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Tuesday, 5 May 1987
Page: 2629


Mr LIONEL BOWEN (Attorney-General)(9.21) —I seek leave from my honourable friend the honourable member for North Sydney (Mr Spender) to table proposed resolutions that would be related to parliamentary privilege-those proposed resolutions relate to procedures to be observed by committee for the protection of witnesses-together with explanatory notes.

Leave granted.


Mr LIONEL BOWEN —I thank the honourable member for North Sydney. I seek leave to have the proposed resolutions incorporated in Hansard.

Leave granted.

The proposed resolutions read as follows-

HOUSE OF REPRESENTATIVES

PARLIAMENTARY PRIVILEGE

Proposed Resolutions

1. Procedures to be observed by committees for the protection of witnesses

That, in their dealings with witnesses, all committees of the House shall observe the following procedures:

(1) A witness shall be invited to attend a committee meeting to give evidence. A witness shall be summoned to appear only where the committee has made a decision that the circumstances warrant the issue of a summons.

(2) Where a committee desires that a witness produce documents relevant to the committee's inquiry, the witness shall be invited to do so, and an order that documents be produced shall be made only where the committee has made a decision that the circumstances warrant such an order.

(3) A witness shall be given reasonable notice of a meeting at which the witness is to appear, and shall be supplied with a copy of the committee's order of reference, a statement of the matters expected to be dealt with during the witness's appearance, and a copy of these procedures. Where appropriate a witness shall be supplied with a transcript of relevant evidence already taken.

(4) A witness shall be given opportunity to make a submission in writing before appearing to give oral evidence.

(5) Where appropriate, reasonable opportunity shall be given for a witness to raise any matters of concern to the witness relating to the witness's submission or the evidence the witness is to give before the witness appears at a meeting.

(6) A witness shall be given reasonable access to any documents that the witness has produced to a committee.

(7) A witness shall be offered, before giving evidence, the opportunity to make application, before or during the hearing of the witness's evidence, for any or all of the witness's evidence to be heard in private session, and shall be invited to give reasons for any such application. If the application is not granted, the witness shall be notified of reasons for that decision.

(8) Before giving any evidence in private session a witness shall be informed whether it is the intention of the committee to publish or present to the House all or part of that evidence, that it is within the power of the committee to do so, and that the House has the authority to order the production and publication of undisclosed evidence.

(9) A chairman of a committee shall take care to ensure that all questions put to witnesses are relevant to the committee's inquiry and that the information sought by those questions is necessary for the purpose of that inquiry. Where a member of a committee requests discussion of a ruling of the chairman on this matter, the committee shall deliberate in private session and determine whether any question which is the subject of the ruling is to be permitted.

(10) Where a witness objects to answering any question put to the witness on any ground, including the ground that the question is not relevant or that the answer may incriminate the witness, the witness shall be invited to state the ground upon which objection to answering the question is taken. Unless the committee determines immediately that the question should not be pressed, the committee shall then consider in private session whether it will insist upon an answer to the question, having regard to the relevance of the question to the committee's inquiry and the importance to the inquiry of the information sought by the question. If the committee determines that it requires an answer to the question, the witness shall be informed of that determination and the reasons for the determination, and shall be required to answer the question only in private session unless the committee determines that it is essential to the committee's inquiry that the question be answered in public session. Where a witness declines to answer a question to which a committee has required an answer, the committee shall report the facts to the House.

(11) Where a committee has reason to believe that evidence about to be given may reflect adversely on a person, the committee shall give consideration to hearing that evidence in private session.

(12) Where a witness gives evidence reflecting adversely on a person and the committee is not satisfied that that evidence is relevant to the committee's inquiry, the committee shall give consideration to expunging that evidence from the transcript of evidence, and to forbidding the publication of that evidence.

(13) Where evidence is given which reflects adversely on a person and action of the kind referred to in paragraph (12) is not taken in respect of the evidence, the committee shall provide reasonable opportunity for that person to have access to that evidence and to respond to that evidence by written submission and appearance before the committee.

(14) A witness may make application to be accompanied by counsel and to consult in the course of a meeting at which the witness appears. In considering such an application, a committee shall have regard to the need for the witness to be accompanied by counsel to ensure the proper protection of the witness. If an application is not granted, the witness shall be notified of reasons for that decision.

(15) A witness accompanied by counsel shall be given reasonable opportunity to consult counsel during a meeting at which the witness appears, and may make application for the reimbursement of legal costs. A committee shall give consideration to reasonable reimbursement of such costs.

(16) Where a person incurs expenses in direct consequence of making a submission to a committee or appearing before a committee, the person may make application for reimbursement of the expenses. A committee shall give consideration to reasonable reimbursement of the expenses.

(17) An officer of a department of the Commonwealth or of a State shall not be asked to give opinions of matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a Minister.

(18) Reasonable opportunity shall be afforded to witnesses to make corrections of errors of transcription in the transcipt of their evidence and to put before a committee additional material supplementary to their evidence.

(19) Where a committee has any reason to believe that any person has been improperly influenced in respect of evidence which may be given before the committee, or has been subjected to or threatened with any penalty or injury in respect of any evidence given, the committee shall take all reasonable steps to ascertain the facts of the matter. Where the committee considers that the facts disclose that a person may have been improperly influenced or subjected to or threatened with penalty or injury in respect of evidence which may be or has been given before the committee, the committee shall report the facts and its conclusions to the House.

2. Procedures for the protection of witnesses before the Privileges Committee

That, in considering any matter referred to it which may involve, or give rise to any allegation of, a contempt, the Committee of Privileges shall observe the procedures set out in this resolution, in addition to the procedures required by the House for the protection of witnesses before committees. Where this resolution is inconsistent with the procedures required by the House for the protection of witnesses, this resolution shall prevail to the extent of the inconsistency.

(1) A person shall, as soon as practicable, be informed, in writing, of the nature of any allegations, known to the Committee and relevant to the Committee's inquiry, against the person, and of the particulars of any evidence which has been given in respect of the person.

(2) The Committee shall extend to that person all reasonable opportunity to respond to such allegations and evidence by:

(a) making written submission to the Committee;

(b) giving evidence before the Committee;

(c) having other evidence placed before the Committee; and

(d) having witnesses examined before the Committee.

(3) Where oral evidence is given containing any allegation against, or reflecting adversely on, a person, the Committee shall ensure as far as possible that that person is present during the hearing of that evidence, and shall afford all reasonable opportunity for that person, by counsel or personally, to cross-examine witnesses in relation to that evidence.

(4) A person appearing before the Committee may be accompanied by counsel, and shall be given all reasonable opportunity to consult counsel during that appearance.

(5) A witness shall not be required to answer in public session any question where the Committee has reason to believe that the answer may incriminate the witness.

(6) Witnesses shall be heard by the Committee on oath or affirmation.

(7) Hearing of evidence by the Committee shall be conducted in public session, except where:

(a) the Committee accedes to a request by a witness that the evidence of that witness be heard in private session;

(b) the Committee determines that the interests of a witness would best be protected by hearing evidence in private session; or

(c) the Committee considers that circumstances are otherwise such as to warrant the hearing of evidence in private session.

(8) The Committee may appoint, on terms and conditions approved by the Speaker, counsel to assist it.

(9) The Committee may authorise, subject to rules determined by the Committee, the examination by counsel of witnesses before the Committee.

(10) As soon as practicable after the Committee has determined findings to be included in the Committee's report to the House, and prior to the presentation of the report, a person affected by those findings shall be acquainted with the findings and afforded all reasonable opportunity to make submissions to the Committee, in writing and orally, on those findings. The Committee shall take such submissions into account before making its report to the House.

(11) The Committee may recommend to the Speaker the reimbursement of costs of representation of witnesses before the Committee, and the Speaker is authorised to make reasonable reimbursement of such costs.

(12) Before appearing before the Committee a witness shall be given a copy of this resolution.

3. Criteria to be taken into account when determining matters relating to contempt

The House declares that it will take into account the following criteria when determining whether matters possibly involving contempt should be referred to the Committee of Privileges and whether a contempt has been committed, and requires the Committee of Privileges to take these criteria into account when inquiring into any matter referred to it:

(a) the principle that the power of the House to adjudge and deal with contempts should be used only where it is necessary to provide reasonable protection for the House and its committees and for members against improper acts tending substantially to obstruct them in the performance of their functions, and should not be used in respect of matters which appear to be of a trivial nature or unworthy of the attention of the House;

(b) the existence of any remedy other than that power for any act which may be held to be a contempt; and

(c) whether a person who committed any act which may be held to be a contempt:

(i) knowingly committed that Act, or

(ii) had any reasonable excuse for the commission of that act.

4. Criteria to be taken into account by the Speaker in determining whether a motion arising from a matter of privilege should be given precedence of other business.

Notwithstanding anything contained in the Standing Orders, in determining whether a motion arising from a matter of privilege should have precedence of other business, the Speaker shall have regard only to the following criteria:

(a) the principle that the power of the House to adjudge and deal with contempts should be used only where it is necessary to provide reasonable protection for the House and its committees and for members against improper acts tending substantially to obstruct them in the performance of their functions, and should not be used in respect of matters which appear to be of a trivial nature or unworthy of the attention of the House; and

(b) the existence of any remedy other than that power for any act which may be held to be a contempt.

5. Protection of persons referred to in the House

(1) Where a person who has been referred to by name, or in such a way as to be readily identified, in the House, makes a submission in writing to the Speaker:

(a) claiming that the person has been adversely affected in reputation or in respect of dealings or associations with others, or injured in occupation, trade, office or financial credit, or that the person's privacy has been unreasonably invaded, by reason of that reference to the person; and

(b) requesting that the person be able to incorporate an appropriate response in the parliamentary record;

if the Speaker is satisfied:

(c) that the subject of the submission is not so obviously trivial or the submission so frivolous or vexatious as to make it inappropriate that it be considered by the Committee of Privileges; and

(d) that it is practicable for the Committee of Privileges to consider the submission under this resolution;

the Speaker shall refer the submission to that Committee.

(2) Where a submission is referred to the Committee of Privileges under paragraph (1), the Committee may determine not to consider the submission if the Committee considers that the subject of the submission is not sufficiently serious or the submission is frivolous or vexatious.

(3) If the Committee pursuant to paragraph (2) decides not to consider a submission referred to it, the Committee shall report that decision to the House.

(4) If the Committee decides to consider a submission referred to it under this resolution, the Committee shall:

(a) invite the person who made the submission to give written or oral evidence to the Committee in relation to the submission;

(b) make the submission available to a member who referred in the House to that person and invite that member to give written or oral evidence to the Committee in relation to the submission; and

(c) invite any other person, including any other member, to give written or oral evidence to the Committee in relation to the submission, if the Committee is satisfied that that person may give evidence relevant to the submission.

(5) In considering a submission and receiving evidence under this resolution, the Committee shall meet in private session.

(6) The Committee shall not publish a submission referred to it under this resolution, its proceedings or any evidence received by it in relation to such a submission, but may present minutes of its proceedings and all or part of such submissions or evidence to the House.

(7) In its report to the House on a submission referred to it under this resolution, the Committee shall report whether persons invited to give evidence in relation to the submission have accepted such invitation, and may make either of the following recommendations:

(a) that no further action be taken by the House or by the Committee in relation to the submission; or

(b) that a response by the person who made the submission, in terms specified in the report and agreed to by the person and the Committee, be published by the House or incorporated in Hansard.

(8) In considering a submission and reporting to the House the Committee shall not consider or judge the truth of any statements made in the House, of the submission or of any evidence received by the Committee.

(9) In its report to the House on a submission referred to it under this resolution, the Committee shall not make any recommendations other than those specified in paragraph (7).

(10) The Committee shall not present to the House its minutes of proceedings or all or part of any submission or any evidence received by it if the disclosure of that material would have the effect of:

(a) unreasonably adversely affecting or injuring a person or unreasonably invading a person's privacy, in the manner referred to in paragraph (1); or

(b) unreasonably adding to or aggravating any such adverse effect, injury or invasion of privacy suffered by a person.

6. Matters constituting contempts

That, without derogating from its power to determine that particular acts constitute contempts, the House declares, as a matter of general guidance, that breaches of the following prohibitions, and attempts or conspiracies to do the prohibited acts, may be treated by the House as contempts.

Interference with the House

(1) A person shall not improperly interfere with the free exercise by the House or a committee of its authority, or with the free performance by a member of the member's duties as a member.

Improper influence of members

(2) A person shall not, by fraud, intimidation, force or threat of any kind, by the offer or promise of any inducement or benefit of any kind, or by other improper means, influence a member in the member's conduct as a member or induce a member to be absent from the House or a committee.

Members seeking benefits, etc.

(3) A member shall not ask for, receive or obtain, any property or benefit for the member, or another, on any understanding that the member will be influenced in the discharge of the member's duties, or enter into any contract, understanding or arrangement having the effect, or which may have the effect, of controlling or limiting the member's independence or freedom of action as a member, or pursuant to which the member is in any way to act as the representative of any outside body in the discharge of the member's duties.

Molestation of members

(4) A person shall not inflict any punishment, penalty or injury upon or deprive of any benefit a member on account of the member's conduct as a member.

Disturbance of the House

(5) A person shall not wilfully disturb the House or a committee while it is meeting, or wilfully engage in any disorderly conduct in the precincts of the House or a committee tending to disturb its proceedings.

Service of writs etc

(6) A person shall not serve or execute any criminal or civil process in the precincts of the House on a day on which the House meets except with the consent of the House or of a person authorised by the House to give such consent.

False reports of proceedings

(7) A person shall not wilfully publish any false or misleading report of the proceedings of the House or of a committee.

Disobedience of orders

(8) A person shall not, without reasonable excuse, disobey a lawful order of the House or of a committee.

Obstruction of orders

(9) A person shall not interfere with or obstruct another person who is carrying out a lawful order of the House or of a committee.

Interference with witnesses

(10) A person shall not, by fraud, intimidation, force or threat of any kind, by the offer or promise of any inducement or benefit of any kind, or by other improper means, influence another person in respect of any evidence given or to be given before the House or a committee, or induce another person to refrain from giving such evidence.

Molestation of witnesses

(11) A person shall not inflict any penalty or injury upon or deprive of any benefit another person on account of any evidence given or to be given before the House or a committee.

Offences by witnesses etc

(12) A witness before the House or a committee shall not:

(a) without reasonable excuse, refuse to make an oath or affirmation or give some similar undertaking to tell the truth when required to do so;

(b) without reasonable excuse, refuse to answer any relevant question put to the witness when required to do so; or

(c) give any evidence which the witness knows to be false or misleading in a material particular, or which the witness does not believe on reasonable grounds to be true or substantially true in every material particular.

(13) A person shall not, without reasonable excuse:

(a) refuse or fail to attend before the House or a committee when ordered to do so; or

(b) refuse or fail to produce documents, or to allow the inspection of documents, in accordance with an order of the House or of a committee.

(14) A person shall not wilfully avoid service of an order of the House or of a committee.

(15) A person shall not destroy, damage, forge or falsify any document required to be produced by the House or by a committee.

unauthorised disclosure of evidence etc

(16) A person shall not, without the authority of the House or a committee, publish or disclose:

(a) a document that has been prepared for the purpose of submission, and submitted, to the House or a committee and has been directed by the House or a committee to be treated as evidence taken in private session or as a document confidential to the House or the committee;

(b) any oral evidence taken by the House or a committee in private session, or a report of any such oral evidence; or

(c) any proceedings in private session of the House or a committee or any report of such proceedings,

unless the House or a committee has published, or authorised the publication of, that document, that oral evidence or a report of those proceedings.

7. Raising of matters of privilege

That, notwithstanding anything contained in the Standing Orders, a matter of privilege shall not be brought before the House except in accordance with the following procedures.

(1) A member intending to raise a matter of privilege shall notify the Speaker, in writing, of the matter.

(2) The Speaker shall consider the matter and determine, as soon as practicable, whether a motion relating to the matter should have precedence of other business, having regard to the criteria set out in any relevant resolution of the House. The Speaker's decision shall be communicated to the member, and, if the Speaker thinks it appropriate, or determines that a motion relating to the matter should have precedence, to the House.

(3) A member shall not take any action in relation to, or, refer to, in the House, a matter which is under consideration by the Speaker in accordance with this resolution.

(4) Where the Speaker determines that a motion relating to a matter should be given precedence of other business, the member may, at any time when there is no other business before the House, give notice of a motion to refer the matter to the Committee of Privileges. Such notice shall take precedence of all other business on the day for which the notice is given.

(5) A determination by the Speaker that a motion relating to a matter should not have precedence of other business does not prevent a member in accordance with other procedures taking action in relation to, or referring to, that matter in the House, subject to the rules of the House.

(6) Where notice of a motion is given under paragraph (4) and the House is not expected to meet within the period of one week occurring immediately after the day on which the notice is given, the motion may be moved on that day.

8. Motions relating to contempts

That, notwithstanding anything contained in the Standing Orders, a motion to:

(a) determine that a person has committed a contempt; or

(b) impose a penalty upon a person for a contempt,

shall not be moved unless notice of the motion has been given not less than 7 days before the day for moving the motion.

9. Exercise of Freedom of Speech

(1) That the House considers that, in speaking in the House or in a committee, members should take the following matters into account:

(a) the need to exercise their valuable right of freedom of speech in a responsible manner;

(b) the damage that may be done by allegations made in Parliament to those who are the subject of such allegations and to the standing of Parliament;

(c) the limited opportunities for persons other than members of Parliament to respond to allegations made in Parliament;

(d) the need for members, while fearlessly performing their duties, to have regard to the rights of others; and

(e) the desirability of ensuring that statements reflecting adversely on persons are soundly based.

(2) That the Speaker, whenever the Speaker considers that it is desirable to do so, may draw the attention of the House to the spirit and the letter of this resolution.

10. Reference in court proceedings to proceedings in the House

(1) That, without derogating from the law relating to the use which may be made of proceedings in Parliament under section 49 of the Constitution, and subject to any law and any order of the House relating to the disclosure of proceedings of the House or a committee, the House declares that leave of the House is not required for the admission into evidence, or reference to, records or reports of proceedings in the House or in a committee of the House, or the admission of evidence relating to such proceedings, in proceedings before any court or tribunal.

(2) That the practice whereby leave of the House is sought in relation to matters referred to in paragraph (1) be discontinued.

(3) That the House should be notified of any admission of evidence or reference to proceedings of the kind referred to in paragraph (1), and the Attorneys-General of the Commonwealth and the States be requested to develop procedures whereby such notification may be given.

11. Consultation between Privileges Committees

That, in considering any matter referred to it, the Committee of Privileges may confer with the Committee of Privileges of the Senate.


Mr LIONEL BOWEN —The draft resolutions were prepared by parliamentary officers at the request of the Manager of Government Business in the Senate, Senator Gareth Evans, who was also Deputy Chairman of the Joint Select Committee on Parliamentary Privilege, and were presented by him at the commencement of debate on the Parliamentary Privileges Bill in the Senate.

I am not moving the proposed resolutions at present. I am merely tabling them so that they can be debated in the context of this legislation and to allow the opportunity for comment and discussion on their terms before they are formally brought forward for debate. I am aware that many of the proposed resolutions deal with sensitive and difficult issues and may require further refinement in the course of that discussion and debate.

The proposed resolutions represent the other part of the package of changes recommended by the Joint Select Committee on Parliamentary Privilege. The Bill deals only with those changes to the law relating to parliamentary privilege requiring statutory enactment. Briefly those changes are: Abolition of the category of contempt involving defamation of the Houses or their members; statutory codification of the penalties which may be imposed by the Houses for contempts; abolition of the power of expulsion of members; specification of the cause of any penalty or imprisonment imposed by a House and consequent review by the courts; uniform qualified privilege in relation to parliamentary proceedings; statutory protection of witnesses; and limitation of the duration of immunities from civil arrest and from compulsory court attendance.

The matters dealt with by the proposed resolutions cover all of the other recommendations of the Joint Select Committee and are specified in the explanatory notes. The proposed resolutions reflect the terms of the Joint Committee's recommendations, except where those recommendations have been departed from for particular reasons which are explained in the explanatory notes. I have not had the opportunity to discuss the terms with members of the Joint Committee or with members generally but, by putting them forward at this stage, it is thought it would stimulate discussion and comment and assist members in their consideration of the Parliamentary Privileges Bill. I thank the House.