Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Tuesday, 17 March 1987
Page: 815


Senator GARETH EVANS (Minister for Resources and Energy)(8.54) —by leave-I move:

(1) Clause (7), after subclause (1), add the following subclauses:

``(1A) A penalty of imprisonment imposed in accordance with this section is not affected by a prorogation of the Parliament or the dissolution or expiration of a House.

``(1B) A House does not have power to order the imprisonment of a person for an offence against the House otherwise than in accordance with this section.

``(1C) A resolution of a House ordering the imprisonment of a person in accordance with this section may provide that the President of the Senate or the Speaker of the House of Representatives, as the case requires, is to have power, either generally or in specified circumstances, to order the discharge of the person from imprisonment and, where a resolution so provides, the President or the Speaker has, by force of this Act, power to discharge the person accordingly.''.

(2) Clause 7, at the end of the clause, add the following subclause:

``(5) A House may give such directions and authorise the issue of such warrants as are necessary or convenient for carrying this section into effect.''.

Rather than speak to the amendments, since the document in question has been circulated in the chamber, I think that at this stage it would be sufficient for me to seek leave to incorporate in Hansard, as an explanation of the amendments, the opinion prepared by the consultant draftsman, Mr Comans, which I think amply explains the justification for these essentially technical amendments.

Leave granted.

The document read as follows-

PARLIAMENTARY PRIVILEGES BILL 1986

Opinion

I have been asked to provide my opinion on the following questions:

``Does clause 7 of the Parliamentary Privileges Bill 1986, having regard to clause 5, have the effect of abolishing the power of each House of the Parliament to commit a person to custody-

(a) as a penalty for a period of time not extending beyond the current session of Parliament; or

(b) to coerce the person to end a continuing contempt, e.g., a refusal by the person to produce a document required to be produced by a committee?''.

Question (a)

I take it that question (a) refers to the possibility that the powers preserved by clause 5 would authorise the committal of a person, by way of penalty, for an indeterminate period terminating at the end of the session, or for a period exceeding 6 months but ceasing upon the earlier ending of the session. Each House appears, at present, to have those powers. I note that, according to Erskine May's Parliamentary Practice, 20th edition, page 134, the practice of the House of Commons is not to commit offenders for any definite time, but the House is considered not to have the power to commit a person for a period extending beyond the session. It would appear that each House of the Commonwealth Parliament could at present make a similar indeterminate committal.

In my opinion the answer to the question is in the affirmative. In my view the words ``not exceeding 6 months'' in clause 7 amount to an express provision, for the purposes of clause 5, limiting the penalty of imprisonment that may be imposed for any conduct which is an offence referred to in sub-clause 3 (3). The Bill must be read as a whole, and it would be unreasonable to attribute to Parliament an intention that clause 5 should have the effect of allowing a limit deliberately stated in clause 7 to be exceeded. The matter could, however, be more explicitly, and therefore more certainly, dealt with by amendment of clause 7.

In considering whether clause 7 should be amended, there is another matter of some importance that needs to be considered. I gather that it was the intention of the Joint Select Committee, and of the sponsors of the Bill, that a period of imprisonment imposed in accordance with clause 7 should not be terminated upon the ending of the current session within the period. It could be argued on behalf of a prisoner that it was a fundamental feature of the previous law of privilege that imprisonment by a House ceased at the end of the current session, and that, having regard to clause 5, clause 7 should be read as subject to the continuance of that principle. I suggest that it would be unwise to leave open the possibility of this argument being raised.

I therefore suggest that consideration be given to the amendment of clause 7 by the insertion of sub-clauses on the following lines:

``(1a) A penalty of imprisonment imposed in accordance with this section is not affected by a prorogation of the Parliament or the dissolution or expiration of a House.

``(1b) A House does not have power to order the imprisonment of a person for an offence against the House otherwise than in accordance with this section.''.

Question (b)

In my opinion the power of the House of Commons, and the corresponding power of the Houses of the Commonwealth Parliament, to use committal as a means of coercing a person is an aspect of the power to commit as a penalty for contempt, in that the committal is a penalty for a contempt already committed, although the intention may be to secure the ultimate performance of an act or the discontinuance of conduct. I am therefore of the opinion that this power would become exercisable under clause 7 and the 6 months limit contained in that clause would be applicable. Any doubt on this matter would, however, be removed if the sub-clause (1b) suggested above were included in clause 7. Clause 7 could be used for coercive purposes as well as purely punitive purposes. If the person concerned resumed the contempt after the fixed period of committal, I see no reason why the House could not take fresh action against him. However, as mentioned below, it would seem necessary to ensure that a ``coercive'' committal could be terminated when its object was achieved.

Release from imprisonment

The possibility of imprisonment by a House continuing after the end of a session or even while the House is dissolved seems to me to raise a difficulty, particularly as regards to a person imprisoned for a coercive purpose. I suggest that there should be some means whereby a person could be released before the end of the fixed term of imprisonment. In my view a House would, under clause 5, have the power to order the release of a person undergoing imprisonment for a fixed period for contempt. However, obviously this power could not be exercised when the House was not sitting (whether or not it was still technically ``in session''), or was dissolved. One possible way to meet this difficulty would be to include in clause 7 another sub-clause on the following lines:

``(1c) A resolution of a House ordering the imprisonment of a person in accordance with this section may provide that the President of the Senate or the Speaker of the House of Representatives, as the case requires, is to have power, either generally or in specified circumstances, to order the discharge of the person from imprisonment and, where a resolution so provides, the President or the Speaker has, by force of this Act, power to discharge the person accordingly.''.

This sub-clause has been drafted in such a way as to attract the provisions of the Parliamentary Presiding Officers Act 1965.

Warrants etc

Although clause 5 may be adequate to preserve existing powers and procedures regarding the implementation of penalties, I suggest that a sub-clause in clause 7 on the following lines may be useful:

``(5) A House may give such directions and authorise the issue of such warrants as are necessary or convenient for carrying this section into effect.''.

(C. K. Comans, Q.C.)

Consultant Draftsman to the Senate

4.2.87

Amendments agreed to.

Clause, as amended, agreed to.

Clause 8 (Houses not to expel members).