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Legislative Assembly for the ACT: 2002 Week 12 Hansard (14 November) . . Page.. 3614 ..

MR SMYTH (continuing):

ask itself: does the action of the person accused of contempt fall within the formula set out in section 4 of the Parliamentary Privileges Act?

Has a contempt been committed in this case? The principal issues in this matter are whether the passive receipt of unsolicited emails constitutes a contempt of the Assembly and whether a person has committed a contempt by failing to tell another that apparently their email had been misdirected.

Section 4 of the Parliamentary Privileges Act seems to suggest that before anyone can be said to have committed a contempt a person needs to have done something positive that subsequently has the effect of interfering, or that may interfere, with the free performance of his or her duties as a member.

In context, if anyone had hypothetically taken action to redirect emails from Mr Wood's office, it would probably constitute contempt, as would the behaviour of inciting someone to do such a thing. However, passively receiving unsolicited information does not appear to fall within this definition. You cannot help receiving emails that are directed to your computer.

As to the second major issue, the majority report seems to suggest that the continued receipt of email in error imposes on the recipient an obligation to advise the author of the receipt and that the failure to do so can be regarded as being a contempt of the Assembly.

Section 4 of the Parliamentary Privileges Act does not require someone to do something positive to correct a particular course of action, and it does not cover an act of omission. It recognises as contempt only things falling within the ambit of the section that people actually do which do or may interfere with the free performance by an MLA of their duty. It therefore follows that the passive receipt of unsolicited information and a failure to tell someone about a possible misdirection of emails cannot be regarded as a contempt of the Assembly.

As the majority report recognises at paragraph 2.23, there is a distinction between what you may consider to be contemptible behaviour and behaviour that is a contempt of the Assembly. Given the different nature of email as a method of communication and the lack of established rules as to its use, should the Assembly wish to make rules about email etiquette (including the use of information gained from misdirected emails) and provide sanctions for breaking them, it is open to the Assembly to do so as anticipated by paragraph 24 (2) (a) of the self-government act of 1998.

However, for the committee to formulate a standard of behaviour for the first time, then, when conducting an inquiry in exercise of the Assembly's penal jurisdiction, apply that unannounced standard to someone without appropriate reference to section 4 of the Parliamentary Privileges Act is tantamount to applying legislation retrospectively. That is wrong.

Restraint in exercising the Assembly's jurisdiction is very important. As previously noted, it is a well-established principle that exercising its contempt jurisdiction is something a parliament should do sparingly. In the House of Representatives there have been 187 attempts in the last 102 years at determining whether breach or contempt has been committed. All but 17 of those have been rejected.

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