In my opinion. Mr Kons was in breach of standing orders when he released details of the Solicitor-General’s opinion to the Joint Committee, but was probably not in contempt of parliament.
Under House of Assembly Standing Order 364, any documents presented to a select committee shall be strictly confidential and shall not be referred to in the House by any member or published or divulged by any member or Officer of the House or by any witness or any other person. This Standing Order applies to Joint Committees of both houses as well as select committees of the Lower House; Standing Order 382.
Mr Kons was in breach of this Standing Order when he released the Solicitor-General’s advice to the Joint Committee that s 12A of the Forestry Act did not apply to the wood supply contract being investigated by the Committee. Also, the person who released a copy to him, would on the face of it, also appear to have been in breach, although, if that person were not a Member of the House, there must be doubts about the extent to which s/he could be subject to Standing Orders.
A breach of Standing Orders is not a contempt. Contempts of parliament are offences which either House may punish in a summary manner by imprisonment until the parliamentary session in which the offence occurred ceases or for some shorter time, Parliamentary Privilege Act 1858 s 3. That Act defines a number of specific contempts which may be punished under section 3. Publication of documents presented to a select or joint committee is not one of them. The Act also does not contain any provision which makes a breach of Standing Orders a contempt. Therefore, it is clear that Mr Kons’ breach of Standing Order 382 was not a contempt under the Act.
The Standing Orders provide a remedy for dealing with breaches committed by Members. Standing Order 182 gives the Speaker or the Chairman of a committee power to name a Member who persistently and wilfully refuses to conform to any Standing Order. A named Member may be suspended from the House for a period of 24 hours, or if it is a second offence in the same year, seven days; Standing Order 184. This procedure is not available against a person who is not a member, suggesting that there is no remedy available to parliament if a person who is not a Member publishes a document presented to a committee in breach of Standing Order 364.
That fact is not sufficient to convert a breach of Order 364 into a contempt. The Standing Orders contain a contempt provision, Orders 424-6, which provide that a Member adjudged guilty of contempt may be fined and taken into custody for failure to pay the fine and that a non-Member may be taken into custody for various types of behaviour while in the House itself. These provisions do not purport to make any breach of standing orders a contempt as can be shown by order 425, which defines the contempts by non-members which can be dealt with under the Order. They do not include publication of documents presented to a Committee before they have been presented to the House itself. Order 424, applying to Members, does not specify any contempts but provides a punishment for existing contempts. To the extent that that punishment is inconsistent with the punishment prescribed by the Parliamentary Privilege Act, the Order may be invalid.
Even if valid, in spite of its wording, ‘Any Member adjudged by the House to be guilty of Contempt shall be fined….’, it does not give the House the power to decide for itself what is a contempt. The leading High Court case on contempt, Egan v Willis (1998) 195 CLR 424, held that a Court has the power to determine the existence of a privilege but not examine the manner of its exercise. This means that it is for the Court, not parliament to determine whether a particular act such as the act of publishing a document given in evidence to a committee is a contempt, but parliament, not the court, has the final say in determining whether the behaviour of any person was in contempt. So in this case, the court determines whether publishing a document given in evidence to a committee is contempt, and, assuming that it is, parliament determines whether anyone has committed that offence. Besides, if the Order did purport to give the House the power to decide for itself that behaviour is contempt, it would be invalid for inconsistency with s 3 of the Parliamentary Privilege Act, s 3 which defines contempts.
The House may have a residual power to punish contempts other than those created by the Parliamentary Privilege Act 1858 s 3. Parliaments like that of Tasmania have at common law those privileges which are necessary to their existence and the proper exercise of their functions; Egan v Willis. Section 12 of the Parliamentary Privilege Act 1858 states:
Nothing in this Act contained shall be deemed or taken, or held or construed, directly or indirectly, by implication or otherwise, to affect any power or privilege possessed by either House of Parliament before the passing of this Act in any manner whatsoever.
Hence, if the Tasmanian parliament at common law had the power to punish publication of a document presented to a committee as a contempt, it retains that power under the 1858 Act. Whether such a publication was a contempt at common law depends upon whether the power to prevent the publication of a document presented in evidence to a committee is necessary to the existence and the proper exercise of the functions of the House. Although there are arguments both ways, a broad power to prevent the publication of any document presented to a committee is, in my opinion, not necessary for the proper functioning of parliament. Parliament could continue to function effectively if these documents could be made public. A narrower power to suppress publication where the document contained personal information or should be suppressed in the public interest may well be justifiable as necessary for the proper functioning of parliament. But that power is not the one claimed and is probably not broad enough to cover this case, where the public had an interest in knowing the contents of the Solicitor-General’s advice.
Hence in my opinion, although a breach of Standing Orders, the actions of the Acting Premier in publishing the Solicitor-General’s advice, were not in contempt of parliament.
University of Tasmania