Senator ROBERT RAY (9:56 AM) —I present the 118th report of the Committee of Privileges, entitled Joint meetings of the Senate and the House of Representatives on 23 and 24 October 2003.

Ordered that the report be printed.

Senator ROBERT RAY —I move:

On 29 October 2003, the Senate referred to the Committee of Privileges two inquiries into aspects of the joint meetings of the Senate and the House of Representatives on 23 and 24 October 2003. The committee advertised the references and wrote to persons who it believed could assist with its inquiries. It received nine submissions and also had the benefit of transcripts from the Finance and Public Administration Legislation Committee's supplementary budget estimates hearings on 3 and 4 November 2003, at which several aspects of the joint meetings and the arrangements for them were canvassed. In addition, the committee had regard to the Procedure Committee's third report of 2003 which examined related issues.

I do not propose to give an account of what occurred at the joint meetings. These events have been traversed in detail in this chamber, at the estimates hearings and in another place. The committee encountered a number of difficulties in conducting its inquiries. The main problem was the paucity of evidence before it and the unlikelihood of obtaining sufficient further evidence to enable it to make sound findings of fact. I should mention that the terms of reference given to the committee did not require it to make findings as to whether specific contempts had been committed. Rather, the committee was tasked with examining possible instances of improper conduct or improper interference with senators, with a view to making findings of fact and then determining whether there had been any implications for the powers, privileges and immunities of the Senate arising from these matters and whether the Senate should take or recommend any action in consequence.

The difficulties faced by the committee in assembling evidence were in part related to the uncertain nature of the proceedings themselves. Procedurally, the joint meetings were simultaneous meetings of the Senate and the House of Representatives, in the House of Representatives chamber, and presided over by the Speaker applying the rules of the House of Representatives so far as they were applicable. Unlike the 1974 joint sittings or the joint meetings held in the 1980s to choose ACT senators to fill casual vacancies, these meetings were not preceded by any resolutions providing detailed rules for the maintenance of order or providing that they were proceedings in the parliament and, therefore, attracting the normal powers, privileges and immunities of the houses. The joint meetings had no apparent constitutional authority and the committee was unable to determine whether they were, indeed, proceedings in parliament.

The committee observes that serious doubts must remain about the status and validity of the arrangements under which the Speaker of the House of Representatives purported to exercise the disciplinary powers of the House over senators who were participating in a meeting of the Senate. On one view, by accepting the House's invitation to meet with it in its chamber under House standing orders, the Senate in effect submitted itself to the jurisdiction of the House. On another view, this is not constitutionally or legally possible. In short, joint meetings of this kind are constitutionally uncharted waters.

Several aspects of these inquiries required the committee to examine the conduct of members and officers of the House of Representatives. As all senators would recognise, this raises the issue not only of comity between the houses but also of the inherent limitation on an inquiry by one house into the activities of the other—a limitation which may be a matter of law. While the committee was grateful to receive a submission from the Speaker, it notes that this submission comprised only the Speaker's statements to the House and that the Serjeant-at-Arms declined to respond to the committee's invitation to make a submission.

The committee had other difficulties with evidence. With regard to the scuffle at the back of the chamber involving Senator Nettle, the committee had conflicting accounts from two senators which it did not consider were capable of reconciliation, even with the dubious benefit of a public hearing. Furthermore, the committee wished to avoid providing a forum for further exploitation of the politics of joint meetings. It decided, therefore, that there would be no benefit in holding public hearings.

Other terms of reference required the committee to examine the possible improper presence and activity of agents of foreign governments. Clearly, it did not have the jurisdiction to demand evidence from those governments and was reluctant to embark on a fruitless exercise of attempting to do so, given the possible diplomatic ramifications. Likewise, with regard to the role of foreign media, the committee had little chance of identifying and obtaining evidence from the news crew that is alleged to have brought an unauthorised camera into the House of Representatives gallery. As an aside, the committee agrees that the treatment of Australian media was unfortunate at best, and it observes that media arrangements for any future events of this nature in Parliament House should be the subject of early negotiations between the press gallery and the Presiding Officers to ensure that members of the Australian media do not again find themselves at a disadvantage in their own country.

In conclusion, because of the constitutional, jurisdictional and evidentiary difficulties it encountered, the committee was unable to make findings on most of the terms of reference. The committee does not believe that under the present constitutional arrangements there is any solution to the serious problems raised by the joint meeting forum. It therefore endorses the Procedure Committee's recommendation that the Senate pass a motion expressing its opinion that any future addresses by foreign heads of state should be received by a meeting of the House of Representatives in the House chamber, to which all senators are invited as guests. Under this arrangement, the status of senators as guests of the House and the authority of the Speaker over the proceedings would be clear. I commend the report to the Senate.