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Tuesday, 5 May 1987
Page: 2641


Mr CLEELAND(10.06) —Since 1901 the Australian Parliament has determined the extent of its powers as to both privilege and contempt by reference to section 49 of the Australian Constitution. Since 1901 neither the Senate nor the House of Representatives has seen fit to enact legislation delineating what powers are appropriate in the Australian context and, by reference to Australian society, to ensure the proper independence and integrity of the Senate and the House of Representatives. Instead, the Parliament has been content to seek reference to the conventions of the House of Commons and, by so doing, has failed itself and the Australian public. It is surely incongruous that in 1987 the question of what constitutes contempt of the Parliament is, to say the least, uncertain. In 1981 Senator Button, with some expert assistance, drafted a Bill which would have codified into criminal law all of the categories of contempt. The Bill provided a convenient checklist of the categories of contempt. If the Bill is examined it will be discovered that the only contempts which should now be regarded seriously, apart from interference with members, are those relating to interference with or obstruction of parliamentary inquiries.

Until 1975 it was argued that the Australian Parliament inherited the unwritten rules or conventions which had long been associated with the House of Commons. Conventions of the Constitution have been described by Dicey as customs, practices, maxims or precepts which are not enforced by the courts, making up not a body of laws but constitutional or political ethics. The lack of ethics in 1975 established once and for all the fact that the practitioners of conservative politics in Australia would use whatever means was available to them to grab power. To hell with political ethics and political morality and the myth that the Australian Constitution was clothed in conventions which civilised nations respected for the inherent morality that they imposed upon the body politic. It was only when the Senate found that a privilege assumed by it to be within its prerogative powers was challenged in the courts that the moribund Australian Parliament decided to take action. This Bill is the result of a court challenging the assumption of a convention held by the Senate.

While at the outset I express my support for the Parliamentary Privileges Bill 1987, I say that it does not go far enough. It is a piece of legislation introduced by the Presiding Officers as a result of a challenge to the powers of the Senate. This legislation does not clarify the many questions that exist as to the extent of the powers assumed by the Parliament by reference to section 49 of the Constitution. In this regard it is clearly deficient. It would be inappropriate not to refer to the work of the Joint Select Committee of Parliamentary Privilege and its report. As a result of that report the honourable member for North Sydney (Mr Spender) introduced into this House a private member's Bill which has yet to be debated. I do not support all of the matters dealt with in that Bill, but I appreciate the efforts to introduce clarity in a clouded area of law. I look forward to the day when this House properly accepts its responsibilities and debates the entire issue.

It is, however, the area of contempt on which I wish to concentrate. There is much confusion in Australian writings and little attempt to distinguish between two distinct issues-those of privilege and contempt. It is unfortunate that the words `privilege' and `contempt' continue to be used in relation to matters which have nothing to do with privileges and immunities. What were properly called offences or contempts against the House of Commons continue in Australia to be referred to as breaches of privilege. This has led to the erroneous notion that for every offence against the Parliament there must be some corresponding privilege. So-called privileges which had nothing to do with immunities under the law, and which historically simply did not exist, were invented to rationalise every use or proposed use of the powers of the House.

In reality, the British Houses, and the Australian Houses by virtue of section 49 of the Constitution, possess only one major immunity-the immunity of their debates and proceedings from any inquiry or any action, civil or criminal-and only one major power, the power to punish persons for contempts. The immunity allows the legislature the freedom to debate openly and inquire into all matters and to regulate its own proceedings. The real rationale of the power to deal with contempts is that it enables the enforcement of the power to conduct inquiries; that is, to summons witnesses and to compel evidence. That this is historically the most important use of the contempt power is illustrated by the so-called privileges resolutions which, as a matter of tradition, are passed by the House of Commons at the beginning of each session and which deal with the tampering of evidence and the giving of false evidence.

In 1984 Sally Walker, lecturer in law at the University of Melbourne, published in the Adelaide Law Review research paper No. 4 a definitive examination of the operation of the contempt powers as practised by the State and Federal parliaments. This study makes it clear that the parliaments of Australia have accepted that they have broad and undefined powers which are ascertainable by reference to precedent. When questions are properly raised as to the appropriateness of the adoption of such powers some members of parliament and parliamentary clerks become apologetic and defensive about it. They talk about quaint but irrelevant traditions springing from the time of Charles 1 or the practice of the House of Commons in the seventeenth century. There has yet to be in this country a serious examination of the role and purpose of the contempt power.

If the Parliament is to exercise the power to punish for contempt, it is time that there was a certainty as to what the Parliament means by the use of the word. It is not good enough to determine after an event whether or not an act or omission complained of is or is not contempt and, if it is, what punishment should be applied. Where publication by media is concerned there must be the recognition that contemporary Australian society has the right to be informed by the media of what the Parliament is doing. If the Parliament is offended by such publication in the absence of evidence of interference with the due functions of the Parliament, I believe that the Parliament is acting capriciously. The use of such an undefined power of contempt is unquestionably a limitation on that freedom of expression which is essential to the achievement and maintenance of a democratic society. In Gallagher v. Durack the late Mr Justice Murphy said:

The law of criminal contempt . . . is so vague and general that it is an oppressive limitation on free speech. No free society should accept such a censorship. The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. At stake is not merely the freedom of one person; it is the freedom of every person to comment rightly or wrongly on the decisions of the courts in a way that does not constitute a clear and present danger to the administration of justice.

If one changes the word `court' to read `parliament', the statement of the late Mr Justice Murphy should be enshrined on the walls of the Parliament.

Stephen, in his History of the Criminal Law, published in 1883, stated:

Two different views may be taken of the relation between rulers and their subjects. If the ruler is regarded as the superior of the subject, as being by the nature of his position presumably wise and good, the rightful ruler and guide of the whole population, it must necessarily follow that it is wrong to censure him openly, that even if he is mistaken his mistake would be pointed out with the utmost respect, and that whether mistaken or not no censure should be cast upon him likely or designed to diminish his authority.

If on the other hand the ruler is regarded as the agent and servant, and the subject as the wise and good master who is obliged to delegate his power to the so-called ruler because being a multitude he cannot use it himself, it is obvious this sentiment must be reversed. Every member of the public who censures the ruler for the time being exercises in his own person the right which belongs to the whole of which he forms a part. He is finding fault with his servant. If others think differently they can take the other side of the dispute, and the utmost that can happen is that the servant will be dismissed and another put in his place, or perhaps the arrangements of the household will be modified. To those who hold this view fully there can be no offence such as sedition. There may, indeed, be breaches of the peace which may destroy or endanger life, limb or property, but no imaginable censure of the Government, short of a censure which has an immediate tendency to produce such a breach of the peace ought to be regarded as criminal.

Stephen distinguishes between those who hold a feudal view of society as opposed to those who take a democratic view.

Debate interrupted.