12 November 2004

We received a request from the Joint Subcommittee on Review of Joint Rules to undertake comparative research into the roles and functions of Disciplinary Committees in bicameral Parliaments. Questions were directed to six Parliaments but only one responded. There were no explanations provided for the non-responses. As a result, we gleaned information from the literature and standing orders of legislatures in Australia, India and the United Kingdom to get additional information on the subject.

We specifically looked at the size, composition, mandate, how matters are referred, nature of penalties and procedures followed. The results of both tasks are reported in the section below.

The House of Representatives does not have a Disciplinary Committee as such. The closest equivalent is the Committee of Privileges. The Committee is established at the commencement of each Parliament under the provisions of standing order 216.

Standing Order 216 Committee of Privileges

(a) A Committee of Privileges shall be appointed to inquire into and report on:

1. complaints of breach of privilege or contempt which may be referred to it by the House under standing order 51 or by the Speaker under standing order 52; or
2. any other matter referred to it by or in accordance with a resolution of the House.

(b) The committee shall consist of 11 members: the Leader of the House or his or her

nominee, the Deputy Leader of the Opposition or his or her nominee and nine other

Members.

Two members are ex officio (the Leader of the house or his or her nominee and the Deputy Leader of the Opposition or his or her nominee). The 9 other members are appointed by resolution of the House. Members from both the Government and Opposition parties are appointed.

The committee’s mandate derives from standing order 216. The committee inquires into matters referred to it by the House or the Speaker.

Standing orders 51 and 52 prescribe how matters are referred:

51 Privilege matter raised when House is sitting

(b) The Speaker may:

1. give the matter precedence and invite the Member to move a motion as stated in paragraph (a), or
2. reserve the matter for further consideration.

1. a prima facie case of contempt or breach of privilege has been made out; and
2. the matter has been raised at the earliest opportunity.

52 Privilege matter raised when House not sitting

1. a prima facie case of contempt or breach of privilege has been made out; and
2. the matter requires urgent action.

The committee does not impose penalties. Rather, it investigates matters referred to it by the House or Speaker and reports its findings to the House. Only the House can impose penalties. The limits of the penalties it may impose are set out in section 7 of the Parliamentary Privileges Act 1987 (see Annexure 1).

There have been no instances of repeat offences. It is assumed that if a member were to offend more than once on a matter involving privilege or contempt then the penalty imposed for a later offence would reflect the fact that the perpetrator was a repeat offender.

The House itself deals directly with lesser matters involving the conduct of members in the House. Members may be required to withdraw from the Chamber for 1 hour on the discretion of the Speaker or, for more serious cases of disorderly behaviour, suspended from the House for a day or more depending on how many times the member has offended during a calendar year. The scale of penalties is set out in standing order 94 (see Annexure 2).

• Australia (Senate)

The Senate does not have a Disciplinary Committee. Its equivalent is the Committee of Privileges. The Committee of Privileges is established by standing order 18, which provides:

Items 3 and 4 were added in 1994. Prior to that the chair of the committee had been a government senator by convention, a practice altered as a result of the Senate’s adoption of recommendations of the Procedure Committee’s First Report of 1994, which provided for the chairs of other Senate committees to be distributed between government and non-government senators.

The committee consists of 7 senators, 4 nominated by the Leader of the Government in the Senate and 3 nominated by the Leader of the Opposition in the Senate.

The committee’s mandate derives from standing order 18. The committee inquires into matters referred to it by the Senate or the President of the Senate.

The Senate’s Privilege Resolutions of 1988 provide procedures for raising matters of privilege. A senator raises a matter by writing to the President. The President considers the matter and rules whether a motion relating to the matter should have precedence. In so ruling the President is required to have regard to the principle that the Senate’s power to deal with contempts should be used only in cases of improper acts tending substantially to obstruct the Senate, its committees or its members.

The motion arising from a matter of privilege is to allow the Privileges Committee to investigate a matter. No other motion can be given precedence. The committee has no power to act itself, but can only make recommendations to the Senate. This reporting procedure, in effect, provides an appeal procedure, in that the Senate is not bound to accept the findings or recommendations of the committee.

Inquiries referred have chiefly been of three types: possible unauthorized disclosure of evidence or draft reports; possible misleading evidence given to a committee; or possible interference with, or adverse treatment of, witnesses as a result of their having given evidence.

The committee does not impose penalties. It inquires into matters referred to it by the Senate or President of the Senate and reports its findings to the Senate. Section 7 of the Parliamentary Privileges Act 1987 empowers either House to impose fixed terms of imprisonment and fines for contempt of Parliament. The Act provides that a fine is a debt due to the Commonwealth.

Resolution 8 of the Senate’s Privilege resolutions, and standing order 82, require seven days’ notice of any motion in the Senate to determine that a person has committed a contempt, or to impose a penalty for a contempt.

It is a fundamental principle that one House has no authority over the members of the other House except in the immediate conduct of its own proceedings or those of its committees (e.g. if a member of one House is appearing as a witness before a committee of the other House). A House therefore cannot impose any penalty on a member of the other House. A contempt by a member can be dealt with only by the member’s own House.

The Privilege Resolutions of 1988 prescribes procedures to be followed by the Privileges Committee in inquiring into matters referred to it, and confers rights on all persons involved in those inquiries.

A witness before the Committee of Privileges is given the right to be accompanied by counsel and to cross-examine other witnesses in relation to evidence concerning the witness. The committee has to ensure, as far as is practicable, that a person is informed of any allegations made against the person before the committee and is given the right to be present during the hearing of any evidence containing anything adverse to the person. Witnesses are also given the right to make submissions in relation to the committee’s findings before those findings are presented to the Senate.

• India

The Lok Sabha does not have a Disciplinary Committee as such. The closest equivalent is the Committee of Privileges. At the commencement of the House or from time to time, as the case may be, the Speaker nominates a Committee of Privileges.

The committee consists of not more than 15 members.

The committee examines every question referred to it and determines with reference to the facts of each case whether a breach of privilege is involved and, if so, the nature of the breach, the circumstances leading to it and make such recommendations as it may deem fit.

The committee’s report may also state the procedure to be followed by the House in giving effect to its recommendations.

After the report has been presented, the chairperson or any member of the committee or nay other member may move that the report be taken into consideration whereupon the Speaker may put the question to the House.

Before putting the question to the House, the Speaker may permit a debate on the motion, not exceeding half an hour in duration, and such debate shall not refer to the details of the report further than is necessary to make out a case for the consideration of the report by the House.

After the motion is agreed to, the chairperson or any member of the committee or any member, as the case may be, may move that the House agrees, or disagrees or agrees with amendments, with the recommendations contained in the report.

A motion that the report of the committee be taken into consideration is accorded the priority assigned to a matter of privilege under sub-rule (1) of rule 225, unless there has been undue delay in bringing it forward:

Provided that when a date has already been fixed for the consideration of the report, it shall be given priority as a matter of privilege on the day so appointed.

A member may, with the consent of the Speaker, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof. A member wishing to raise a question of privilege shall give notice in writing to the Secretary by 10.00 hours on the day the question is proposed to be raised. If the question raised is based on a document, the notice shall be accompanied by the document. Notices received after 10.00 hours shall be deemed to have been received at 10.00 hours on the next day on which the House sits.

The Speaker, if he gives consent and holds that the matter proposed to be discussed is in order, shall call the member concerned, who shall rise in his place and, while asking for leave to raise the question of privilege, make a short statement relevant thereto:

Provided that where the Speaker has refused his consent or is of the opinion that the matter proposed to be discussed is not in order, he may, if he thinks it necessary, read the notice of question of privilege and state that he refuses consent or holds that the notice of question of privilege is not in order: Provided further that the Speaker may, if he is satisfied about the urgency of the matter, allow a question of privilege to be raised at any time during the course of a sitting after the disposal of questions.

If objection to leave being granted is taken, the Speaker shall request those members who are in favour of leave being granted to rise in their places, and if more than twenty-five members rise accordingly, the Speaker shall declare that leave is granted. If less than twenty-five members rise, the Speaker shall inform the member that he or she has not the leave of the House.

If leave is granted, the House may consider the question and come to a decision or refer it to a Committee of Privileges on a motion made either by the member who has raised the question of privilege or by any other member.

Notwithstanding anything contained in the rules, the Speaker may refer any question of privilege to the Committee of Privileges for examination, investigation or report. The Speaker may issue such directions as may be necessary for regulating the procedure in connection with all matters connected with the consideration of the question of privilege either in the Committee of Privileges or in the House.

• United Kingdom (House of Commons)

The House of Commons does not have a Disciplinary Committee as such and its equivalent is the Committee on Standards and Privileges (previously Committee on Privileges). The committee is established in terms of standing order 149.

Standing Order 149 Committee on Standards

(1) There shall be a select committee, called the Committee on Standards and Privileges-

(a) to consider specific matters relating to privileges referred to it by the House;

The committee consists of 11 members, of whom five shall be a quorum. Unless the House otherwise orders, each member nominated to the committee shall continue to be a member of it for the remainder of the Parliament.

The committee’s mandate derives from standing order 149. The committee inquires into matters referred to it by the House or the Speaker.

The committee has the power to appoint subcommittees consisting of no more than 7 members, of whom 3 shall be a quorum, and to refer to such subcommittees any of the matters referred to the committee; and shall appoint 1 such subcommittee to receive reports from the Commissioner relating to investigations into specific complaints.

The committee and any subcommittee has the power to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, to report from time to time and to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference.

The committee has the power to order the attendance of any member before the committee or any subcommittee and to require that specific documents or records in the possession of a member relating to its inquiries, or to the inquiries of a subcommittee or of the Commissioner, be laid before the committee or any subcommittee. The committee, or any subcommittee, has the power to refer to unreported evidence of former Committees of Privileges or of former Select Committees on Members’ Interests and to any documents circulated to any such committee.

The committee has the power to refuse to allow proceedings to which strangers are admitted to be broadcast.

A member who wishes to raise a privilege complaint is required to give written notice to the Speaker as soon as reasonably practicable after the member has notice of the alleged contempt or breach of privilege. The Speaker has discretion to decide whether or not the matter should have the precedence accorded to matters of privilege. If it is decided that it should not, the member is informed by letter. If precedence is allowed, the member is told when the decision will be announced to the House. Once the announcement has been made, the member is entitled to table a motion for the following day formally calling attention to the matter, and either proposing that it be referred to the Committee on Standards and Privileges or making some other appropriate proposition.

Complaints of privilege may also be brought to the notice of the House of Commons by a communication from the Speaker, or the Serjeant at Arms, or by a report from a committee, or by a report to the Lords from Black Rod or his Deputy.

Where a complaint of an alleged breach of privilege is referred to the Committee of Privileges, counsel is allowed, by leave of the House, to examine witnesses before the committee on behalf of both the member who had made the complaint and the parties named therein.

The committee does not impose penalties. It inquires into matters referred to it by the House or Speaker and reports its findings to the House.

• United Kingdom (Lords)

In general, the House of Lords enjoys the same parliamentary privileges as the House of Commons. The House’s disciplinary and penal powers are part of the control exercised by parliament over its affairs. Conduct, whether of a member or non-member, which improperly interferes with the performance by either House of its functions, or the performance by members or officers of their duties, is a contempt of Parliament. The House has the power to punish contempts by imprisonment, fine and reprimand. Periods of imprisonment imposed by the House do not end with the prorogation of Parliament. The House does not have the power to suspend a member permanently.