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Wednesday, 6 May 1987
Page: 2656


Mr GRIFFITHS(10.23) —In my first parliament I had the very great honour to serve on the Joint Select Committee on Parliamentary Privilege under the chairmanship of the honourable member for North Sydney (Mr Spender). I notice in the galleries the presence of Mr Wright who served as Secretary to that Committee, and I might say that he did so in a most distinguished way. By definition I have a very strong interest in this whole area. Today's contribution will not be the end of the debate so far as I am concerned. As honourable members are aware, the proposed resolutions tabled concurrently with the Parliamentary Privileges Bill 1987 go very much to the heart of the powers of this Parliament. I commend a very detailed reading and consideration of them by all members of the House, and I hope that in the deliberations that surround those proposed resolutions we have a long and very detailed contribution from as many members as possible. In my view, my role on the Committee, whilst not a major one, was one of the more significant contributions that I will be called upon to make in this chamber.

Another important point worth making, particularly for observers of this Parliament, is that this is one of the few occasions when each individual member of parliament is completely free of all party political pressures to judge components of this category of legislation, or the proposed resolutions before the House, on their own objective and independent assessments of the merits or otherwise. Because these issues go to the heart of the role of parliamentarians, the tradition, with which I strongly concur, is that each member should feel absolutely free to give independent consideration to each of these issues and to judge them accordingly. I have no doubt that that is precisely what will transpire.

There will be adequate opportunity on another day to deal with the proposed resolutions in detail. For the purposes of today's proceedings we are addressing our minds to the Parliamentary Privileges Bill of 1987. Consistent with what I have already said, right across the chamber there is not a lot of dispute so far about the provisions of the Privileges Bill. To the extent that there is, I will address that matter in a moment. But, for example, I do not have any substantive disagreement with the honourable member for Bass (Mr Smith), who preceded me, on the merits of the major component of that Bill which, of course, relates to the Parliament's reaction to the judgment in R. v. Murphy.

The legislation had its genesis in the report to which I have referred and the Committee on which I had the pleasure of serving. As I have indicated, that Committee was chaired by the honourable member for North Sydney, both when the current Opposition was in government and later when, by leave of the Government, the honourable member continued his chairmanship after having gone into opposition with the colleagues, from where I imagine he will not emerge for some considerable time. Particularly because I have praised him considerably for his role in that Committee, I might just be politically partisan for a moment by noting that, according to this morning's Press, the honourable member's colleague Senator Puplick happened to be paying closer attention to some of the legislation going through this House. The honourable member for North Sydney may have to reimburse to his Party his $2,000 advisory fee for not having picked up a couple of issues in that legislation. But that is enough of partisan politics.

The genesis of the Bill was, of course, in that Committee, but the momentum for the Bill came about as a result of what I consider to be a dangerous-from this Parliament's perspective-and narrow interpretation of Article 9 of the Bill of Rights in the judgment to which I have referred in R. v. Murphy. Section 49 of the Constitution provides that the freedom of speech in debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of the Parliament. On the surface that is a quite clear enunciation of the role of the Parliament. But, as is often the case, it is perhaps not so clear once we get into the judicial process. In any event, honourable members are aware that the judgment of Mr Justice Cantor purported to establish the injunction that the hitherto unanimously wide interpretation of Article 9 would necessarily be maintained provided only that there were no adverse effect on parliamentary proceedings in a particular case. Central to Justice Cantor's case was that Article 9 must be balanced-I emphasise the word `balanced' as did my colleague the honourable member for Bass-against the requirements of court proceedings. But the effect of the judgment was to purport to establish that 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. It was in that latter category, of course, that Justice Cantor's decision was used.

As I have indicated, a central theme to the judgment was that a condition precedent was that there be no adverse effect on parliamentary proceedings by such an interpretation in any particular case. But of course, the judgment itself-subsequently ignored, happily, by other Australian judgments-strikes at the very heart of the role of this Parliament, and accordingly it provided the very adverse effects which the judgment explicitly stated it sought to avoid. It really left no alternative other than for this Parliament seriously and immediately to address the issues that it raised and to respond to them. Happily, that response appears to have a fair degree of unanimity not only across this House but also in another place.

The detailed reasons in support of re-establishing the primacy of section 49 have been provided by other speakers and, accordingly, I will not recanvass them, but I indicate for the record my strong concurrence with those reasons.

The honourable member for North Sydney, however, has sought to amend the Bill to allow a person to be cross-examined on his evidence before this Parliament. The honourable member has sought to partially embrace the judgment of Justice Cantor, and whilst seeking to minimise the narrow reading that Justice Cantor gave to article 9, the end result of the proposed amendment would be to seriously undermine the very powers that we are now seeking to re-establish. Superficially this approach may have some attraction, but in the result it would mean a lesser, but nevertheless substantial, erosion of the powers of the Parliament that the judgment in R. v. Murphy implied. The reason for that is that one simply cannot minimise the impact of that amendment, as the honourable member for North Sydney, I am sure, would seek to do. To that extent it is inconsistent with the strong theme embodied in the deliberations of the Joint Select Committee that the honourable member chaired. That is, where on the balance of public interest a judgment had to be made between competing principles-and of course, the whole theme of this area is the fine balance between competing and important principles-where we had to err on one side or the other, we would err on the side of the continuation and enhancement, and against a narrowing, of the powers of this Parliament. So, to that extent the amendment proposed by the honourable member for North Sydney is contradictory to the theme he embraced with his colleagues, including me, during our deliberations on that Committee.

A number of things can be said about the amendment. I will confine my comments to the following points. Were the amendment to be adopted and one party in a civil or criminal action allowed to seek to undermine the evidence of a witness by using the witness's parliamentary evidence, as a matter of fairness the other party in the proceedings would have to be allowed to try to rebut the undermining of that witness's evidence by further use of the parliamentary proceedings. This would open up a pandora's box. It is probably the reason-I have just received a note-amongst others, why the honourable member for North Sydney, I now understand, is not proceeding with his amendment. So my research on that component of the legislation will not be proceeded with. I am pleased that the honourable member for North Sydney reconsidered his proposed amendment. I believe it would have substantially flawed the Bill that is before the House. It may explain a little more the degree of unanimity that appeared on the other side of the House regarding the legislation.

There are a number of other changes-in fact, there is a whole raft of changes-embodied within the legislation. I am pleased to have the opportunity now to have a little time in which to comment on some of them. When the Committee sat, one of the ongoing themes was the very real difficulty, both in intellectual terms and in policy terms, of trying to weigh up the very difficult competing interests that were involved. One example is the abolition of defamatory contempts. Defamatory contempt, having been around for many hundreds of years, and having not been brought into substantive question for most of that period, is one of the major powers by which many individual members and senators saw themselves protected.

Of course, there have been a number of very famous defamatory contempts, sometimes to the embarrassment of an individual or groups of members or senators, regarding their sobriety, personal behaviour or corporate reputations. Politicians are a pretty sensitive sort of bunch, by some measure. In any event, I think it was a sensible outcome in terms of the Committee's deliberations to decide that parliamentarians, be they members or senators, should not be so sensitive as to seek to use the defamatory contempt powers simply because someone in the community purported to describe them corporately or individually as indolent, drunks or whatever.

The reality is, of course, that anyone watching any of the satirical programs on the Australian Broadcasting Corporation or elsewhere, and anyone who has a cursory interest in satirical cartooning in this country, obviously would be aware that parliamentarians are the subject of ongoing ridicule. Perhaps that is the price we pay in a democracy such as ours. I think it is appropriate to draw, for example, a comparison between the way that parliamentarians are treated in this country and the relative immunity enjoyed by those who treat them in this way, and the reaction of a certain country in the recent past to the same sort of satire being applied to some of its political leaders. Of course, it is a significant and, I think, very important distinction between two different types of political systems.

Perhaps one of the measures of a democracy is that it is possible for anyone in the community to take the mickey, if you like, out of his elected representatives-the Prime Minister or whoever. Whilst that may be a bit embarrassing or hurtful on occasions, I believe very strongly that once one is in the kitchen, one must learn to put up with a bit of the heat. Accordingly, I was strongly of the view that the defamatory contempts component ought to be abolished. Of course, if any of those defamatory contempts are of sufficient brutality, if you like, to step over the boundaries of what would constitute defamation in the wider community, senators or members have the protection of the laws of defamation, the laws of libel, to ensure that they are not brought into contempt, just as any other member of the community has that protection. I was very pleased that this Bill embraces that particular reform. I believe it is long overdue and it is a sign of the increasing maturity of the Parliament and, hopefully, of a preparedness to concentrate on those issues that are of importance to the people of Australia in the longer term.

There is, as I have indicated, a whole range of other components in the Bill. Clause 9, which is of particular importance, relates to the resolutions and warrants for committal. This clause requires a House to state the reason for a person being imprisoned by the House. Again, I do not think I need to go into any great detail. It is almost self-evident that a fundamental right in our community is to have charges put to one, to give one an opportunity to answer them. Unless that is the case, any citizen is at a severe disadvantage.

I think it is worth making the point that it was largely in my experience unknown, even in the House, just to what extent the Parliament had powers to bring people before the House, to bring charges before them without articulating those charges, to enforce the giving of evidence. The system did not necessarily provide that people could have legal representation. It came as a very great surprise to many of my colleagues to learn that the Parliament could in fact incarcerate individuals for indeterminate periods under existing powers that it has. Of course, in years gone by that was a normal and accepted part of the largely patrician parliamentary system. I believe that the abrogation of basic and fundamental civil rights that that implies belongs to that long distant past. Accordingly, I am very pleased that this Bill and the associated proposed resolutions go a considerable way towards addressing those problems.

I would like to raise another aspect. The Committee recommended a non-enforceable declaration by the High Court of Australia in relation to these matters. But that was not adopted because of the possibility that it may constitute an advisory opinion from the High Court and, hence, be unconstitutional. I wish to place on record that where the provisions of the Bill relate to enforceable review by the High Court of the imprisonment of any person, I am strongly of the view that if and when the Constitution is changed to provide for advisory opinions by the High Court, that should revert, consistent with the Joint Committee's recommendations, to a non-enforceable declaration by the High Court. In my submission, that would go some way towards continuing the very fine balance between the Parliament and the judiciary.

I would like to comment on many other aspects but I notice that my time has almost expired. In commending the Bill to the House, I thank the honourable member for North Sydney for not proceeding with his proposed amendment which I thought was misplaced. I also take this opportunity to thank him for his chairmanship of the Committee and also to thank the many other distinguished members of that Committee.