Opinion Number. 1549


parliament: privilege: contempt: powers of parliament: punishment: newspaper article: identification of printer and publisher

Key Legislation

Constitution ss 49, 50: House of Representatives Standing Order 285


I have been asked to advise as to the steps which may be taken in relation to the article headed ‘Salary Grab came as thief in the night’, appearing in The Sunday Sun and Guardian newspaper of 22nd October, 1933.

  1. The Constitution, section 49, is as follows:
  2. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

    There has been no declaration by Parliament under this section.

  3. Section 50 provides that:
  4. Each House of the Parliament may make rules and orders with respect to—

    1. The mode in which its powers, privileges, and immunities may be exercised and upheld;
    2. The order and conduct of its business and proceedings either separately or jointly with the other House.
  5. Standing Order 285 is the only one of the House of Representatives Standing Orders relating to contempt. It is as follows:
  6. 285. Any Member complaining to the House of a statement in a newspaper as a breach of Privilege, shall produce a copy of the paper containing the statement in question, and be prepared to give the name of the printer or publisher, and also submit a substantive Motion declaring the person in question to have been guilty of contempt.

    It provides only for the method of bringing the matter before the House by motion.

  7. The House of Representatives therefore has the powers and privileges of the House of Commons.
  8. These powers include punitive powers.
  9. Re Dill (1862) 1 W. & W. 171; Dill v. Murphy (1864) 10 L.T. 170 P.C.;

    Victoria Legislative Assembly (Speaker) v. Glass (1871) 24 L.T. 317 P.C.; Fielding v. Thomas (1896) A.C. 600.

    They include a power to fine–but this power has not been exercised by the House of Commons since 1666 (May, 13th Edition, p. 102). It is undesirable to revive it except under express authority given by Parliament.

  10. These powers also include power to imprison (May, 13th Edition, p. 85 et seq.; Halsbury, Laws of England, Volume 21, p. 791). This power can be exercised in the case of an individual person, but not in the case of a corporation.
  11. In the case of the Sunday Sun and Guardian it has been ascertained by search in the office of the Registrar-General of New South Wales that the printer and publisher of ‘the Sunday Sun and Guardian’ is Sun Newspapers Limited.
  12. In the laws of some States relating to newspapers, e.g. in Victoria, it is provided specifically that where the proprietor of a newspaper is a company, the affidavit required to be sworn and signed by the proprietors shall be deemed to be duly sworn and signed by the proprietor if sworn and signed by the secretary, manager or managing director and by the chairman of directors of the company; and such affidavit shall in all cases set forth the name of some individual person or persons as printer and publisher.

    In the case of New South Wales, however, the law does not contain any specific provision as to the case of a company being the proprietor of a newspaper. It, however, speaks of an affidavit being required to be sworn and signed by every printer, publisher and proprietor of the newspaper, such affidavit to set forth the names, additions, descriptions and places of abode of the person intended to be the printer or publisher of the newspaper and of all the proprietors of the newspaper. It must also set forth a true description of the house or holding wherein the newspaper is intended to be printed.

    In my view, the Act contemplated a natural person as printer and publisher, and the Act was for many years so administered by the State authorities.

    Some years ago, however, the view was taken by the State authorities (and has since been acted on) that a corporation may be the printer and publisher of a newspaper. The registration of Sun Newspapers Limited as the printer and publisher of the Sunday Sun and Guardian is in accordance with this practice.

    It may perhaps be advisable to call the attention of the Government of New South Wales to this aspect of the matter.

  13. The House on 26th October, 1933, passed a resolution in the following terms:
  14. The comments appearing in ‘The Sunday Sun’ newspaper of the 22nd October, 1933, printed and published in Sydney for the proprietors by the Sun Newspapers Limited, concerning the partial restoration of the Parliamentary Allowance to Members of the Commonwealth Parliament are mischievous and malicious, and constitute a grave and unscrupulous attack upon the honour of the Parliament and its members. The House therefore declares the Printers and Publishers of The Sunday Sun newspaper to be guilty of contempt.

  15. In my opinion this resolution (as I stated in the mover before he submitted it) does not comply with Standing Order 285. It is deficient in the following respects:
    1. The newspaper is wrongly named.
    2. The resolution, after referring to a single printer and publisher, proceeds to refer to ‘the printer and publishers’.
    3. It is at least doubtful whether a corporation can be guilty of contempt.
  16. If further action by Parliament is contemplated it would be wise to pass another resolution carefully framed with respect to the Sunday Sun and Guardian of 22nd October, 1933. Consideration might also be given to the matter published in the edition of 29th October 1933 under the heading of ‘The Salaries Blunderstorm’. As, however, the printer and publisher is a corporation, the course of summoning the printer and publisher to the Bar of the House cannot be taken.
  17. In the case of (Sydney) ‘Sun’, complaint has been made of a short article
    published on 26th October 1933 (see speech of Mr Ward, M.P., in Parliament on 27th October, 1933).
  18. Search in the office of the Registrar-General of New South Wales disclosed that the ‘Sun Newspapers Limited’ is the Printer and Publisher of that paper.

  19. A corporation cannot be imprisoned and accordingly proceedings for committal of the printer and publisher for contempt cannot be taken in the case of either paper.
  20. If information were available as to the persons directly responsible for the publication in the newspapers mentioned of the matter in question, consideration could then be given to the possibility and wisdom of taking action.
  21. Such information might be obtained by summoning some of the staff of the paper before the House and interrogating them, but it cannot be confidently expected that this procedure would be effective.

  22. There is a procedure in England under which the House can direct the Attorney-General to prosecute an offender for contempt. The legal position in Australia with respect to contempt of the Commonwealth Parliament is by no means clear in relation to such a prosecution. It could be made more certain by federal legislation, if that were considered to be desirable.
  23. Apart from proceedings for contempt, the Speaker, acting on a resolution of the House, could give directions for the exclusion of representatives of the newspaper from the House and the precincts thereof either until further direction or for a specified period.
  24. By similar action on the part of the President of the Senate such representatives could be excluded from Parliament House.

    It is a question for consideration whether such action would be sufficiently effective.

  25. Parliament has wide powers of legislation on this subject by virtue of section 49 of the Constitution. Parliament could pass a statute providing penalties for contempt of Parliament and machinery for enforcing them. By this legislation provision could be made for the imposition of fines, if that were thought proper, and means for the recovery of fines could be provided.
  26. It is a question of policy whether such legislation should be introduced; and, if so, whether it should be introduced at the present time.

[Vol. 26, p. 625]