CHAPTER 2

PARLIAMENTARY PRIVILEGES ACT 1987
AND THE SENATE PRIVILEGE RESOLUTIONS

Passage of Parliamentary Privileges Act and Senate Privilege Resolutions

2.1 The passage of the Parliamentary Privileges Act 1987, and the agreement by the Senate on 25 February 1988 to a series of eleven privilege resolutions, represented a watershed in the history of privilege matters in the Senate. The passage of the Act was designed to confirm what had always been assumed to be the scope of freedom of speech in Parliament. In addition to declaring the privilege, the Act made several changes to the existing law, to give effect to certain recommendations by a joint select committee into parliamentary privilege, the report of which was tabled in October 1984.

2.2 The proposal to appoint the Joint Select Committee on Parliamentary Privilege was initiated in the House of Representatives in March 1982, in order to review, and report whether any changes were desirable in respect of:

(a) 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,

(b) the procedures by which cases of alleged breaches of parliamentary privilege may be raised, investigated and determined, and

(c) the penalties that may be imposed for breach of parliamentary privilege.1

2.3 The Senate agreed to the proposal on 29 April 1982.2 The committee had not reported by the time both Houses of Parliament were dissolved in February 1983, but was re-established early in the new Parliament.3 Despite the change of government which had occurred following the March 1983 election, the chairman and deputy chairman of the committee, the latter of whom was by then Attorney-General, remained in those positions for the duration of the inquiry. The wide-ranging report of the committee concluded, as its primary recommendation, that the exercise of Parliament's penal jurisdiction should be retained in Parliament. It further recommended that, other than the abolition of defamatory contempts and the removal of each House's power to expel its members, no substantive changes be made to the law of contempt. It also recommended that each House codify its own proceedings, for the general information of persons who might be affected by contempt proceedings or by being named by members of either House.4

2.4 The report set out the matters which required changes by parliamentary enactment under section 49 of the Constitution, by amendments to the Standing Orders of each House or changes to be implemented by special resolutions.

2.5 No action was taken on the recommendations of the committee until 1986, when the need to declare the privileges of Parliament became imperative as a result of decisions made in the New South Wales courts which impinged upon what had previously been regarded by all legislatures as the scope and protections of privilege. Wide consultations were held both within Australia and with overseas Parliaments, resulting in the introduction of the Parliamentary Privileges Bill in the Senate by the President of the Senate,5 the first occasion in the Commonwealth Parliament on which a bill had been introduced by a presiding officer. Following its passage through the Senate, the Bill was introduced in the House of Representatives by the Attorney-General, supported in debate by the Speaker.6 The Bill secured passage through the House in the first half of 1987,7 and came into operation on 20 May of that year.

2.6 At the same time as the bill was being debated, a series of draft privilege resolutions, based partly on the joint committee recommendations, was tabled in both Houses. After significant discussion and negotiation, they were ultimately the subject of debate in the Senate and were agreed to with modifications on 25 February 1988.8 The House of Representatives has not as yet considered or adopted them.

2.7 In essence, the Senate privilege resolutions codified already existing practices. By the time of their adoption, the Senate had had extensive experience in committee work, which not merely required standardised proceedings but also, as ensuing years have demonstrated, had generated most of the matters given rise to possible contempts of the Senate. Several new features of these resolutions, however, have ensured that the Committee of Privileges has performed something of an exploratory and a pathfinding role. For this reason, over the past eight years it has developed informal methods of interpreting and adding to a general understanding of privilege. In its reports on most of the specific matters which it has considered, it has adopted the practice of making comments on the general principles of privilege, and this present report, like the 35th report, is intended as a guide to matters canvassed in individual reports.

2.8 The Act, resolutions and the explanatory statements relating to each are at Appendices A and B to this report.

Summary and discussion of privilege resolutions

Raising matters of privilege

2.9 While many of the resolutions codified and gave guidance on already existing practices, as indicated above, they also established a new process for raising matters of privilege. Privilege resolution 7, among other features, has ensured that matters need not be raised at the first opportunity; that the President of the Senate is not required to make any determination as to whether a prima facie case exists; and that the matters are raised first in writing with the President, thereby removing them from the more heated and public arena of the Senate chamber. The resolution provides that the President must make an early determination as to whether a matter of privilege should have precedence over other business, and must communicate his decision to the senator raising the matter. If the President determines that a matter should have precedence, he must report that decision to the Senate also. The President's decision to give precedence gives the senator raising the matter a right to give notice of motion to refer the matter to the Committee of Privileges, and such a motion has precedence over all other business on the day for which the notice is given. The President has given such precedence on 27 occasions, although in respect of one matter no further action has been taken by the senator raising the matter, or any other senator, to refer it to the committee.

2.10 The President has reported twice to the Senate that he has refused precedence to matters raised. He is not, however, obliged to report all such decisions to the Senate. If the President determines that a matter should not have precedence a senator is not precluded from taking other action, but so far senators appear to have been satisfied with the President's decisions.

2.11 Cases of possible contempt frequently arise from proceedings of Senate committees. Such committees are obliged to adhere to strict procedures to protect the integrity of their operations and to ensure the protection of witnesses (see privilege resolution 1, Appendix B). Nevertheless, on occasions a committee may become aware that its proceedings have been disclosed in an unauthorised manner, that it has been misled, or that witnesses have been improperly influenced, threatened or penalised because of the evidence they gave, or intended to give, to the committee. In such a situation, the committee makes its own investigations and reports the facts, and its conclusions, to the Senate. If the committee recommends that the matter be referred to the Committee of Privileges, it is usual for the chair of the originating committee to give notice of motion to that effect, though it is open to any senator to so move, regardless of the recommendations of the report.

Criteria for determining contempt

2.12 In making a decision, the President is bound under resolution 4 to have regard only to two criteria

(a) the principle that the Senate's power to adjudge and deal with contempts should be used only where it is necessary to provide reasonable protection for the Senate and its committees and for Senators against improper acts tending substantially to obstruct them in the performance of their functions, and should not be used in respect of matters which appear to be of a trivial nature or unworthy of the attention of the Senate; and

(b) the existence of any remedy other than that power for any act which may be held to be a contempt.

2.13 The Senate in determining whether the matter should be referred to the Committee of Privileges, and ultimately whether a contempt has been committed, is required to take into account the same criteria as the President, but additionally must take into account whether a person who committed any act which may be held to be a contempt knowingly committed that act, or had any reasonable excuse for the commission of that act. It must be said that the Senate errs on the side of caution in these matters. In borderline cases, a possible contempt matter is more likely to be referred to the Committee of Privileges than not.

2.14 The Committee of Privileges is similarly required by the resolution to take all three criteria into account when inquiring into any matter referred to it.

Committee of Privileges proceedings

2.15 The Committee of Privileges is bound under privilege resolution 1 to observe the normal procedures of Senate committees for the protection of witnesses. These include inviting witnesses to make submissions or produce documents in the first instance, unless there are exceptional circumstances; giving witnesses reasonable notice to appear before it and opportunity to comment on adverse evidence; and other, similar protections (see Appendix B). However, these protections are supplemented and where necessary overridden by the special provisions of privilege resolution 2 when the committee is considering any matter which may involve or give rise to any allegations of a contempt. The most notable features of this resolution are that any person appearing before the Committee of Privileges may be accompanied by counsel; has a capacity to examine witnesses; may call other witnesses or produce other evidence to the committee; and must be sworn. The resolution requires the committee, in the event that an adverse finding is to be made against a person, to acquaint the person of the finding to enable the person to make further submissions to the committee which must take any such submissions into account before making its report to the Senate. The committee has interpreted this provision broadly, so that persons who might not be subject to an adverse finding but are subject to adverse committee comment have been offered the opportunity to make comments before the committee reports to the Senate.

2.16 In practice, the committee has undertaken all its inquiries on matters involving contempt, and on general matters, as nearly as possible consonant with the procedures outlined in resolution 1, as it regards its primary function, like most Senate committees, as being to investigate matters referred to it. However, it has always at the outset drawn the attention of persons possibly affected by allegations of contempt to the provisions of resolution 2 and many such persons have decided, for example, to engage counsel from the commencement of an inquiry.

2.17 When the committee reaches its conclusions on a matter, it reports its findings, with or without recommendations, to the Senate, which in turn considers whether to endorse the findings and adopt the recommendations, if any.

Matters constituting contempts

2.18 All matters which the committee has been required to consider have come within the ambit of the matters constituting contempts set out in resolution 6 of the privilege resolutions. The full text of resolution 6 can be found at Appendix B; in brief, the matters the Senate may treat as constituting contempts include:

• interference with the Senate
• improper influence of senators
• senators seeking benefits, etc
• molestation of senators
• disturbance of the Senate
• service of writs in the Senate precincts
• false reports of proceedings
• disobedience of Senate or Senate committee orders
• obstruction of Senate or Senate committee orders
• interference with witnesses
• molestation of witnesses
• offences by witnesses (such as failure to produce documents)
• unauthorised disclosure of evidence.

2.19 As the preamble to resolution 6 makes clear, the list is not exhaustive but is intended as a general guide to persons that acts coming within the prohibitions specified under the resolution may be treated by the Senate as contempts. The committee is satisfied from its experience that the matters raised in that resolution give firm guidance to the persons the subject of contempt references, to senators and Senate committees, and to the Committee of Privileges itself. The committee has not found it difficult to categorise all of the matters before it under one or more of the resolution 6 provisions.

Findings of and punishments for contempt

2.20 The final resolution relating to consideration of contempt matters concerns the treatment of persons who have been found to be in contempt of the Senate. In practice, action arising in the Senate following a finding of contempt has been generated by the chair of the Committee of Privileges. If the committee has determined that a contempt has been committed or that a penalty should be imposed, the chair is required to give seven days' notice of a motion to determine a contempt or impose a penalty. Since the passage of the Parliamentary Privileges Act and Senate privilege resolutions, the committee has found contempt by persons in only two cases, and the requisite notice was given. In two other reports it found that serious contempts had been committed but, because it was unable to discover the source of the contempt, the seven days' notice was not required or given.

Right of reply

2.21 A further privilege resolution which involves the Privileges Committee concerns the protection of persons referred to in the Senate. This resolution, which was the only resolution which was the subject of some controversy at the time of its adoption, enables a person who has been referred to in the Senate in a way in which the person regards as adverse to seek a right of reply in the same forum. Because of the innovatory nature of the right-of-reply provisions, details of its operation are discussed in the next chapter.

2.22 While the right-of-reply procedure is helpful to persons who consider themselves maligned by comments made in the Senate, ultimately the responsibility for minimising hurt to a person lies with individual members themselves. While privilege is a necessary instrument of a free and functioning parliament, the most important guardians of that privilege are the legislatures. To this end the committee draws attention to a further privilege resolution (privilege resolution 9), which enjoins all senators to exercise their valuable right of freedom of speech in a responsible manner.

Other resolutions

2.23 The remaining privilege resolutions are mechanical in nature, nonetheless recognising the particular relationship between the Senate and the courts on the one hand, and the Senate and the House of Representatives on the other (privilege resolutions 10 and 11).

Endnotes

1 House Votes and Proceedings, 1980-83, pp. 805-6.

2 Journals of the Senate, 1980-83, p. 884.

3 House Votes and Proceedings, 1983, pp. 52-3; Journals of the Senate, 1983, pp. 63-4.

4 Joint Select Committee on Parliamentary Privilege, Final report, PP 219/1984, pp. 1-19.

5 Journals of the Senate, 1986-87, p. 1250.

6 House Votes and Proceedings, 1986-87, p. 1525.

7 House Votes and Proceedings, 1986-87, p. 1627.

8 Journals of the Senate, 1988, pp. 534-6.