THE RIGHT STUFF – ETHICS IN PRACTICE
The Queensland Parlia ment in ses sion. ©2008 Queensland Parliament
Contempt of parliament
Why you should watch what you say!
P
arliamentary privilege and contempt
of parliament are subjects mentioned
briefly in law school and then quickly
forgotten.
Cases of contempt of par lia ment are rare,
though there was a case in Victoria last year
and, of course, we all remember (again from
law school) the in fa mous con tempt of the
Commonwealth Parliament that brought about
the jailing of two journalists back in the reac1
tionary days of the ’50s.
Ac cord ing to a re cent Queensland par liamentary report, however, there is need for the
law yers of Queensland to sign up for a refresher course in parliamentary privilege. In a
report last year, the Members’ Ethics and Parlia men tary Priv i leges Com mit tee (MEPPC)
noted with concern that “there is anecdotal evidence that a number of members have received
cor re spon dence from le gal f irms, some of
2
which may have raised issues of privilege”.
Be warned, being in contempt of parliament is not as remote
a possibility as you might imagine, and the consequences are
far from trivial. Neil Watt explains how lawyers may fall foul
of this venerable political institution.
The MEPPC had cause to turn its attention to
this issue last year when then Liberal Party
leader Dr Bruce Flegg asked the Speaker to investigate issues arising from letters that he and
the Clerk of the Parliament had received from a
Queensland law firm.
Disclose the name
The firm, acting for a client named in a document tabled in parliament by Dr Flegg, sought
to deny access to the document and demanded
that Dr Flegg disclose the name of the person
who had supplied it to him.
In response to a cau tionary letter from the
Clerk, the f irm wrote an apol ogy to the
Speaker (copied to the Clerk and Dr Flegg) but
by then the mat ter had been re ferred to the
MEPPC. In refer ring the matter, the Speaker
asked the committee to investigate the allegation that the law firm had “attempted to improperly interfere with the free performance by
3
the mem ber of his duties as a mem ber”. In
other words, had the firm committed contempt
of parliament?
The Speaker’s brief to the committee reflects
the meaning of contempt as found in section 37
4
of the Parliament of Queensland Act 2001:
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THE RIGHT STUFF – ETHICS IN PRACTICE
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(1) Contempt of the Assembly means a
breach or disobe dience of the pow ers,
rights or im mu nities, or a contempt, of the
Assembly or its mem bers or committees.
(2) Con duct, in clud ing words, is not con tempt of the Assembly unless it amounts, or
is intended or likely to amount, to an im proper interference with–
(a) the free exercise by the Assembly or a
com mit tee of its author ity or functions; or
(b) the free perfor mance by a mem ber of
the member’s duties as a member.
Examples of potentially contemptuous ac5
tiv i ties are help fully in cluded in the Act.
Listed among obvi ous mis deeds such as assault ing, ob struct ing, in sult ing, threat en ing
and even “sending a challenge to fight a member” is “improperly influencing, or attempting
to improperly influence, a person, in relation to
any evidence to be given by the person to the
Assembly or a committee”.
If par lia ment finds that con tempt has occurred, it can impose a fine of up to $2,000 or,
6
in default, imprisonment until the fine is paid.
In contrast to the punishment meted out to the
journalists above, modern parliaments are usu7
ally content to receive an apology – though
note the Victorian case, below.
In its deliberations the committee noted the
firm’s letter of apology but stated that this, in
it self, would not pre clude a f ind ing of contempt. Crit i cal to the com mit tee’s con sid erations was whether the firm had intended to intimidate the member. Signif icant to the commit tee’s even tual con clu sions was its belief
that “those in the legal profession may not realise how inherently intimidating an action a legal letter is, especially if the tone is not moder8
ated or rights considered”.
So, buoyed by their belief that the lawyers of
Queensland only accidentally intimidate and
are therefore deserving of some benefit of the
doubt, the com mit tee found “no prima facie
case of a breach of privilege or contempt in rela tion to the alleged intimidation of a mem9
ber”. Consequently, no further action was necessary, though they did note with some concern
the anecdotal evidence mentioned earlier that
such let ters from le gal f irms are not
uncommon.
The Victorian case
The benefit of the doubt was not so readily
given in the Victorian case mentioned above.
That case involved a dispute, in 2006, between
a caravan park proprietor and some residents.
One of those residents, a frail 76-year-old pensioner, sought the support of his local member
of parliament, Michael Leighton, who agreed
to take up the case in the House. Consequently,
the pen sioner re ceived a let ter from a legal
firm representing the park’s owner threatening
to sue for defamation if he repeated his allegations, or if the local member repeated them in
parliament.
The Par lia men tary Priv i leges Com mit tee
was therefore required to determine whether a
let ter to a con stit u ent could amount to contempt of parlia ment, and if so, whether this
particular letter breached parliamentary privi10
lege.
Like the Queensland case above, the firm
sent a letter of apology to the member explaining that it was not their intention to influence
the actions of Mr Leighton in the House. Unlike their Queensland counter parts, however,
the Victorian committee did not take the view
that the letter was unintentionally intimidating.
In particular, the committee took exception to
the fol low ing state ment in the let ter to the
resident:
“We hereby put you on notice that, should
your false al legation be re peated . . . by Mr
Notes
1
2
3
4
5
R v Richards; ex parte Fitzpatrick
and Browne (1955) 92 CLR 1957.
Repor t No.82 of the Members’
Ethics and Parliamentary
Privileges Committee, August
2007, at para 33.
Above n2, at para 11.
Note par ticularly s37(2)(b).
Parliament of Queensland Act
2001 s37.
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Parliament of Queensland Act
2001 s40(2).
7 G. Moens and J. Trone, ‘Lumb and
Moens, The Constitu tion of the
Commonwealth of Australia
Anno tated’, 6th ed, at para 194.
8 Above, n2 at para 30.
9 Above, n2 at Conclu sion 1.
10 Legislative Assembly Privileges
Committee, Repor t on the
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Complaint by the Member for
Preston, No.206 Ses sion
2003-2006, July 2006 at para 2.
11 Above, n10, at para 18.
12 Above, n10, at para 20.
13 Above, n10, at para 15.
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Leighton in Parliament . . . we will bring action
against you to recover damages suffered by our
client.”
In its findings, the committee said that “it is
necessary to demonstrate a close link between
the ‘threat’ and the actual or anticipated outcome of influencing/impairing the member’s
11
duties” and that, if such a link could be found,
then, “the threat of adverse action against a
con stit u ent may be con sid ered an im proper
12
means to influence a member”. Having deter mined that this was indeed the case, the committee concluded:
“The letter is a clear attempt by [the legal
firm] to interfere with the provision of information relevant to Mr Leighton’s duties as a
mem ber of the Leg is la tive As sem bly. The
Committee is of the view that by threatening
legal action against [the resident, the] Lawyers
sought to pre vent in for ma tion from be ing
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given to Mr Leighton and this is a contempt.”
While the Victorian parliament has similar
penalty provisions to Queensland, the parliament determined that the best course of action
was to engage in public shaming by publishing
its find ings in the Law Insti tute of Vic to ria
Journal.
The moral of the tales
The na ture of de moc racy re quires that
elected representatives are given free reign to
represent their constituents or concerns in the
parliament without fear or hindrance. The actions of legal practitioners, whether intending
to intimidate or not, can amount to contempt of
parliament, should those actions be construed
as an at tempt to limit the free exer cise of a
member’s parliamentary duties. This remains
the case whether or not the action is targeted
directly at the member.
The above cases present us with a cautionary
tale to tread carefully when representing client
interests to our members of parliament. Intimidation of members, whether accidental or otherwise, will not always be given the benefit of
the doubt.n
Neil Watt is a solicitor and Queensland Law
Society ethics officer. Any feedback on this
column or thoughts on ethical issues can be
sent to Neil at [email protected]
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