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Wednesday, 3 October 1984
Page: 1141


Senator GARETH EVANS (Attorney-General)(5.59) —I present the final report of the Joint Select Committee on Parliamentary Privilege, together with minutes and a letter of advice from the Secretary of my Department to Mr Spender , the Chairman of the Committee. I seek leave to move that the Senate take note of the report.

Leave granted.


Senator GARETH EVANS —I move:

That the Senate take note of the report.

This is a long and important report which has been two and a half years in the making, during the last Parliament and this. It is a systematic and comprehensive review for the first time in the history of the Commonwealth Parliament of the whole law and practice of privilege. It comes forward with a series of recommendations for change, most of them unanimous-certainly none of them the product of a vote on party lines-which recommendations are proposed to be implemented partly by statute, partly by amendments to the Standing Orders of the respective Houses and partly by resolutions of the respective Houses. Most of our recommendations were set out in the exposure draft report which was tabled in June and they have had the benefit of a number of very useful comments by senators, members and others. I seek leave to incorporate a document which sets out briefly the principal recommendations as they appear in the final report.

Leave granted.

The document read as follows-

PENAL JURISDICTION

That the penal jurisdiction be retained in the Parliament itself. There have been a number of suggestions that the capacity to deal with breaches of privilege and contempts should be transferred to the courts or some other tribunal. However, after careful consideration the Committee believes that the arguments in favour of retaining the exercise of the penal jurisdiction within Parliament outweigh those in favour of transfer;

That the penal jurisdiction should be exercised as sparingly as possible and only when necessary to prevent substantial interference with the work of the Parliament, i.e. it should never be exercised in connection with complaints of a trivial character;

That with one major exception there be no substantive change in the law concerning contempt, but that the Houses adopt a set of guidelines which will indicate those matters which may be regarded as contempts. This action would serve to advise the community of Parliament's thinking but would not result in Parliament losing its capacity to take action against matters which may not fall under any particular headings;

The exception is that the capacity for Parliament to take action against a person for what is known as a defamatory contempt should be abolished, or failing that, defences, including that of truth, or an honest or reasonable belief in the truth of the statement, should be available.

TREATMENT OF COMPLAINTS

That complaints should be raised in writing with the Presiding Officer, instead of the present early public raising, with the Presiding Officer subsequently giving a decision in his House if a matter was to be accorded precedence;

That hearings of the Privileges Committees, and the rights of parties involved in inquiries, should be reconstituted to meet requirements of natural justice, in particular, that there should be a right to full legal representation;

That the Houses should, by statute, be given the powers to commit to prison for a period not exceeding 6 months and to impose fines;

That, where it is proposed that a penalty be imposed, 7 days notice be required ;

That the power to expel Members be abolished;

That where a person is committed, the resolution and the warrant should each state the grounds of the commitment, thus permitting a very limited involvement by the High Court which would ascertain whether there was, in fact, such a ground.

PROCEEDINGS IN PARLIAMENT

That, for a trial period, there be a limited right of reply to non-Members who believe that they have been subjected to unfair or groundless attack in Parliament. The proposal is that such persons could refer complaints to the Privileges Committee of the relevant House. There would be certain ground rules, for example, that the complaints should be confined to factual answer and not contain an attack on the Member involved. The Committee would be able to recommend that the rebuttal be incorporated in some form in the parliamentary record;

An expanded definition of proceedings in Parliament;

That the laws of qualified privilege as they apply to reports of proceedings of the Parliament be modified to produce uniformity throughout Australia in the publication of fair and accurate reports of proceedings;

That the practice of requiring leave to be granted for reference to be made to parliamentary records (usually Hansard) in court proceedings and before Royal Commissions and other specified tribunals be abandoned and that, for the limited purpose only of enabling it to be proved as a fact that certain statements had been made, permission be given for reference to be made without leave, without in any way permitting Article 9 of the Bill of Rights to be infringed.

PARLIAMENTARY COMMITTEES

That Parliament enact a Witnesses Protection Act, which would make it a statutory offence to threaten, punish or injure, or attempt to do so, a person on account of evidence given or to be given before a parliamentary committee. Witnesses would also be given a right to initiate civil proceedings for damages;

That a detailed series of guidelines for the conduct of ordinary committee (i.e . non-privilege) inquiries be adopted.

Other recommendations include modifications in respect to the immunity from attendance as a witness, and the immunity from civil arrest.


Senator GARETH EVANS —If there is any single theme running through the report it is that parliament should never take itself in its own role so seriously that the rights and liberties of others are threatened in the process. It is important that parliamentarians retain an unfettered right of free speech and that they be completely unhindered in the exercise of their public duties, but it is not right that in the guise of protecting these privileges there should be severe limits imposed on the capacity of others to express views about parliament and parliamentarians. It is not right that there should be a capacity within parliament to injure reputations carelessly and indefensibly without any form of redress or at least a reply being available. It is not right that when defending rights and privileges, parliament and parliamentarians should be able to run kangaroo courts wholly indifferent to the principles of natural justice.

I believe probably the most important of all the recommendations in the report are those dealing with so-called defamatory contempts on which recommendation the Committee was divided, but where the majority view was that the right of parliament to punish people for defaming the institution or members of it should be wholly abolished. I refer in this respect to what I said in the Senate on 29 April 1982 when the Committee was first being established. I made particular reference in the course of those remarks to the Laurie Oakes privilege proceedings, the conduct of which by the House of Representatives was, I believed then and I believe now, something that did more to bring parliament and parliamentarians into disrepute than anything that occurred in the now notorious article that was the subject of those proceedings. What I said on that occasion was this:

. . . we have tended to lose our way, to lose our sense of bearing in dealing with privilege matters, particularly insofar as we have continued to treat as actionable breaches of privilege actions or statements, which merely offend our dignity or are perceived to affect our reputations, which can be regarded as defamatory in some way but which do not interfere with or obstruct in any meaningful fashion, any understandable fashion, the operations of Parliament itself.

Later on I said:

I believe that the content of breach of privilege should be completely redefined so that anything that really does obstruct or interfere with the proper working of Parliament, such as bribery, corruption or physical interference, is briskly and severely dealt with while anything that merely offends our dignity, whether individually or collectively, or pricks our self- importance in some way is outside its scope.

I believe that in our final report we have gone some way down this particular path as well as, of course, quite a number of other paths. In the process we have shown the way for action to be taken which will give some real weight in practice to the values of free speech in respect of individuals about which we constantly talk in terms of principle.

Finally, I pay tribute to the work put into the production of this report by a great number of people, in particular a number of parliamentary officers led very ably by the Secretary to the Committee, Mr Bernard Wright, and by members of the Committee themselves, most of whom served the Committee over the whole two-and-a-half-year period of its existence. I believe the person deserving the most credit for bringing the report to fruition in its final form is the Chairman of the Committee, Mr John Spender, QC, the member for North Sydney who with, it must be said, the active consent of the Government retained his position as Chairman notwithstanding the change of Government in March 1983. John Spender and I have quite profound personal and political differences on almost every conceivable subject, but on the question of privilege we have been, as Chairman and Deputy Chairman of the Committee respectively, of very similar mind, much to the alarm of Senator Peter Rae-not to mention Senator Jessop- throughout the whole exercise. I pay tribute on this occasion to the energy, the industry and the capacity with which John Spender has stuck to the task and has welded together, out of all of the disparate strands of opinion which exist on this subject, a report which will, I believe, if it is implemented, as it should be by this Parliament, stand the test of time for a good many decades to come.