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Tuesday, 17 March 1987
Page: 806


Senator CHILDS(6.25) —We are discussing the Parliamentary Privileges Bill, which I welcome because it will codify the penalties which can be imposed upon people who defy parliamentary privilege. Although in 1971 the Joint Select Committee on Parliamentary Privileges asserted that the Senate had the power, for example, to impose fines, this Bill will put it beyond doubt. It re-emphasises that the Parliament will defend its rights and will ensure that the democratic process is followed. That is most important because there are other forces in our community which sometimes impinge on Parliament. This is one way in which the Parliament must preserve democracy.

In this legislation the common penalty for breach of privilege is imprisonment not exceeding six months for a natural person, for an individual citizen, a fine of $5,000, or a fine not exceeding $25,000 for a corporation. Those penalties appear in a number of cases. I am particularly concerned with clause 12, which is the essential clause so far as the Senate is concerned, because it relates to the protection by the Senate of its witnesses. This is an absolutely essential matter. I agree with what Senator Macklin said. If we do not defend our witnesses, we will allow the Press or other people who have powerful positions in the community to do as they will.

We need to protect witnesses because the nature of Senate committees and other parliamentary committees is that we have to have an inquisitorial style of inquiry if we are to find out the facts, to go below the surface and to know where the skeletons are. It is often necessary to go into camera to protect people who wish to give us information. We should not apologise for using that method because it has been shown to be an effective way when in Australia, and in most advanced countries, so much information is hidden from the public by entrenched economic interests.

I have one criticism of the legislation. I believe that the penalty for corporations is far too small. Looking at the courts for precedents, penalties for corporations are too small. On the other hand, there is the penalty of six months imprisonment for managers of corporations who make decisions. That might be a very sobering thought for them when they would otherwise do as they do in everyday life, in this era of cheque-book journalism when companies decide that the matter can be paid for and the fine probably comes off their tax in some way.

Although I am concerned about that, on balance it is better that we make it clear to everybody that the rules have changed and that they are reasonable rules. As to the immunity from arrest and attendance before courts provisions, I am very concerned about these because they need further attention. Senator Macklin referred to the 70 years of experience based on the United Kingdom experience. I believe that we now have to make our own rules based on a federal system.

Sitting suspended from 6.30 to 8 p.m.


Senator CHILDS —Before the suspension of the sitting I was referring to the immunity from arrest and attendance before the courts clause of the Parliamentary Privileges Bill, clause 14. Unfortunately, the tenth report of the Senate Committee on Privileges will not be dealt with until tomorrow. It has been on the list for a number of weeks. In that report the Committee recommends that the Senate give consideration to the alteration of the immunity from arrest and detention clause when dealing with this Bill. In light of the fact that the Privileges Committee report has not been dealt with all I can do is draw attention to some parts of the Committee's report that have a direct bearing on this clause of the Bill. I certainly hope that honourable senators will consider this when they consider first of all the joint parliamentary report on privileges and also the matters that Senator Gareth Evans raised earlier today with the material he placed before us.

There is a great potential for law enforcement authorities, using the many statutory and common law offences of a general character, and the large discretions in respect of arrest, the granting of many things including the granting of police bail and the time of first appearance before a court, seriously to impede members of either House of the Parliament in the performance of their duties and to remove members from the Houses for a considerable time, if those authorities are so minded. If we look at the adequacy of the immunity that exists at present it is clear that the immunity of members of the Houses from arrest in a civil cause under section 49 of the Constitution is of limited value, because the scope for a civil arrest of a person under the law as it stands is very limited. There is a much greater danger of the processes of the criminal law being used to interfere with or remove from a House its members. The police have a wide discretion to arrest persons for offences rather than to proceed against them by way of summons. The police may decline to grant bail, and a considerable time may elapse between the arrest of a person and the person's first appearance in court. A court has power to refuse bail, and if bail is vigorously opposed by police it may not be granted.

These processes provide great scope for law enforcement authorities to deprive a House of the services of a member and to hinder a member in the performance of a member's functions. A questionable decision by a lower court to impose a term of imprisonment rather than a fine may take some time to overturn on appeal. With a general increase in the number of offences and penalties in the criminal law in recent times there is a possibility of a member being sentenced to imprisonment for a relatively minor offence.

There is also the possibility of a member being convicted for a minor offence which nonetheless may bear a penalty of imprisonment of 12 months or more, and the member's seat thereby being vacated. That is perhaps something to which every member should give a great deal of thought. For a relatively minor offence, because of the 12 months or more provision in the Constitution, the member's seat could be forfeited. All of these processes are largely beyond the legislative control of the Federal Parliament. Our federal system means that, just as we are for the first time appropriately addressing the question of privilege, in the same way we must on a later occasion look at the immunity from arrest and attendance before the courts. Those matters are contained in the Privileges Committee report and have a direct bearing on the Bill that is before us.

The Privileges Committee report refers to the experience of other countries. In some countries-and there is a long list of countries including Austria, Belgium, Denmark, the Federal Republic of Germany, Israel, Italy, Japan, Norway, Spain, Sweden and Switzerland-particularly some of the democracies of Western Europe, members of the legislature have a limited and/or waivable immunity from criminal process. The Committee believes-as expressed in its tenth report-that the Australian Houses should give consideration to whether their members should be protected by some limited immunity from arrest and detention in a criminal matter. Perhaps members should be immune from arrest except in cases involving violence, disturbance of the peace, or continuing serious harm to the community, so that prosecutions against members would normally proceed by way of summons or equivalent process. Perhaps a remand of a member in custody or a sentence of imprisonment imposed upon a member should be subject to approval by the member's House.

So there are a number of approaches that can be taken, but the effect of the report that will be considered by the Senate is that we shall ensure that in our special circumstances we cannot have the Houses being deprived of a senator or member because of the caprice of a statutory authority or the State police in all the ways I have indicated. I do not intend to go any further in dealing with this Bill. It is sufficient that it is indicated that we will have another opportunity when we look at the totality of the privileges package, if I may call it that. Under the circumstances, I am confident in supporting the Bill as it is. However, at a later stage when we consider privileges and the protection of members of parliament from State police or other authorities of that type we should ensure that this is carefully encoded so that everybody knows where he stands.

(Quorum formed)