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Thursday, 19 March 1987
Page: 1154


Madam SPEAKER —I move:

That the Bill be now read a second time.

This Bill has two main purposes. In the first place it seeks to avoid the consequences of the interpretation of Article 9 of the Bill of Rights 1688 in its application to the Australian Parliament in judgments given in the Supreme Court of New South Wales in each trial in R. v. Murphy. Secondly, the Bill seeks to give effect to recommendations of the Joint Select Committee on Parliamentary Privilege which require legislation in order to be implemented.

Honourable members will recall that on 4 June last I presented to the House a draft Parliamentary Privileges Bill which was also presented to the Senate on the same day by President McClelland. It is, as I stated on 4 June, an unprecedented step for a Presiding Officer to initiate legislation but this step was taken because of the great importance to both Houses of the matters involved. On the advice received, the judgments in question represented a serious threat to the freedom of speech in Parliament, and an equally serious threat to the protection of witnesses who give evidence to parliamentary committees.

The Senate was primarily concerned in this matter because the decisions related to the use in court proceedings of statements made to Senate committees. However, because in a wider sense the issues were of equal importance to the House of Representatives I was involved and followed developments closely. As I indicated on 4 June, many members of the House voiced to me their concern at the situation. The view was taken that any legislation drafted to restore the traditional interpretation of Article 9 should also give senators and members an opportunity to consider the recommendations of the Joint Select Committee on Parliamentary Privilege. Some refinements were made to the draft Bill presented last June. The present Bill was introduced last October by President McClelland, and it was amended during its passage through the Senate.

I present an explanatory memorandum to the Bill as passed by the Senate, and also the following papers:

Documents presented to the Senate by President McClelland on 7 October 1986;

An opinion on the Bill by Mr C. K. Comans, QC, consultant draftsman to the Senate;

Reasons for judgment by Mr Justice Carruthers in R. v Jackson and others;

Extracts from the House of Representatives Hansard of 4 June 1986.

Returning to the background to the introduction of the Bill, Article 9 of the Bill of Rights, which applies to the Australian Parliament by virtue of section 49 of the Constitution, provides:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

It has long been accepted that this prevents parliamentary proceedings from being called into question in the broadest sense in proceedings before any court or tribunal. This interpretation was supported and applied in a number of judgments in British and Australian courts which are referred to in the documents I have presented. These judgments and the long-established interpretation of Article 9 which they embodied were, however, not followed in recent judgments given in the Supreme Court of New South Wales. The late Mr Justice Cantor's judgment, given on 5 June 1985, was to the effect that the test of a breach of Article 9 is any adverse effect on parliamentary proceedings, and that the protection provided by Article 9 must be balanced against the requirement of court proceedings. In the course of the trial of the late Mr Justice Murphy, witnesses and the accused were rigorously cross-examined on the evidence which they gave to Senate committees, including in camera evidence. The truth of that evidence was questioned, and submissions were made as to the credibility of witnesses and the accused based on that questioning.

In his judgment, Mr Justice Hunt ruled that this use of parliamentary proceedings is not in breach of Article 9 because the latter is restricted to preventing the prosecution or suit of a person for what that person has said or done in the actual course of the parliamentary proceedings. According to this judgment, it is not a breach of Article 9 to use parliamentary proceedings as evidence of an offence or of a civil liability, to establish the motive or intention of a person for the purpose of proving an offence or a civil liability, or to attack the credibility of a person.

This judgment may not necessarily be followed by other courts and, indeed, a contrary judgment has already been given. In Australian Broadcasting Commission and Another v. Chatterton and Chapman v. Chatterton, on 12 August 1986, the Acting Chief Justice of the Supreme Court of South Australia, Mr Justice Zelling, adhered to the traditional interpretation of Article 9, notwithstanding that the judgment and reasons of Hunt, J. were submitted to him. He held that what was said in Parliament by a defendant in a defamation action could not be used to support the cause of action by adding to or explaining what was said outside Parliament. His Honour stated:

What was said in Parliament cannot be used to extend the meaning of what was said outside Parliament . . . The `untruth' relied on by the Judge (in the trial the subject of appeal) could only be proved by using the appellant Chapman's words in Parliament.

His Honour also rejected a submission that the member of parliament in question had waived his privilege, stating that such a waiver is not possible.

The questions involved in the interpretation of Article 9 were also raised in the trial in the New South Wales Supreme Court in R. v. Jackson and Others, in which the Crown proposed to use statements by one of the defendants in Parliament as evidence of conspiracy on the part of the defendant. I understand that the judge in that case, Mr Justice Carruthers, would not allow such use of the defendant's statements in Parliament, and a copy of his reasons is amongst the papers I have presented. Apart from these judgments, there are a number of arguments in favour of the view that Mr Justice Hunt's interpretation of Article 9 is not correct. These are set out in detail in one of the papers I have presented.

These interpretations of Article 9 contained in the judgments in question, if followed, were considered to pose a serious threat to the freedom of speech of members of parliament, to whom it applies as well as to witnesses before parliamentary committees. According to the judgment, while a member may not be sued or prosecuted for something the member has said or done in the actual course of parliamentary proceedings, the member's participation in those parliamentary proceedings could be used against the member to establish the member's motive or intention in relation to words said or acts done outside parliament and to support an action, civil or criminal, in relation to such words or acts.

In short, the judgment of Mr Justice Hunt would allow a member's participation in parliamentary proceedings to be used against the member in court proceedings in a way not thought possible hitherto. The judgment would allow similar use to be made of evidence given by witnesses before parliamentary committees. Witnesses have often given evidence which is necessary for the purpose of an inquiry and which could, if given elsewhere, expose them to the risk of civil or criminal action, or be used as evidence of an offence or a civil liability. The judgment of Mr Justice Hunt obviously reduces the protection afforded to witnesses by parliamentary inquiries and could make the securing of full evidence more difficult in the future. Indeed, it may well create a situation where witnesses, with what they would see as justification, are reluctant to accept the invitation to attend and give evidence. This could lead to problems in continuing the present committee system, perhaps forcing the use of compulsive measures, which many would see as undesirable and, in many cases, unproductive. If the powers, which have not been used to a large extent in the past, of compelling witnesses to give evidence under threat of punishment were to be invoked, it would appear unfair to leave those witnesses exposed to the use of that evidence against them in future court proceedings. This Bill would prevent such use of parliamentary proceedings and would uphold the long-established interpretation of Article 9.

The Bill proceeds from the starting point that Article 9 is part of the law of Australia under section 49 of the Constitution, and then indicates that it is to be given the broad and previously established interpretation. This has been done, first, because the Bill must start with a general declaration of the immunity of parliamentary proceedings from question or examination, and the language of Article 9 is difficult to improve upon; and, secondly, to make clear the Parliament's belief that Article 9 should properly be interpreted as the Bill provides and always should have been interpreted that way. The Bill would also prohibit the unauthorised use of evidence taken in camera and not released by a committee or the House concerned. Such unauthorised use of in camera evidence occurred in both trials in R. v. Murphy.

The inquiry by the Joint Select Committee on Parliamentary Privilege was the most comprehensive review of the law and practice of parliamentary privilege in the history of our Parliament. Whilst the Committee did not recommend the transfer of the penal jurisdiction, as many had argued, it proposed important changes to adapt the law and practice in relation to matters of privilege and contempt to the needs of the Parliament at this time and in the future. Changes to the law proposed in the Bill are explained in detail in the explanatory memorandum, but amongst the most important changes are provisions for the Houses to impose fines, the removal of the power to expel members, detailed provisions concerning resolutions and warrants for committal, and statutory provisions for the protection of witnesses. I commend the Bill to the House and, I look forward to the debate on the Bill.

Debate (on motion by Mr Spender) adjourned.