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Tuesday, 17 March 1987
Page: 803


Senator MACKLIN(6.03) —I thank Senator Childs for allowing me to speak at this juncture. As a member of the Joint Select Committee on Parliamentary Privilege both in the Thirty-Second Parliament and the Thirty-Third Parliament, as a person who went through the entire inquiry and as a signatory to the report I, amongst other members of that Committee, was most anxious that the matter should not cease there. Therefore, with particular personal support, I am pleased to speak in this debate. It is an historic debate. Section 49 of the Constitution, which provides for the privileges of the chamber, states:

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.

The matter of interest, which I think is probably of little concern to people outside these chambers, is that there has been no declaration under section 49 of the Constitution. This is the first piece of legislation under that section of the Constitution which, for 86 years, has remained unused. I believe that the Committee made a particularly important point on this matter that I would like to quote in full. It is contained in chapter 3, paragraph 3.2. The Committee, in addressing itself to this matter, stated:

No declaration within section 49 has been made.

That is why I believe this is an historic piece of legislation we are dealing with tonight. It continues:

Hence, the privileges of the two Houses, their committees and their Members, are in all respects identical to those of the House of Commons of over 80 years ago. To many, it seems distinctly odd that to discover the nature and extent of its privileges a sovereign legislature should have to look back to a point of time frozen in the history of a legislature of another country. Moreover, in looking back, it is necessary to recall that the privileges of the House of Commons had been judged by that House to be incapable of change in substance, save by statute, since the year 1704. There have been vast changes in the political, social and economic fabric of our society since 1901, and in the means of communication of spoken and written words. The changes that have taken place since the turn of the 18th Century are even more vast, and the obvious question arises of the relevance of privileges grounded on such ancient precedents.

I think that is why in fact it is necessary for this chamber to address this issue. It has been very difficult to keep this spark alive since the report of the Joint Committee was presented. A number of people have urged their colleagues to take an interest in this matter. Senator Gareth Evans, as the Deputy Chairman of the Joint Committee, has been one of those people. I certainly pay tribute to his work in continuing to keep people's attention focused on this issue when there are so many other important matters which do take up the time of the government of the day and the time of this chamber. Unless this chamber is willing, on occasions, to address these particular problems, certainly nobody else is going to. It has been unfortunate that this chamber and the other place have been so unwilling since Federation to come to grips with the very important problems that are inherent in this matter. Hopefully this is the start of a number of such pieces of legislation. I believe that ultimately the drafts of notices of motion that the Minister for Resources and Energy (Senator Gareth Evans), who is at the table, has placed at the beginning of this debate will end up in statute.

I am particularly pleased that I have played a small role in this matter. I do not know whether the suggestions that I made to the then President on 9 April last year finally tipped the balance. One always likes to look back at these matters and hope that they indeed were a help. One can then possibly go raging down through history as a footnote but at least a footnote is probably better than nothing. I put it to the President at that time last year that he ought to take the unprecedented step of sponsoring a Bill with regard to the privileges and immunities of the Senate. The then President, for whatever reason, afterwards did in fact introduce such a Bill. Senator Durack has referred to the Bill that Mr Spender has introduced in the other place. I also introduced a Bill into this chamber on 22 August 1985 which seeks to clarify and reform the laws and procedures of parliamentary privilege. A number of such Bills have been brought forward.

The Parliamentary Privileges Bill before us tonight, however, does not seek to go across the whole of that operation. What the Bill that we are looking at tonight is seeking to do is two-fold: Firstly, it will look at some of those recommendations and codify them insofar as they are ancillary to the matter of the interpretation of Article 9 of the Bill of Rights, particularly the interpretation given by Mr Justice Cantor and Mr Justice Hunt in successive trials of the late Mr Justice Murphy in the Supreme Court of New South Wales. Former Senator Douglas McClelland, the then President, pointed out at one time that he was taking the step of introducing a Bill because of the fundamental importance of the freedom of speech to the operations of both chambers and to the serious threat that the freedom of speech was under if the judgments were allowed to stand and were accepted in other courts and jurisdictions. They have not been accepted and allowed to stand; in fact, there have been contradictory judgments. Nevertheless, to allow those judgments to stand without the Senate and the House of Representatives finally being goaded into some action would have given at least tacit support to those judgments. Those judgments should not have that tacit support.

The freedom of speech of the Parliament, which enables it to conduct its proceedings without supervision or interference from outside authorities, is fundamental to the operation of a parliamentary democracy. It is open to abuse, as any privilege has to be open to abuse. There cannot be a privilege without the possibility of its abuse. When one considers the abuse of such a privilege and the necessity for such a privilege one finds that the two things are not in the same ball court. The ability of any member, elected by the people of Australia, to come into this chamber and speak about any matter he or she believes needs to be spoken about, to raise any issue he or she believes needs to be raised and to talk about occurrences anywhere within the Commonwealth of Australia is a privilege and should be taken by all members of parliament to be such. It is not possible anywhere else to speak about all these matters, only in the chambers of this Parliament is it possible to do so. The matters may concern anything to do with the people of the Commonwealth of Australia. As such, most members over the years have seen this privilege as a privilege and have weighed very carefully the things they have said and have refrained from saying. I do not wish it to be taken that I have supported everything that everybody has said in this place. Far be it from me to have done that. Nevertheless, I believe that by and large the usefulness of this privilege has been shown time and again. Members of parliament have been able to bring up matters that hold the government of the day up to the light of public scrutiny, and have been able to raise matters which people in other parts of the Commonwealth may wish were not raised, not brought under public scrutiny and not had the light of inquiry brought to bear upon them. The principle has applied not only to this chamber but also, successfully and probably more productively in the last 10 years or so, to the committees of this chamber which have inquired into innumerable matters; inquiries which have led to legislation or have toughened up various laws. These inquiries have been successful only because honourable senators have initially raised the problem and we have seen the necessity for a further more detailed inquiry by one of the Senate committees which has the same type of privilege.

Therefore, this is an historic piece of legislation in that in it we seek to set down, in as clear terms as possible, this privilege. Possibly in the Committee stage we will be able to raise some of these matters in more detail and deal with specific items. It is difficult-it is not a simple and straightforward matter-to codify the privileges of this chamber or the other place. Recently we have seen a judgment with regard to contempt of court by a public figure who, along with part of the media, has been dealt with by a court which saw that certain actions were in contempt of court. Courts have been wont to take these actions probably because judges are not elected as frequently as the people in this place. That is an important distinction that needs to be made when it comes to the privileges of this chamber. Somebody has said, in regard to something else, that it is like beating somebody with a feather duster. Indeed, the reports of the Privileges Committee of this place and of the other place have been a collection of feather dusters, except in one particular instance-and I am not at all sure that in that instance there was very much joy either, particularly if one wants to read through the matter as those of us who were members of the Joint Committee did. I am particularly taken with the fact that the Senate in its operations has been, seemingly, slightly more sane, less brittle and less concerned than the other place about people saying things about it. I suppose that might be the nature of our respective electorates, in that a very large number of people here are protected in a pseudo way from the electorate as distinct from the quite pointed way members of the House of Representatives have to confront the electorate at every election. But whatever the reason for it, the Senate has been innovative in, for example, the area of protection to committee witnesses. A great many protective mechanisms have been developed over time to protect witnesses appearing before committees. The Senate has not gone galloping off when somebody in the media has decided to make some comments about whether we are a whole lot of drunken bums, and has felt that it is quite pointless to go down that path. This chamber has tried to look very clearly at a constructive use over time of the privilege of being able to raise any matter in parliament that needs to be raised. Whereas other matters probably gain much more media attention and are referred to as privileges of the Parliament or the chamber, it seems to me that the privilege we are dealing with in this Bill is the central issue-the ability which initially members of the House of Commons needed to raise matters so that they would not literally get hauled on to the rack by the Crown. In our case if narrow interpretations had been allowed to stand and had been followed statements made by witnesses before our committees could have been brought up again in court. Whilst that may not seem to other people to be terribly important, if the Parliament is to be able to undertake inquiries it has to be able to protect its witnesses. To get material from witnesses, particularly from witnesses who can appear only in a closed session of committee hearings, some type of protection must be offered to them. Unfortunately, we have not been very good at doing that, for a whole host of reasons. Hopefully, this aspect will improve. Surely one of the protections we must be able to give is that the evidence provided by witnesses before a committee should not be able to be questioned elsewhere. If the judgments were allowed to stand that would certainly seem to be the case.

This matter concerns not just witnesses before committees. If one looks at the judgments given, although no references were made to members of the Parliament a very simple extension of the judgments could well be that they may be taken to refer to members of parliament. In fact, I do not see how that interpretation-that is, that members of parliament could also be questioned about what they said and did here-could have been avoided. I believe that to allow such a questioning of the Parliament by a court could not have been permitted to stand and that it has been at least one of the major factors goading us to move on this matter after such an incredible delay. If an honourable senator wished to raise an item in this place and then went outside and made some innocuous comment about an individual, it was quite possible under the Hunt judgment that remarks made here could have been used to prove something such as malice in those statements. That is not something that we can permit. However, I have found, and I am quite sure that the Minister for Resources and Energy (Senator Gareth Evans), who is at the table, would have found, that when we have discussed these matters with our colleagues we have not necessarily met with a great deal of interest. That is a pity.

I hope that members and senators who contribute to this debate, either in the second reading stage or in the Committee stage, have taken the opportunity to read the report of the Joint Committee, to look at the various draft Bills that have been provided and to look at the material that the previous President presented by way of legal argument in the proceedings in the Supreme Court of New South Wales. If members and senators have done that, they will be pressed to support this legislation.

This Bill will overcome the judgments, will prevent the use of parliamentary proceedings in courts in a way in which they should not be used, and will uphold the longstanding interpretation of article 9 of the Bill of Rights. The Parliament needs to act on this matter because we cannot tolerate that degree of judicial intrusion into our proceedings. The Bill I drafted to ensure that parliamentary privilege was adequately protected dealt with a range of matters, which have been taken up, amplified and further developed in a constructive way in this legislation; hence I am able to put aside that part of my Bill and give willing support to the Bill before us. I am pleased that it was the previous President who introduced this Bill because that shows that it is a matter for this chamber and the Parliament. I am pleased that I played a role in that.

I stress how important the passage of this legislation is. We have to protect and safeguard the freedom of our proceedings. Legislation which clears away those doubts which have been raised by judicial interpretation is vitally necessary and deserves the support of all members of this chamber and the other place, the media and the people of Australia. This matter should not be looked at as something which concerns only us; it does not. If the freedoms of this Parliament are curtailed in any way, that will essentially mean that the freedoms of our democracy are curtailed. It is important for us as members of this chamber not only to do the work that is necessary but also, at times such as this, to look to the institution itself and to make sure that the institution is able to cope with the pressures which are appearing now and which we can foresee will appear in the future.

If we have a belief in the fundamental usefulness of parliamentary democracy, we have to have a belief ultimately that members here will be free to speak their minds fearlessly and without favour. That is essentially what this Bill attempts to do in a codified way. I hope that it will have the support not only of all parliamentarians but also of the media and the people of Australia, because it is they who will lose out if the freedom of Parliament is curtailed.