Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Statutory
definition of contempt
The 1987 Act
contains what amounts to a statutory definition of contempt of Parliament:
4. 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.
Enactment of this provision means that it is no longer open to a House,
as it was under the previous law, to treat any act as a contempt. The provision
restricts the category of acts which may be treated as contempts, and it is
subject to judicial interpretation. A person punished for a contempt of
Parliament could bring an action to attempt to establish that the conduct for
which the person was punished did not fall within the statutory definition.
This could lead to a court overturning a punishment imposed by a House for a
contempt of Parliament.
The 1984 report of
the Joint Select Committee on Parliamentary Privilege had recommended a non‑enforceable
review by the High Court of a punishment for contempt imposed by a House. This
recommendation was not adopted because such a provision would be
unconstitutional, in that it would amount to conferring an advisory
jurisdiction on the High Court (explanatory memorandum accompanying the bill as
passed by the Senate, p. 6).
The Senate therefore chose an enforceable judicial review, but a review
on a restricted ground. The provision nonetheless opens the way for a court to
determine whether particular acts are improper and harmful to the Houses, their
members or committees. This means that it will not be possible for the
Commonwealth Houses to treat as contempts some acts traditionally so treated in
the past. For example, it is doubtful whether the Houses could treat the
serving of a writ or other legal process in the precincts on a sitting day as a
contempt.
Section 9 of the
Act provides that if a House imposes a penalty of imprisonment upon a person,
the resolution of the House and the warrant shall set out particulars of the
offence. Even without the definition of contempt, this has the effect that a
court could determine whether the ground for imprisonment is sufficient in law
to amount to a contempt (R. v Richards
ex parte Fitzpatrick and Browne 1955 92 CLR 157 at
162).
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