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Tuesday, 17 March 1987
Page: 812


Senator GARETH EVANS (Minister for Resources and Energy)(8.37) —I thank honourable senators for their very thoughtful contributions to this debate. It is a matter of considerable gratification to all of us who have been concerned with this issue of privilege over the years to see this measure come forward and gain so much obvious support in this place. There have been very many long-standing concerns over a great many decades about the way in which privilege law and practice have operated in this Parliament. We seem to have had a congenital inability to develop, to clarify, to codify to the extent necessary, or at least to systematise, our law and practice in relation to privilege. We have relied essentially on that provision in the Constitution that makes our privilege rules essentially those that were frozen in time at the turn of the century in the English House of Commons. There have been many examples of concern about the way in which those laws, practices and rules have operated. I suppose the most spectacular case was the Browne and Fitzpatrick case in the 1950s. More recently, a much more trivial case but one very disconcerting for a number of people who were concerned about a possible misuse of parliamentary privilege was the Laurie Oakes case, that example of alleged defamation of parliament that created so much elaborate putting into motion of this very elaborate privilege machinery of ours with results that were pretty problematical in terms of their contribution to the dignity of the Parliament.

The Parliamentary Privileges Bill makes a number of very significant contributions to the process of rationalising the law of privilege. Perhaps most important of all its provisions is the abolition of the category of contempt involving defamation of the Houses or their individual members-the kind of matter that was in issue in the Oakes case and in many others over the years. Another is the statutory codification of the penalties which may be imposed by the Houses, which clarifies what has long been almost inherently uncertain. There is also the abolition of the power of expulsion of members, which upsets Senator Puplick. All I can say here is that I do quite fundamentally disagree with his approach to this provision. I strongly endorse the justification for abolition which is spelt out in the report of the Joint Select Committee on Parliamentary Privilege. Perhaps at the Committee stage we can take that debate a little further rather than stop to deal with it now. Basically, I think the argument that is summarised in one paragraph of the report really is the nub of the matter. It is summarised particularly in that part of paragraph 7.94 which is in the following terms:

. . . the fact that the only case in federal history-

that is a reference to the Mahon case-

when the power to expel was exercised is a case when, we think, the power was demonstrably misused is a compelling argument for its abolition.

That is, of course, not the only argument for abolition; others are set out in the report as well, notably the existence of sections 44 and 45 of the Constitution, which make provision for a member being unable to continue sitting if found guilty of various specified criminal offences. There is the consideration of democratic principle that these matters ought ultimately to be matters for the electorate which votes people into this place rather than for those of us who are fortuitously here ourselves. Finally, I suppose, is the fact that the Houses have wide powers anyway to discipline members in ways falling short of expulsion. As I said, in a nutshell they are the matters that exercised the Committee and they are the reasons that appeal very much to me to retain this particular provision but we can, I suppose, debate that further if necessary in the Committee stage.

This Bill also requires specification of the `cause' or the reason, to translate the medieval expression, of any penalty of imprisonment imposed by a House and makes provision for the consequent review of that by the courts. That is perhaps giving more of a role to the courts than some people would have wished and giving significantly less of a role to the courts than others have argued for. It is essentially a compromise provision and one, I think, that makes sense for the reasons that were well articulated by Senator Durack in his contribution to the debate. There is provision in the Bill for uniform qualified privilege in relation to parliamentary proceedings, clarifying some of the multiple uncertainties which have existed about that. There is a code of statutory protection of witnesses, which no doubt needs to be supplemented in other ways I will mention in a moment. It is there in its basic form in this Bill. There are provisions relating to the limitation of the duration of available immunities from civil arrest and compulsory court attendance. That matter was adverted to by Senator Childs in his contribution. That may need some further consideration at a later date in the context of that Privileges Committee report but I think it is pretty uncontroversial, at least in the limited form in which this provision is cast in the Bill at the moment.

In addition to all these matters, the Bill deals, as most speakers have noted, with another very important matter and that is the proper interpretation of Article 9 of the 1688 Bill of Rights, which was given an extraordinarily wide interpretation by Mr Justice Hunt in the New South Wales Supreme Court case. It is a very difficult issue and I can understand some of the concerns that have been expressed by Senator Cooney and others about the dangers in readopting, as this Bill does, a very traditional view of the extent of Article 9 protection. I for one have been much exercised by this particular issue since it came to prominence and I for one was concerned about a potential overreach of the traditional interpretation, but I have been persuaded, for reasons that I am happy to spell out in more detail at the Committee stage if it becomes an issue, that however much one twists and turns and tries to confine or narrow the scope of this matter in some of the ways that Senator Cooney indicated it is almost impossible-in fact I think it is impossible-to find some principled basis on which to do that in a way that will not create more anomalies than are involved in the retention of the traditional protection. It is, I believe, very important-and most members of parliament would believe it is very important-to retain untrammelled the privilege that we in this Parliament enjoy of speaking our minds fearlessly and freely and not facing the consequences of court challenge, harassment or cross-examination, let alone prosecution, as a result of it. That privilege of course conveys with it many responsibilities. Perhaps one of the things we ought to emphasise more in the future in talking about privilege is some of the concomitant responsibilities to exercise our free speech in a responsible way and certainly in a way that is not irresponsibly to the detriment of the reputations of individuals.

This point and others are dealt with, as Senator Jessop acknowledged, not so much in the context of this Bill but in the context of other recommendations of the Joint Select Committee. As Senator Jessop said, earlier in the course of this debate I tabled a set of draft resolutions put down as a basis for further debate. It is important that in this debate on this Bill we bear in mind that this Bill, for all the topics that it deals with, still deals with only one small corner of the area of parliamentary privilege. It certainly does not attempt to be any kind of complete or even partial codification of the law and practice of privilege.

There are many other issues that are the subject of Joint Select Committee recommendations and that need to be picked up and dealt with. Some of those matters are procedures for committees generally in protecting witnesses, procedures for the protection of witnesses specifically before privilege committees, matters to be taken into account in considering contempt matters, matters to be taken into account by the President in determining the precedence to be given to contempt matters, the protection of persons referred to adversely in the Senate-a matter to which Senator Jessop referred-and the kinds of matters which constitute contempt. It is proposed that we have a resolution articulating these matters not in the form of a codification, not in the form of anything limiting, but nonetheless constituting guidance for the community at large. Other matters are procedures for raising matters of privilege, the kind of notice that ought to be required for contempt motions to be moved, guidelines for members of parliament in exercising their privilege of free speech in such a way that is responsible, procedures for reference to Senate proceedings in court proceedings and requirements for consultation between the Privileges Committees of the two Houses. It will be appreciated from simply that recitation of the list of headings for draft resolutions that a great many issues are possibly ultimately, as Senator Macklin said, best dealt with by legislation but for present purposes they are not so dealt with in the Bill now before us but are put aside for debate, hopefully in the not too distant future, on another occasion.

The Bill before us is the subject of one small set of proposed amendments which I want to foreshadow at this stage. They are the product of some further thought and consideration by the consultant draftsman, Mr Charles Comans, and deal in particular with clause 7 and the definition of penalties and the limitations that are appropriate should, God forbid, either House of Parliament ever pursue the ultimate penalty of imposing a term of imprisonment. I simply foreshadow that. I hope those matters will be uncontroversial in the Committee stage. Honourable senators have had circulated to them a copy of Mr Comans's opinion and the draft amendments. The opinion explains the reasons for the amendments. I hope as a result people will not be caught unawares when we reach those amendments.

The final thing I want to say is that the Bill before us now is the product of the effort over a very considerable period of a number of people whose contributions to this exercise ought to be acknowledged. First of all are the members of the Joint Select Committee on Privilege, who considered this matter over a long and difficult period of investigation and discussion and who reported in 1984. In particular I wish to acknowledge and applaud the contribution of the Chairman of that Committee, John Spender, the honourable member for North Sydney, who almost single handedly brought that report to fruition, especially in the period after the change of government when I, as Deputy Chairman of that Committee, was certainly unable to give it any great time or attention in the very difficult but important stage of bringing its recommendations and conclusions together. I think nearly every other member of that Committee, including those who have spoken in this debate, such as Senators Macklin and Jessop, made very substantial and helpful contributions to its deliberations, as did other honourable senators. I refer to Senators Durack and Haines, who were much involved in the discussion of the issues. Senator Durack is not even listening to me complimenting him; he does not believe it. Senators Durack and Haines were much involved in the consideration of these issues over the past couple of years when they came up in one guise or another. Their very level-headed, sensible and intelligent contributions so far have much aided the way in which the debate has been conducted in this place.

Like others, I also want to acknowledge and applaud the role played by the former President of the Senate, Doug McClelland, whose Bill this is, for this willingness to grasp the nettle, in conjunction with the Speaker of the House of Representatives, Mrs Child, and bring the Bill forward and lend the stature of his office and their offices to it. The fact that the Bill has come forward in this way has helped a lot the atmosphere in which it has been debated on this occasion.

Finally, I wish to thank again, as others have, the officers of the Parliament who worked both at the committee stage, while the Joint Select Committee was preparing the report, and more particularly during the drafting of the Bill itself and the subsequent resolutions which will be debated on a later occasion. I think that it is appropriate for me to add my particular thanks for the role played by the new Deputy Clerk of this place, Harry Evans, who has been a tower of strength, knowledge and judgment in the whole development of this very complex, sensitive and difficult area. I would also like to mention in that respect Charles Comans, the former chief Parliamentary Counsel, who went well beyond, I suspect, the scope of his formal consultancy in the kind of effort that he put into drafting, coming to grips with and wrestling with these very difficult and sensitive issues and doing so in a way that I think gets it about as right as these things ever can be got when so many people have so many different views.

Let me wind up by saying that I hope that the mere bringing forward of the Bill and, in particular, the debating of it in the atmosphere in which we have been able to debate it so far is a sign of a new maturity on the part of the Australian Parliament when it comes to dealing with issues of privilege. It is an excellent start to a task that still has some little distance to go, and it will result in our bringing about a rationalisation, a development, a systematising and a clarification of the law and practice of privilege in a way which is very long overdue and in a way which ultimately this Parliament will be very proud.

Question resolved in the affirmative.

Bill read a second time.