You can read in the New York Times today about the increasing influence in Brazil of Trumpists from the United States, who see embattled president Jair Bolsonaro as a kindred spirit. They are peddling their familiar narrative of electoral fraud and of noble patriots trying to “reclaim sovereignty from progressive globalist elitist forces.” Prominent among them is Steve Bannon, who dreams of a world-wide nationalist right-wing movement under his control.
But Bannon has been in the news in the last few days for a quite different reason. On Friday, he was indicted by a federal grand jury for contempt of Congress as a result of his failure to appear and to provide documents for the House of Representatives committee investigating the 6 January insurrection. (You can read the indictment here.) There are indications that other Trump allies may be in line for the same treatment.
To Australian eyes, this seems a very complex procedure. [link added] First the committee voted to hold Bannon in contempt, then the full House of Representatives voted to refer the matter to the justice department. The justice department then convened a grand jury, which has now produced an indictment; Bannon is expected to appear in court tomorrow, and the matter may then at some point proceed to trial.
By comparison, an Australian parliament faced with a recalcitrant witness would have much more sweeping power. A vote of the relevant house would be enough to find them in contempt and send them to prison – for up to six months in the case of the federal parliament. And although it’s a long time since it’s been tested, it appears it would not have to accord them any particular standards of procedural fairness.
Australia’s parliaments can do this sort of thing because they have inherited, albeit in qualified form, two doctrines from the parliament at Westminster. First, parliamentary supremacy: the principle that parliament’s deliberate exercise of its powers cannot be challenged in any other tribunal. And secondly, the rather shadowy idea that parliament is itself a court, and therefore has the usual powers of a court to punish contempt without having to refer it to any other authority.
The United States, on the other hand, has a quite different tradition, that of the separation of powers based on a written constitution that delimits the spheres of the different branches of government. For the legislature to behave like the executive in prosecuting someone, or like the judiciary in judging and condemning them, would be a very obvious breach of the separation of powers.
Australia also has a written constitution, and American ideas were of some influence when it was written; as a result our courts have on occasion imposed some separation of powers doctrines here. But the powers of parliament to punish breaches of its privileges have remained substantially untouched. Our parliaments are wary about using them, especially if that would mean picking a fight with the executive, but there is no doubt that they exist.
Bannon claims that his documents and potential testimony are covered by executive privilege, even though the actual executive of president Joe Biden has declined to endorse that claim. Ultimately a court – perhaps even the supreme court – will have to decide whether it has any substance. But in Australia, parliament itself would make that adjudication; the executive’s power to keep parliament out of its affairs depends on its ability to command a parliamentary majority.
An Australian version of Bannon, without a sympathetic government to support him, wouldn’t have a leg to stand on. But the actual one may be able to tie up his case in court for many months to come.