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Tuesday, 23 April 1985
Page: 1389


Senator COONEY(6.04) —The arguments of Senator Missen were very compelling and cogently put. They were put on the basis of the hunger for civil liberties that he has expressed over the years. I listened to what Senator Gareth Evans had to say, which was simply that as a matter of law the Senate is not able to waive its privilege. He referred to the case reported in Volume 1 of the Queens Bench Reports of 1972 and, while not doubting for one minute the complete accuracy of what he said, I thought, as a matter of habit, that I ought to check that volume. Apparently in this august place that volume which deals with the privileges this House may or may not have is missing. I do not for one minute suggest that Senator Evans had anything to do with the missing volume but I wonder whether, while the Estimates committees are still meeting, it would be possible for this Parliament to see its way clear to spend perhaps $80 on a volume of Her Majesty's Queens Bench Reports of 1972, Volume 1.

Be that as it may, the point made by Senator Missen and I think re-emphasised by Senator Georges is this: We, being an institution which over the years has often proclaimed that it is interested in civil rights and in protecting the liberty and reputation of the citizens of this land, now have occasion to consider a situation where a particular person is threatened with the loss of his reputation and liberty. It is a dreadful, outrageous thing for anybody to spend one night imprisoned when he should not.

It is said by Senator Evans, when talking about the merits of this subject, that really it does not matter because if a person is an effective cross-examiner he can in effect overcome the disadvantage of not having a document before him. It is my belief-perhaps Senator Missen would agree with me-that it makes a very great deal of difference if one has to cross-examine a witness without the document on which he is being cross-examined. If the full statements the witness has made cannot be put to him the effect of the cross-examination may be very much reduced, to the extent where liberty and reputation are compromised. It may well be that this House cannot waive its privilege but in deciding whether or not it can-we accept for the purposes of this argument that it cannot-we must accept that that privilege may have affected in the past, may presently and certainly may well in the future, affect the reputation and the liberty of a particular person or particular people. In other words, the fact that this privilege exists may mean that people's liberty and reputations are much compromised. That is a matter of grave moment and a matter that ought to be subject to debate which is perhaps better prepared than our present debate. It is a pity in a way that proper opportunity has not been provided for members of this chamber so that a full scale debate could have been undertaken.


Senator Chipp —Are you arguing that it is lawful for us to waive that privilege?


Senator COONEY —I am saying that I am not now in a position to say whether or not it is. I have listened to what Senator Evans has said and, knowing the outstanding lawyer that he is, I will accept what he says. All I would like to do is check what the case law says. I have been denied that opportunity because the Estimates committees which apparently operated before I came to this place did not make available Volume 1 of the 1972 Queens Bench Reports.

On a more serious note, I am saying that if the law is, as has been said, that we cannot waive the privilege, that privilege has the effect of denying justice being done to different people at different times. It may well mean that no justice will be done on this occasion because it may be-it is a matter for the person's legal advisers-that the legal advisers do not have the opportunity of cross-examining a witness with the effect that they might otherwise have had. The fact that they cannot cross-examine that witness with the effect that they might otherwise have had may mean that there is an injustice, and if the law is that we cannot waive our privilege that inability may have led in this case and may well lead in the future to injustices being done. That is the point. It is a matter of serious moment.


Senator Durack —Do you think, for instance, that we ought to be able to waive our privilege to enable one of our number to be sued?


Senator COONEY —If the honourable senator is asking me what my opinion is, it is this: That there ought to be an opportunity to waive the privilege but the circumstances in which that is done should be circumscribed with proper protection in the situation that he talks about. Nevertheless, it ought to exist. In effect the honourable senator is saying that there ought to be an absolute prohibition against waiving privilege. What I am saying and Senator Missen is saying is that there ought to be exceptions to that where people's liberties and reputations are at stake.


Senator Haines —What about the protection of witnesses?


Senator COONEY —The protection of witnesses is a serious matter.


Senator Haines —What about witnesses before the committees, though?


Senator COONEY —Of course witnesses before the committees should be protected. It is a matter of balancing the circumstances. The statement against the witness should never be able to be used to prosecute him. In this instance the witness's liberty is not at stake but perhaps his reputation is. In protecting the witness under the present circumstances, to save his discomfort and reputation, we may well be compelling somebody to go to gaol. That is the effect of it. It is a matter of balance, and when we are looking at the balance we must look, on the one hand, at whether a witness may feel discomfort or that his reputation is being affected, and on the other hand at the threat to the person on the other side who may well have to go to gaol for a considerable period.


Senator Gareth Evans —As to discomfort to witnesses, there has been 300 years of protection of free speech.


Senator COONEY —That is a different matter. The Minister is asking what the law is. The question I was asked was simply what I thought, and that is what I thought. I think that for 300 years, if that is what it is, it has been wrong.