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Wednesday, 6 May 1987
Page: 2671


Mr LIONEL BOWEN (Attorney-General)(12.01) —I thank all honourable members for their contribution to this debate, which has been at a very high level and has gone on for a considerable time. We have a unanimous understanding that this House supports parliamentary privilege legislation. It is interesting that we have had to wait so long for privileges to be brought into our own legislative area. I am mindful that section 49 of the Constitution suggests that, until such time as we might provide privileges, we adopt the privileges applying in the House of Commons. As the honourable member for Denison (Mr Hodgman) has just said, it has taken us some 87 years to do so.

Yesterday I sought and was granted leave to table and have incorporated in Hansard proposed resolutions and explanatory notes. Through some misadventure, the resolutions but not the explanatory notes have been incorporated in Hansard. I have been advised by the Clerk that to put the matter in order I should, with the concurrence of the Opposition, again seek leave to table and incorporate in Hansard the proposed resolutions and explanatory notes. I now do so.

Leave granted.

The documents 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 counsel 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.

HOUSE OF REPRESENTATIVES

PARLIAMENTARY PRIVILEGE

PROPOSED RESOLUTIONS

Explanatory Notes

These notes list the recommendations of the Joint Select Committee on Parliamentary Privilege on which the proposed resolutions are based, and indicate the nature of and the reasons for any proposed modifications of the terms of the Committee's recommendations.

Some of the Committee's recommendations were for amendments to the Standing Orders, but the following all take the form of resolutions, in accordance with the practice of trying new procedures by resolution before they are written into the Standing Orders. It may also be desirable to keep all the matters together rather than have them scattered through the Standing Orders.

The proposed resolutions have been drafted so as to be consistent with the Parliamentary Privileges Bill 1986 introduced by Mr President McClelland, passed by the Senate on 17 March 1987 and now before the House.

Minor changes to the wording of resolutions recommended by the Committee and changes to take account of parliamentary practice and phraseology are not noted.

Proposed resolution 1: Procedures to be observed by committees of the House for the protection of witnesses

Recommendation 35 of the Committee. The Committee substantially adopted a suggested resolution put to it by the Senate Department, which reflected practices already adopted by Senate committees. The following modifications have been suggested to the resolution recommended by the Committee.

(1) The resolution recommended by the Committee was limited to ``investigatory'' committees. There would seem to be no reason for not extending it to all committees.

(2) Paragraph (5), referring to opportunity for witnesses to raise matters of concern to them before they give evidence, was not included in the Committee's recommendation, but it is suggested that it be included in the resolution.

(3) Paragraph (6) of the Committee's recommended resolution would require reasons for refusing a witness's application to be heard in camera to be given in public. It may well be that a witness would prefer not to have the reasons published, and this is reflected in the proposed resolution (paragraph (7)).

(4) Words have been added to paragraph (7) to make it clear that a witness may ask to give part of the witness's evidence in private session during the hearing of the witness's evidence. The witness may wish to answer a particular question in camera.

(5) Paragraph (9) has been altered to make it clear that it is the responsibility of the chairman to rule on the relevance and necessity of a particular question, but that it is open to the committee to deliberate in private session and to determine whether any particular question, the relevance or necessity of which has been questioned, should be asked.

(6) Paragraph (10) has been altered to make it clear that it is open to the committee to determine at once, without going into private session to deliberate, that a question objected to by a witness should not be pressed. It may happen that a member immediately withdraws a question to which objection has been taken, and the committee accepts the withdrawal of the question.

(7) Paragraph (12) of the Committee's recommended resolution would provide that a committee may give reasonable opportunity for a person to respond to evidence adverse to the person. There would seem to be no reason for not making the reasonable opportunity mandatory, given that a committee may decide what is a reasonable opportunity in the circumstances (paragraph (13) of the proposed resolution).

(8) Paragraph (14) has been changed to provide a criterion for a committee to use when determining whether a request for a witness to be accompanied by counsel will be granted, namely, the need for the witness to be accompanied by counsel to ensure the proper protection of the witness.

(9) Words have been added to paragraph (15) to make provision for application by a witness for the reimbursement of legal costs where the witness has been granted the right to be accompanied by counsel, and for the committee to consider such application.

(10) Paragraph (16) is a new paragraph providing for a witness to make application for the reimbursement of expenses incurred in direct consequence of making a submission to a committee or giving evidence, and for the committee to consider such application.

Proposed resolution 2: Procedures for the protection of witnesses before the Privileges Committee

Recommendation 21 of the Committee. The Committee did not recommend the terms of a resolution. The procedures recommended by the Committee are cast in the form of conferring protection upon persons ``against whom a complaint has been made''. The difficulty with this formulation is that a reference to the Privileges Committee often does not contain a complaint against any person, but merely refers to a matter which may involve or may give rise to an allegation of contempt against a person. The Privileges Committee has the task of investigating the matter to determine whether any contempt has been committed, and if so, by whom, and of hearing evidence and making a determination in the inquiry. In other words, it combines the functions of an investigative agency and a court of first hearing in a criminal matter. A person who is called merely as a witness may turn out to be the person against whom an allegation is made, and different allegations may be made against different people.

It would seem, therefore, to be preferable to confer protection on all persons involved in the Privileges Committee's inquiry against whom any allegation is made or any adverse evidence given, regardless of whether those persons are in the position of an ``accused''. This would have a considerable advantage over criminal proceedings in a court. In such proceedings very damaging accusations may be made against witnesses, by cross-examination and submissions, without those witnesses having any opportunity to respond or defend themselves; only the accused is protected, and only in relation to conviction for the specific charges before the court.

The proposed resolution had been drafted accordingly, and because of this it is substantially different from the rules suggested by the Committee. The proposed resolution having been drafted in this way, it subsumes recommendation 24 of the Committee, relating to the reputations of ``third persons'' in Privileges Committee inquiries.

Other modifications of the Committee's recommendation are as follows.

(1) Paragraph (a) of the Committee's recommended rules would give the Privileges Committee discretion to hear evidence in camera. Paragraph (7) of the proposed resolution would allow the Privileges Committee to hear evidence in camera only for the purpose of protecting witnesses or where the Committee considers it otherwise appropriate. It may be that the protection of witnesses should be the sole ground.

(2) Paragraph (h) of the Committee's recommended resolution would allow the person ``against whom the complaint is made'' to make submissions ``at the conclusion of the evidence''. This provision is based on the analogy with criminal proceedings. Paragraph (10) of the proposed resolution would allow any person affected by proposed findings of the Committee to make submissions on those findings before the findings are finally formulated and presented to the House.

Proposed resolution 3: Criteria to be taken into account when determining matters relating to contempt

Recommendation 14 of the Committee. The proposed resolution is cast in the form of a declaration by the House that it will take criteria into account in determining whether matters should be referred to the Privileges Committee and whether a contempt has been committed, rather than a resolution expressing an opinion as to how the penal jurisdiction should be exercised as recommended by the Committee. The proposed resolution would also require the Privileges Committee to take the stated matters into account.

Paragraph (a) of the proposed resolution contains the principle recommended by the Committee. Other matters not recommended by the Committee are suggested, as follows:

paragraph (b): the existence of another remedy, i.e., a civil or criminal action; and

paragraph (c): mens rea and reasonable excuse.

Proposed resolution 4: Matters 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

The Committee did not recommend any specification of the matters to be taken into account in determining whether a motion should have precedence, but it would seem to be desirable to give the Speaker some guidance in exercising this discretion, and to use the same criteria as the House itself would adopt to determine whether a contempt has been committed, except those which would involve any judgment of the content of an alleged contempt. The proposed resolution has been drafted accordingly.

Proposed resolution 5: Protection of persons referred to in the House

Recommendation 3 of the Committee. The Committee did not formulate a specific resolution, but suggested a series of ground rules for incorporation on a trial basis in the Standing Orders.

Modifications have been made to the procedures recommended by the Committee, as follows.

(1) The Committee suggested that a complaint of misuse of privilege should not contain ``any matter amounting either directly or indirectly to an attack or a reflection on any Member of Parliament''. It is suggested that this criterion not be adopted. It may be extremely difficult for a person to claim that the person has been unfairly attacked in Parliament without at least indirectly reflecting on a member. Such a person may well need to state that a member did not tell the truth, which would be grave reflection.

(2) The Committee suggested procedures that leave the Committee of Privileges at liberty to deal with the matter in any way it thinks fit. The proposed resolution would restrict the Committee to specific procedures and remedies. It is suggested that it would be desirable to do this to prevent undue interference with a member's freedom of speech.

Proposed resolution 6: Matters constituting contempts

Recommendations 27 to 33 of the Committee. The proposed resolution has been cast in the form of a declaration by the House, for the information of the public, as to matters it may treat as contempts.

The guidelines recommended by the Committee were taken from the Offences Against the Parliament Bill 1981 introduced by Senator Button. The Committee departed from the provisions of Senator Button's Bill in a few places, and these departures are the subject of suggested modifications.

The following comments are offered and modifications suggested in relation to the Committee's suggested guidelines.

(1) The Committee suggested, as part of its description of ``molestation'', that it would be a contempt to ``engage in any course of conduct intended to influence a Member in the discharge of his duties as a Member''. It is suggested that this formulation could be regarded as preventing normal, acceptable and democratic methods of influencing members, e.g., telling a member that a vigorous campaign will be conducted against the member in the next election unless the member votes for a particular measure.

(2) The Committee suggested a contempt involving a member receiving any benefit on the understanding that the member would be influenced in the discharge of the member's duties, or entering into any arrangement controlling or limiting a member's independence or freedom of action or involving the member acting as the representative of an outside body. Paragraph (2) of the proposed resolution contains the Committee's formulation. In so far as this is intended to relate to bribery and corruption of members, it may be regarded as already covered, to the extent necessary in a declaration for the guidance of the public, by paragraph (2) of the suggested resolution. It may be thought that the wording suggested by the Committee is too wide and could make contempts out of normal, acceptable and democratic activities, e.g., a member agreeing to be bound by the decision of the member's party, or accepting the political support of an interest group, or agreeing to make representations on behalf of an interest group.

(3) The contempt of impairing the respect due to the authority of a House or a committee has been omitted from paragraph (5), relating to disturbance of meetings. It is suggested that this phrase is too vague.

(4) The provisions referring to the publication of in camera evidence and premature publication of reports have been combined in paragraph (16), and drafted so as to be consistent with Mr President McClelland's Bill.

Proposed resolution 7: Raising of matters of privilege

Recommendation 20 of the Committee. No substantive changes are suggested to the procedures recommended by the Committee.

Proposed resolution 8: Motions relating to contempts

Recommendation 22 of the Committee. The Committee recommended that 7 days' notice be given of any motion for the imposition of a penalty for a contempt. It is not clear in the Committee's report or the recommendation whether it was intended that this apply to a motion declaring a person to be guilty of a contempt as well as a motion for imposing a penalty. It has been assumed that this was the intention, and the proposed resolution is drafted accordingly.

Proposed resolution 9: Exercise of freedom of speech

Recommendation 4 of the Committee.

The following modifications of the Committee's recommended resolution are suggested.

(1) The Committee's resolution would enjoin members to take account of the listed matters when reflecting adversely on any person. It is suggested that members should be asked to take the listed matters into account before they make a decision to reflect adversely on any person. The suggested resolution is therefore drafted to request members to consider the matters whenever they speak.

(2) The Committee's recommended resolution would ask members to take into account the damage that may be done by unsubstantiated allegations. It is suggested that members be asked to consider the damage that may be done by any allegations, whether substantiated or not.

Proposed resolution 10: Reference in court proceedings to proceedings in the House

Recommendation 8 of the Committee.

The following modifications of the Committee's recommended resolution are suggested.

(1) It would not seem to be appropriate for a resolution to reaffirm a law which is not made by resolution in the first place. The terminology of non-derogation has been substituted.

(2) Reference is made to any relevant law under section 49 of the Constitution, rather than only article 9 of the Bill of Rights, to take account of any possible interpretation of the effect of Mr President McClelland's Bill.

(3) In order to take full account of the possibility of unauthorised publication of proceedings, it is necessary to refer to any relevant law (such as is proposed by the Bill) and any relevant order.

(4) It would not seem to be appropriate for the House to be giving leave for evidence to be admitted when the courts have determined that leave is not as a matter of law necessary. The proposed resolution therefore declares that leave is not required.

(5) The resolution recommended by the Committee refers only to records and reports of proceedings and documents. It is necessary to refer to any form of evidence relating to proceedings.

Proposed resolution 11: Consultation between Privileges Committees

Recommendation 26 of the Committee. No modifications of the recommendation are suggested.


Mr LIONEL BOWEN —I thank the House. I thank members of both my Party and the Opposition for the contributions that have been made. However, I might quickly advert to a few issues. When looking at the history of matters of privilege, in which I used to take an interest in other days, we are always mindful of the fact that the Bill of Rights, as it then existed, said 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 parliament. We all took comfort in the fact that that meant that whatever we said here, whether it was in Parliament or in Committee, could not be the subject of any questioning.

It is interesting to look at the way in which the media have influenced the development of parliamentary procedures. Obviously, when the question of privilege was first thought of back in the seventeenth century, account was not taken of radio, television or an up to date Press. I am sure that the Parliament at that time was quite happy to deal rather directly with anybody who said anything about that institution. In other words, the Parliament regarded itself as being the superior court of the land, which it was and is. We now have to consider what is happening these days in terms of how we conduct committee meetings and demand that people appear and give evidence. The Press has become very virile, contentious and perhaps, to some extent in some cases, objectionable in what it thinks of us. I fully agree with what the honourable member for North Sydney (Mr Spender) said. We are pretty robust these days. We have this forum in which to reply and attack. We know that what is said in this place will not be limited to the Parliament. It will go out on the radio, the television or whatever and the people will be informed.

It is rather interesting to look at developments in this area. A question was raised in the scientology case in England about whether evidence could be admitted in that case as to what was said in the Parliament. The British, who are always pretty versatile on such issues, developed a concept that they would like to hear from the Attorney-General about what he thought. That is what happened. The Attorney-General said that it might be reasonable to admit the statement-and, in fact, a statement was made-but that there would not be any cross-examination on that matter. It was decided that perhaps the best way to deal with the admission of statements would be by petitions made to the House of Commons, which the House would then deal with. It would either accept or reject a petition as evidence that a statement was made-in other words, admit Hansard to the extent it was made. I was intrigued by that scientology case, which we used to debate when I was in opposition.

A few things have developed since then. The Uren case related to a present member of parliament who took action in respect of a certain matter. A petition was lodged in this place requesting that statements that he made be produced in the court. I objected at the time on the basis that this would mean that the privileges of that member would be determined by this Parliament, perhaps on a majority vote. I took the view that every member has his or her own privilege, which cannot be done away with by a resolution of the House. However, if we were to comply with such a petition, we would have been doing away with the privilege of a member by resolution of the House. It is interesting that interrogatories were given in the Uren case. The member concerned was asked to admit or deny in the interrogatories whether in fact he had made the statements in the House. In fact, I think he answered those interrogatories, although he had not got to the witness box. The delivery of the interrogatories highlighted the original intention that there was to be no question of asking him about whether he had said anything in the House or not.

Honourable members might recall that documents were tabled in the House in respect of the Sankey case. Again, a petition was presented. The House argued and decided that it would supply the documents. The High Court of Australia, in order to get to a position of what I would say is common sense, decided that it would determine which documents were privileged, so we lost that issue. So, within a rather short period through the 1960s and 1970s, we shifted from the position that nothing said in a parliament should ever be questioned, and certainly not in a court, to the development of a pro- cedure under which a petition could be presented and a court could determine the issue. I think that created the problem with which we now have to grapple.

Basically, what was wrong with the Murphy case-I am not saying this in any critical sense-was that committees of the Senate, having proceeded to take evidence on a matter which could have been very serious, then took some statements in camera without having the judge concerned before them. In the process of all that examination and appearance, we had the extraordinary situation that the Director of Public Prosecutions, having looked at what was done in the committee of a parliament, decided that there were grounds to prosecute for a criminal offence. It was extraordinary-it was something that should never have happened and I hope it never happens again-that a criminal prosecution was sought on the basis of what happened in a parliamentary committee. At one stage the Director of Public Prosecutions was not even considering normal committal proceedings. He took the view that what had been said before a Senate committee was enough and was going to proceed with an ex officio indictment, relying on what had been said by people in front of that committee. I think that was the wrong way to go, and I hope it never happens again. Luckily, the Murphy case went back to the committal proceedings in the normal course.

In the process of that case, which has caused this position, cross-examination was carried out as to whether statements had been made in camera to the Senate committee. In my view, what the Senate had done to protect itself was insufficient. All it did was send counsel to the court to say that it felt it had privilege of the document but that that was a matter for the court to determine. Once one says that, one is really opening up the question of whether or not this Parliament is going to make a decision about its rights. We are indebted to the honourable member for North Sydney and his committee for making this point very clear. It is about time we got some legislation to say what our rights are, because everybody was getting into the position of interpreting our rights. The Senate itself was unwise enough to suggest that it should go along and make a submission. If the Parliament is the top court in the land-as we will put that expression-we make the decisions as to what will be given.

Looking at the matter from the point of view of what has happened in the past, it is important that people have the freedom to say whatever they like in the Parliament and, when they are before a committee, they should have the opportunity certainly to answer questions but they should not be subject to further questioning on those answers-except in one instance, which I think the honourable member for Prospect (Dr Klugman) may not have understood. If we look at the relevant clause in this Bill, we see that it does not avoid the fact that the fact that a person made the statement can still be given to the court-if it is published in Hansard. So we cannot get away from the fact that a court will know that a person has made a statement. We can perhaps get away from the fact that a person cannot be cross-examined on it. But, as the honourable member for Denison said, it is not too difficult, if counsel has some imagination, to ask a witness, particularly on the basis of credibility, whether he has ever made a statement one way or another. The court itself would not allow counsel to ask a witness whether he said that to a committee, but the court would know because the transcript would be before it. I do not see any difficulty there.


Dr Klugman —But the jury wouldn't know.


Mr LIONEL BOWEN —The jury would know because the transcript would have been given to the court. We are talking about what we deal with in a committee. I draw honourable members' attention to the fact that parliamentary committees are one thing. They are really proceedings in the Parliament itself. Those committees do not necessarily have experienced questioners on them. I do not want to denigrate any members of parliament but a witness can be thoroughly confused if three or four people are trying to ask him questions at the same time. In other words, the proceedings of a committee and its efforts to get to the truth are not the same as court proceedings, and we would not want to put them on that basis. We are anxious to get to the truth but we need to be very careful, if people are going to be attacked on the basis of what happened in what we would call the cut and thrust of a committee, to ensure that a witness appearing in court is not asked `Did you not say this before the committee?', when the witness did not have the benefit of any advice and three or four well-meaning parliamentarians were trying to establish an issue at the same time. We can see that there could be some problems, so we should never put it on that basis because parliamentary committees are not bound by the rules of evidence. I am told that a parliamentary witness, perhaps under compulsion, may be asked to express opinions, feelings, suspicions and personal doubts, and to give self-incriminating evidence. Normally, none of that would ever be allowed in a court, but it can happen in the cut and thrust of committees here. It would be grossly unfair to allow a witness to be attacked subsequently on the basis of evidence which otherwise would never have been admissible in any court proceedings. I only say that in response to the interjection of the honourable member for Prospect, because the fact of the statement would have been given. If a $100 note was referred to in evidence to the Committee and no $100 note was in existence at the time, the committee ought to be able to advert to that issue, and that certainly would not prevent it subsequently being mentioned in court proceedings.

Other matters in the debate attracted my attention. I am pleased to see that the honourable member for Denison is in the House because he and I were members of the House of Representatives Committee of Privileges which dealt with a gentleman called Mr Berthelsen. We made recommendations which really follow the recommendation we have in this legislation. Clause 12 in this legislation provides that there will be a protection of witnesses and it states that people who intimidate witnesses or do certain other things can be fined or imprisoned. But in Berthelsen's case he suffered damage, and the British still have legislation for the protection of witnesses which we do not yet have. But I thought I would look up old records and I found that back in 1980 the honourable member for Denison and I were members of a committee which made this recommendation:

The Committee believes that the Parliament should consider the enactment of a Parliamentary Witnesses Protection Act which would provide both for the prosecution of persons who tamper with, intimidate or discriminate against witnesses . . . and also provide a statutory cause of action in which witnesses who have suffered intimidation or discrimination-

I would say also victimisation in this case-

would have the right to sue for damages . . .

I took the view in those days that Berthelsen had suffered damage. Whilst we have come a little way towards providing the protection and the penalties for people breaching this provision, we ought to follow it up with some legislation.

I am mindful of the fact that we have been slow in getting to this position. I want to congratulate the Speaker and the former President of the Senate on having the initiative, obviously encouraged by the Murphy case, to do something about it because the Senate's committee failed to get privilege. That was the triggering mechanism. I congratulate the Committee, which is chaired by the honourable member for North Sydney, on having the initiative to come forward with ideas. When I look back, I realise how slow we have been. I am looking at the Parliament (Privileges, Immunities and Powers) Act 1962 of Singapore, which states that witnesses certainly cannot be cross-examined:

Except in proceedings which are referred to in subsection (3) of this section, no statement made by any person in evidence before Parliament . . . shall be admissible in evidence against that person . . . in any court.

Of course, the exception really relates to the fact that there could be perjury, and that is another interesting aspect. I suppose that I will be pardoned for mentioning that even the South African Parliament, in 1963, held the view that where a committee had been given evidence a certificate would be issued stating that such evidence had been given. Once that certificate was produced to the court, that prevented any reference to that evidence, except in a charge of perjury.

I turn now to the question that was raised concerning the laws of Fiji. Fiji made this point 15 years ago:

Every person summoned to give evidence . . . shall be entitled . . .

It then makes the point:

An answer by a person to a question put by . . . a committee shall not be admissible in evidence . . . except in the case of . . . perjury.

I just make the point I have discussed with the honourable member for North Sydney. I think there is still a bit of a gap. We will be able to punish people for committing offences against the House. In clause 7, which is entitled `Penalties imposed by Houses', we will be able to fine these people, but we do not seem to have dealt with the fact that, in some cases, we might have to talk about the courts dealing with perjury. That gap exists at present. Whilst we might want to deal with people on the basis of contempt, the offence of perjury is more serious and has not been covered. The honourable member for North Sydney was concerned about the courts having evidence of what was said before the House or a committee that goes to the merits of evidence given. I think we have gone as far as we can. We will produce the evidence given but there will be no questioning or cross-examination of that evidence. The courts would be mindful when they are aware that a statement has been made that they should use their own judgment as to the credibility or otherwise of a witness.

So, after a long period we have reached the position where at last we will have our own legislation dealing with privilege. It is still not complete, for the reasons I have mentioned. There is another matter, which I have been given a signal about, in clause 6 of the Bill which is entitled `Contempts by defamation abolished'. That clause states:

Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee or a member.

That is fine. There is no objection to that. But I have to make the point that that should not, and will not, prevent the Speaker dealing with members of parliament who walk outside this House and say: `What a wretched Speaker this member is'. I do not think someone can then say: `I will take refuge in clause 6'. We need to make it clear that it would be ridiculous if we had procedures in this House which added to the prestige, the normal decorum and the understanding of what is expected of members of a House when as far as the Speaker is concerned it would be completely negated if members went outside the House and said: `Do not believe a word of what I said in there. I think the Speaker is completely partial and unfair and should not be in the job'. Honourable members can imagine the difficulty we would have in the Parliament if we said: `We cannot deal with that person as he is back in the Parliament now and protected by clause 6'. That clause states:

Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical . . .

We have a higher duty to our Speaker, the prestige of the Parliament and the privileges that we have that at least we obey the rules and do not use derogatory expressions outside. If we do we are likely to be subject to the dealings of the House, for is that not an infringement of the Speaker's rights and the privileges of the House? I thank the honourable member for that significant contribution. In conclusion, the legislation will now come into operation. The further matters that have to be discussed are the appropriate resolutions. I hope-and I know that this is the Senate's view-that we can come to some quick agreement about those matters and bring them into place. I leave the matter at that.

Question resolved in the affirmative.

Bill read a second time.