as
the conduct may not, and indeed usually does not,
constitute any interference with the privileges of the members of
Parliament. Contempt of Parliament or breach of parliamentary privilege
is
defined in Erskine May's Parliamentary Practice
as
any act or omis-
sion which obstructs or impedes either House of Parliament in the
performance of its functions, or which obstructs or impedes any member
or officer of such House in the discharge of his duty, or which has a
tendency, directly or indirectly to produce such results.2
*Reader
in Law, Australian National University. I
am
indebted to
Mr
L. Barlin,
Senior Parliamentary Officer, House
of
Representatives, for his assistance in
making copies
of
reports of the House
of
Representatives Committee
of
Privileges
available to me.
1
See
primarily Campbell, Parliamentary Privilege in Australia ( 1966); see also
Pearce, "Contempt
of
Parliament: Instrument
of
Politics
or
Law?" (1969) 3
F.L.Rev. 241.
2 Cocks (ed.), Erskine May's Treatise on the Law, Privileges, Proceedings and
Usage
of
Parliament
(18th
ed. 1971) 132.
269
270 Federal Law Review
[VOLUME
6
Erskine May
was
setting out the position for the United Kingdom
Parliament. However, the definition
is
applicable to the Australian
Parliament by virtue of the operation of section 49 of the Australian
Constitution. That section empowers each House of the Parliament to
declare its "powers, privileges and immunities". Until so declared, the
powers, privileges and immunities are to be those "of the Commons
House of Parliament of the United Kingdom, and of its members and
committees, at the establishment of the Commonwealth"
(in
1901). As
there has been no declaration made under the section, the definition set
out by Erskine May
is
applicable to the Houses of the Australian
Parliament.
It
can be seen that the conduct that constitutes contempt of Parlia-
ment
is
ill-defined. Many suggestions have been made that the acts for
which persons may be found in contempt of Parliament should be
specified.3 This
was
indeed recommended by a joint Select Committee
of the Federal Parliament itself in 1908.4 The recommendation was not
followed.
In
1934 the then Attorney-General, J. G. Latham, drafted
a bill to give effect to the recommendation of the joint Select Com-
mittee, but the bill was not introduced. Undertakings have been given
at various times that the whole question of parliamentary privilege would
be reviewed but,
as
yet, nothing has come of these. Other jurisdictions
in Australia have passed Acts stating the conduct that constitutes
contempt of Parliament."
It
is
to be hoped that the Federal Parliament
will one day follow suit.
The other general point to note about contempt of Parliament
is
that
it
is
the Parliament that determines whether or not a person
is
guilty
of contempt. And having determined the person's guilt, it
is
the Parlia-
ment that imposes a penalty on the wrongdoer. The available penalties
are a reprimand or imprisonment for any period not extending beyond
the conclusion of the then current session of the Parliament.
It
is
only
in very exceptional cases that a court can, in practice, review a finding
of guilt or otherwise by the Parliament.6
It
cannot vary the sentence
imposed by the Parliament.
Establishment
of
Privileges Committees
The Australian Parliament has not had to consider privilege issues
with any degree of frequency. Prior to 1944, questions of privilege
arising in the House of Representatives had been resolved (not always
entirely satisfactorily) without the need for any investigation. This was
fortunate
as
a House of a Parliament
is
a singularly ill-equipped body
to conduct a fact-finding inquiry. However, in 1944, a privilege matter
s E.g., Campbell, op. cit., Ch. 7; Pearce op. cit. 257.
4 Report
of
the Joint Select Committee on Parliamentary Privilege, Parlia-
mentary Papers 1907-1908 Vol. I, 795.
s Queensland: Constitution Acts 1867-1972,
s.
45; Tasmania: Parliamentary
Privileges Act 1858-1964, s. 3; Western Australia: Parliamentary Privileges Act
1891,
s.
8; Northern Territory: Legislative Council (Powers and Privileges)
Ordinance 1963-1966, s. 9.
6
R.
v.
Richards; ex parte Fitzpatrick and Browne (1955) 92 C.L.R. 157.
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