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Wednesday, 6 May 1987
Page: 2662


Mr TICKNER(10.58) —I support the Parliamentary Privileges Bill, but I confess at the outset that I have a very different view about the adequacy of the Bill to reflect community and public standards on the role of parliamentary privilege in the 1980s. Parliamentary privilege is all about power. There are very few occasions on which this Parliament sees fit to give up any power that it might have. Rather, the exact opposite has been shown to be the case over a very long period. After some 86 years we are still stuck with the rather moribund and totally inadequate powers and procedures that we had conferred on us as a new nation by section 49 of the Australian Constitution. Soon after I came into the Parliament I became a member of the House of Representatives Standing Committee on Privileges. Had honourable members known of my very liberal view of the role of privilege, perhaps they would not have appointed me to the Committee. Without divulging any of the confidential deliberations of the Committee, I must say that I am reinforced in my liberal view of the role of privilege as a result of being a member of that Committee. My view is that members of parliament should not confer on themselves, other than in extremely narrow and defined circumstances, powers and authorities that are not conferred on members of the outside community. Unless it is for a very good reason, I do not believe that we can have one law for the people who are privileged to sit on these green leather benches and other laws for people in the wider community.

It is a matter of some concern that there is not more media interest in the debate about the reform of parliamentary privilege because it is often the case that members of the Press Gallery have their necks on the Privileges Committee chopping block. It is clearly the case that there exist, and will continue to exist after the passage of this Bill, draconian powers in the hands of the Parliament and indeed of the Privileges Committee itself, which vitally affect the role of the Press. Of course, it is public knowledge that there is currently an inquiry by the Privileges Committee into a matter involving the media. I commend this debate to representatives of the media and encourage public awareness of this whole issue of parliamentary privilege because I believe that the more public debate there is, the more likely it is that this House will adopt standards and values that are more in keeping with those broader community values.

I do not want my views to be interpreted for a moment as a condemnation of the report of the Joint Select Committee on Parliamentary Privilege and its work because I truly believe it is miraculous that such a diverse group of people could reach agreement on such important matters of reform. My views are intended to be constructive and encourage the House to go further than the mere terms of this Bill to give effect to the Spender Committee recommendations. I am aware that both the Attorney-General (Mr Lionel Bowen) and Senator Gareth Evans in the Senate have indicated that this Bill should not be seen in isolation. I am aware that certain resolutions have been tabled and will form a subject of debate. My point is essentially this: The Bill on its own is not an adequate reform of the law and it still leaves in place the draconian powers to which I referred earlier in my remarks. For example, it does not guarantee the rights of representation for people who are affected by the Privileges Committee and it is still possible for journalists to be brought before the Privileges Committee without representation. It is still possible for people to be sent to gaol because they have arguably breached parliamentary privilege without their having been adequately informed of the charges against them, without having a right to cross-examine witnesses and without an adequate right of appeal, as I see it. However, that matter has been addressed to a very minor degree by an aspect of the Bill to which I will refer in a moment.

It is a very important and historic step that this Parliament should take an initiative to do something about the long outstanding matters referred to in section 49 of the Constitution, but on its own this Bill is a woefully inadequate first step. I urge members of the public, the media and my colleagues in the House to go further and at the earliest possible opportunity to give effect to those resolutions which at the moment have only been tabled and are light years away from implementation because of the many matters to be resolved.


Mr Hodgman —The Constitution is not a bad first step, you know.


Mr TICKNER —The honourable member for Denison interjects. If I were able to respond to him within the confines of the Privileges Committee, I would be so bold as to put him in his place and remind him of his own on-the-record views of the role of privilege. The fact is that the Bill on its own does nothing to give effect to principles of natural justice. I would have thought the honourable member, as a member of the legal profession, would have been at one with me in supporting those principles. The Bill does not do this and we should do something about it by adopting those resolutions at the earliest opportunity.

Having said that, I wish to refer briefly to some important elements contained in the Parliamentary Privileges Bill. These include the requirement that it is an essential element of an offence that it causes or is likely to cause improper interference with the free exercise by a House, a committee or a member of it or his functions. There is a partial-and I emphasise partial-abolition of contempt by defamation. There is provision for imprisonment for a fixed period, not exceeding six months, and a power to impose fines. Presently there is no effective penalty against a corporation. At this juncture I make the point that one of the effects of this Bill is to give the Parliament greater powers to punish than it had before-that is, before we put in place the human rights and natural justice safeguards that are so important to the exercise of that power. I emphasise that we now have a greater power to fine and imprison, but no safeguards to the right of the individual until we do something about these resolutions. There is a requirement for resolutions and warrants to state the grounds for incarceration so that the High Court will have some ability to review the adequacy of the grounds-not nearly enough opportunity, but an important first step.

The Bill contains important statutory protection for witnesses against intimidation and there are more detailed definitions of `proceedings in Parliament'-the words used in the Bill of Rights. There is the statutory requirement that witnesses before committees may not be examined or cross-examined in other tribunals on their parliamentary evidence. That matter has been referred to in greater detail in the course of this debate. Honourable members should have regard to the debate which took place in the Senate. The last reform to which I referred-that is, the restriction of examination or cross-examination in other tribunals-formed the substance of the debate by senators and, I believe to a large extent, by honourable members of this House. But there has been very little debate about the broader questions of privilege to which I have alluded and which I believe are so important to the future of the legislation.

The springboard to change and to give effect to our powers under section 49 of the Constitution was not even the Spender report itself, but rather the ancillary matter and the judgments of Mr Justice Hunt and others which have been referred to in the course of the debate. Nevertheless, I welcome the initiative which has been taken. I referred before to the partial abolition of contempt by defamation which is mentioned in clause 6 of the Bill. This is only a partial abolition and there is still power in the House to punish for contempt by defamation in relation to words spoken or acts done in the presence of the House or of a committee. That was not a recommendation of the Joint Select Committee and while I believe that the reform should be supported because it at least goes part of the way, I believe that the original recommendation of the Joint Select Committee was a proper one. It was well argued and I remind honourable members of what was said on page 84 of the Joint Committee report:

The power to punish for defamatory contempts is not only unnecessary but is fundamentally inimical to freedom of speech, especially when the subject of attack is an institution, or Members of an institution, entitled to absolute immunity in the exercise of freedom of speech and thus able to defend itself and themselves in the most robust manner.

I believe that those are valid principles and that defamatory contempt should be abolished in its entirety. I do not propose to move an amendment to the Bill because obviously I do not believe that that would be a fruitful exercise. This Bill should be supported as is because the whole history of attempts to reform the law of contempt is a legacy of broken bodies and failed exercises dating back to 1908 when each House of Parliament appointed a select committee. The committee was critical of procedures that had been inherited from the Commons. It made a number of important recommendations, which were far reaching, but nothing was done to implement them until, in the words of the joint committee report, they were disinterred from the archives in 1938. In that year a Bill was drafted to give effect to the recommendations of the joint committee of 1908, but it was never introduced. So here we are at this historic point in Australian federation and it would be very foolish for any honourable member to attempt to grandstand by moving some amendment. What we ought to have is the full support of the House for this very important first step, and I give that support. However, as I have indicated, I believe that we ought to go further in a number of respects.

I have reiterated my view that everything depends on the subsequent resolutions, and I stand by that. But I shall demonstrate that point in a very clear way by referring to one practical case, namely, the case of Fitzpatrick and Browne, and I shall demonstrate what happened in that case. I indicate that I believe that very little, if anything, is changed by the passage of this Bill, and thus there is the need to go much further. In the case of Fitzpatrick and Browne, which as we are all aware of course is part of Australian legal and political folklore, an attempt was made by Mr Fitzpatrick before the Committee to seek legal representation. One of the great ironies is that the Committee, in its wisdom, saw fit to permit him the right to address the Committee on that question, and having heard from him it then refused him any right to legal representation. It is a matter of concern to me, and I think it ought to be to all historians, that despite the enormous lapse of time since that case we still do not know what happened before the Committee of Privileges. The evidence cited by the Committee in its report is only a small portion of the transcript and to this date the full transcript has still never been made public. The hearing was heard in Canberra, in camera, and, of course, there were no Press accounts of it. I am pleased to say that one of the pioneering initiatives of the current Joint Select Committee on Parliamentary Privilege is the permission for the first time of a form of legal representation, albeit a limited one, and also for the first time in Australian political history the holding of public hearings in relation to the reference that it has before it.

To return to the case of Fitzpatrick and Browne: When the gentlemen came before the Bar of the House there was a denial of the right to legal representation and subsequently the Prime Minister moved that each respondent be committed to the custody of the Chief Commissioner of Police in Canberra and they were to be kept in custody until a specified date or until an earlier dissolution of the Parliament. Despite an attempt to secure their discharge, the majority did not support that view and as a result they languished in gaol. In fact, there were only 10 members of the House of Representatives, of whom Dr Evatt was one, who diligently stood in support of a more liberal view, a restricted view of parliamentary privilege, but he, of course, together with nine others, was very much in the minority. Having regard to the debates of the House in the Fitzpatrick and Browne case, it really does reek of star chamber treatment on the part of those who were there. When Mr Browne came before the House-and I carry no brief for Mr Browne, but I believe that every person in this country when faced with the threat of imprisonment ought to have right of access to a lawyer and to other principles of natural justice-he said:

I have been convicted of an offence which, according to Australian justice, has not been fully proved. I base that on this: it is considered the right --

With that, he was interrupted by the Speaker, who said:

You will take your hands off the bar.

Mr Browne obviously did that and he continued:

It is considered the right of every Australian citizen charged with an offence that he, first, must be charged; and secondly, he must have legal representation. That is denied to me even here. He must have the case against him proved, and he need not answer incriminating questions. Then there is the fact that he must have the right to cross-examine his accuser. And lastly, he must have the right to appeal. There is also another inherent right which is always observed in every court in this Commonwealth, and every court where there is any reasonable conception of justice-that he shall present his case in an atmosphere which shall not have had the effect of prejudging him before he comes in.

That is always, I believe, an inherent weakness of the whole law and practice of parliamentary privilege. Having referred to that case, I ask the House: What will be changed as a result of this Bill? The House will have a greater power to be able to imprison. The only other matter that will be changed is that the House will be required to state the reasons for incarceration. I have alluded to the fact that there will be some scope for limited-and I emphasise `limited'-judicial review as a result of that provision in clause 9 of the Bill. However, other than that, all the injustice and the indecency of the Fitzpatrick and Browne case is still part and parcel of the powers and privileges of members of Federal Parliament, and something must be done about that. While I commend the resolutions that have been tabled, unless we pass them this whole exercise will be viewed by historians as a totally inadequate response. We must go further; the whole thrust of my contribution to this debate is to urge the House to do that at the earliest opportunity.

I allude to one other practical situation which commonly arises and which I believe ought to be addressed, and I refer to the hypothetical case where journalists print and publish material that has been leaked from a committee of the Parliament. That of course is a breach of privilege. Under the existing law it is possible for journalists to be called before the Privileges Committee without legal representation, without the application of any of the principles of natural justice to which I have referred and in fact to be sent to gaol as a result of publishing material which amounts to a breach of privilege. In relation to those past practices, what is changed by the current Bill? The answer is that the only thing that is changed by this Bill, as I understand it, is the requirement for a warrant to state the reasons for committal-which is a limited reform. The other aspect is that there is no continuation of the concept of defamation of parliament and, importantly, the Bill gives the power to the Parliament to impose a fine on corporations. So, in fact, the present Bill gives further power to the House at least in one respect. I commend the Joint Committee. I commend the House for introducing this reform. It is an important first step, but until we go the whole way towards implementing the report we are failing in our duty to the people of Australia.


Mr DEPUTY SPEAKER (Mr Keogh) —Order! The honourable member's time has expired.