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Imprisonment for contempt: Are the penal powers of parliament compatible with the rule of law?

By Daniel Harrop


The rule of law is synonymous with political legitimacy. It ensures that citizens are protected from unpredictable and arbitrary interference. In his classical statement in the 19th century, A V Dicey declared that the rule of law embodies the notion that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land”. This thesis considers whether the penal powers of Australian parliaments to imprison members of the public for contempt are compatible with this statement of the rule of law. It considers the historical development of the contempt power in the UK House of Commons at a time when the rule of law was not respected by the ruling monarch. It was a turbulent time when the UK Parliament acted also as a High Court of Parliament, exercising not only legislative but also judicial functions, a role not conferred on the Australian Parliament by the Constitution. This thesis contends that the penal powers offend the constitutionally entrenched separation of powers, a doctrine that protects the rule of law by ensuring that matters are heard only by independent and impartial tribunals, and that the power to imprison diminishes the implied freedom of political communication. It is argued that the procedures of parliaments and privilege committees often disregard the requirements of procedural fairness. The rule against bias cannot possibly be observed when a parliament determines matters of contempt, and there are serious procedural difficulties in according fair hearings to those that are accused of contempt. The thesis concludes that the penal powers of parliament are incompatible with the rule of law

Year: 2014
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