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Tuesday, 17 March 1987
Page: 800


Senator DURACK(5.34) —The Parliamentary Privileges Bill was introduced by the former President, Senator Douglas McClelland, in October of last year. I am a little surprised that the Minister for Resources and Energy (Senator Gareth Evans), who is at the table, did not open this debate. Apparently he has chosen to close it, or perhaps not to speak at all, for which many of us may be thankful; but I think that may be too much to expect. The Bill that the former President introduced into the Senate has really made a lot of new ground in many respects. It should not go without notice that it is the first time, I believe, that the President of the Senate has introduced a Bill of his own initiative. That in itself indicates that this proposal has been very widely discussed by senators, and by senators with the former President. It reflects the fact that this legislation is very much about the standing, status and what are called the privileges of senators and members of parliament. Of course, the Bill is a proposal for a new law. It is not simply an expression of opinion by the Senate about its privileges. It is intended in due course, hopefully, to be an Act of Parliament, with the concurrence of the House of Representatives, which will lay down in a modern form and in a statute some solutions to the problems of parliamentary privilege where the traditional method of determining these things has not proved satisfactory.

Of course, the Constitution confirms our privileges. I do not need to remind honourable senators of the provisions of section 49 of the Constitution, which is of great interest and is the very foundation of the discussion on this Bill. Section 49 provides that 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. That provision is in the Constitution and has been for the whole life of our national Parliament. It underlines the antiquity, so to speak, of the whole subject that we are addressing in this legislation.

The whole question of the privileges of parliament goes back to the very earliest days of parliament, particularly of the House of Commons in the United Kingdom. I have not done the research on the subject that has been done by the Clerks of the Senate, in particular Mr Harry Evans, who has been of such assistance to us all in this chamber on this subject in recent years. But, tabled with the Bill has been a document headed `Documents Presented to the Senate' about parliamentary privilege. I commend that document to honourable senators because it contains a wealth of interesting material on the question that we are now debating. It gives in a very brief form some indication of the history of parliamentary privilege. The struggle of the House of Commons, as it became known in due course, continued over many centuries. The privilege that we have enshrined in section 49 of the Constitution, upon which we have acted over the last 80-odd years, evolved over that period. Of particular note was the struggle by the members of the House of Commons against the Crown and various institutions of the Crown, including the courts. Parliamentary privilege is woven into the whole fabric of our constitutional history and indeed the political history of Britain, which meant so much in the development of our freedoms, not only the freedoms of parliamentary institutions and parliamentary democracy that we now know but the freedoms of all Australians.

After those introductory words I now address myself to the particular problems that this Bill deals with. In the last 80 years or so I suppose we have jogged along quite successfully with the statement of our privileges as set out in the Constitution. Some major issues have arisen but not very often. Although there have been many reports, decisions and resolutions concerning privileges, these have not shaken the fabric of our parliamentary institutions or our society. I suppose the case which has given rise to the most interest and debate and which Australian history books no doubt will continue to refer to as the most notable example is the case in which imprisonment was ordered for two gentlemen named Browne and Fitzpatrick. We should also remember that the House of Representatives in fact expelled a member. To make it an even greater offence, he was a member for a Western Australian constituency! That in itself should shake us a bit. This Bill addresses that question. It proposes the abolition of the power of a House of parliament to expel a member. I think that is a very democratic proposal. We are elected to the Parliament by the people. It is their decision and it should be their decision whether somebody is not fit to remain as a member. It is not for us to decide.

The foundation of much of this legislation on parliamentary privilege was addressed in recent years by the Joint Select Committee on Privileges, which reported in October 1984. That Committee was set up during the life of the Fraser Government. Mr Spender, the present shadow Attorney-General, was the chairman of that Committee. Even though there was a change of government in 1983 he continued to act as Chairman. The Minister for Resources and Energy, Senator Gareth Evans, who is at the table, was Deputy Chairman. The Committee's report covers a great range of the subject but its recommendations cover much more than this Bill attempts to deal with. This Bill simply deals with most of the recommendations, I suppose it would be fair to say, concerning changes which require an Act of Parliament. At the beginning of this debate Senator Evans tabled various other recommendations of the Committee concerning changes which could be made by resolution of either House. As with the passing of the changes in this legislation, I hope that in future we will be able to get uniformity between the two Houses on a number of other matters, subject of course to the fierce independence of the two Houses, which sometimes goes to absurd lengths, I know. On the other hand, no doubt in some cases there is justification for a different approach. Nevertheless, to the extent we can get as much uniformity as possible, that is desirable and I hope that members of both Houses will endeavour to achieve it.

I do not propose to address myself to any other matters arising from the report of the Joint Committee except those that need legislative change. The other matter of history I need to mention is that Mr Spender introduced into the House of Representatives on 21 May 1985 a Bill for an Act to declare the powers, privileges and immunities of the Senate and the House of Representatives and the members and committees of each House. That Bill covered a number of matters that are proposed in the McClelland Bill, if I may call it that, which is before us. The Spender Bill, however, included one recommendation of the Joint Committee which is not adopted by the McClelland Bill and that is the conferring of original jurisdiction on the High Court of Australia. It provided that a Full Court, constituted by at least three justices of that Court, should deal with applications made by any person aggrieved by decisions in relation to privilege by either House of Parliament. The jurisdiction that it was proposed to confer upon that Court in broad terms would not have allowed the Court to hear the case of privilege but to deal with the matter after Parliament had made findings, apparently with the object of having the High Court make a declaration, as it is called-something in the nature of advice, as I understand it. The Bill specifically said that the High Court could not make a judgment or order or grant a remedy or direct the issue of a writ. The High Court's role would have been more or less to advise the Parliament whether it was within its powers to take the action it had taken. In other words, only the question of law would have been decided by the High Court. That proposal is not included in this legislation but this legislation clearly enables it to be decided whether Parliament has acted within its jurisdiction in deciding to imprison any person for a breach of privilege. It requires, as indeed the Spender Bill required, that the House of Parliament should set out the particulars of its findings. Clause 9 of the Bill states:

. . . the resolution of the House imposing the penalty and the warrant committing the person to custody shall set out particulars of the matters determined by the House to constitute that offence.

That offence refers to the breach of privilege. It is clear that if the particulars do not reveal a breach of privilege as defined in this legislation that would be a justiciable question and application could be made to a court. The explanatory memorandum sets out the way in which that would work in a fairly clear way, perhaps more clearly than I am expressing it now. It means that the legal system would be involved in the decision as the matter may go to a court and, ultimately, the High Court of Australia. I see no reason why any question as to the Parliament's powers should not be decided in the courts in that way even though, in the past, it has not been considered appropriate for the courts to be involved in questions of parliamentary privilege.

I do not think it is suitable for a matter to go straight to the Full Court of the High Court as proposed in the Spender Bill. The opinion advanced in the explanatory memorandum by a very distinguished former First Parliamentary Counsel who drafted the legislation is that referring a matter to the High Court in that way for that type of decision, declaration, or whatever one calls it, probably would be unconstitutional and would amount to an advisory opinion which the High Court has said it does not have the power to give. That may well be right. However, for other reasons, it seems an undesirable way of approaching the matter. If a person believes that he has been aggrieved by a decision of the Parliament and that the Parliament acted outside its powers and jurisdiction, I believe that he should be able to challenge that in the same way as people frequently challenge legislation passed by this Parliament as being unconstitutional. None of us should be disturbed about the legal system making a judgment on what we do here-we are familiar with it-but it would be better for it to proceed by way of the ordinary judicial method.

The only other matter to which I want to refer concerns a major question which does not appear in the Spender Bill but which is dealt with in this legislation-that is, the provisions of the Bill which give effect to full immunity for members of parliament and witnesses before parliamentary committees as we have always understood them to be under the Bill of Rights. The matter has exercised the Senate very closely in recent times, particularly regarding the two trials of the late Mr Justice Murphy. Preceding those trials were two Senate committees. A number of the witnesses who were called to give evidence at the trials had been before the committees. In fact, evidence given by those witnesses to the committees, and in one case in camera evidence, was widely used in the trials in the cross-examination of witnesses. That practice was allowed by both the presiding judges-the late Mr Justice Cantor and Mr Justice Hunt, both of the New South Wales Supreme Court. Mr Justice Hunt's judgment is of particular concern to us. His judgment explained in great length what he intended to do and why he intended to allow a lot of questioning. His reasoning was of considerable surprise to everybody. Indeed, it came as a surprise to some judges in other jurisdictions who have not followed it. Certainly, it was contrary to almost all the previous decisions in England and Australia on the ambit of privilege for members of parliament and witnesses before committees.

Mr Justice Hunt took a very narrow view of the Bill of Rights immunity. He cut it right back to virtually say that one cannot found an action or a prosecution simply on what a person says or does in the parliamentary chamber or, I suppose, before a committee as a witness. That was a much more restrictive view than had been thought to be the case. It enabled extensive cross-examination of witnesses. However, it went further. Statements made by senators, members or witnesses could be used as evidence against them in proceedings against them; certainly, the foundation of the proceedings may have been acts or words used outside the Parliament but what they had said or done in the Parliament could be used as evidence in support of the prosecution. That went much further, I think, than anybody had ever dreamt in restricting the privileges of the Bill of Rights.

The Bill proposes to restore the full amplitude of the Bill of Rights as it has been understood. Some people think that it goes too far. Perhaps it is felt that what people have said could be used at least for cross-examination as to their credit; that is to say, if a person says something different in a court from what he said in Parliament or before a committee, it may be used to show that he is not to be believed because he gives different answers in different places. However, it is very difficult to put proper limits on that. I have taken the view, as the Senate has taken the view and as the former President, in his submissions to the judges concerned, took the view, that the Bill of Rights prevented that from being done. I support the Bill in that respect.

The effect of the decision by Mr Justice Hunt and that of the late Mr Justice Cantor would be serious not only for senators and members but also for the operation of our committee system. There is no doubt whatever that it has been a very important feature of the development of that committee system that witnesses before committees-we all have experience of witnesses appearing before committees-are told that they are completely protected in what they say to the committee. It has been a vital role in Parliament obtaining the information it needs to perform its work.

Judges tend to believe that their work is more important than that of parliament and, therefore, their duty to ascertain the truth is paramount over the interests of parliament. It is a question of judgment by us as to whether we believe that to be the case. I do not believe that it is the case. There are other restrictions on judges and juries in ascertaining the truth. A whole lot of quite absurd restrictions have been developed in the courts which prevent judges and juries ascertaining the truth. I find it a bit strange that Mr Justice Hunt in particular-he is the only judge who has articulated this theory in full-should have been so concerned about restrictions being placed on the process of his court, or on any court for that matter, by this wide interpretation of the Bill of Rights.

Even if the legislation is to be amended it is necessary to clarify the matter one way or the other. As I have said, there is great uncertainty. Mr Justice Zelling, in a South Australian case, and Mr Justice Carruthers, who is a member of the New South Wales Supreme Court, have taken different views in cases subsequent to Mr Justice Hunt's judgment. There is utter confusion. The Bill should be dealt with urgently so the matter can be clarified, whether in the way the Bill proposes or by way of amendments which may be proposed. Certainly, the first requirement is to have the matter clarified. I believe that the Bill clarifies it in the proper way. I propose to support the Bill in that respect. I understand some other amendments are being proposed by the drafter of the Bill, Mr Comans, which will clarify certain aspects of it. I am not aware of any other amendments, but clearly there may be further amendments in the course of this debate. Naturally, I am not going to exclude consideration of any further amendments if they are proposed. I do not have any proposed amendments.

In conclusion, I simply say that I am speaking purely in a personal capacity in this debate. As far as the Opposition is concerned, we are treating this as a free vote. Any member of the Opposition is perfectly at liberty to take whatever view he or she likes. Although there has been very consistent and solid support by Opposition senators for the line which has been taken on behalf of the Senate by the former President, nevertheless that is not to say that some of them may not have different views in this debate. For my part, I support the Bill in its entirety. I express my very considerable gratitude and respect for the stand which the former President took in this matter and for the way he consulted with all sides of the chamber in relation to this problem, throughout all the difficult times in both trials of Mr Justice Murphy. He then carried through that initiative in having this Bill drafted and engaged a distinguished drafter in the person of Mr Comans. I also congratulate Mr Harry Evans for the amount of work he has done and assistance he has given me personally in this whole question. I believe it has been a very valuable exercise. It is in the best traditions of this chamber. Hopefully we will be able to get wide agreement not only in this chamber, but also in the other place in support of this most important proposal.