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Tuesday, 23 April 1985
Page: 1385

Senator GARETH EVANS (Minister for Resources and Energy)(5.36) —Despite having listened very carefully to Senator Missen, I do not believe that there is a case to be made for reconsidering the decision that we made on this matter a few days ago. The basic reason why I say that has not to do with the merits, such as they may be, of having the particular evidence in question able to be the subject of cross-examination in the forward proceedings. The reason I make the point that I do, in the first instance, has to do, and really overwhelmingly, with the power of this Parliament or this chamber to make the evidence available in the way that Senator Missen proposes. The short point I make is the same as I made last time, and I shall make it again even more forcefully today: I do not believe that the Senate has the power, even if it wanted to and even if there were a good case on the merits for doing so, to make available this evidence to the court in the way that is proposed by counsel for the defendant, namely, for that evidence to be able to be, in itself, the subject of cross-examination with a view to testing out prior inconsistent statements or anything else of that kind. Let me explain the steps and the reasoning.

The first point is that Article 9 of the Bill of Rights of 1688 is part of the law of the land of this country. It is not a standing order of the Parliament that can be put to one side simply by a resolution of the House of parliament in question. It is a matter of law which stands in its own right and has to be construed and applied by the courts as such. This is a point that was well made by Senator Durack in his contribution to the previous debate. Most of us have thought in terms of the Bill of Rights being applied as the law of the land through the operation of section 49 of the Constitution. I think-although I am just having the point checked at the moment-that it is also true to say that quite apart from the operation of section 49 of the Constitution, the 1688 Bill of Rights is part of the inherited statute law of Australia and is still applicable as such in its own right. I see that Senator Missen shakes his head. Is he confident of that?

Senator Missen —I am confident of this Parliament.

Senator GARETH EVANS —I would be fascinated to hear Senator Missen's authority. I have a recollection of Mr Justice Isaacs muttering something to the contrary in a case which is presently being looked at. I have just received a note saying that every law reform commission in Australia which has looked at it has said that the Bill of Rights still does apply in its own right in Australia, quite independently of the operation of the Constitution. I shall try to get chapter and verse for that before the end of the day. Irrespective of that, its operation, by virtue of section 49 of the Constitution, gives it equally that status of being part of the law of the land until it is subject to a declaration, presumably in legislative form by this Parliament, to the contrary. Of course, no such declaration has been made. Article 9 of the Bill of Rights is there as a proposition of absolute legal force. It says, as we know, that the freedom of speech in debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament. Senator Missen said that he doubts that this has anything to do with what is involved here; that is, that the evidence of a particular witness before a Senate committee can, in his view, be properly the subject of cross-examination before a criminal court proceeding. I take issue with him on that very fundamental point and I do so as a matter of law.

The truth of the matter is that the courts have held that the privilege contained in the Bill of Rights not only prevents parliamentary proceedings from themselves being the subject of civil or criminal action; it also prevents those proceedings-by proceedings, of course, it is well established that we include the proceedings before committees-from being referred to before courts in such a way that they are questioned in a very wide sense of that word. What has been said or done in the course of parliamentary proceedings, including evidence before a committee, may not be commented upon, may not be used to draw inferences or conclusions, may not be analysed and may not be made the basis of cross-examination or submission. This principle is a matter of law which simply, whether we like it or not, holds good, quite regardless of any action that might be taken by the particular House of parliament concerned to prevent any violation of it or, indeed, to attempt to waive such operation.

The authority for all the assertions I have just made is a case that Senator Missen is possibly familiar with, Church of Scientology of California v. Johnson-Smith, 1972, Volume 1 of Queens Bench Reports at page 522. That is the formal confirmation in the courts of a view of the meaning of Article 9 which has been the perceived view for as long as I can remember this subject having been debated and written about. That really ought to be the end of the debate so far as we are concerned. Where, however, the confusion comes in in so many debates of this kind is between this issue of proceedings in parliament being questioned in this way and, on the other hand, proceedings in parliament being in some way adduced into evidence and made the subject of reference in the courts. The truth of the matter equally here is that there are all sorts of ways in which the proceedings in parliament can be the subject of mention or reference or somehow be dealt with in court proceedings.

It is possible for evidence of proceedings in parliament to be adduced for a variety of legitimate purposes which do not violate the Bill of Rights prescription. For example, a person being sued for defamation on the basis of a Press report of what happened in parliament might need, or want to adduce, Hansard to support his own case to establish that the Press report was a fair and accurate report of the proceedings in parliament. So the Hansard is adduced into evidence as an accurate account of what was said in parliament and used as a touchstone against which to test the fairness or the accuracy of something else. That is not the same thing as saying that the report of the Hansard is itself the subject of cross-examination or questioned in the sense of the bona fides, with which the statement was made in the Parliament, being called in issue. Similarly, there have been instances of Hansard being adduced for the purposes of proving that a government decision or statement was made in parliament on a particular day and evidence of that perhaps being relevant for all sorts of purposes. There is a continuing argument as to whether, if evidence is to be adduced for any of these lesser purposes, we need parliamentary permission to do so. Parliaments have sometimes asserted that they have a right to be consulted on such matters. The courts, by contrast, have rather tended to say that it is a matter for the courts to determine. They will have regard to the scope and extent of this privilege, but it is for them to determine whether evidence can be adduced and not for parliament to claim any privilege or purport to waive any privilege in that respect.

But I hope it is appreciated that what I have said leaves quite intact the principle of Article 9 of the Bill of Rights that even though evidence of parliamentary proceedings, including perhaps the evidence of a witness, may thus be adduced in some context, it cannot be made the subject of questioning in any of the ways that I have identified including, in particular, being the subject of cross-examination which is what, of course, is in issue in the Foord case that is before us again.

The final point that needs to be made is one that does address the merits of the matter. Senator Missen's motion falls on the power question because however much we might worry about the merits, if we have not got the power to do something and if that is clearly and unequivocally established, there is not much point in debating it or even pursuing it to the point of a resolution. Let me just quickly address the question of merits as I did perhaps in too abstract a way last time in order to indicate that I do not believe any particular injustice will flow in the circumstances of this case because there will be many in the chamber who will be worried about that aspect of the matter and not give tuppence for the legal arguments that I have just been employing. I understand that approach even though being a lawyer I would occasionally wish otherwise.

Let us address the merits of whether this particular defendant's defence will be prejudiced by an inability to test what may well have been-I say nothing about this particular case-a prior inconsistent statement, the proof of such which may then be of some utility for the defendant's case. The point here is that it is well established that if a witness has made statements before a parliamentary committee and it is desired, in effect, to examine him on those statements, it is possible to design a line of questioning aimed at eliciting those same statements in the court's proceedings. It is really a matter, as a practical consideration, of simply asking the witness: 'Is it not the case that you have said previously in another place, or another forum that X is the case?', without being specific as to what that forum or previous occasion may be.

Senator Missen —But that is very lame, is it not?

Senator GARETH EVANS —It may be very lame, Senator Missen, but since witnesses are on oath and obliged to answer questions in this particular way it is perfectly possible for cross-examination, professionally conducted, to draw out inconsistencies of a kind that may prove useful to defendants if the truth of the matter is to be finally established. I cannot be any more precise than that without giving specific examples which get too close to the kind of situation that we are immediately confronted with. All I say is that it is possible, by the careful, professional conduct of a case, to cope with this particular evidentiary problem that thus may confront a defendant in a way that does not offend the terms of Article 9 of the Bill of Rights. I believe, from my understanding of the present case, that that course of action or procedure is open to the defendant and his counsel in this matter and, as such, we ought not to be unduly alarmed-albeit that I would say we cannot do anything about it-by a possible miscarriage that might flow here from the lack of access to be used as a foundation for cross-examination of the actual evidence that may previously have been adduced.

In a nutshell, that is the situation as I firmly understand it to be, that there simply is no power for the Senate to deal with the matter in this way. The fact that there are standing orders providing for the publication of evidence is simply not to the point. It is not to the point for the purposes of Article 9 of the Bill of Rights whether the Senate has authorised the publication or not authorised the publication, purported to waive its privilege or not purported to waive its privilege. Whichever way one comes at the problem, it is a matter of law, it is a matter of legal power and that power simply does not exist.