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Tuesday, 17 March 1987
Page: 809


Senator PUPLICK(8.20) —I rise to give my general support to the Parliamentary Privileges Bill 1986. First of all I thank my colleague Senator Cooney for his great assistance in speaking in the time frame in which he has in the last few minutes. The Bill which comes before us, which was a very distinguished initiative of Mr President McClelland, is one which arises, as other honourable senators have said, from a curious set of circumstances in which two judges of the State of New South Wales, the Hon. Mr Justice Hunt and the Hon. Mr Justice Cantor, had sought to give a very narrow definition of the privileges of the Parliament which had previously always been understood but never expressly provided for. I suppose it is a reflection upon us as a legislative body that in fact we did not do anything about clarifying the privileges of the Parliament until such time as they came under threat by the judgment of two members of the Bench in New South Wales. To that extent I suppose we ought to be grateful to their honours for having precipitated the Parliament into doing something about a situation which clearly we have had the opportunity to address for the last 86 years but have not done so. However, it should not be thought that their honours were alone in terms of giving this narrow definition of privilege, and again as other honourable senators have indicated there have been contrary views on the scope of privileges put by other members of the Bench. For instance, Mr Justice Zelling, speaking as the Acting Chief Justice of South Australia in the case involving the Australian Broadcasting Commission and Chatterton, made the point:

In my view, leaving aside what was said in Parliament, nothing that the appellant Chapman said was untrue and could be defamatory of the plaintiff and what was said in Parliament cannot be used to extend the meaning of what was said outside Parliament.

That was the clear point which was at issue in the cases in New South Wales, yet His Honour in South Australia, the Acting Chief Justice, made it quite clear that what was said in Parliament could not be brought into discussion in order to extend the meaning of what was said outside the Parliament. Similarly His Honour Mr Justice Carruthers, in the same court as Justices Hunt and Cantor, in fact said that he disagreed with Mr Justice Hunt's view and said:

I am unable to adopt the narrow construction of Article 9-

that is, Article 9 of the Bill of Rights (1689)-

which he-

that is, Mr Justice Hunt-

propounds.

To that extent therefore I am perfectly happy to see the Bill drawn the way it is and giving an indication that the Parliament regards its privileges as being those which it had historically understood them to be prior to the Hunt and Cantor judgments. I very much agree with what Senator Macklin had to say in relation to the importance of the concept of parliamentary privilege and its very important relationship to the way in which parliamentary democracy in Australia functions.

I am very much reminded this evening in this debate of the absence of my colleague the late Senator Allan Missen. This was one of the few issues on which Senator Missen and I profoundly disagreed. Senator Missen was a great believer in winding back and restricting the scope of the privileges of the Parliament. In that I think he was wrong, and I think the view which the former President's Bill, which is now before us, propounds is the correct one. However, I want very briefly-and I have assured Senator Gareth Evans that I will be very brief; I know that he does not in the least bit believe me, but I shall try to demonstrate that at least on this occasion he should-to address myself to proposed clause 8 of the Bill, which reads:

A House does not have power to expel a member from membership of a House.

I disagree with that. I believe that for a number of reasons, which I will try to deal with very briefly and I hope succinctly, it is important that the Parliament should retain the power to have some capacity to examine the fitness of members to serve in the Parliament if in fact they are convicted of certain offences, and the Parliament believes that as a result they should not continue to sit in this chamber but should be required, if necessary, to seek the re-endorsement, or be compelled at least to subject themselves to the re-endorsement, of their electors at a stage which arises before the normal expiry of their terms. Senator Durack has, during his remarks, indicated the extent to which the Clerk's office, and Mr Harry Evans in particular, have been of assistance to people in gathering material and coming to an understanding of the meaning of this legislation, and I also want to pay tribute to the assistance that I have received from that quarter in getting together some material about expulsions from democratic parliaments which I think are relative to clause 8 of the Bill.

As has been said, the House of Representatives has sought to expel only one member, Mr Mahon, who was expelled in 1920. In 1968 the New South Wales Legislative Council moved to expel Mr Alexander Armstrong for conduct which was unworthy of a member of the House, and that involved certain financial and pecuniary matters. The New South Wales Legislative Assembly acted on two occasions, the most recent being as far back as 1917, to discipline its members by expulsion. The Victorian Legislative Assembly has been somewhat adventurous, and although the cases relate mainly to the previous century, some six persons have been expelled from it. In 1968 the Tasmanian Legislative Council moved to expel or to declare vacant the seat of a member of that Council, as a result of certain contractual arrangements which had been entered into between the member and the Crown contrary to State law. The House of Commons has been a little more adventurous. It has proceeded on a number of occasions to expel people. I would not want to go back to the days of Wilkes and the famous North Briton case, in which Wilkes was sent back to the electors of Middlesex on three or four occasions for his attacks upon the Crown; the electors of Middlesex on each occasion returning Wilkes to the House of Commons because they had made judgment in those particular matters. But in more recent times the House of Commons has acted against persons who were convicted of such offences as the fraudulent conversion of property, acceptance of payments for disclosure of party deliberations of members and, in 1954, forgery.

The United States has been even more robust. It has expelled a number of members in both the Senate and the House of Representatives, including some famous cases, such as that of Representative Adam Clayton Powell in 1967. The Canadian House of Commons has on three occasions caused members to be expelled. I believe that ultimately we are faced with a very difficult situation here. The power of a House of the Parliament to decide that the conduct of a member has been sufficiently unworthy that he or she ought to be expelled from the Parliament and given the opportunity, unless he or she is likely upon his or her expulsion to be committed to a term of penal servitude, of being reassessed by his or her electors as a result of some proceedings, some conviction or some determination by the proper judicial authorities of this country, is a power which ultimately the Houses of the Parliament ought to retain.

I do not believe in putting out of our power entirely the right to expel a member of the Parliament if the conduct of that parliamentarian is so clearly unworthy that it would bring the Parliament into the gravest contempt if that person were allowed to continue as a member of the Parliament, or indeed if the Parliament and the privileges of the Parliament were used as a shield which allowed that person to escape the consequences of the judicial system that otherwise might be visited upon him or her were he or she to be an ordinary citizen of the Commonwealth of Australia and not a particularly protected person by virtue of membership of one of the Houses of the Federal Parliament. Therefore, when the Committee proceeds to vote on the clauses of the Parliamentary Privileges Bill, I will record my vote against clause 8. Other than that, I am happy to give the legislation my support and I congratulate those who have been involved in its drafting. I pay tribute to Mr President McClelland for having taken the initiative to bring this piece of legislation before the chamber.