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Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Defamation
of the Houses and their members
The 1987 Act
provides that it is not a
contempt to defame or criticise the Houses, their committees or members:
6. (1) 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.
(2) Sub‑section
(1) does not apply to words spoken or acts done in the presence of a House or a
committee.
Controversy in the past about the power of the Houses to punish
contempts concentrated not on the question of whether the acts regarded as
contempts should be treated as offences, but whether the Houses should have the
power to judge and punish those offences, an issue which is addressed below.
The offence of defamation of the Houses or of their members was the exception
to this: there was some dispute about whether such defamation ought to be
regarded as an offence at all.
The rationale of treating defamation of the Houses or of their members
as a contempt was not, as was sometimes supposed, to protect the dignity and
good name of Parliament and its members, but to prevent published attacks
which, by undermining the respect due to Parliament as an institution and
diminishing its authority, tend to obstruct or impede the Houses in the
performance of their functions. To constitute a contempt a reflection upon an
individual member had to relate to the member’s capacity as a member and tend
to obstruct the performance of the member’s duties. This rationale was not
always clearly observed, even by parliamentary authorities, and houses of
parliaments with the power to punish contempts did not always display the
discretion and judgment which ought to accompany that great power. Some defamations,
however, are capable of meeting the test for them to be treated as contempts.
An authoritative exposition of the parliamentary law in this area was contained
in the chapter entitled ‘Defamation as Contempt of Parliament’, by L.A.
Abraham, in Wicked, Wicked Libels, ed. M. Rubinstein, London, 1972. (Contrary to a common misconception, the
Fitzpatrick and Browne case was not about defamation of a member but attempted
intimidation of a member: see H. Evans, ‘Fitzpatrick and Browne:
Imprisonment by a House of Parliament’, in H.P. Lee & G. Winterton, eds, Australian
Constitutional Landmarks, 2003.)
Criticism of the treatment of defamatory statements as contempts was
based on the proposition that individual members have the same civil remedies
available to them as other citizens, and the powers of the Houses should not be
invoked as a substitute for such civil remedies.
The 1984 report of the Joint Select Committee on Parliamentary
Privilege recommended that it be explicitly provided by statute that defamation
of a member or a House may not be punished as a contempt. The select committee
made its recommendation notwithstanding submissions that there may be instances
in which it is legitimate for defamation or criticism of a House or a member to
be treated as a contempt. In the report of the Select Committee of the British
House of Commons on Parliamentary Privilege in 1967 one such instance was
identified: the allegation of bias against a presiding officer of a House. A
submission attached to the report quoted W.E. Gladstone to support a contention that this offence cannot be
left to civil action for correction (HC 34, 1967-8, submission of Louis Abraham
at p. 203). Shortly before the 1987 Act was passed, the House of
Representatives had in fact punished one of its members for criticism, made
outside the House, of the Speaker (HR Debates, 24 February 1987, pp
580-7). It appears that it is no longer possible to deal with such conduct,
however gross the defamation.
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