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Tuesday, 23 April 1985
Page: 1390

Senator MISSEN(6.12) —in reply-I wish to reply to the debate.

Senator Haines —The honourable senator has done it for you.

Senator MISSEN —Yes, I know. I shall keep it very short. The fact is that various matters were raised by the Minister for Resources and Energy, Senator Gareth Evans, and Senator Durack. I thank Senator Georges and Senator Cooney for their contributions to this debate. I do not agree with the fundamental proposition of Senator Gareth Evans that the Bill of Rights is part of the law of this country. Professor Enid Campbell's book Parliamentary Privilege in Australia concludes:

. . . the statutes guaranteeing freedom of speech in Parliament in England were of purely local application and were not therefore applicable to newly settled colonies. . . . Article 9 of the Bill of Rights did not and does not therefore apply of its own force to State parliaments.

It applies to the Federal Parliament solely by the indirect method that section 49 of the Constitution brings in the privileges of the British House of Commons.

Senator Gareth Evans —What are you quoting from?

Senator MISSEN —I am quoting from Professor Enid Campbell's book. She maintains, and I maintain also, that it is not part of the law of parliament; it was introduced in the States and colonies by separate Acts of parliament and to some extent by common law provisions. I think that is important because you are relying on the terms of the Bill of Rights. I am saying that the provisions of that are not adequate for the present. They are not sufficiently clear. You will tell us-

The PRESIDENT —Order! I suggest to the honourable senator that he direct his remarks to Senator Evans through the Chair.

Senator MISSEN —Yes, Mr President, I will do that. Therefore, it is not sufficient to say that they are part of the law because the Bill of Rights says so. So far as the Bill of Rights is concerned, it is not an adequate statement of the law covering present conditions. No answer whatsoever has been given to the point I made that the criticisms which are made every day of this chamber and the other chamber by members of the Press would perhaps under Senator Gareth Evans's interpretation be a questioning of the actions of this Parliament. They are not covered by the Bill of Rights and we clearly do not accept that to be so.

I agree entirely with Senator Cooney that this is a case where we must separate the situation. If there is a chance that a person may lose his right to liberty, we should be very careful before we exercise this privilege. It is maintained by Senator Gareth Evans and Senator Durack, and I deny it, that this is a matter which cannot be refuted or waived. I point out that when we dealt last week with the petition which asked us to waive this matter, we did not say: 'No, we cannot do this'. The motion that was passed reads:

That with respect to the petition lodged on behalf of Judge Foord, arising out of proceedings in the New South Wales Local Court of Sydney, and tabled by the President this day, the Senate does not accede to the request contained in the petition.

Is that a piece of hypocrisy on our part or does it mean what I think it means, that we have the power and we have not done so? Therefore, I think we accept this fact.

I have given the Senate examples of what happened in Canada which, of course, is also affected by the Bill of Rights. Canada has allowed the use of evidence in the case of a person prosecuted under Canadian law. I believe that we should not be accepting the statement which was made and that this is beyond a doubt a matter which can be used. Senator Durack, by way of interjection, asked Senator Cooney: 'Do you think that we ought to be able to waive our privilege to enable one of our members to be sued?' It may mean that. The case may be one where we could exercise a judgment and allow one of our-

Senator Durack —We ought to be more careful then.

Senator MISSEN —Perhaps we ought to be more careful than we are. Perhaps our behaviour in this chamber would be better if we did have to exercise that discretion; but I think it is very unlikely that we would allow it to be used in that way. In this case we are saying that evidence which was given before a committee and which is now regarded by counsel and the people who were charged as being vital and important is being sought so that it can be shown to be inconsistent. Senator Gareth Evans said that there are other ways around this. Senator Cooney pointed out that this is no answer, that in fact it is quite obviously a lame way of trying to defend a case to suggest that one cannot put the type of evidence which has been used against a person. I therefore maintain the case that I have put forward. I thank those honourable senators who support it. The Senate may not prefer to have this matter dealt with in another way in the future but merely to deny it. If so, I think the Senate must have it on its own head.

Question resolved in the negative.