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Tuesday, 23 April 1985
Page: 1382


Senator MISSEN(5.18) —by leave-I move:

That the Senate reconsider its decision to deny the petition lodged on behalf of Judge Foord, made on 16 April 1985, and further consider the statements of the President made on 28 March 1985 and 16 April 1985, relating to interventions by the Senate in actions commenced against Mr Justice Murphy and Judge Foord, and the general powers and responsibilities of the Senate in regard thereto.

I feel it necessary to raise this matter at this stage because I believe that the decision made last week by the Senate needs to be reconsidered because the basis on which we made it was wrong. I believe that what has transpired needs to be reconsidered today because the trial of Judge Foord is already before the court and is at the stage where a submission of no case to answer has already been raised. Before the Senate meets again the question of the determination or otherwise of Mr Justice Murphy's action will be taken a further stage. I believe the decision made by the Senate last week was mistaken, and I wish to give some evidence of that and to refer to some of the statements that were made. I say this with no disrespect to you, Mr President, because I believe that there is some mistake in the advice you were given, which advice has been upheld by both Senator Gareth Evans and Senator Durack. I find myself in disagreement with the advice on which the Senate acted.

Last week the Senate said that it had no power to waive its privilege and to allow the material the respective counsel for those two gentlemen had sought to allege and use in court to be used. My view is that that is wrong. The Senate has that power and the question that arises is whether we would, in our discretion, grant that permission. Therefore, I believe that the decision that was made a week ago was mistaken because it was based on a false premise.

I refer in my motion to two statements, one of which you, sir, made on 28 March 1985 relating to the action taken by counsel on behalf of the Senate in respect of the action taken against Mr Justice Murphy. I should refer also to the statement you made on 25 March. Both of those statements are matters that are to be taken note of by the Senate and are on the Notice Paper but have not yet been dealt with. Motions were moved in both cases by Senator Chaney to refer both statements to the Senate, but they have not been discussed by the Senate. But more significant, sir, is the statement which you made on 16 April 1985 and which was followed by two motions in the Senate. One was a motion by Senator Gareth Evans to take note of the statement, which likewise remains undebated in the Senate. There was a further motion refusing leave for counsel for Judge Foord to use the evidence in the trial in which he is presently involved. In that statement, sir, you made reference to the proceedings and to the powers under section 49 of the Constitution, which provides:

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

These incorporate the particular important provisions which are included in Article 9 of the Bill of Rights which you referred to as:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

I take the view that what is being done is not that of questioning or impeaching this. But this does not entitle one to conclude that it is not possible to deal with or to have reference to these statements out of Parliament. It is perfectly proper in my view for defendants who desire to raise the question of their right to liberty and to raise a question of inconsistent statements made by witnesses before Senate committees. I take it that is not a matter of impeachment or questioning out of Parliament. Yet you have concluded, sir, in that statement that this does have that effect. I refer to the first statements that I challenge, namely, the ruling that a statement made by a Senate committee is protected by parliamentary privilege and cannot be examined in court proceedings. I do not accept that. Also in your statement you said:

. . . in the course of committal proceedings in this way, I make no apology for taking the steps required to uphold the vital principle that what is said and done in the course of parliamentary proceedings may not be examined in any body other than the House concerned.

Again, I do not think that is correct; I do not think it is not possible to examine such statements elsewhere. Likewise, Senator Gareth Evans, in speaking on this matter, said:

. . . as I have indicated, I think there is room for further consideration of how one handles these situations in practice in the future.

Therefore, the matter is left open. On the other hand, he comes to a conclusion that the statements which you have made are correct. He said:

Under those circumstances, Mr President, it would seem to me-and I understand that this is the view of others around the chamber who have had an opportunity to look at it-that this is a very clear case of the direct proscription in Article 9 of the Bill of Rights being infringed and as such not something that ought to be contemplated.

Likewise, at the end of his statement, he says:

. . . I think the overwhelming balance of opinion would be in favour of there being an absolute prohibition on such evidence being able to be dealt with in that way.

At that stage I interjected: 'Mr Temby does not appear to think so'. Senator Gareth Evans referred to Mr Temby in other terms which I will come to later. Likewise, Senator Durack in the debate said:

. . . I do not want to quote them or 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.

He said further:

I agree with Senator Evans that this chamber does not have the power to waive privilege.

That is essentially the question at issue. All those gentlemen, no doubt with full belief in the position that they have taken, have taken the view that there is no power to remove or waive that privilege and that in fact this is not a question therefore that comes up for consideration by this House. My contention is that that is not so and it certainly is not so since the amendment made in 1970 to standing order 308 of this House's Standing Orders. That standing order now reads:

The evidence taken by any Select Committee of the Senate and documents presented to such Committee, which have not been reported to the Senate, shall not, unless authorized by the Senate or the Committee, be disclosed or published by any member of such Committee, or by any other person.

The important point is that cases were referred to by learned authors prior to the time when those words were inserted. In fact, one can see this referred to quite clearly when one looks at the material which was contained in the report of the witnesses before the legislative committees of the Ontario Law Reform Commission of 1981. In that reference, under the heading of 'Waiver of the Privilege by a Legislature', the learned authors of that report state:

The most important source of uncertainty concerns whether the privilege respecting witnesses is one which can be waived by the Legislature . . . However, the Australian Report-

Here they refer to the report by Messrs Greenwood and Ellicott-

appeared to harbour no doubts. It stated that the general rule is that no evidence so given [before a legislative committee] can be used against a witness in any other place without the permission of the House . . . The Report subsequently elaborated on this proposition:

The reference given to that case which had been relied on was the case of Regina v. Wainscott, a Western Australian case of 1899 where the standing order was similar, where permission was not given by the relevant assembly. A very strong reason was then used-this may be used in argument against my proposition-that is, that in fact it may be said that a witness who gives evidence before a Senate committee is entitled to expect to have the protection of that evidence and to expect that it will not be used against him. But I suggest that it is altogether a different matter where that witness is a person who might be embarrased by such evidence and where the witness is a person who may be charged and have his liberty set at nought by that statement. The footnote to that quotation in the reference to Regina v. Wainscott states:

It should be noted that, at the time the Australian report made its observation concerning the right of Parliament to withdraw the protection afforded to witnesses, there existed Standing Orders in the Commonwealth Senate and House of Representatives, akin to the previously mentioned 1818 resolution in the United Kingdom, specifically protecting legislative committee witnesses.

In fact, what has happened is that we have amended our Standing Orders. For the fullness of it, I think I should refer to the fact that a further standing order-390-appears to have some relevance to this matter. It states:

All Witnesses examined before the Senate, or any Committee thereof, are entitled to the protection of the Senate in respect of anything that may be said by them in their evidence.

That is in general terms and I agree that, without the right which standing order 308 now gives to the Senate to allow evidence to be given elsewhere and to be used elsewhere, that would have a greater significance. Reference is made to two other documents, and including the reference in Odgers's Australian Senate Practice which points out:

Prior to 1970 the words 'unless authorised by the Senate or the Committee' did not appear in S.O. 308, but the rule was amended to its present form to remove conflict with the Parliamentary Papers Act and also to bring the standing order into line with practice.

It is very important that we realise this fact and bear in mind the statements which were made by Mr D. C. Pearce, who is a noted authority on these matters, in his article 'Inquiries by Senate Committees'-Australian Law Journal, Volume 45, November 1971-in which he refers to the case of the Queen and Merceron, and suggests that it may now be wrong. He said:

The decision in Wainscott-

which is the 1899 case to which I referred-

when taken into account with Article 9 of the Bill of Rights and the various authorities refusing to admit evidence of members' statements made in the parliament, would seem to be good authority for the proposition that statements made by a witness to a parliamentary committee cannot be put in evidence against him at a subsequent criminal trial. Note, however, that in Chubb v. Salomons-

he gives the reference for that-

evidence of the proceedings was admitted where the House of Commons had consented to that evidence being given.

Likewise, there is the case in Canada referred to in the report to which I have referred, which likewise sets out where evidence was in fact allowed to be given of the malpractice of a member, so that his privilege, in Regina and Robinson, was denied. So there are a number of precedents, and our Standing Orders have been changed, so I suggest that the rule is wrong.

One comes from the question of power to the question of the exercise which we should make, the merits of this application. That is why I suggest that it should be reconsidered further. My motion should probably be forwarded further to the Privileges Committee to enable it to look into this question and to advise on what should be done. The matter should not be left as it is at present, with us appearing to intervene and to refuse the right of admission.

Very significant was the letter which was presented to the Senate last week, to which I think little attention was given. It was a letter from the Director of Public Prosecutions, Mr Temby, to the President of the Senate, dated 15 April 1985. In that letter, he said:

However, we have no objection to prosecution witnesses being subjected to cross-examination in relation to prior statements made, wherever they may have been made. It is in the interests of justice that this should not be prevented.

Further, he said:

If the Senate can lawfully waive privilege, or not give instructions for Counsel to appear on its behalf at either trial, then that would be an entirely satisfactory position so far as the prosecution is concerned.

That is the prosecution that is being presented by the Director of Public Prosecutions. One might imagine that the interference, the meddling, which the Senate may commit in a criminal trial may be of harm to the prosecution as well as of harm to the defence.

The defence counsel claim various entitlements. They want to use the statements by Mr Briese, and they want also taken into account the statement which he has prepared and given first to a Senate committee in regard to conspiracy theories. It is not for us to determine the significance or importance of that. It is certainly such that counsel for the defendants have considered that this is an important matter to be raised by them before the respective trials. As I read it originally, through the interventions which Mr Simos made on behalf of the Senate-not with any prior instruction from the Senate; I am not suggesting in any way that he had acted improperly in that regard; it was a matter which had to be determined in a hurry-what he did was very gravely to interfere with prosecutions and proceedings which were taking place. I can understand the statement of the Director of Public Prosecutions that he could see no reason, provided that we could see our way clear, why we should not allow such evidence to be given.

There is grave danger in this Senate taking a view that it should protect everything that is said in the Senate. It is clear that what is said to be a breach of the Bill of Rights, if it is a matter, to use the terms that you used, Mr President, in your statement, or the terms of the Bill of Rights:

That the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament-

Literally, that might sound to mean that one could not say that Joe Blow made a stupid speech in Parliament today. As we know, the Press, exercising its rights of freedom of speech, constantly does that. It is constantly vigorously attacking things that are said and done in this House-and rightly so. Therefore, we must look for some lesser ground. It will be noted that the President and the honourable senators who spoke on this matter on the previous occasion used various words to describe the restriction that they saw. I think we should be very careful not to impose too great a restriction upon the use in criminal trials of material that is used in this Parliament. It is all right to say, as Mr Simos says, that he tried to instruct counsel as to how he could use the evidence in proceedings without actually disclosing that it came from this assembly. But those who have any experience of legal trials will know that it is very necessary to say to a witness, 'Have you made an inconsistent statement earlier on this subject, have you earlier taken a different view on this subject?', and for the witness to say, 'No'-and then not to be able to produce the material on which he has done it is absolutely vital so far as he is concerned.

I am suggesting that there is a grave danger of this Senate doing an injustice by an unwise and, indeed, mistaken view of the width of the Bill of Rights. I give these reasons because it is important that they be put before the Senate. It is important that we should look again before we make this final decision.