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Published online by Cambridge University Press: 24 January 2025
Proceedings in some Australian legislatures in recent years in relation to alleged contempts of Parliament and breaches of Parliamentary privilege have been followed by a similar episode in the House of Assembly of the Territory of Papua and New Guinea. The proceedings in the Territory are noteworthy not only because they were the first of their kind there, but also because they drew attention to substantial and unforeseen difficulties in attempts to transfer the power to deal with contempts and breaches of privilege from Parliament to the courts. The House of Assembly of the Territory of Papua and New Guinea, along with the Legislative Council of the Northern Territory, has effected through legislation an abdication of its powers to punish those persons found guilty of contempts. This transfer of power from Parliament to the courts has been shown to be of uncertain extent by the proceedings in the House of Assembly. The fact that even a partial delegation of this power has been achieved in these two jurisdictions distinguishes the two territorial legislatures from those of all the Australian States and from the House of Representatives of the Parliament of the Commonwealth, which have generally preserved to themselves the power to deal with alleged breaches of privilege. As will be seen, this transfer of power presents the two territorial legislatures with novel and distinctive problems, no solution to which has yet been reached.
1 For a general review of these proceedings, see Pearce, D. C., “Contempt of Parliament …” (1969) 3 F.L.Rev. 241Google Scholar.
2 The legislation in the two jurisdictions is in similar terms: Parliamentary Powers and Privileges Ordinance (1964-1965) (Papua and New Guinea); Legislative Council (Powe,rs and Privileges) Ordinance (1963-1966) (N.T.).
3 A treatment of the general law relating to contempts and breaches of Parliamentary privilege may be found in Campbell, E., Parliamentary Privilege in Australia (1966)Google Scholar, and D. C. Pearce, op. cit.
4 R.A. Deb. Vol. II, No.5, 1123.
5 H.A. Deb. Vol. II, No.6, 1535.
6 H.A. Deb. Vol. II, No.5, 1134.
7 Id., 1176.
8 Id., 1179.
9 Id., 1420.
10 According to an outside source, these objections were advised solely for the purpose of depriving the Committee of evidence which would have been most damaging to the defence of Mr Kiki, and were raised whenever Mr Kiki was questioned as to the text of the statements allegedly made by him. Of course,if Mr Kiki had at any time made these statements before the Committee, a District Court would have been competent to entertain a prosecution against himunder s. 15 of the Ordinance, and might have been provided with evidence upon which a conviction could be sustained.
11 It is pertinent to point out that the Select Committee on Parliamentary Privileges in its Report to the House of Commons recommended that in all cases the right to counsel should be subject to the discretion of the committee of enquiry: see Report from the Select Committee on Parliamentary Privilege (1967) para. 186. This recommendation is not readily understandable; for while in some cases the presence of counsel might hinder a committee in collecting evidence, it is only proper that an accused be able to seek advice whenever he believes that the making of a given statement would tend to incriminate or otherwise damnify him.. This Committee also recommended that the right to attend and to lis.ten to submissions should also be subject to the discretion of the committee of enquiry: Id., 185.
12 H.A. Deb. Vol. II. No.6, 1535, 1607. Among those who voted in favour of accepting the Report were nine of the ten Official members of the House and eleven of the seventeen ministerial and assistant ministerial members of the House; four of the five members of the Committee of Privileges did likewise. One assistant ministerial member voted to the contrary. The fifth member of the Committee appears to have abstained. This last-mentioned person is a former leader of the Pangu Patio.
Delays in the proceedings were caused by the facts that the House was in adjournment from March 14 until June 16, 1969, and that it went into recess from June 27. (the end of the fifth meeting of the first session) until August 20. The Report had been completed before thesixth meeting of the first session began, but its presentation was delayed until August 25, the fourth sitting day of that meeting, for the purpose of giving the accused a chance to apologise to the House: R.A. Deb. Vol. II., No.6, 1537. (It appears that no accused ever apologised.) It is also noteworthy that debate on the Report was adjourned until the day following the presentation of the Report, as a result of a motion put to the House by the Chairman of the Committee of Privileges, and. carried. These delays are abnormal, matters of privilege being commonly disposed of with as much expedition as possible, having precedence over all other business of Parliament.
13 Papua and New Guinea A.ct 1949-1968 (Cth) ss. 52-57.
14 Pp. 42-43. Report from the Committee of Privileges, paras. 6, 7. The Report is set out in full at H.A. Deb. Vol. II. No.6, Appendix A.
15 It is not clear whether the transfer of power is total or partial. Writers on the subject have differed. Contrast E. Campbell, op. cit., n. 3, 113-114, with D. C. Pearce, op. cit., n. 1, 265-266.
16 The section was inserted as an amendment to the orginal Ordinance by the Parliamentary Powers and Privileges Ordinance 1965, s. 3. This amendment had the result that all the defences open to a defendant in a defamation action are available to a person accused of an offence against s. 15 of the Ordinance. These defences include those of truth, fair comment, public interest, public benefit, and good faith. See the Defamation Ordinance 1962 (Papua and New Guinea), ss. 14, 15, 16. Parliamentary debate on the amendment is reported at H.A. Deb. Vol. I. No.5, 688.
17 See E. Campbell, op. cit., n. 3, Ch. 7; D. C. Pearce, op. cit., n. 1.
18 Report, para. 9.
19 However, attempts have been made at such enumeration and definition: see Parliamentary Privileges Act 1891 (W.A.) and Constitution Act 1867-1968 (Qld).
20 Report, para. 9.
21 This section is very similar to s. 4 of the Legislative Council (Powers and Privileges) Ordinance 1963-1966 (N.T.).
22 The Queen v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 C.L.R.157.
23 Report, paras. 9, 24. After the vote on the Report in the House of Assembly, the Committee of Privileges was instructed to make a further and more detailed study of all aspects of the Parliamentary Powers and Privileges Ordinance for the purpose of recommending amendments to the Ordinance. To date, no amendment to the. Ordinance has been enacted.
24 1d., para. 10.
25 The Bankstown Observer case. The Parliamentary proceedings in this case are reported at 1955 H.R. Deb. 1613-1617, 1625-1664.
26 Report, para. 11.
27 Id., para. 12.
28 Id., para. 13.
29 Kwaku Mensah v. The King [1946] A.C. 83, 93. This topic has been thoroughly canvassed elsewhere; see Howard, C., “What Colour is the ‘Reasonable Man’?” (1961) Crim. Law Rev. 41Google Scholar.
30 The Committee may have been aware that it would be rather severely embarrassed if, after it authorised the prosecution of an accused, the District Court subsequently acquitted that person of the offence charged. An elem.ent of caution will thus be introduced into contempt proceedings whenever a body independent of Parliament is invested with ultimate power to decide in any particular case. See Report from the Select Committee on Parliamentary Privilege (1967) para. 144, where this factor was foreseen.
31 Report, paras. 14, 22, 24.
32 The competence of a District Court to try persons for acts done outside its area is not made decisively clear by the enabling legislation, the Districts Courts Ordinance 1963-1964 (Papua and New Guinea). The most relevant sections are ss. 28(1) and 29(5).
33 Report, para. 24.
34 H.A. Deb. Vol. II. No.6, 1585.
35 H.A. Deb. Vol. II. No.5, 1179, 1420.
36 R.A. Deb. Vol. II. No.6, 1607.
37 This reasoning applies equally to the disciplining of members as to that of outsiders. It has commonly been accepted that it is fitting that Parliament should retain exclusive jurisdiction over its members: see Report from the Select Committee on Parliamentary Privilege (1967) para. 145; D. C. Pearce, op. cit., n. 1, 263, 264. But when there arise cases as extreme as the episode in the House of Assembly of Papua and. New Guinea and cases analogous to that of Sir Henry Bolte in the Victorian Parliament in 1968 (reported at 1968 P. Deb. (Vic.) 2026 et seq.), the conclusion is irresistible that Parliament is a body least suited to wield the weapon of privilege, largely because of its susceptibility to abuse on partisan grounds.
38 H.A. Deb. Vol. II, No.6, 1607.
39 Id. 1585-1586.