Wednesday, 3 April 2019
Statement by the President
Powers of the Senate
Before we move to the proposal of a censure, I thought it appropriate to make a statement. In the debate about the matter of conduct of senators, there has been some discussion regarding a proposal for a motion to suspend a senator from the service of the Senate as well as a censure. Before we move to this item of business, it is important I draw to senators' attention the limitations on the use of that power.
The basis for the Senate's powers, privileges and immunities lies in section 49 of the Constitution, which incorporates into the constitutional law of Australia a branch of the common and statutory law of the United Kingdom as it existed at the time of Federation and empowers the parliament to change that law by statute. The reference is Odgers' page 41. This means that the powers of the two houses are those inherited from the United Kingdom's House of Commons in 1901 as now modified by relevant statute law, principally through the Parliamentary Privileges Act 1987. This background provides the basis for examining the powers available to the Senate to suspend a senator and constraints on the use of that power.
The only precedents for suspending a senator relate to disorder occurring in the course of Senate proceedings, in the terms contained in standing order 203. Offences against the standing order may be dealt with by the occupant of the chair naming a senator for infringing that standing order, seeking an explanation or apology from the senator and leaving to the Senate the question of whether the disorder warrants suspension. The offences in the standing order reflect centuries of practice in the UK's House of Commons and have never been updated. There is therefore no question as to the power of the Senate to suspend a senator in those circumstances. The question that arises is whether the Senate has the power to suspend a senator for actions remote from its proceedings. The only known power of the Senate to impose a penalty upon any person for conduct occurring outside of its proceedings lies in its contempt power—that is, its power to declare an act to be a contempt and to impose a penalty for it.
The Senate undoubtedly has the power to suspend a senator for conduct determined to be a contempt. There are precedents for the House of Representatives suspending members for contempt, and the houses have the same powers; however, there are limits on these powers. When the federal parliament's powers, privileges and immunities were reviewed in the 1980s, a joint committee on parliamentary privilege recommended that a statutory threshold for contempt be introduced. That change was enacted in section 4 of the Parliamentary Privileges Act 1987, which provides that:
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.
This constraint was intended to reinforce the purpose of contempt, and, as noted at page 83 of Odgers':
This power to deal with contempts of either House is the exact equivalent of the power of the courts to punish contempts of court.
The rationale of the power to punish contempts … is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.
The threshold in the privileges act 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 reference for this, which you can check, is at page 84 and 85 of Odgers'. Unless an act improperly interferes with the functions or authority of a house or its members, it does not reach that threshold and the imposition of a penalty for that act would be open to legal challenge.
The threshold was also adopted by the Senate in 1988 in its privilege resolutions. They codify the principle that the Senate's power to 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 intending substantially to obstruct them in the performance of their functions. The Senate is required to have regard to this principle in determining any question of contempt.
While there is no doubt that the Senate has the power to suspend senators, its acknowledged power to do so is limited to those circumstances in which it is necessary to protect the Senate's ability to manage the conduct of its proceedings in the face of disorder or where the Senate determines that it is necessary to do so to protect the ability of the Senate and senators to perform their constitutional roles. Any other use of the power may be open to challenge.
I also give notice to senators that if such a motion is moved I will be participating in that debate prior to the matter being put to a vote.
by leave—Mr President, I must say that I would have appreciated the courtesy of you letting me know that you were intending to make such a statement. Had you offered me that courtesy, I would have pointed out to you that the motion that will be circulated in this chamber shortly relating to a suspension of Senator Anning relates very directly to comments he made in this chamber as a senator.