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Tuesday, 16 October 1984
Page: 1734

Senator CHANEY —My question is addressed to the Attorney-General. I refer to matters raised in the House of Representatives last week about the issue of the report of the Costigan Royal Commission into the activities of the Federated Ship Painters and Dockers Union pursuant to a resolution in that place, and to the warning given by the Speaker that no absolute privilege would attach to the copy of the edited Costigan Commission report which would be received by members . Reference was made to advice given by the Attorney-General on this matter and Dr Jenkins issued the warning that honourable members should be aware that copies of the report to be provided to them in accordance with the proposed resolution would not attract the absolute privilege which applies to papers tabled in the House and duly authorised for publication. I note also that the Government has not made any comment on the suggestion by Dr Jenkins on the question of whether or not the Government should indemnify members of parliament for the use of the document. I ask the Attorney: Would the problem that he has identified for Dr Jenkins be removed if the Costigan report were tabled in the Senate in the normal way?

Senator GARETH EVANS —The question of the privilege attaching to reports is a difficult one at the best of times and even more so in the context of the dissolution of a House and the status of the Speaker of that House after such dissolution. Generally, in the circumstances of this case, if the report is tabled in the Victorian Parliament, as it is the Government's intention to arrange with the co-operation of the Victorian Government, of course absolute privilege will attach to the report in that jurisdiction and the 'fair report' qualified privilege will also attach to it there. Whether that privilege extends beyond the boundaries of Victoria is in turn a vexed affair. The New South Wales legislation seems to make it clear that it does but legislation elsewhere is much less certain. That again points arguably to the necessity for a national defamation law to resolve these questions once and for all.

Whether the situation would be any better were the report to be tabled in the Senate is very much a matter for argument. Although, of course, the Senate is still in existence in the way that the House of Representatives is not the latter having been dissolved, there is a real question as to whether it is part of a parliament for the purposes of attracting the 'proceedings in parliament' privilege after the House of Representatives as a component of the Parliament has itself been dissolved. So, quite irrespective of whether the Senate is in session, that particular question may have to be litigated in some context or other. Of course, the Government has indicated its willingness to present the report to the Senate, through the President, in the normal way that committee reports are presented to the Parliament during periods of recess. There has been some discussion about whether the terms of the resolution by which that intention was conveyed last week are adequate for the purpose. I gather that there will be some further discussion of that before the week is out.

I do not think that any short answer can be given to Senator Chaney's question because of the whole series of different variables and considerations which have to be taken into account. Only a very confident lawyer would advise his client of the ultimate chances. My view is that a qualified privilege would certainly obtain on traditional principles in this area as far as the communication by the Government to the President is concerned, and the President in turn to members of the Parliament. Therefore, I would not anticipate any particular difficulties , at least at that level.

Senator CHANEY —I ask a supplementary question, Mr President. I appreciate the Attorney-General's concern about the type of lawyer we would need to get advice from in this matter and the need to be very confident, but would he agree that, if there are any doubts in this matter, there would be fewer doubts if in fact the document were actually tabled during a sitting of the Senate?

Senator GARETH EVANS —I thought I made it clear that that is one of the key questions very much in issue as to the status of Senate proceedings at a time when the House of Representatives has been dissolved.

Senator Durack —What about committees of the Senate?

Senator GARETH EVANS —Competing opinions are in existence on this question as far as the capacity of Senate committees to sit and attract privilege are concerned.

Senator Durack —They have sat.

Senator GARETH EVANS —I know they have sat, but even a lawyer of Senator Durack' s approach to the discipline would appreciate that the precedent value of having sat in such a way in the past does not amount to a row of beans when it comes to the status of the proceedings should someone choose to challenge those proceedings and seek the protection of the law of defamation in relation to anything that happened therein. I honestly cannot be any more precise than I have been in my initial answer to Senator Chaney's question.

The PRESIDENT —Order! On the matter that has been raised by the Leader of the Opposition, I should say that the Speaker's remarks have been drawn to my attention. I expressed some views of concern to the Attorney-General by way of memorandum to him yesterday and the Attorney-General has undertaken to respond to my submission.