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SENATE STANDING COMMITTEE ON PRIVILEGES
Threats of legal proceedings made against a senator and other persons
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SENATE STANDING COMMITTEE ON PRIVILEGES
Threats of legal proceedings made against a senator and other persons
Sir James Killen
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SENATE STANDING COMMITTEE ON PRIVILEGES
(SENATE-Wednesday, 16 April 1997)
- Committee front matter
- Committee witnesses
- Committee witnesses
Sir James Killen
- Committee witnesses
Sir James Killen
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Content WindowSENATE STANDING COMMITTEE ON PRIVILEGES - 16/04/1997 - Threats of legal proceedings made against a senator and other persons
Sir James Killen —On behalf of Mr Rowley, I address myself to the three terms of reference and to virtually nothing else, adding on the way that you have my firm assurance that I will not even take the time of a second reading speech.
CHAIR —We have reduced the timing substantially since your days.
Sir James Killen —Yes, I have noticed that in reading the Hansard--although it may seem to some people a little longer. The three terms of reference are decidedly unusual. That would account for the presence before this committee of people not directly concerned--for example, Mr Scott Carter from the Law Society--because the decision of this Senate privileges committee will reach far beyond that of touching and concerning Senator O'Chee.
There are three terms of reference. Before them is a more fundamental question, and that is whether or not the issue of a writ by a member of our community against a sitting member of parliament in relation to what he has said or may not have said in parliament is in itself a breach of parliament. I will not seek to weary the Senate by referring to decided cases, but there is one case that I respectfully suggest can be read to great advantage on that primary question, and that is the case of the Judicial Committee of the Privy Council in re the Parliamentary Privilege Act of 1770 which was decided in 1958, Appeal Cases 331. That had a direct relationship to the Strauss case in the House of Commons. I observe on the way that it is probably one of the most memorable debates that the House of Commons has had in this century. I will be adverting to the Strauss case shortly.
The power to determine whether or not there has been a contempt committed by Mr Rowley is available to the committee from two sources--from the Parliamentary Privileges Act 1987 or from the intrinsic power of the Senate. The concept of a contempt of parliament is not one which is easily understood and it is very easy for a contempt of parliament to be committed without the individual involved suspecting that that is the case. Let me briefly illustrate just that point. On 29 January, shortly before the ill-fated meeting of the Senate committee in Cairns, I attended at the library of the Queensland Legislative Assembly--I have resort to its facilities from time to time. As I entered a lift, the bells
were ringing. As I got out of the lift, having finished my business, the
bells were still ringing, and my attention was drawn to a notice by the side
of the lift indicating that, when the bells were ringing, the lifts were to
be used by members only. Having regard to the fierce arithmetical character
of the present Queensland Legislative Assembly, if there had been a vote,
and the government had been defeated, I could well have been responsible for
it. That would have been a contempt of the parliament.
CHAIR —I would not have found you guilty.
Sir James Killen —I would not have had the slightest idea, and you, Mr Chairman, would have been identified as a public benefactor if that had been the case. The concept of contempt is one that is completely fluid. This has always been the case. The Senate in part 6 of its resolution of February 1988 turned to a consideration of just this and gave 16 illustrations of various characters of contempt. You would not, for example, find one of this character here, but there is one dominating feature about part 6 of the Senate's resolution in relation to all of the concepts of contempt and it is this: they are all within the control and the purview and the superintendence of the Senate. It is crucial, in our submission, that that be apprehended by the committee. In order for there to be a contempt of the parliament, it must be something over which, in ultimate terms, the parliament has control.
The other source of the Senate determining whether or not Mr Rowley is involved in a contempt of parliament is by turning to section 4 of the Parliamentary Privileges Act 1987. I will refer to that shortly as the contempt making power of the parliament. The terms laid down there in that section are not without precision. They are very precise indeed. In order for a contempt to be committed, there must be conduct which affects the individual--I am not speaking of the corporate character of the Senate or of the House of Representatives. There must be an inhibition of the free performance by a member of the member's duties as a member.
Some may well say, `Where do you draw the line there?' You cannot characterise that in advance, and just as any legislation passed by the Commonwealth parliament must be characterised in relationship to an existing power in the constitution--save and except other matters such as the external affairs power, which is not our worry--it must relate to that head of power. The Parliamentary Privileges Act must relate to section 49 and any legislation, such as the Parliamentary Privileges Act, must draw its character from section 49 of the constitution.That is where the act comes from. But in all, counting the experience, the conventions that have been built up, all of the forces of history that are in attendance to persuade, to direct or to encourage, it must relate to parliament.
Under section 4 of the Parliamentary Privileges Act that contempt making power remains in the control of the Senate or of the House of Representatives. One could imagine a case where there could be a contempt of the Senate, but not necessarily a contempt of the House of Representatives. The act has got rid of contempt by defamation of both Houses. There was a great deal of felicity indeed to be drawn from the old gathering of language of the House of Commons where there was some massive insult offered to the House where the House simply said, `The House will consult its own dignity.' One can call to mind where the House of Representatives, being a sensitive collection of souls, have identified something as being an outrage and a contempt. But the Senate has fallen back on the time-honoured gathering of language of the House of Commons--`The Senate will consult its own dignity.' I think that involved the case of Mr Laurie Oakes.
For the contempt to be present it must be something that falls within the purview or the control of the chamber, whichever one it may be. One could imagine all sorts of contempts that may seem to be a nonsense. What if between a husband--a member of the House of Representatives, or indeed the Senate--and his wife there was some argument and he was very distressed and he sought to relieve his feelings in whatever way and did not attend on the Senate. That surely cannot be regarded as a control of the Senate. The Senate cannot control what the wife did. What if the senator became somewhat paranoiac about his golf and he looked upon Charles Earp, the great mentor of Greg Norman, to say `This man is not helping me' and he became so distressed. The Senate has no control over that.
It is, in our submission, absolutely crucial that in distinguishing a contempt of parliament it must be something that falls within the control of parliament or otherwise it is to no avail identifying it as a contempt. If you were to take the view of 1,000 people who in one chorus raise their voices up in condemnation of some behaviour which may have some effect upon a senator, and, to use the language of Mr Edmund Burke, how are you going to present an indictment against all of them for contempt?
So that is the position. The dominant characteristic of identifying a contempt is to ask the question, `Is this within our control?' If it is not within the control of the legislative body concerned then it cannot be a contempt of parliament because it cannot be controlled. What is being invited by some publicists, and I refer to this not with any sense of asperity or sharpness of assessment, is that the contempt making power should be lengthened or expanded in some shape or form. For example, Mr Evans, the Clerk of the Senate, in his paper given in Hobart in 1996 finishes up with the injunction:
It would also be helpful if houses of parliaments, in appropriate cases, would assert the right to extend their protection to those who seek to assist the pursuit of the public interest by providing information to the tribunes of the nation.
I would respectfully suggest to this committee that it assess the value of Mr Evans's contribution by observing that historically the tribunes took control of the magistracies of Rome and that they were in total opposition to the Senate, not there as the protectors of the Senate.
I find it impossible to believe that the contempt making power is going to be resorted to casually as though nothing very much is involved. I would respectfully turn the committee's attention to two observations that have been made in this field. One was by the Spender committee's report on parliamentary privilege of 1984, page 143, paragraph 8.27:
We agree with the views expressed by the two Speakers.
That refers to two Speakers of the House of Representatives. It continues:
While always allowing for the variety cases which may arise, our firm view is that Parliament should be very reluctant to extend the contempt power. In particular, Parliament should exercise great restraint in considering complaints about actions which may affect the operation of Parliament but are not directed against Parliament.
The other authority which describes it, I say without hesitation, is the view offered by the Clerk of the House of Representatives, Mr Barlin, in the Sciacca case which was considered by the Privileges Committee of the House of Representatives in 1993. On page 7 of his memorandum of advice to the committee, Mr Barlin dealt explicitly with section 4 of the Privileges Act and said:
The House has not stated how actions might be judged in terms of the requirement of section 4. Technically, it is open to the House to find that this requirement is satisfied in respect to an action which concerns a Member other than in connection with the Member's participation in "proceedings in Parliament"--ie. the House could find that an action which went to another aspect of a Member's performance of his or her duties as a Member was a contempt. Nevertheless, the House would need to be aware of the desirability of ensuring that the flexibility and breadth of its power to punish contempts was not used as a means of extending the effective scope of privilege unreasonably.
They are cautionary words. I would suggest, Mr Chairman and senators, they are words that would need to be very carefully considered.
What of the information which has been pressed upon the committee that inhibits a senator or a member of parliament? Gossip, rumour, allegation, assertion. Who is to judge this? The Senate has got no control over it.
In the Strauss case, there was a member of the Commons, the Rt Hon. G.R. Strauss, writing a letter to the minister of the day who he thought was in control--but that minister had no control because it concerned the activities of the London Electricity Board. At that time, the industry was part of a nationalised concept. The minister passed on the letter to the London Electricity Board.
Some robust language had been used by Mr Strauss, to which the Electricity Board drew exception and threatened Mr Strauss with legal action. The Privileges Committee held at first instance that, yes, it was a proceeding of the parliament, but the House--in what I would describe, with the greatest admiration, as one of the great parliamentary debates of this century--held otherwise. It was not a proceeding of parliament.
Could it be said that what is said to a person on a racecourse is a proceeding of parliament and that in some fashion it should be privileged? Indeed, one may say that people sweep themselves into my position and take the view that it would be a matter of good fortune if they were to be swept with a measure of deafness on a racecourse. A gossip in a hotel? A rumour? No, keep this to yourself.
There was the House of Commons rejecting the concept that a letter by a member of the Commons to a minister which was then passed on to a third body was a proceeding of parliament. I suggest it would take a very considerable effort on the part of us all to identify gossip on a racecourse, chatter in a hotel or a telephone call as a proceeding of parliament. That could not possibly be put within the control of parliament.
This is what confronts the committee here today, Mr Chair. The decision could conceivably alter the whole law of defamation. Here it is: privilege. In the case of a doctor and patient--that is privilege. In the case of a priest and penitent--that is privilege. Journalist and informer--privilege.
But, as the Rt Hon. Lord Denning said in a memorable Australian case on the same point--Mulholland's case--it would only be in the most acute circumstances that any judge would say to a doctor, `Tell me what your patient told you,' or would say to a priest, `What did the penitent say to you in the confessional?' That would be an extreme case. Today, of course, we find it with journalists and informers. Judges will go out of their way to seek to avoid asking that ultimate question. But what are you going to do about the member of parliament or the senator? With information given to you, Senator, or to the member for whatever, we want to know. There is no privilege there at all.
I would again, without reading it, draw to the attention of the committee the views offered by His Honour Mr Justice Allen, in Grassby's case, reported in 55 Australian Criminal Reports at page 419, where it was held--and this was the pertinent point--that:
Parliamentary privilege did not protect an informant in the defendant's position. The privilege is that of the Member of Parliament, and there is no warrant to give a comparable absolute immunity to any person who seeks to persuade a member to say something in Parliament. It was unreal to suppose that a Member of Parliament would be deterred from reading in the Parliament information supplied to him for the purpose because he feared that if he did so his informant would be at risk of criminal or civil proceedings . . . Likewise, it was no less unreal to contemplate that the sources of information to parliamentarians would dry up if informants giving information to parliamentarians to be read in Parliament are not accorded absolute protection.
I offer the personal view that I have never known of an instance of a member of parliament, either in the House of Representatives or in the Senate, who has felt until today a sense of misgiving and inhibition about saying anything. I think you can cloak, if the circumstances warrant, the informant with sufficient anonymity as to protect him or her against any onslaught, be it from a civil source or from any criminal source.
That is the consequence of this decision today, because the decision will change the whole law of defamation. A gossipmonger could say, `Oh, I passed my information on to Senator whoever. It is safe.' Copies of that information may be photocopied and then distributed, and if that led subsequently to defamation proceedings, for the defendant to be heard to say, `I passed it on to Senator so-and-so's office; I cannot be responsible for it', as is brought out in one of the most illuminating and classic parliamentary speeches by the then Attorney-General in the Strauss debate, Sir Reginald Manningham-Buller, if it is given in good faith it is clothed with qualified privilege, and if it is held to be malicious the burden of proving malice is on the plaintiff. So it is sufficient.
People may say, `Why should I be faced with the costs of this?' There is no person in this room who cannot be put in that position at one time or another if they are so incautious, so reckless, so disregarding of realities and of their duties and responsibilities as a citizen in the community not to hearken to be cautious about the language and to say, `Well, I can find myself in trouble.' That is why the legal consequences of this to the whole world of defamation are immense. I will spare you any assessment of what I think of the political consequences, because that is not for the committee.
No case has been made for widening the contempt making power. As for section 4 of the contempt making power, the committee, I submit, would have to find that the conduct was such as to inhibit the performance in the parliament. I think it will come passing strange to the generation of political practitioners who have passed along their way in this country to be faced with the charge that they may be reduced to such a stage of timidity that they are frightened to say something because of fear of something that may come out. The hurly-burly of political life seems to me to have reached a very strange stage of the Lord Fauntleroy doctrine of `that is to be our existence'.
It is the right of every man and woman in this country to defend their property, their liberty and their reputation and that is what this man has sought to do. Parliamentary privilege, in ultimate terms, exists not directly for the members but for the people. It is a thousand pities that parliamentary privilege is misunderstood by many, abused by so few and yet is held in such slender regard.
On our heritage list of this country's accomplishments, there are many fine and sturdy accomplishments indeed. There are many triumphs. One of those great triumphs is the power of parliament where men and women can go there and speak their own mind. That is the whole purpose of parliamentary privilege as it rose from the Bill of Rights of 1689--not being pedantic--not 1688, as is found in the Parliamentary Privileges Act. That was when the Declaration of Rights was established, not the Bill of Rights, which was in the year after. But that is beside the point.
The case referred to by Senator O'Chee, the Prebble case, concerned parliamentary privilege not the point that is being considered here. So I would submit to the committee that to widen the contempt power, to elaborate it, to enlarge it, would be to invite a new vision of parliamentary privilege altogether. That vision would not be merely distasteful to many people but alien to our history. It would not rest easily with our people and it commands no merit whatsoever.
I submit to the committee that no case has been made out for that today.
There has been no contempt committed by Mr Rowley. It is his right to issue
a writ. If it runs up against parliamentary privilege, the courts will find
that and dismiss him. There is no contempt. If the committee is persuaded to
embrace the view that information may be passed on to a member of parliament
or to a senator or that that is to be cloaked with privilege and not given
to other people, then I fear that the committee will be inviting turmoil
throughout the Australian community.
CHAIR —You did not hear the motion to extend your time beyond a second reading speech, but it was moved and carried.
Sir James Killen —Unanimously, I hope.
CHAIR —Yes, but if you are going to do a summary, I hope it will be a bit quicker than the opening, which I am sure you would understand. Thank you for your views there. They substituted your opening statement, Mr Rowley, so I might move straight to questions. Or did you--
Mr Rowley —I would just like to ask: is it desirable that we read into the record the statement that I have prepared?
Sir James Killen —Mr Rowley has a statement. It is fairly long. It sets out his whole summary of all of his activities. That could be taken as read. There is just one question I want to ask him, with your leave.
CHAIR —No, not my leave yet. How long is your statement, Mr Rowley, because we have already had one going for 30 minutes?
Mr Rowley —If I merely read the first couple of pages and then--
CHAIR —You may well do that, but it may well be that if you can make a copy available we can have the whole copy put in the record so that--
Mr Rowley —Sure. That is what I was going to suggest.
CHAIR —You have no objection to that, do you?
Senator O'Chee —Provided we get a chance to see it. I am sorry but--
CHAIR —Mr Rowley did not get any chance to see your comments made in advance, but he might--
—No, Mr Chairman, what I am saying is that if it is
to be incorporated I should have a chance to see it. Mr Rowley had a chance
to hear my statement.
CHAIR —Sure. Have we got a facility to run off copies of the statement? Mr Rowley, what I am going to suggest is that we run off copies of your statement. We can then have a quick read of it and we will start off with you reading off those parts that you have to. I am just trying to save a bit of time, because we would like to finish these proceedings by 5 o'clock. The committee will resume at 10 past three.
CHAIR —Is it the wish of the committee that the document be incorporated in the transcript of evidence? There being no objection, it is so ordered.<INC.DOC>
The statement read as follows--
[DOCUMENT OMITTED FROM DATABASE, SEE HARD COPY PAGES 77-86]
Mr Rowley —I would like to address part of the document because the part I would like to address requires emphasis and the emphasis is difficult to bring out in the written word. Point 6 says:
My name and reputation I value and I have sought to defend them by these actions. The statements were untrue. I do not seek to enter debate on issues in the current Court actions. But, the point must be made. No defendant has pleaded Truth by way of defence in any action.
Point 7 says:
I have not sought in any way to threaten intimidate or silence any person but I have sought to vindicate my name and reputation in the only venue available to me in the courts of law.
Point 8 says:
I consider I have acted reasonably and responsibly in these matters. I have sought proper legal advice from Senior and Junior Counsel and have retained respected Cairns firm Messrs Bottoms English to act on my behalf. I have faithfully followed the advices tendered me by my counsel and my solicitors.
I think that that is sufficient in view of the time involved here.
I would again like to emphasise that I have only sought to make it clear that my name has been taken without any proof whatsoever of any infringement of any law in the country and I have been vilified in secret without a chance to put my side of the question at any time. I sincerely requested of Senator O'Chee the opportunity to discuss with him the possibilities of establishing a substantial tuna industry in Australia, in Queensland. Senator O'Chee decided that he would prefer the rumour and allegations made by a lobby, which is basically the game fish lobby, instead of the truth. That is all I have to say, Mr Chairman.
CHAIR —Thank you, Mr Rowley. Concerning the letter sent to Senator O'Chee, which is on page 7 of this orange bound document, did your solicitors inform you they were sending that letter?
Mr Rowley —I received copies of all the correspondence and all the settled correspondence. I was kept fully informed at all times of what was happening.
CHAIR —But before they dispatched this letter to Senator O'Chee, were you made aware of its contents?
Mr Rowley —Yes.
CHAIR —You have heard Senator O'Chee today describe the fourth paragraph as a threat. Did you regard it as a threat?
Mr Rowley —No sir, I did not regard it as a threat.
CHAIR —How did you regard it?
—I regarded it as a statement of fact. In threatening me
he was putting himself in jeopardy. He threatened me and then it was pointed
out to him that his threats may well have the effect of causing problems for
him. I do not see that as a threat: it is a statement of fact.
CHAIR —Thank you. Concerning the writ you have against Senator O'Chee, is that for statements he made outside parliament?
Mr Rowley —Yes.
CHAIR —And the writs that you have against everyone but Mr Armstrong, are they for statements outside parliament?
Mr Rowley —Basically, the situation there appears to be that the statements Mr Armstrong made to Senator O'Chee--
CHAIR —I was going to come to him a moment. I just want to--
Mr Rowley —They were made outside parliament, yes.
CHAIR —So the overwhelming majority of your writs are for statements made outside parliament?
Mr Rowley —All of them, the lot of them, without exception.
CHAIR —But in terms of circulation of those statements, one of them was made in parliament, even though the information was given outside parliament. That is Mr Armstrong?
Mr Rowley —Yes, correct.
CHAIR —So that defamation that you allege is based on what was said by Senator O'Chee inside the Senate based on information given by Mr Armstrong outside the Senate. Is that what you are contending?
Mr Rowley —That would be the route that information would take, yes.
CHAIR —You have heard mentioned here today about discovery of documents?
Mr Rowley —Yes.
CHAIR —Are you seeking the discovery of documents from Senator O'Chee's office to assist you in the defamation case against Mr Armstrong?
Mr Rowley —No sir, I am not.
—I will give you the opportunity to put on the record why
you are seeking to discover documents in Senator O'Chee's office then.
Mr Rowley —We were seeking discovery of documents from Senator O'Chee in the case that we are running against Senator O'Chee. It has nothing to do with Mr Armstrong.
CHAIR —Someone will probably follow that up in a moment.
Senator COONAN —What is the relevance of the documents to the action in which they are sought?
Mr Rowley —I would refer that question, if I may, to my adviser.
CHAIR —Take some advice before you answer. We cannot actually cross-examine the counsel, but please consult if you want to consult.
Mr Favell —Can I make a statement about that?
CHAIR —No. Even though it would be convenient to have you do it, we are getting into procedural difficulty here. But you might be able to give your client some advice.
Mr Favell —Thank you, Mr Chairman.
Mr Rowley —Senator O'Chee has provided a list of documents in support of his case. Once he lists those documents with the Supreme Court, he is required to provide copies of them. It is in defence of his case that he has listed those documents.
CHAIR —Thank you. I am sure he will follow it up with you in a few minutes.
Senator COONAN —I have one question which relates to that. The usual procedure in an affidavit of that kind, Mr Rowley, is that there are categories of documents which you are prepared to produce because they are relevant and you have them in your possession and others which, for various reasons, you are not prepared to produce--either because they are privileged in some way or because there is some other reason why they should not be produced. I do not know what the position is--I have not seen the documents--but could it be that Senator O'Chee objected to producing certain documents either on the basis of relevance or because there was some claim made in respect of their immunity?
Mr Rowley —The only claim I am aware of is Senator O'Chee's claim that the documents are privileged.
—So he is objecting to producing them in these
Mr Rowley —That is correct.
CHAIR —You are saying to us that, in the seeking of discovery of documents that Senator O'Chee holds, you have no intention of using those against Mr Armstrong?
Mr Rowley —Certainly not.
CHAIR —Would you use any of the material that you discover in that process?
Mr Rowley —No, Mr Chairman. I am advised that to do so would be a contempt of court.
CHAIR —That has helped me a lot.
Senator COONEY —In paragraph 8 of your statement, Mr Rowley, you said:
I consider I have acted reasonably and responsibly in these matters. I have sought proper legal advice from Senior and Junior Counsel and have retained respected Cairns firm Messrs Bottom English to act on my behalf. I have faithfully followed the advices tendered to me by Counsel and my solicitors.
Is that statement made in reference to all your actions, including the action against Mr Armstrong and the proceedings you have joined in here with the Privileges Committee?
Mr Rowley —Yes.
Senator COONEY —As the chairman has said, there are problems with procedures here, but, in the presence of your legal advisers, are you able to say that that paragraph is correct?
Mr Rowley —Yes. It should be borne in mind that not all my legal advisers are present today.
Senator COONEY —What legal advisers have you here today, Mr Rowley?
Mr Rowley —I thought they had been introduced to you: this is Mr Paul Favell, and Mr Ian Callinan is the only gentleman missing from my advice team today.
Senator COONEY —Other than him, can you give us an assurance that you have done whatever you have done in following your legal advice?
Mr Rowley —Yes, indeed.
—There were some things I wanted to ask Sir James,
but we could leave that until later.
CHAIR —No, I do not think we can--much as I would like to.
Sir James Killen —You are very kind.
Senator ELLISON —Mr Rowley, could you look at page 3 of those documents. That is a letter dated 6 July 1995 from your solicitors to Mr Armstrong. I take it you instructed your solicitors to send that letter?
Mr Rowley —Yes.
Senator ELLISON —In paragraphs 2 and 3 of that letter, reference is made to the comments that were made by Senator O'Chee in the Senate. In particular, in paragraph 3 you say:
You have made those allegations knowing that they would be republished and the subject of speeches made in the Senate and in State Parliament.
Is it true that it was as a result of Senator O'Chee's speech in the parliament that you became aware of what Mr Armstrong had said?
Mr Rowley —Yes, I think that is correct. I would like to add that I had already been advised that statements had been made, other than to Senator O'Chee, to other people.
Senator ELLISON —But that was not mentioned in that letter.
Mr Rowley —No.
Senator ELLISON —And in your statement that we have just received, in the summary dealing with the actions--and I am referring to page 7 of your statement--you mention that the reason for the action being commenced against Mr Armstrong is regarding the publication of 19 June 1995 to Senator O'Chee.
Mr Rowley —Yes.
Senator ELLISON —It seems fairly clear that the reason for your action against Mr Armstrong is as a result of what he said to Senator O'Chee. Is that right?
Mr Rowley —Yes.
Senator ELLISON —On page 86 of the documents, there is a letter--it looks like you have signed it but please confirm whether you have or not--addressed to Senator Teague, the then Chairman of the Committee of Privileges, and that was dated 25 September 1995. In that letter you say:
I deny that any threats of legal proceedings or otherwise were made against persons in respect of their provision of information to Senator O'Chee in relation to matters raised in the Senate by Senator O'Chee.
Could you reconcile those two statements, because that statement seems to be
saying that you are not relying on anything that was said to Senator O'Chee
and was mentioned in the Senate as a grounds for action.
Mr Rowley —In essence, we are saying we do not have a difficulty in reconciling those. We are saying in this letter that we deny that any threats of legal proceedings were made against persons in respect of the provision of information to Senator O'Chee. We deny that a threat of legal proceedings was made against Senator O'Chee in respect of his activities as a senator. The action which we have taken against Mr Armstrong was for provision of information in the statements that Mr Armstrong made to Senator O'Chee, which were made outside of parliament. The only evidence we have available to us is the statements made in parliament by Senator O'Chee.
Senator ELLISON —At 25 September 1995, when you wrote that letter, you had already commenced proceedings against Mr Armstrong. I just wondered what the words `or otherwise' meant. I can see that you say, `I deny that any threats of legal proceedings were made'--that is something quite different. But by that stage proceedings had been commenced. I just wondered whether `or otherwise' meant proceedings which had been commenced. If that was the case, then you are saying that proceedings which have been commenced were not made because of provision of information to Senator O'Chee. You can see what I am getting at?
Mr Rowley —The essence of the case is the fact that these statements were made. They are false; they are untrue. They were made outside of parliament. The only evidence we have of them is the evidence provided by Senator O'Chee, who attributes those words to Armstrong. Armstrong certainly did not visit Canberra to go and see Senator O'Chee to place his words inside of parliament.
CHAIR —I could be wrong here--you might take advice on that--but you cannot adduce those words in a court of law because they are in Hansard.
Senator KNOWLES —How do you distinguish between the two--the words that were said inside the parliament and the words that were said outside the parliament? How can you say that the information was only provided for the words that were said outside the parliament?
CHAIR —We may actually be getting into too esoteric an area.
—In essence, we can adduce what Armstrong has been
saying. We have the opportunity of cross-examining Armstrong in court. We
can obtain information from others to whom Armstrong may or may not have
communicated the same information.
CHAIR —I do not think any senator is trying to get you to lead your case here, because that would be unfair to you. We are just pointing out this contradiction that seems to exist. The actual words Senator O'Chee used in the parliament cannot be used in the court case.
Senator ELLISON —I referred to the letter, and I am grateful to Senator Cooney, who has brought this to my attention. I assumed that you did sign that letter dated 25 September 1995, but could I, just for the record, ask whether you signed that letter?
Mr Rowley —Yes. That is my signature.
Senator COONEY —Did you draft the letter or was that drafted for you?
Mr Rowley —No. The letter was taken on reference from my legal advisers.
Senator COONEY —So the legal advisers drafted the letter?
Mr Rowley —My legal advisers advised me to reply in this way.
Senator COONEY —So your legal advisers drafted the letter and you signed it?
Mr Rowley —Yes. We would like to draw your attention to paragraph 2 of that particular letter, where we are saying that we deny any threats of legal proceedings or otherwise. The `or otherwise' is talking about threats.
Senator ELLISON —Threats of legal proceedings or any threats. That is how you should read it?
Mr Rowley —Or any other threats.
CHAIR —Are you saying that this paragraph more refers to threats?
Mr Rowley —Yes.
Senator ELLISON —Was Mr Armstrong in your employment?
Mr Rowley —Yes, he was.
Senator ELLISON —When did that cease?
Mr Rowley —Some weeks before this situation arose.
Mr Rowley —This situation where he announced these defamations and made these untrue allegations and untrue statements. Some weeks before that.
Senator ELLISON —Perhaps you can give us a clearer date, just for the chronology of events. That was some weeks before 13 June, I think, when the first statement was made by Senator O'Chee in the Senate?
Mr Rowley —Yes. Some weeks before that.
Senator KNOWLES —Mr Rowley, when did you first become aware of the Parliamentary Privileges Act 1987 and the resolutions of the Senate of 25 February 1988?
Mr Rowley —I have always been aware of the Parliamentary Privileges Act. That is not something that is new to me. I have always been aware that it existed. I cannot give you a time and date on that. What was the other question?
Senator KNOWLES —Both of the things are related regarding the Parliamentary Privileges Act and the resolutions of the Senate in terms of 25 February 1988. Could you explain to me once again when you initiated proceedings against Mr Armstrong. Is that that letter of 6 July 1995?
Mr Rowley —That is the first letter in a process which continued from thereon. It is a standard procedure to send a letter demanding an apology in defamation proceedings. This is part of the process.
Senator KNOWLES —But you were aware of the Parliamentary Privileges Act at the time of permitting that letter of 6 July 1995 to go to Mr Armstrong, were you?
Mr Rowley —Yes, I was aware of the Parliamentary Privileges Act.
Senator KNOWLES —Did you believe that Mr Armstrong was covered by privilege as you stated earlier?
Mr Rowley —I never said Mr Armstrong was covered by privilege.
Senator KNOWLES —I thought you were saying you were no longer pursuing Mr Armstrong in any way, shape or form.
Mr Rowley —I am sorry. I never said anything of that nature.
Senator KNOWLES —I am sorry. I misunderstood that.
—Was it Mr Crew that you said that about?
Mr Rowley —Mr Crew is not being pursued.
Senator KNOWLES —Therefore, you are still pursuing Mr Armstrong for the information he provided to Senator O'Chee which Senator O'Chee used in his speech in the Senate.
Mr Rowley —Yes, we are pursuing him, but we are not relying entirely on Senator O'Chee's words in the Senate that he attributed to Armstrong. That is not our only leg in the case.
Senator KNOWLES —But this letter of 6 July says that the text of allegations made by you and attributed to you appears in the Hansard reporting the sittings of the Senate of 19 June 1995 and of the state parliament of 13 June 1995.
Mr Rowley —That is correct. The letter is correct.
Senator KNOWLES —You are not saying that it refers to anything else other than the sittings of the parliament.
Mr Rowley —That is correct in that respect.
Senator KNOWLES —Thank you.
Senator COONAN —In what circumstances did Mr Armstrong leave your employ, Mr Rowley?
Mr Rowley —He was dismissed for theft, for unlawful use of a motor vehicle and for malicious damage to a motor vehicle.
Senator COONAN —Were there any unfair dismissal proceedings relating to his dismissal?
Mr Rowley —Mr Armstrong at one stage indicated that he may take action in that respect, but evidently he thought better of it.
Senator COONAN —So there has not been anything so far as you know?
Mr Rowley —No.
—With respect to the proceedings against Mr
Armstrong, your evidence today has been that you partly relied on what was
said in the Senate by Senator O'Chee which, obviously, was covered by
parliamentary privilege, and partly on what Mr Armstrong was alleged to have
said to Senator O'Chee, which you say was not covered by parliamentary
privilege. Is that right?
Mr Rowley —That is correct. I cannot conceive of a situation where I can say to any one of you anything that I like about anybody and suddenly that becomes privileged.
Senator COONAN —You just indicated to Senator Knowles that there were some other matters in respect of the action against Mr Armstrong on which you relied. Are you able to indicate the nature of that, without details?
Mr Rowley —We have the opportunity of calling Senator O'Chee and cross-examining Senator O'Chee on the conversations that he had with Armstrong. We have the opportunity of calling Armstrong and cross-examining him on what he told Senator O'Chee. We have further television appearances by Mr Armstrong independent of Senator O'Chee where he continued the defamation. Of course we can interrogate and his answers are admissible under oath.
Senator COONAN —There is just one more line of inquiry I want to ask and it will be brief. Part of what you complain about was made under the cover of parliamentary privilege and you have obviously had the advice of very experienced counsel in the area. Did you ever become at any stage aware of a procedure in the Senate whereby if you felt you were aggrieved or defamed under cover of parliamentary privilege there was a procedure whereby you could seek to have incorporated in the parliamentary record a statement correcting or otherwise putting your version of the events? If so, why did you not avail yourself of that?
Mr Rowley —I was aware of that. I did receive from the Senate an information kit regarding that. I did discuss it with my solicitor. However, we decided that we would not file an answer at this point in time.
Senator COONAN —Because you wanted to proceed in the civil jurisdiction?
Mr Rowley —Basically, yes.
Senator COONEY —This is your action against Mr Armstrong. You said that you rely partly on the publication by Mr Armstrong to Senator O'Chee to sustain any action. The other publication seems to have been made to Mr Trevor Perrett. Was there any other publication that you relied on besides those two? I look at paragraph 13 which were, as I understand it, publications of what Senator O'Chee and Mr Perrett said. Were there any other publications other than the publications to Senator O'Chee and Mr Perrett that you complain about?
Mr Rowley —Yes, Senator. We have problems with an appearance on A Current Affair.
Senator COONEY —I may have misled you here. Is there anything else in the
statement of claim that you can point to which shows publications other
than to Senator O'Chee and Mr Perrett?
Mr Rowley —The only complaint that we have are the words in paragraph 3 of the statement of claim and paragraph 5 of the statement of claim, all of which words were said outside of parliament.
Senator COONEY —I think you made this clear but just to be absolutely clear, what you are saying is Mr Armstrong told Senator O'Chee and Mr Perrett of these matters which they then published in parliament, as you put it. When you look at 13, the publications you referred to are accounts of what Senator O'Chee and Mr Perrett said in parliament. Is that correct?
Mr Rowley —That is correct, yes.
Senator COONEY —In terms of your writ, they are the only things you complained of. When I say only things, they are important things, but there are no additional things you complained of other than that, in terms of the writ.
Mr Rowley —We would like to point out to you that the pleading in 13 is not the pleading of a defamation, it is the pleading of a consequence.
Senator COONEY —Okay. Thanks very much.
CHAIR —Senator O'Chee, you have the opportunity now to ask some questions. I hope you have been able to pick up where the concentration is on the committee, especially in terms of the Armstrong matter which is the matter of interest to us.
Senator O'Chee —Thank you very much, Mr Chairman. I shall endeavour to be brief because I know Mr Armstrong wants to give evidence as well. Mr Rowley, the statement of claim which commences at page 78 and goes through to page 81 of the documents provided today is the statement of claim which has been served on Mr Armstrong, is it not?
Mr Rowley —Yes.
Senator O'Chee —And you agreed to that statement of claim being served to Mr Armstrong?
Mr Rowley —I did.
—Have you served an amended statement of claim on
Mr Rowley —Not at this stage.
Senator O'Chee —So these are the sole facts relied upon by you in the court case against Mr Armstrong?
Mr Rowley —At this point in time.
Senator O'Chee —Let me get this correct. The statements which you refer to in paragraphs 3 and 5 of your statement of claim you allege are statements made either by Mr Armstrong to me or to Mr Perrett respectively. Is that correct?
Mr Rowley —Yes.
Senator O'Chee —And you are fully aware of the Parliamentary Privileges Act?
Mr Rowley —I am.
Senator O'Chee —And you allege that--
Mr Rowley —Could I just say that I do not acknowledge that this is parliamentary privileged. You are trying to put in there something which is in dispute.
CHAIR —I do not know whether Senator O'Chee got that far. You may be anticipating there. He just asked whether you know about the Parliamentary Privileges Act, and you said yes.
Mr Rowley —He was well on the way.
Senator O'Chee —You are aware of the Parliamentary Privileges Act. You said so today.
Mr Rowley —I am aware of it.
Senator O'Chee —The sole evidence that you have of Mr Armstrong's alleged statements is material taken from the parliament, from proceedings of either the Senate or the Queensland parliament. Is that correct?
Mr Rowley —No, that is not.
Senator O'Chee —Where is it in your statement of claim?
Mr Rowley —It does not have to be there.
—This is the statement of claim on which you are
relying. You filed this statement of claim on 25 August 1995. This is what
you go to court with. You have said to the Senate committee already that
these are the only things you are relying on in this case to date.
Mr Rowley —No, I do not think I said that at all.
Senator O'Chee —Were you relying on anything else when this privileges matter was raised?
Mr Rowley —When the case comes to court we will be relying on the evidence that we have available at that time.
Senator O'Chee —When this privilege matter was raised, were you relying on anything else? Did you plead anything else?
Mr Rowley —You have the pleadings in front of you.
Senator O'Chee —I want you to have an opportunity to answer it fairly. You were not relying on anything other than the facts pleaded in this statement when the privileges matter arose. Is that correct?
Mr Rowley —We have established the facts to give rise to a course of action. We have pleaded the facts that give rise to the course of action. They are not necessarily the only facts that we will rely on when the matter comes to trial.
Senator O'Chee —Mr Rowley, just for the record I will observe that they are the only facts that you have pleaded to date in this case. You referred to A Current Affair: can you tell me the date of that A Current Affair program?
Mr Rowley —It was 29 February 1996.
Senator O'Chee —So the A Current Affair program was totally irrelevant and could not have been in your contemplation at the time at which you commenced proceedings against Mr Armstrong?
Mr Rowley —Yes.
Senator O'Chee —And it could not have been in your contemplation at the time at which the Senate Privileges Committee matter was raised?
Mr Rowley —No.
Senator O'Chee —When you wrote to Senator Baden Teague--the document at page 86--it was 25 September 1995, so you quite clearly could not rely on A Current Affair at that point in time either, could you?
Mr Rowley —No.
—In fact, the only thing you could rely upon was
the Hansard of the Senate and the Queensland Legislative Assembly.
Mr Rowley —That is not so. There was extensive media publicity--electronic and print.
Senator O'Chee —Mr Rowley, I invite you to put on the table any evidence that existed that Mr Armstrong may have made those statements you had in your possession on 25 August 1995.
Mr Rowley —Mr Chairman, I am getting into an area here where I feel that my case against Mr Armstrong is being prejudiced. I do not think I need to answer those questions.
CHAIR —I tend to agree with you, Mr Rowley. We want to avoid you having to lay your defence or your attack out here. I think we will have to move on to another area, Senator O'Chee.
Senator O'Chee —Certainly, Mr Chairman. In answer to a question by Senator Robert Ray in relation to the letter of July 1995 in which reference was made to section 415 of the Criminal Code--that letter is at page 51--you said the reason for putting that in the letter was `so that I would know that pursuing the matter could be causing problems for me'. That is what you said, isn't it?
Mr Rowley —Yes. If you make a threat and that threat in itself is possibly criminal, then it will cause you problems.
Senator O'Chee —What sorts of problems would they be, Mr Rowley?
Mr Rowley —I think it was set out for you that you just cannot make those kinds of threats.
Senator O'Chee —How would they become problems for me, Mr Rowley?
Mr Rowley —How would they become problems for you?
Senator O'Chee —Yes.
Mr Rowley —If you continued with your threat and you actually instigated your threat, then I would have to be in a position to defend myself. But I cannot have you threatening me unless you know the full import of what you are doing.
Senator O'Chee —So you wanted this letter to let me know that, if I continued to raise the matter of privilege, I would, according to what you said--the full import of the words--`become subject to a criminal prosecution'?
—No, I did not say that.
Senator O'Chee —How else--
Mr Rowley —How can you possibly--
Senator O'Chee —How else could it become a problem for me unless there was a criminal prosecution--
Mr Rowley —I remind you that I said if you persisted with your threat and you instigated your threat, then I had the right to defend myself.
Senator O'Chee —But this is not defending yourself, Mr Rowley. This is not a defence in civil law. This is a criminal matter. It is a matter which will be instituted by criminal prosecution and the only person who could cause that to happen would be you by making a complaint.
Mr Rowley —No, sir. That is not true. The only person who could cause such an action is by fiat of the Attorney-General, not by me.
Senator O'Chee —And, of course, you would have to make a complaint, wouldn't you?
Mr Rowley —I would not know how the Attorney-General would come to have knowledge of it unless a complaint was made.
Senator O'Chee —But you would defend yourself by making a complaint and causing a criminal prosecution--
Mr Rowley —I would defend myself against you, Senator O'Chee.
Senator O'Chee —I think the committee can see the import of the words. Mr Rowley, do you adhere to paragraph 1 of the statement that was tabled here today that you are a director of Fortuna Fishing and Fortuna Seafoods Pty Ltd?
Mr Rowley —Yes.
Senator O'Chee —And you were in 1995?
Mr Rowley —Yes.
Senator O'Chee —And in 1996?
Mr Rowley —Yes.
—And in 1995, for part of that year at least, you
were a board member of ECTUNAMAC?
Mr Rowley —Yes.
Senator O'Chee —Mr Rowley, have you ever had a car accident?
CHAIR —That is irrelevant to this.
Senator O'Chee —I think it is very relevant, Mr Chairman.
Mr Rowley —I am sorry, I am not going to permit Senator O'Chee to start witch-hunting. I refuse to answer that question.
CHAIR —Unless Senator O'Chee, in very circumspect language, can show me what the relevance of this question is, I am not going to permit it either--and I mean circumspect language without using it as an opportunity to attack Mr Rowley at this stage.
Senator O'Chee —Mr Chairman, what I am seeking to do is establish the accuracy and credibility of some of Mr Rowley's statements to this committee today.
Mr Rowley —Mr Chairman, I--
CHAIR —Excuse me. You do not have to respond to that. There will be, in the course of these hearings, inferences made over a very contentious issue where defamation is alleged, where accusations are made, et cetera, but so far today we have tried to keep that within the issue under contention. People have not gone to your credibility, Senator O'Chee, in statements you have made in the Senate other than to do with this issue, and that is what I am concerned about. I do not think this is an opportunity--you will have that opportunity in court, no doubt--to go to these broader issues. We are not looking at Mr Rowley's credibility or otherwise--I make no implication in that, Mr Rowley--at this hearing. If my committee members disagree with me, let me know now. I think that is the case. Unless it is directly related to the privilege matter, and/or the argie-bargie of the defamation case, I am afraid I cannot allow it.
Senator COONEY —I do not think the issue of credibility has arisen yet as an issue that we would need to determine at this point.
CHAIR —No, neither do I.
Senator COONAN —Unless it relates to some issue of chronology, timing, or some other aspect.
Senator O'Chee —Unfortunately, Senator Coonan, I cannot really get into it without stating what the problem is and that would infringe Senator Ray's ruling. I do not want to do that and I am not wanting to argue your ruling either, Senator Ray. I accept your ruling.
CHAIR —Fine. Further questions?
Senator O'Chee —Mr Rowley, you said in your statement that nobody had pleaded truth as a defence to the defamation proceedings that you had issued against them. Is that correct?
Mr Rowley —Yes.
Senator O'Chee —You have been well advised by your counsel in relation to defamation proceedings?
Mr Rowley —Yes.
Senator O'Chee —So you would know that, in the state of Queensland, truth is not a defence to an action for defamation?
Mr Rowley —Truth and public benefit is.
Senator O'Chee —But you said that nobody had pleaded truth.
Mr Rowley —Nobody has pleaded truth.
Senator O'Chee —The reason why nobody has pleaded truth is that in Queensland truth is not a defence.
Mr Rowley —And public benefit, it is. Nobody has pleaded truth and public benefit. Nobody has pleaded that.
Senator O'Chee —Mr Rowley, much reference was made by Mr Copley on your behalf of a press release issued by Mr Ron Crew of 28 April. Can you actually point out where, in the press release, Mr Crew names you?
Mr Rowley —Could I see the press release?
Senator O'Chee —Mr Chairman, it is this document here that was earlier tabled by Mr Copley.
Senator COONEY —That is the one there, is it?
—That is it, Senator Cooney.
Mr Rowley —We do not have it.
CHAIR —It is somewhere in the document--some reference to only one person having a fishing licence in that area, which implicitly was Mr Rowley. Is that elsewhere or not?
Senator O'Chee —Mr Rowley, do you dispute the fact that there was in fact other long-line tuna fishing in Cairns at that time?
CHAIR —I am not sure he heard that question, Senator O'Chee. Just give him a moment and then re-ask it.
Senator O'Chee —Certainly, Mr Chairman.
Mr Rowley —Could I just point out to you that the photograph that was the unveiling showed the name of my company and showed my boat.
Senator O'Chee —Have you got that photograph here, Mr Rowley?
Mr Rowley —No. No, I do not have that photograph here.
CHAIR —But you were saying in sworn evidence that that is what identified you as the--
Mr Rowley —Yes, of course it was.
Senator O'Chee —We might get on to that later. Mr Rowley, you did not actually refer to this press release in the correspondence between your solicitor and Mr Crew, did you?
Mr Rowley —Are we in fact discussing Mr Crew?
Senator O'Chee —Your counsel raised Mr Crew.
Mr Rowley —Are we concerned with Mr Crew?
CHAIR —It has been raised.
Mr Rowley —Yes. He made a statement in the Cairns Post which we took exception to. Mr Crew is very much on the periphery of this discussion, I would think.
CHAIR —I will still allow the question, at this stage.
—But you did not actually rely on this press
release in your letter of 6 July. You in fact relied upon a completely
different matter, did you not?
Mr Rowley —Mr Chairman, you have it. Can I just read it to you:
. . . Crew last night confirmed he supplied the photograph to Senator O'Chee and remained convinced that they showed black marlin.
The Senator also stuck to his claims yesterday, despite Mr Rowley denying the charges . . .
Senator O'Chee —What was the date of that press article?
Mr Rowley —This is on 10 June.
Senator O'Chee —On 10 June, and this press release is dated 28 April.
Mr Rowley —So what?
Senator O'Chee —So, in fact, the press release that was relied upon so heavily by your counsel is entirely irrelevant to the matter in fact that you raised against Mr Crew?
Mr Rowley —Why don't you leave the court to decide that. It is not for your decision.
Senator O'Chee —I am sorry, Mr Rowley, your counsel raised that; he beat me over the head with it. I do feel that I have a right to ask a couple of questions about it. I go now to the matter of discovery against me. You said that the only reason you are seeking discovery of my constituency files was that I had raised them in my affidavit of documents. Is that the case?
Mr Rowley —You have listed them. The documents that we are seeking are listed in your affidavit.
Senator O'Chee —The affidavit was in response to a request for discovery issued by your solicitors, was it not?
Mr Rowley —It was in response to a court order.
Senator O'Chee —The court made an order pursuant to an application by your solicitors.
Mr Rowley —Yes. Yes, of course.
Senator O'Chee —The application by your solicitor sought all documents in my possession?
—We are entitled to do that under the rules.
Senator O'Chee —You were not after them because I had raised them, you in fact were after them because you had sought all the documents in my possession.
Mr Rowley —We have only asked you for the documents you have listed on your affidavit. We have asked for no other documents.
Senator O'Chee —Yes, but you accept the fact that the only reason why those documents--
CHAIR —I thought that we may get an expanded answer.
Mr Rowley —We asked you to give disclosure in accordance with the Supreme Court rules--nothing else.
Senator O'Chee —Of every document in my possession.
Mr Rowley —Not of every document in your possession--of the documents listed in your affidavit.
Senator O'Chee —Mr Rowley, I did not volunteer that these were the documents I had. The only reason you became aware of the documents was that you commenced proceedings for discovery, inter alia, of all of my files in relation to the poaching of marlin and long-line tuna fishing. Is that correct?
Mr Rowley —We make it quite clear: we do not commence proceedings. You have an obligation under the Supreme Court rules to produce those documents. We do not do anything. It is your responsibility to produce those documents.
Senator O'Chee —It was my responsibility to produce the documents because you sought an order of the court requiring me to do so. Is that not the case?
Mr Rowley —Mr Chairman, we are getting into a situation where we are going to start arguing. I am not a legal person. The court itself makes these decisions.
CHAIR —Mr Rowley, we will take those matters into account.
Mr Rowley —But the question itself is before the Supreme Court at this moment.
CHAIR —I understand that.
Mr Rowley —I think we are getting into really difficult waters.
—We may be, but this is central to our consideration on
this side of the table--the seeking of documents to do with the speech in
parliament. That is the critical part we are going on. You have already
given some evidence to us that that in fact goes to your case. I will not
reiterate it here. You have already given evidence to that effect. I think,
in summary, the evidence was that what you are seeking in documents from
Senator O'Chee has nothing to do with the Armstrong case. Stop me if I am
Mr Rowley —Correct.
CHAIR —Also, you are seeking documents from Senator O'Chee not related to his speech in the Senate but to comments he has made outside and you are suing him for defamation. You have put that on the record. You have put important evidence before us that we will take into account. Senator O'Chee, though, is entitled now to test that. It is important for this committee that he test it and be given the opportunity to test it. That is the relevance, if I can explain it to you.
Mr Rowley —In essence, I have a problem in this inasmuch as these are technical legal matters. I have taken advice on them. I do not fully understand them. I do not pretend to be the expert that Senator O'Chee is. So you must forgive me for not being able to assist him.
CHAIR —Mr Rowley, you do not need to be. All you can do is give your best endeavours to assist the committee. There is a whole range of things that I cannot answer, either. So we are both in the same boat. Do not let it trouble you. If you think, `I am not technically, legally or otherwise capable of answering it,' give that as your answer. No-one is expecting you to have the wisdom of a High Court judge. Okay?
Mr Rowley —Thank you.
Senator O'Chee —Can we go back to the simple matters of fact; they are not legal, technical questions. You made an application to the court for discovery of all of my constituency files that might relate to long-line tuna fishing or marlin fishing. Is that the case?
Mr Rowley —That is not true.
Senator O'Chee —So what did you seek an application for? How do you describe those documents in the application you made to the court?
Mr Rowley —We described it as discovery pursuant to the Supreme Court rules.
Senator O'Chee —Relating to what?
Mr Rowley —Defamation in the matter between O'Chee and Rowley.
—Mr Chairman, it might be helpful if counsel for Mr
Rowley provided him with a copy of his application before the Supreme Court
on that matter.
CHAIR —They have every opportunity to if they wish.
Senator O'Chee —It might help you, Mr Rowley.
Mr Rowley —Mr Chairman, this is the first summons--between Michael Hebbron Rowley and William George O'Chee. It says:
LET ALL PARTIES CONCERNED attend at the Chambers of the Chamber Judge at the Supreme Court House, Cairns on Monday the 3rd day of June, 1996 at 9.30 o'clock in the forenoon on the hearing of an application on the part of the Plaintiff for an Order that:-
1.The Defendant within 14 days furnish a list of discoverable documents.
2.The Defendant pay the Plaintiff's costs of and incidental to this
3.Such further or other order as the court may seem appropriate.
Senator O'Chee —That was in June last year?
Mr Rowley —That was in June last year.
Senator O'Chee —We said that we were not going to provide those documents that were referred to in (b). We swore the affidavit. We gave you everything else. Is that not correct?
Mr Rowley —`In the Supreme Court of Queensland, Cairns District Registry, between Michael Hebbron Rowley and William George O'Chee':
IT IS ORDERED by consent:-
1.That the Application be dismissed.
2.That the Defendant, William George O'Chee, pay the Plaintiff's costs of and incidental to this application to be agreed, and failing agreement to be taxed.
Senator O'Chee —Yes, but you sought the documents.
Mr Rowley —And on 4 June you provided and filed an affidavit of documents which set out the documents that you had in your possession that were relevant.
Senator O'Chee —Because you asked for them.
CHAIR —Yes. I think we have established that.
—Thank you, Mr Chairman, we have established that.
That was in June. You got the affidavit of documents in the middle of last
year. You did nothing about it until last month--is that correct?
Mr Rowley —That is not true either.
Senator O'Chee —Late last month you sought to get those documents listed in schedule B, and you then sought an urgent chambers application to receive an order in relation to those documents yesterday, did you not?
Mr Rowley —Mr Chairman, on or about 30 May, the defendant, William George O'Chee, swore an affidavit relating to disclosure of documents within his possession or control. Then there was correspondence going on from 18 January 1996, 1 March, 27 March, 16 April and 19 April 1996--
Senator O'Chee —This is all before--
Mr Rowley —26 April 1996, 29 April 1996, 8 May 1996. There were four more pieces of correspondence in May 1996, one in June 1996, two in July 1996, one in August 1996 and three in March 1997.
Senator O'Chee —So nothing happened between August and last month. Then all of a sudden last month you decided you were going to seek an urgent application to get hold of those documents containing part B.
Mr Rowley —We did not seek an urgent application.
Senator O'Chee —I got less than seven days notice. I think you are aware of that.
Mr Rowley —You are entitled to two days notice.
Senator O'Chee —Because it was a chambers application, and you could have brought it on at any time.
Mr Rowley —It was not set down as an urgent application. It was treated in the same way as any normal application. There were no special deals done on your behalf.
Senator O'Chee —We have made the point, Mr Rowley, that a lot of time elapsed.
Mr Rowley —But we have already discussed the fact that we were waiting for the decision in the Katter case, because that was relevant to this. There was no point in us proceeding until we learnt the result of the Katter case. That is why that delay took place.
Senator O'Chee —Mr Rowley, you have counsel there whom you can ask about
this: if I do not discover a document, I cannot rely on it in a defamation
case, can I?
Mr Rowley —That is beyond my expertise, but I am advised that it is not true at all.
Senator O'Chee —So in what circumstances can I rely on a document that is not discovered?
Mr Rowley —That is beyond my expertise and, I guarantee, that of everybody else here.
CHAIR —We are getting outside the witness's expertise.
Mr Rowley —This is becoming esoteric.
CHAIR —We do not need an editorial from you. We are ruling that way. Shall we proceed to the next question?
Senator O'Chee —Mr Chairman, I have a final question for Mr Rowley: if these documents cannot be relied upon, if you cannot use them to sue people in court and if these documents would in fact be beneficial to my case were they discovered, what is the point of wanting these documents, other than to find out who gave me information other than Mr Armstrong?
CHAIR —I cannot allow that question. When we rule a question out, it is ruled out, okay.
Senator O'Chee —Can I rephrase the question, Mr Chairman?
Mr Rowley —I do not think it is possible.
CHAIR —Motive is important in terms of the terms of reference given by the Senate to this committee, in which we have to examine whether there is contempt of the Senate on two bases. That is why we have allowed some motive to come in. But, again, bearing in mind what Mr Carter and others have said, we do not want to impinge on future court action either. We are trying to steer a course where we can get to the nub of the matters without actually harming those. Try to rephrase it.
Senator O'Chee —If the documents in question cannot be used in court against Mr Armstrong, and if the documents cannot be used by me, is it not the case that the reason that you want the documents is to find out who provided me with information?
—No. The documents themselves may be used against you in
the case against you. I have a problem in that you have these five
mysterious informants: five people who are prepared to come and talk to you
and whom you are prepared to extend parliamentary privilege to, and not one
single one of those five persons is prepared to come and speak here or at
any other place. I do not believe that you have got five people; I think you
Senator O'Chee —When I went to ask you questions that related to some of the information from those five people, those questions were ruled out of order. They would in fact have gone to that very matter. I do not intend to canvass your ruling, Mr Chairman. I do accept your ruling.
Mr Rowley —I do not believe that you have five people. By doing that, you are insinuating that I am guilty of the charges which are being presented here. By telling this committee that you have further worse and terrible information about my business activities, you are saying that, `He's a bad boy, he's the bad lad. Look at him, he's terrible.' That is not the truth.
CHAIR —That was your final question?
Senator O'Chee —That was my final question, Mr Chairman. Thank you.
CHAIR —I take it that no-one here has any further questions. Mr Rowley, you are entitled now to make a closing statement, summing anything up or making any points you have missed or any other points you want to make.
Mr Rowley —There is a very important point here. Senator O'Chee is claiming that we seek the identity of the people in order that we can persecute them. But, in his list of documents, on which he claims parliamentary privilege, every person is named. Every single person is named in those documents.
Senator O'Chee —Other than the people who provided the information in schedule B.
Mr Rowley —There are no people here. There is no person not identified within this list of documents.
CHAIR —Do you wish to make any further points?
Mr Rowley —Yes, Mr Chairman. I would like to acquaint you with the history of this situation. I was the pioneer--
—Can I just say, with respect, that we have a whole heap of
history in front of us. This is an opportunity to summarise, very briefly,
your case and say, `This committee should take the following action.'
Mr Rowley —It is more important to me to have you aware of where this comes from rather than summarise the evidence that has been given and of which you are well aware. It is more important to me for you to know--
CHAIR —No, I will have to rule you out. This is not an opportunity to present fresh and new evidence, I am afraid. It is only here in case you want to make a final pitch, as they say in the classics.
Mr Rowley —Only that I would like you to indicate whether we will be given the opportunity to make submissions on the law in this respect.
CHAIR —We are always open to further correspondence. Then the normal rules will apply. You write to us, we will consider it, then we will circulate it to everyone and they can have their say. That is the opportunity available to you.
Mr Rowley —We are pleased to be given the opportunity of being--
CHAIR —I might indicate to you that it is unlikely that the Privileges Committee will meet until Thursday, 15 May. That does give you some time; you have virtually a month if you want to bring other information in.
Mr Copley —According to the order of proceedings today there was some opportunity flagged--I think it was point No. 6--on making submissions. I do note the hour and I do note the advice given previously. Perhaps further submissions might await that time, unless Mr Rowley had some particular matter, in accordance with your ruling, that he wished to speak to the committee on.
Mr Rowley —I have nothing further to say.
CHAIR —We will take up that suggestion because it also means you can give more mature thought to it. You might even be lucky enough to get a transcript of today's proceedings before you actually want to summarise and put a submission in. As usual, we will circulate those to all parties so you can comment on anything Senator O'Chee says to us, and Senator O'Chee and others can comment on what you have put forward. Mr Rowley, thank you very much for coming.