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.