Pell and Parliamentary Privilege

Cardinal George Pell’s comments regarding the way he believed politicians who are Catholics should vote on legislation regarding stem cells got a lot of coverage in the mainstream media and on a number of blogs.

Some people have suggested that the Cardinal’s comments were improper interference with MPs deliberations, and even that he might be guilty of contempt of Parliament for his perceived inference that politicians who supported the stem cell legislation might be denied receipt of Communion.

I am not a fan of George Pell, and I find his views on gays and lesbians particularly offensive. I’m also not a Catholic, and whilst I may criticise some of the Cardinal’s views, I think it’s mainly a matter for those who are Catholic to argue about the rights and wrongs of what he said as far as Catholic teaching goes. However, as observant readers may have noticed, I am a member of Parliament, so I thought I’d make a comment or two on the issue of contempts of Parliament and Parliamentary privilege.

In some ironic timing, Linda Kirk, a Labor Senator from South Australia, has just lost pre-selection, and thus her Senate seat (unless she tries to run as an Independent, which I assume she would be very unlikely to win), because she voted in support of stem cell legislation and previous legislation regarding RU-486. That rather puts anything George Pell inferred in the shade (without belittling the importance to some people of being able to receive Communion).

The rules regarding contempt of Parliament are a bit different for each Parliament, but the basic principles are similar. This link covers some issues regarding contempt in the Senate. This one details the specific rules of the Senate regarding privilege and contempt. NSW Parliament is a bit different, but precedent and practice is as important as wording, and I don’t know that for NSW, so I’ll stick to the Senate which I have some familiarity with.
Amongst the matters listed as constituting contempts of the Senate are:

A person shall not, by fraud, intimidation, force or threat of any kind, by the offer or promise of any inducement or benefit of any kind, or by other improper means, influence a Senator in the Senator’s conduct as a Senator or induce a Senator to be absent from the Senate or a committee.

A person shall not inflict any punishment, penalty or injury upon, or deprive of any benefit, a Senator on account of the Senator’s conduct as a Senator.

I suppose with a very literal reading of the definition, one could consider the Cardinal’s comments to be a contempt (depending on how threatening one found it to have an inference that you might be denied Communion). However, much I dislike some of the views of Cardinal Pell, I think that would be a very precious – and somewhat dangerous – interpretation.

Some might say the Cardinal’s inference constitutes a threat, others would say he was simply detailing an established rule of the Catholic faith as he saw it. But either way, I think suggesting it is a possible contempt is just silly, however much I may disagree with his view (which not only leaves me open to being accused of defending Cardinal Pell, but also agreeing directly with John Howard, which is all getting a bit uncomfortable.)

Of course MPs should be able to carry out their jobs without the risk of their decisions being distorted by serious intimidation or dangerous threats, but they can’t be immune from strong criticism either. I have seen more than one MP make indignant noises about possible breaches of parliamentary privilege and contempt when members of their party have complained when they voted against party policy, or didn’t comply with the rules of their party’s Constitution.

I shouldn’t just single out the pre-selection loss of Linda Kirk, as it’s certainly not unique to Labor. In one very blatant case a few years ago, a Northern Territory Senator from the Country Liberal Party, Grant Tambling, was publicly told by his party officials to vote against a government Bill (purporting) to outlaw internet gambling, or he would lose pre-selection, even though pre-selection had already taken place. He voted for the Bill anyway and his party carried through on the threat – re-opening pre-selections and dumping him, thus costing him his seat in Parliament.

On one level, this would seem to be an open and shut case of a breach of privilege – ‘vote this way, or you lose your job’. In another sense, it would seem to be democracy in practice – ‘we helped put you there, and if we don’t like what you do, we’ll act to try to remove you’.

Senator Tambling’s unseating was done so crassly and blatantly, that it was examined by the Senate Committee of Privileges back in 2002. The report into this case is a good one for people to read to get a better understanding of how issues of contempt actually work.

Their findings were:

yes, an outside body purported to direct Senator Tambling as to how he should exercise a vote in the Senate; yes, a penalty was imposed on Senator Tambling in consequence of his vote in the Senate , but In respect of whether contempts of the Senate were committed –

While the actions of the Northern Territory Country Liberal Party were reckless and ill-judged, on balance, and given that Senator Tambling reached a settlement with the Northern Territory Country Liberal Party, a contempt of the Senate should not be found.

Of course, even if a contempt is found, it leaves the question of what the penalty should be. Whilst in theory the Parliament has the powers of a Court and could even go as far as jailing people, in practice the Senate has imposed a penalty for contempt twice since 1901. On both occasions, those penalties were reprimands.

I’ve seen a fair few comments from people over the past few days, including by quite a number of MPs, reprimanding George Pell for his views, so perhaps that makes things even – and all done for free through the court of public opinion.

ADDENDUM: This transcript from an episode of the ABC’s Law Report gives a fairly short and simple description of how contempt of Parliament can work, using an example from the Victorian Parliament last year where a law firm was found guilty of a contempt.

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16 Comments

  1. IIRC there was a fellow in the 1950s, Browne?, who was jailed by parliament directly under parliamentary privilege.

  2. Yes, that’s right Cam. There’s a bit of a mention of it at the end of this transcript from an episode of the The Law Report – which is actually worth a read for its wider explanation of contempt and another example of how it can work (I’ve added it to my main post). In the recent case it describes, the punsihment for contempt was for a law firm involved to publish a letter of apology in the Law Institue Journal – rather short of a jail term or even a fine.

    The law at federal level has been changed since that jailing of Brown and Fitzpatrick (the publisher of the journalist’s articles) and I find it almost impossible to imagine it would happen today, however much a politician might feel aggreived by being smeared and attacked in the media.

    Leaving the media to one side, because Parliaments deals with contempts relatively rarely and far more rarely imposes any sort of penalty, it often tends to be dismissed as being of no great significance. It should be noted that in a legal sense it is basically on a par with contempt of court

  3. Pell has made the simple common error of conflating his role as a servant of God as meaning BEING God.
    People of genuine substance, intelligence, education and insight like the ostracised Paul Collins, recognised the human error unrepaired, and the damage it continues to do.
    Which why Collins was excommunicated.
    By a similar inverted “miracle”, Sen. Kirk has been like wise “excommunicated” from representing South Australians in the Senate. She is a sad example of an unconsciously totalitarian tendency of thinking commented upon most recently by former PM Keating on Lateline, just last week.
    A certain faction ( in this case the Right ) have gained numerical dominance and control of the party administration. These proceed to removal of others of a variant viewpoint on the basis of ” internal reform”; sweeping away of “old ( eg democratic ) ideas” and introduction “new blood” ( ciphers for a particular line of action, policy and thinking.
    I have met Don Farrell, and know of him over several decades, since he was the boss of the rightwing shoppies union that my late mother was a member of.
    He is a faithful servant of his beliefs, but it is likely that his views are “locked in”. He is arguably a social conservative and part of a social conservative movement, and has replaced Kirk for just that reason. Since there already increasing numbers of social conservatives in the ALP, it seems sad that a moderate social progressive like Kirk should be the one to have to make way.
    Most of all when this threatens the opportunity for the ALP to continue as a “ideas workshop” of diverse viewpoints.
    Hiding from ideas or reality won’t make them or it go away.

  4. Pell has been a victim of the ALPs belief in itself,rather than whatever they think is inherently sad or wrong in his moral outlook.They just cannot help it,their jealous need to always say something about themselves is more appalling than whatever is the problem with Pell.He will learn a lesson,it is guaranteed they will not.Going on about Kirk like some are,is the same point.Politics is about trying to persuade people in a democracy,and even social conservatives could object to that tag,if they believe abortion isnt being progressive.The social conservatives mentioned in the Union,are probably people who are simple,but not simple minded,that is they hope women who have had abortions do not dismiss them as against their lives and rights.We just do not know,from whatever I have read,the key personnel in the Union are fairminded persons willing to listen to others on a personal basis..which I would of thought is then very socially progressive.The media isnt inviting friends acquaintances and people who know these unionists with pro-abortion views or who have had an abortion to defend these statements about them,the unionists, Pell likewise.Yes there are journalists,Democrats,bloggers and other ready to say something that allows for Pell to see clear the nature of their views without attacking him.Now,whatever my opinion is and I have stated previously will not be a shock really to him or the Union,but those who will damage their own reputation by insisting on matters that dont exist.A new God perhaps,neither worthy for us Sinners or those who want us to repent!

  5. The threat implied by Pell’s comments would be very severe to a devout Catholic, who would find a threat to their life less daunting than the threat to their eternal soul and the possibility of eternal damnation.

    If the various laws against speeches and publications that incite racial or religious hated depend on the perceptions of the threat by the object of a tirade, then applying this to Pell’s statements means he probably has fallen foul of the Law.

    It’s worse since the Vatican abolished purgatory for “virtuous non-believers” a couple of years ago.

  6. Possibly Dave, although I think even George Pell would acknowledge that he isn’t the one who determines whether eternal damnation is inflicted on someone – for folks who believe in that sort of thing. But for those politicians who do believe in that sort of thing, I think it is plausible for Pell to argue that he is simply letting them know what he thinks the potential consequences are of a particular action. I’d see that more as a matter of informing people of what he thinks may be wider consequences, rather than issuing a threat.

    I presume people who follow the Catholic faith would seek to put their eternal survival ahead of political survival, but it really is a matter for them to weigh up. They can choose to take guidance from the Cardinal or not as they wish, the same as I can choose to take guidance from any person or group in the community who warns me about what they believe may be the consequences of any vote I take in Parliament.

    (and I should note it was my vote which allowed legislation to pass at federal level which let measures strongly opposed by George Pell to proceed – in NSW and elsewhere)

  7. Perhaps it’s just as well the Cardinal is already an Australian citizen, given he would obviously get the question on what Australia’s values are based on wrong.

    And given his ‘instruction’ to members of his flock was roundly ignored perhaps the supposedly correct answer is not so correct after all.

    Perhaps we are – despite the government’s best wishes to make it appear otherwise – a secular society after all.

  8. Did any of the other 33 senators who voted in favour of the Prohibition of Human Cloning for Reproduction and the Regulation of Human Research Amendment Bill 2006 have anything to do with its passage through the Senate?

    And, correct me if I am mistaken, but wasn’t the bill then sent to the House of Representatives for the consideration of its members (yourself not being a member of this place, thus not being able to vote in its proceedings)?

  9. You really should try just once not to be so deliberately disagreeable, CU. You might even find you like it.

    As even someone as perpetually and wilfully blinkered as yourself would know, the stem cell legislation went through the Senate before going to the House of Reps – so if it had been voted down in the Senate, it would never have got the Reps, and probably not to state Parliaments either.

    As you would also know, if I had voted the other way on the stem cell Bill – and it is well documented that I nearly did – then the legislation would have failed.

    If you’re genuinely incapable of understanding such simple facts, I’m sorry.

  10. Well, I didn’t quite realise that questioning the claims made on this site equates to being deliberately disagreeable (the claim being that you were the so-called bill saving senator for the Prohibition of Human Cloning for Reproduction and the Regulation of Human Research Amendment Bill 2006).

    Why you seem to want to detract from the votes of senators Adams, Allison, Brown B, Brown C, Carr, Colbeck, Crossin, Evans, Faulkner, Ferguson, Ferris, Johnston, Kirk, Lundy, Marshall, McEwen, McLucas, Moore, Murray, Nettle, O’Brien, Patterson, Payne, Ray, Sherry, Siewert, Stott Despoja, Troeth, Trood, Vanstone, Webber, Wong & Wortley is a bit beyond me. They could have easily voted the other way, leaving your so-called bill saving vote as a not-so bill saving vote.

    Likewise, had the members of the House of Representatives voted against the bill, it would not have passed at the federal level. This would have also left your so-called bill saving vote as a not-so bill saving vote.

  11. I’m not surprised you didn’t realise, CU.

    I wasn’t “detracting” from the votes of the other Senators. You are simply detracting from my vote.

    I am “adding” my vote to theirs, not “detracting”, and if you add my vote to theirs the Bill passed, and if my vote had been on the other side and had not been added to theirs, it would not have passed, and would not have got to the House of Reps at all. Pretty simple really, even for you.

  12. CU, kummon, spit it out! No more ducking and draking around- just come out into the open and say what it is you are trying to say, but seem so deleterious in getting to the point of.
    Are you saying he was wrong voting the way he did, or right?
    For what reasons?
    Instead of playing the man or fiddling around with nebulous insinuationary language that you hope others will be alarmed at, why don’t you just have an honest discussion?
    Andrew, would it be taken as impertinent if the readership were to ask if you were concerned as to the issue from the point of view of ‘slippery slope’ considerations, given humanity’s previous difficulties in handling certain other earlier technologies succesfully?

  13. Andrew, while you may consider it “silly” as to pursue contempt of parliament regarding the Cardinal’s comments, as a constitutionalist my concern is what the framers of the Constitution intended. Sure, they allowed for each House to set up its own rules, for so far not already applicable as embedded in the constitution, but I view the issue of “contempt of parliament” should not be ignored where a person inappropriately seeks to influence the vote of a Member of Parliament.
    I am not a Catholic and may also oppose members of parliament to vote for a certain Bill, such as RU-486, but the appropriate way to follow, as I did, was to write about my concerns. It is another matter where one seeks to induce a person to vote in a certain manner, as this interferes with the right of the member to vote as he/she deems appropriate to represent the constituents of his area. Indeed, even voting on demand of ones political leaders may be deemed to be contempt of parliament by those seeking to enforce a vote along party lines.
    Members of Parliament are first of all elected by their constituents they are not and never were elected by their political parties, as the electors vote which candidate shall make it to the Parliament.
    While about every member of a political party votes along the lines as dictated by their political leader, hence the rubbish we end in, and we basically do not need to elect so many Members of Parliament if all they do is to rubberstamp, so to say, what their political leader demand, it would be appropriate if every member considers his/her constituents wishes above that of the party.

    Separation of Government/legislature and the Church must be maintained but you find that every Dick and Harry is seeking to elicit votes from religious zealots and by this they are compromising their own position as Member of Parliament
    The Cardinal pursued to use religion to inappropriately influence the freedom of a Member of Parliament to vote, a very serious issue!

  14. Catholics, including their leaders, have every right to express their opinions. Pell was within his rights to express his church’s opinion on the matter. It’s a wonder really that the Catholic church still allows these people that fundamentally disagree with them to still be in their congregation.

    Well, no it’s not. Because a poll by the ANU on social attitudes and religious believe found that 68% of Catholics supported abortion. So if the church were to expel these ‘crazies’ (according to their doctrine), they would have a hard time existing.

    What people are really upset about is that the church is so out of touch, so out of step, with its progressive congregation. How can this go on? Because their leadership isnt democratically elected. My solution? Change your church or leave it. But dont tell Pell that he’s wrong, he’s doing what his congregation lets him do.

    (sorry I didnt write this earler, damn work!)

  15. once you grasp that a political party is a standover gang, and parliamentary rule has little to do with democracy, public affairs in oz become easy to understand.

    as it is, with national ignorance shored up by the self interest of professional liars, the concept of contempt only makes sense if we all stand on our hands and agree that up is down.

    special interest groups run this country. pell is head of one, and was reminding his (not so) tame reps that if they wanted to enjoy whatever votes accrued from the catholic clergy mentioning their names, they would have to deliver their political quid.

    talk of withholding communion is childish at best. these people run on more material considerations.

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