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Tuesday, 16 April 1985
Page: 1029

Senator DURACK(2.47) —The Opposition supports the motion moved by the Minister for Resources and Energy (Senator Gareth Evans) on behalf of the Government that the Senate do not accede to the petition presented to us by Messrs Steve Masselos and Co., solicitors for Judge Foord. My Party adopts the reasoning that Senator Evans used in support of that motion. The position is that the letter that you, Mr President, received from the solicitors enclosing what they call a petition, which is really a very detailed letter and explanation of what they are about, makes it quite clear in the reasons for the request set out on page 3 of the letter that they wish to use the statement that Mr Briese made to the Senate Select Committee on the Conduct of a Judge last year, which statement was subsequently made available to the Senate Select Committee on Allegations Concerning a Judge, the second Senate committee on the subject, for the purposes of cross-examination of Mr Briese, who is a witness in the committal proceedings against Judge Foord, their client. They are at pains to say that they do not seek to use that statement by Mr Briese for the purpose of commencing or supporting any action against Mr Briese, which of course would be the clearest possible breach of privilege. However, they say:

We do . . . challenge his-

Mr Briese's-

veracity on a number of matters. It is only by being able to quote to him what his statement contains that alternative propositions can be put to him.

However, it is quite clear on all the authorities that it would be a breach of privilege to use the statement in the way in which they say they propose to use it just as much as it would be to seek to take action against Mr Briese, if that was open to them in any way. The most obvious protection that the privilege of the Bill of Rights confers on us as parliamentarians is that we cannot be sued for defamation for anything said in a parliamentary chamber. However, it is also held in the cases-I do not want to quote them or to go into them in any detail-that statements made in the House cannot be used to the disadvantage of a person in proceedings which have arisen out of things said outside the House but that something said in the House might be used in the way in which the solicitors clearly intend to use the statement of Mr Briese. It is also, I think, perfectly clear that Mr Briese, who was a witness before the Senate committees last year, is equally protected by privilege as would be any member of parliament in respect of what he said as a witness or in the parliamentary proceedings.

It is perfectly clear from the petition that its purpose is that Mr Briese be subject to cross-examination in a way which would be in breach of privilege if this statement were available for use by the solicitors. It is perfectly open to counsel for Judge Foord to argue that this would not be a breach of privilege. It is for the courts to decide what is the ambit of privilege so that if counsel wanted to argue, contrary to my views, the views expressed by Senator Evans, it would still be open to counsel to do that in the proceedings. I think it is perfectly clear that privilege is extended in this way but, as I said, it is quite open for counsel to argue the matter. In that respect I believe that the petition being presented to the Senate is misconceived.

I agree with Senator Evans that this chamber does not have the power to waive privilege. It is a privilege conferred by the application of the English Bill of Rights of 1688 by section 49 of our Constitution. I do not think it is open to one House of the Parliament to waive or alter it. A declaration of both Houses of Parliament or another Act of Parliament would be required to change it. I think it is perfectly clear that we could not effectively waive it. Let us imagine the situation if a senator or member were sued for defamation. It is just inconceivable that the mere resolution of the chamber to waive a privilege would have any effect whatever on the litigation in which he was engaged. He and his counsel would be arguing that he was protected by the statement he made in parliament. If the chamber, to use the words of the petition, 'waived the privilege', it could not possibly affect the legal protection that he has.

I think the petition that we have received is quite misconceived. The legal rights of Judge Foord, as I said-if I, Senator Evans or all of us are wrong-can still be argued in a court. Maybe a court would take a different view, but I think that the propositions that are being brought before the Senate are misconceived and that we should accede to the motion that has been moved and not take any action to accede to this petition.