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Legislative Assembly for the ACT: 2002 Week 12 Hansard (14 November) . . Page.. 3616 ..

MR SMYTH (continuing):

Unlike other jurisdictions such as the federal parliament, the Assembly cannot fine or jail anyone for committing contempt. I think that is a thing we should avoid. Nor can it refer anyone to the DPP to be prosecuted for committing a contempt of the Assembly. There is no relevant offence.

Practically speaking, all it can do is ban them from the precincts of the Assembly, censure them, admonish them or, by resolution, make a statement commenting on their behaviour. To hand out a positive finding that someone is in contempt in any circumstances where there is a possibility that a finding of contempt can be made rather than in a sparing way means the shame of denunciation, the only effective sanction the Assembly has, is diminished.

The House of Representatives Committee of Privileges, commenting on the disruption caused to the work of the electorate office of the honourable member for Wentworth, said:

In assessing the matter, the Committee was aware of the widely held view that Parliament should exercise its penal jurisdiction as sparingly as possible, and only when satisfied that to do so is essential to provide reasonable protection for the House, its Members or officers from improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions. This is not merely a widely held view but one which has been adopted as a guiding principle and one which guides the Speaker, the Committee of Privileges and Members of the House. This principle has not been formally adopted in the Commonwealth Parliament. Despite this, the Committee acknowledges that it is supported by many, and it is a principle which commends itself to this Committee. It was also recommended by the Joint Select Committee on Parliamentary Privilege for adoption by the Parliament.

The federal houses of parliament use their powers to find contempt in a sparing manner. In the mail services case the positive act of black-banning politicians' mail was not seen to be a contempt, because of the recognised philosophy of restraint in finding contempt, the absence of any intention to offend the law that protects the house, and the limited duration of the disruption. It also required the presence of substantial interference with the performance of a function.

Applying these standards to the present case, there is no evidence that anyone intended breaching any laws protecting the operation of the Assembly, and access to Mr Wood's emails by a Liberal Party staffer was for only a limited period. However, the general flow of communications to Mr Wood continued. There was not, nor could there be, a significant impediment to the work of the minister. No significant impediment to the work of the member has been proven.

The Senate has also passed a number of resolutions to assist the chamber in deciding whether matters should be dealt with as a breach of privilege and how such matters should be conducted. In privileges resolution 3, criteria to be taken into account when determining matters relating to contempt, the Senate declared that it would take into account when, inter alia, determining whether a contempt had been committed the existence of any remedy other than that power (to judge and deal with contempts) for any act which may be held to be a contempt.

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