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Monday, 22 October 1984
Page: 2133

Senator GARETH EVANS (Attorney-General)(5.49) —Despite some rather extravagant suggestions that were made in the course of Senator Durack's speech to this effect, the Government has no wish whatever to do anything which would inhibit the widest possible circulation of the report of the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union when that is presented to the Government. For that reason, we will not oppose the two motions that have been moved this afternoon although, for reasons which I will spell out in a moment, the Government does not think either of these motions do anything to make the protection of those who might publish this material more certain. It is the case, as I, the Prime Minister (Mr Hawke) and other Ministers have said on numerous occasions, that we will publish the maximum possible amount of the Costigan report in the form in which it is presented to us, having regard to only two considerations. They have been spelt out by the Prime Minister most specifically, I suppose, in his speech in the House of Representatives on 2 October when he said:

Firstly, should anything be published the publication of which would effectively hinder the prosecution of organised crime? Secondly, would its publication involve an undue and improper infringement of the civil liberties of an individual?

We will be making judgments about those matters after consultation with the Victorian Government and with the Director of Public Prosecutions, the Australian Federal Police, the National Crime Authority and the experts within the Attorney-General's Department. But they will be the only criteria we are applying and we would be hoping that a very great deal of the Costigan report would be able to be put very quickly into the public domain.

We would propose to maximise the protection available to those who would publish the material by releasing it ourselves in three different ways. Senator Durack has referred to each of those in the course of his contribution, but let me track over the territory again. The first way is by tabling the report, in the form in which we think it appropriate for publication, in the Victorian Parliament. That means absolute protection within Victoria and, certainly clear protection, at least to the extent that no malice is involved in any subsequent publication, for fair extracts of that report published in New South Wales. That is the case in New South Wales simply because the statute law of that State is perfectly clear about reciprocal privilege extending to reports and other materials published in other State parliaments. There will also be protection of the same order as that afforded by New South Wales law in the Australian Capital Territory as a result of an ordinance, the text of which I have just approved a few days ago and which is on the point of promulgation at the moment.

Elsewhere the situation is, as Senator Durack has pointed out following my own remarks to that effect in this place, a little bit less clear. In Queensland and Tasmania it appears that special protection would be available to people under the law of defamation if the report were to be regarded as coming within the State laws referring to inquiries held by the authority of Her Majesty. The question that arises from the context in which that reference appears is whether the provision is limited to inquiries held by the authority of Her Majesty in right of the State of Queensland or the State of Tasmania, as the case may be, or whether it extends to Her Majesty in other manifestations. In Western Australia, protection is given to the publication for the information of the public of the fair report of an inquiry held, among other things, under Commonwealth law. This would seem to be a clearer protection although it is a matter for argument, I suppose, whether this applies only to a report of the proceedings or extends to the report by the inquiry itself and how it operates, particularly where the document is the report by the inquiry with parts of it omitted. There does not seem to be any relevant statutory provision at all in South Australia or the Northern Territory bearing upon this which means that one is left to the uncertainties of the common law where, indeed, some protection may be available under the general rubric of qualified privilege but it is not possible to say that with any enormous confidence, and we have been quite frank about that.

So that is the main vehicle through which publication, certainly at least in the more populous parts of Australia, will be assured. But there are two other channels which we endeavoured to clarify. The second one was distribution to members of the House of Representatives by the Speaker following receipt by the Speaker himself of the report and communication to members pursuant to the resolution, as Senator Durack has said, which was passed in the House on 11 October. With the House of Representatives about to be dissolved, clearly there can be only limited protection utilising the forms of the House of Representatives. What essentially is involved in this particular provision is an endeavour to clarify the basis on which a claim at least of qualified privilege could be made by the Speaker and by members respectively. It is not a large protection, but it is worth having and it is available as a matter of common law where there is a sufficient mutuality and reciprocity of interest on the part of the giver and the receiver of the information, which would certainly seem to be the case here.

The third channel, which is controversial in terms of the motion which has just been moved, is in the same terms of 'distribution to senators by the President of the Senate' pursuant to the motion which we passed in this House on 11 October. This again provides for only relatively limited and qualified privilege to obtain and is only declaratory, of course, rather than necessarily accomplishing that in its own terms. But the reason it went only as far as that is that the Government perceived that that is as far as we could in fact go as a matter of law, even though it is of course the case that the Senate is not and will not be actually dissolved in the same way as the House of Representatives. That particular conclusion on the question of law is challenged by the two Opposition motions now before us. As I said, we will not oppose the passage of those two motions. If they prove, should the matter ever be tested, to generate some extra protections, that is well and good. If they do not-and we believe they will not-certainly nothing is lost by the exercise. On that basis it would be wrong to oppose what is occurring.

Because this is something that will undoubtedly be pored over as a precedent for something or other in the future, let me spell out for the record why I and the Government take the view that nothing is added to the resolution we have already passed by the two propositions now before us. Let me begin with notice of motion No. 166 which basically seeks to bring within the protection of the Parliamentary Papers Act the communication of the report in question. Of course, were that to succeed, the Parliamentary Papers Act would afford absolute protection to those of us handling the material in the first instance and anyone else, for that matter, who published it. But it is the Government's view and my view that the provisions of the Parliamentary Papers Act cannot be applied prospectively so as to secure protection for a report which has not yet been laid on the table of the Parliament. There is a long line of Attorney-General's Department opinions to that effect, with which Senator Durack will no doubt be familiar, stretching back into the dim past, but I believe those opinions are well-founded. If I can be fairly swift about it, the reasoning is based, first of all, on the language of section 2 (1) of the Parliamentary Papers Act which says:

It shall be lawful for the Senate, the House of Representatives or a joint sitting to authorise the publication of any document laid before it.

The $64 question-and it is an esoteric, grammatical one of the kind that lawyers delight in, I readily acknowledge-is: Is the word 'laid' in its context here a simple past participle meaning 'has been laid in the past', or is it rather a contracted form of the future perfect meaning 'may be laid in the future'?

Senator Durack —I thought you were a proponent of the purposive construction.

Senator GARETH EVANS —Applying purpose techniques of construction, as Senator Durack has just reminded me I am usually keen to do, I think the compelling consideration in favour of the more conservative construction, namely, 'has been laid on the table in the past', is that the Parliament can hardly be taken to be authorising the publication of a document which has not yet been laid on the table and which may not yet even have been created when by doing so and giving it that protection it is in fact denying litigants out there rights of action which they might otherwise have. Let there be no doubt about it: For a resolution to be passed in terms of the Parliamentary Papers Act provision, while in a sense of enhancing the freedom of speech of those of us who might be the authors of the document or want to communicate it, equally clearly is an inhibition on the rights of others who might otherwise have an action in defamation. The view that has been traditionally taken by the Attorney-General's Department, I think accurately, is that when so much hangs on the content of the document as far as the rights of individuals are concerned courts would be very much inclined to adopt a construction of the legislation which would require Parliament at least to have actually seen the document before deciding to give it that kind of protection. I think that construction is particularly compelling in the context, as here, of a document which is externally generated rather than being the report of a parliamentary committee or part of the output of the Parliament itself. One has to take the legal argument a stage further and look at the force of sub-section (1A) of section 2 which is a deeming provision and which I shall read into the record as follows:

Where a document is dealt with in such a manner that, in accordance with the rules or orders of a House of the Parliament, it is to be deemed to have been presented to that House, the document shall, for the purposes of the last preceding sub-section, be deemed to have been laid before that House.

The legislative history of that provision has nothing whatsoever to do with the context we are presently debating. It was put there in 1963, as I understand it according to Sir Garfield Barwick in his second reading speech, to make it possible for various things that have taken place in accordance with the House of Representatives amended Standing Orders to be the subject of this protection rather than as contemplating any prospective operation so as to cover documents which may be the subject of some resolution now but in relation to a future tabling. Be that as it may, it may well be that the literal meaning of (1A) is such that it can apply to this situation and thus enable, on the force of Senator Durack's motion, the particular Costigan report to be now deemed to have been laid on the table. The difficulty about that, however, is that it still does not get us home in applying the terms of section 2 (1) because 2 (1) requires a resolution to authorise the publication of a document which has been laid or deemed to be laid, as the case may be, on the table. I read that, and certainly the Attorney-General's Department reads it, as requiring a motion for the authorisation of publication again to be passed chronologically after the document has been laid on the table or deemed to be laid, as the case may be. Of course, by this motion we are not authorising publication after the document has deemed to be laid on the table. We are doing it contemporaneously or in a sense slightly prior to that-certainly prior to the actual laying of the document on the table.

For all those complicated reasons it is the view of the Government that notice of motion No. 166 simply will not do the job that Senator Durack claims it will do; that is, give prospective protection to this document which is not yet in existence but which will be communicated to the President and the Speaker after it has been received by the Government and appropriately looked at. That brings us to the second motion. The same question--

Senator Haines —Do you reckon you can do it in 25 words or less?

Senator GARETH EVANS —No, but I am working on it. Senator Durack was going to speak for 10 or 12 minutes, I think he told me, and he took 28; I will be rather brisker than that.

Senator Haines —Not much, the way you are working on it.

Senator GARETH EVANS —I am working on it. There is only another page. All I want to say about notice of motion No. 164 is that it relates to the sitting of the Senate or committees of the Senate after the House is dissolved. It seems to be an attempt to assert the continued operation of the privileges of the Senate and its committees where there is real legal doubt as to whether those privileges can continue. The assertion seems to be being made in this proposed resolution perhaps so that we can get the benefit of any absolute privilege that would exist were the Senate to be reconvened after the House of Representatives is dissolved. But it also seems to be being advanced, if I understood Senator Durack correctly, simply perhaps to give some additional weight to the notion that the communication of the Costigan report to the President and his subsequent communication to members of the Parliament constitutes a ' parliamentary proceeding' in terms that might again attract common law privilege rather than just that available under the statute.

For whatever reason the motion is being advanced, I simply make the point that there are very strong legal doubts-indeed, they have been acknowledged by Senator Durack himself-whether the Senate can in fact meet after a dissolution of the House of Representatives and continue, while so meeting, to enjoy the powers, privileges and protections normally available to it. Senator Durack referred to the conflict of legal advice about this. Like him, I do not want to canvass the merits of it in detail. I notice that we have the Ellicott opinion of October 1972 and the Griffith opinion of this year-that of the present Solicitor-General-supported also, in passing, by two earlier opinions that were tabled today by the President from Mr Greenwood and Professor Geoffrey Sawer, all concluding that the Senate could not sit after the House of Representatives had been dissolved and to a large extent, basing that reasoning on the language of section 5 of the Constitution which talks about the Parliament as a whole rather than Houses of it. Against that, there is only the contrary opinion, long and interestingly argued though it may be, from Professor Howard in March 1973.

For present purposes it is not necessary to get into that argument. Whatever the law is-it might eventually have to be tested in some context because there is doubt about it-it is not affected in any conceivable way by the terms of, and the case cannot be advanced by the passage of, motion No. 164. Either the Senate has the power to sit with its privileges intact after the House of Representatives is dissolved, in which case this motion is otiose-unnecessary, redundant-or the Senate does not have the powers to sit with its privileges intact as the law now stands, in which case we cannot attract those privileges by any motion of this kind.

Senator Durack —Professor Howard has some quite compelling arguments that you can.

Senator GARETH EVANS —I would like to see Senator Durack quoting Professor Howard with as much passion as that on the events of 11 November 1975 because his reliance on the good professor is very selective indeed. Whilst under section 49 of the Constitution there is little doubt that Parliament could legislate to attract privileges to itself in a fairly open ended way, unless one hangs one's hat on very flimsy argument indeed it is impossible, I believe, to advance the cause in any way by a motion in the terms here proposed. That is the reason why the Government puts on record its belief that these motions will not be effective. That is the reason, and this is, of course, why I spell it out now , why we did not move in those terms although we were urged by the Clerks, properly cautious as always, to do so. The reason we did not put the motion originally in those terms was not because of any desire to minimise the protection afforded to the Costigan report or to create any degree of uncertainty about it but simply because we believe, for reasons that I think are compelling, that to put a motion in those terms would be ineffective. All that said, the passage of these motions cannot do any harm, even if it will not do any good, and we will not oppose them.