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Wednesday, 3 October 1984
Page: 1144


Senator JESSOP(6.06) —I too wish to make a few comments on the report of the Joint Select Committee on Parliamentary Privilege and indicate that generally I am quite pleased with the thrust of the report. I wish to refer to one or two matters associated with the dissent that has been included in the report. Madam Acting Deputy President, you will recall that Senator Peter Rae and I drew the attention of all senators and members of the House of Representatives to one or two things that we thought required their consideration. It might be appropriate for me to seek to have the document entitled 'Matters requiring your attention' incorporated in Hansard so that it will be on the record.

Leave granted.

The document read as follows-

AUSTRALIAN SENATE

Canberra A.C.T.

TO ALL SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES

Dear Colleagues,

DRAFT REPORT OF THE JOINT SELECT COMMITTEE ON PARLIAMENTARY PRIVILEGE

Matters Requiring Your Attention

The Joint Select Committee has decided to present a draft report to both Houses and allow time for Senators and Members to comment upon the recommendations contained in the draft before a final report is presented.

We support most of the Committee's draft recommendations. In particular, we support the conclusion of the Committee that there should be no general transfer of the powers of the two Houses to the courts.

In relation to some of the draft recommendations, however, we have reservations . One of these recommendations involves a quite unjustified extension of parliamentary privilege to matters unconnected with parliamentary proceedings, and two other recommendations would have the effect of undermining the Committee 's intention not to transfer powers to the courts, and would allow an avenue for a de facto transfer. These recommendations we regard as unnecessary and unduly restrictive of the powers of the Houses and, in the instances referred to, quite dangerous. Our reservations are indicated in the relevant parts of the draft report.

There cannot be any more important subject for the Parliament than the powers and immunities of the two Houses; if they are undermined the Parliament cannot function effectively and will wither as an institution.

All Senators and Members are therefore strongly urged to consider the draft report and, in particular, the matters we have raised.

We would be pleased to receive any views of Senators and Members on the draft report and on those specific matters.

The following are our reservations about the draft report.

Proposed Definition of Proceedings in Parliament

We do not consider that, because there are no court judgments on specific questions in the area of parliamentary privilege, it should be assumed that the answers to those questions are 'doubtful' and therefore require statutory treatment to remove the supposed doubt. In particular, there is no basis for the supposed doubt about whether parliamentary committees meeting outside the precincts have privilege: it is clear that parliamentary privilege is not a geographical concept. The proposed statutory definition is therefore unnecessary in our view.

We consider that it is unnecessary and dangerous to extend absolute privilege to correspondence with Ministers. Such correspondence is already covered by qualified privilege, and this is sufficient in our view. To give it absolute privilege would allow a member to be malicious in his dealings with Ministers without fear of legal redress. Absolute privilege should be restricted to proceedings in the Houses and their committees and matters closely connected therewith.

The proposed definition deals only with the meaning of 'proceedings in Parliament' in the context of defamation actions, but the immunity contained in the Bill of Rights applies to other actions as well. The definition could create an anomaly in that the expression 'proceedings in Parliament' could be taken to have one meaning in defamation actions and a different meaning in other legal proceedings.

Immunity from Civil Arrest and Attendance as Witnesses

We consider that there is no need to alter the duration of the immunities; the practical effect of the common law rule as to their duration is that they are permanently in existence. We consider that the proposed statutory provisions would create more anomalies and uncertainties than exist at present; for example , it may be difficult for a court to ascertain when a parliamentary committee is meeting, and a member could extend the duration of the immunity simply by ensuring that he is involved in a large number of committee meetings.

Defamatory Contempts

We consider that it is unnecessary and undesirable to 'abolish' the category of contempt by defamation. If this is to be done by resolutions of the Houses ( which would be logical, since the Committee has not recommended the transfer of the contempt jurisdiction to the courts), such resolutions would not be binding on the Houses in the future in any case. If it is to be done by statute, this would allow the courts to review virtually every contempt case, because most contempts hinge on publication in some form, and an action could be brought in the courts to establish that any contempt fell within the statutorily prohibited category. The Committee has already rejected such review by the courts elsewhere in the draft report.

It may not be possible in particular cases to clearly distinguish between contempt by defamation of the Houses and their members and contempt by intimidation of members.

Warrants of Committal

We do not consider it is necessary to adopt the recommendation concerning warrants of committal. In our view, if the Houses are to be trusted with the power to deal with contempts, as the draft report proposes, there is no point in inviting the High Court to rule on particular cases of contempt.

Expulsion of Members

In our view there is no justification for abolishing the powers of the Houses to expel members. The contention that the House of Representatives abused the power on one occasion is no reason for its abolition. It is irrational to say that the Houses can be trusted with their powers in relation to contempts but not with this power over their own members.

(Don Jessop) (Peter Rae)


Senator JESSOP —The Attorney-General (Senator Gareth Evans) mentioned the question of defamatory contempt. In the document which I have just incorporated Senator Rae and I drew attention to the following points:

We consider that it is unnecessary and undesirable to ''abolish'' the category of contempt by defamation. If this is to be done by resolutions of the Houses ( which would be logical, since the Committee has not recommended the transfer of the contempt jurisdiction to the courts), such resolutions would not be binding on the Houses in the future in any case. If it is to be done by statute, this would allow the courts to review virtually every contempt case, because most contempts hinge on publication in some form, and an action could be brought in the courts to establish that any contempt fell within the statutorily prohibited category. The Committee has already rejected such review by the courts elsewhere in the draft report.

It may not be possible in particular cases to clearly distinguish between contempt by defamation of the Houses and their members and contempt by intimidation of members.

We went on to talk about warrants of committal and expulsion of members. Senator Evans mentioned the Laurie Oakes case. The House of Representatives Standing Committee on Privileges took umbrage at what was said by Laurie Oakes at that time. The Senate Standing Committee on Privileges, of which I was the Chairman, decided that it would not dignify the gentleman in any way and certainly would not want to bring him before the Senate Privileges Committee. I think the results prove that that exercise was futile in any case. I am very pleased with one aspect of the report which I think will be of quite considerable value to both the Houses of this Parliament, and that is in respect of proceedings in parliament. The report recommends:

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 for the purposes of defamation proceedings;

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;

I think the matter to which I referred earlier-the right of reply of non-members -is a progressive step because members of parliament seem to be brought into disrepute on some occasions by members or senators attacking under privilege members of the public or of the Public Service. I think this is an unfair way to lodge any criticisms against people outside the Parliament. This recommendation will help to overcome that problem and perhaps persuade senators and members to think very carefully before they attack under privilege people who are outside this House. I believe that it will go a long way to restoring some sense of responsibility among some members of the Senate and the House of Representatives and may help to restore the reputation of members of parliament in the eyes of the community. I sincerely hope it does. We have suggested that this recommendation be carried out on a trial period of 12 months and that either House of the Parliament can continue that practice if it so chooses. Madam Acting Deputy President, I draw your attention and that of the rest of the Parliament and of the Senate in particular to the minority report that has been put forward by Senator Peter Rae and me because we believe that our minority report is more consistent with the general thrust of the total report.

In conclusion, I wish to endorse what Senator Gareth Evans said about the chairmanship. Mr Spender worked hard on this matter, as did Bernard Wright of the House of Representatives. Mr Harry Evans, who assisted us in an advisory role, was immensely helpful to me and to other honourable senators in providing advice with respect to this important subject.