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Friday, 28 June 1946

Mr MENZIES (Kooyong) (Leaderof the Opposition) . - We are now resuming the debate on the second reading of a billto provide for the broadcasting of theproceedings of Parliament.. The measure refers to a Subject which is novelto this Parliament, and of great interest to the public. The matter can be discussed free of all party predilections. Indeed, no party issues are involved. The wholeproblem is one which concerns members of Parliament as such and the public generally. As to the desirability of broadcasting the proceedings of Parliament, I have- had a look at the views which I expressed to the Parliamentary Committee on Broadcasting and I see no reason to alter what I then said. Perhaps' I may be" permitted to quote some Of my comments. Iri a letter to the chairman of the committee I said -

As a general principle, I think' that it is desirable that the public should have the fullest access- to parliamentary discussions, there are sti'll some newspapers which give a very extensive report o"f parliamentary debates but there are' Others which give little account of what is actually said in Parliament.

The case for broadcasting is therefore a strong, one.- lt is desirable that the electors should he iri a position to know what were the actual words spoken by a member of Parliament. It is equally important that they should be in a position,, by actually hearing, to assess the personality and significance of the speaker. In one sense, the ideal Parliament would be one in which all debates' were carried on in the presence of all the people. "

I venture to say that that is true; but these remarks lead to the conclusion, which apparently is shared by the Broad-; casting Committee, that,, if there is to he a broadcast of a debate in the Parliament, the whole debate should be broadcast and not merely some portion of itThere are various good reasons for that and I shall. say something about them in a moment; but meanwhile, I draw the attention of the House to the fact that the bill provides for the establishment of a committee consisting of members of both Houses - and there is now a proposal to enlarge that committee - and that that committee shall have responsibility, among other things, foi; apportioning the time or determining the hours during which the debates shall be broadcast. It happens in this country that we have two Houses of Parliament, and- it is proposed to broadcast the" debates iii both Houses during the experimental period. I understand that in New Zealand the debates in the Upper House are not broadcast, and consequently'.the whole of the debates iri the Lower House can be put on the air. Here, however, where the debates in both Houses are to be broadcast, for a* portion of the time of the parliamentary fitting the House of Representatives will be on the air and for a portion of the time the Senate will be on the air. Nobody can say in advance how the apportion ment of time will he made or what principle will be applied' or' otherwise in determining' such apportionment; but this arrangement does lead to the Conclusion that either the broadcasting of an interesting debate- in one' House will be abandoned half way through, or we shall have periodical switches with rather kaleidoscopic results to the general public. I say with great respect to the proponents of this bill that the broadcasting of a portion only of the proceedings in this House is thoroughly undesirable. In the first place, if the object of broadcasting is to give to the people a direct. account of the transactions of the Parliament, that "account should be complete. If some speeches are broadcast and others are not, the effect will be to give an, unbalanced picture of the Parliament to the listenerin. Of course another effect - and we all know this to be true - will be that within a limited period out of the total period there will inevitably be some " jockeying " for positions - members of all parties will be in it - and some attempt to concentrate on what is regarded as a period in which there is deemed to be a good' listening public.

Mr Calwell - That is not a .new practice.

Mr MENZIES - No; but as far as the general public is concerned, debates are reported by the newspapers and, as I shall point out later on, must be reported in certain circumstances fairly. I will come to that in a moment. Meanwhile, the first effect of broadcasting for only a portion of the time will inevitably be that some members will have an opportunity to go on the air and others may have none whatever. I take the greatest exception to that. I believe very firmly that if through a public instrumentality there is to be a. broadcast of the debates of this House, every honorable member, whether he sits on the back bench or the front bench, should have equal opportunity to have his speech heard by the people who are listening in. And the moment that we adopt a' provision which' means that only a portion of the debate is broadcast the opportunity to present a true total picture of the debate. in the Parliament is lost. I have no illusions about this matter. I am not sitting

The second aspect that troubles me is this: There is a provision in clause 14 of the bill which is designed to create privilege for the broadcasting authority. As we all know, absolute privilege attaches to the word spoken by members of Parliament in the Parliament. That is an old privilege which goes right back to the time of the Stuarts; but that privilege does not automatically attach to the person w_ho reports or broadcasts the proceedings pf the Parliament. Clause 14 reads -

No action or proceeding, civil or criminal, shall lie against any person for broadcasting any portion of the proceedings of either House of the Parliament.

I know that some amendments have been circulated, but they do not touch the point I am making here. Let us treat the words " any person " as applying to the Australian Broadcasting Commission and, under the foreshadowed amendment, to any other person authorized by the committee. The point is that the broadcast which is so privileged is a broadcast of a portion only of the debate. I do not wish to-be tedious or unduly technical in this matter; but this concerns the true privilege of this Parliament and the true relation between this Parliament and the public. The present position is perhaps not clearly understood. When somebody offers to report what has taken place in the Parliament that report is not possessed of absolute privilege. The same privilege does not vest automatically in the reporter, apart from the Hansard reporter, .as in the speaker on the floor of the House. What is privileged in a newspaper, for example, is a fair and accurate report of what has been said in the Parliament. Hansard, of course,

Ifr. SIMenzies stands in a special position, and the Parliament itself stands in a special position, because it can control its own privileges. Let me sort, it into three groups. In the first place, under section 49 of the Commonwealth Constitution, the privileges of this House are put under its own control.' The words of section 49 are these -

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 rule, it will be seen at once by honorable members, whilst it deals with the privileges of honorable members and . of the two Houses of the Parliament, does not touch the question of the privileges of people outside, whether they be newspaper reporters' or broadcasters.

Mr Calwell - Broadcasting had not been thought of when the Constitution was written.

Mr MENZIES - Of course not, and this section does not deal with newspaper privilege either; it is confined to the privileges of the Parliament.' The second matter- that I refer to is the Parliamentary Papers Act passed by this Parliament. In that there are three provisions that I refer to. The first is contained in sub-section 2 of section 3 which reads -

Each House of the Parliament shall be deemed to have authorized the Government Printer to publish the reports of the debates and proceedings in that House.

Section 4 says -

No action or proceeding, civil or criminal, shall lie against any person for publishing any document published under the authority of the Senate or of the House of Representatives.

By that provision, we have privilege for the printing of papers, because when the printing of papers is authorized the papers share the immunity created by section 4. Section 6 says -

Nothing in this Act shall derogate from any power or privilege of either House of the Parliament, or of the members of the Committees of either House, as existing at the commencement of this Act.

So, in those provisions, we have privilege given in absolute terms to parliamentary papers and to the Hansard report of parliamentary debates. I b-ve mentioned the privileges of the Parliament itself and the privileges of those who are not members of the Parliament but produce and print the records of debates and parliamentary papers. I turn from that to the position of the mau outside, and I take, in particular, the case of the newspaper reporter. The privilege of the newspaper in the reporting of Parliament is a common law privilege, and it attaches to fair and accurate reports of the debates in the Parliament. It is not an absolute privilege. It is what' the lawyers call a qualified privilege, that is, it is a privilege that can be lost if there is proof of malice in the publication. There is a very good statement in a modern text-hook Gatleyon Libel and Slander, which explains qualified privilege. I read a part of it to the House -

A fair and accurate report of any debate or proceedings in either House of Parliament, or in any committee thereof, is privileged. Such privilege will, however, be lost on proof that the defendant published the report maliciously. The publication is privileged on the same principle as a fair and accurate report of the proceedings in a court of justice is privileged, viz., that the advantage of publicity to the community at large, outweighs any private injury resulting from the publication.'

Then there is a quotation from the famous case in the House of Lords of Watson v. Walter. Walter was at that time, 1S6S, publisher of the Times in London. This is the quotation -

The analogy between the two cases is in every respect complete. . . . All the limitations placed on the one, to prevent injustice to individuals, will necessarily attach to the other; a garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals will equally be disentitled to protection. . . . Whatever would deprive a report of the proceedings in a court of justice of immunity, will equally apply to .a report of proceedings in Parliament. In accordance with this analogy no protection is allowed to a report of a single speech out of several delivered in a debate, or in a day's proceedings. .

Let me emphasize that to honorable members, because there is a. very widespread belief, I fear, that all you have to do in this country is to pick out of Hansard some statement that attacks some one or makes unpleasant remarks about him, and embody it in any circular you like, because, forsooth, it is privileged. Any one who contemplates such action has no ' protection whatever, because the only privilege that attaches to a report of what is said in this House attaches to a fair and accurate report which must not b«e garbled or partial.

Mr Chifley - A timely warning.

Mr MENZIES - A timely warning, indeed, particularly at this season of the year. Let . me give point to that. I am not going through this merely to amuse myself. It is important in considering the matter of broadcasting and privilege. Suppose that Jones makes a violent attack on Brown in Parliament. It is not unknown.

Mr Fadden - The names are wrong.

Mr MENZIES - That is right. I have selected two names which I hope will not engender heat anywhere. Suppose Jones attacks Brown in a speech and Brown replies, defends himself and denies the charges. No newspaper could claim privilege for publication of that -day's debates if it published Jones's attack and ignored Brown's answer. That illustrates exactly what I mean when I say that the report must not be partial or garbled if it is to enjoy privilege.

Mr Haylen - Does Mr. Fairfax know that?

Mr MENZIES - I do not know who knows it. The main thing is that we should know it. Suppose this bill becomes law. It is a hill to authorize two things. One is a partial broadcast of the debates in the Parliament and the other is to confer absolute privilege, not the qualified privilege of a newspaper, upon the broadcaster of that part of the debate. Now, let us apply the same case of Jones and Brown. Jones, speaking during broadcasting time in Parliament, makes an attack .on Brown, and Brown makes his reply in the same sitting, but at a time when the House is not on the air. Jones's defamatory attack - I am assuming defamation - has gone over the air and is heard; Brown's answer .has not gone over the air and is not heard. Honorable mem bel:s know what I am getting at. No newspaper, under the existing law, could do that. It would be shot, as we say, for libel. But, under this bill, Parliament will have authorized the making of a broadcast communication to the people that will enjoy privilege not possessed by any newspaper and may turn out to be grossly unfair to honorable members. This does not cut merely one way-. This may happen to anybody. Honorable members will agree with me that it is not inconceivable that one honorable member, meditating a very severe attack on another honorable member, will ensure that h'e makes it during the broadcasting time, and it will be a mere matter of" fortune if the ' man attacked is able to reply during the same period. In the course of informal discussions outside, .some one suggested that that objection might be" answered by broadcasting the whole of an individual debate. Of course that does not answer my point, because the man who has been attacked may already have spoken, and will not be able to reply to the attack in the same debate unless he makes a personal explanation. In many ways, that is a very unsatisfactory vehicle, and, consequently, he may make his reply on the motion for ibo adjournment of the House. If lie is not actually in his place in the House at the time, he may not bear of the attack until the following day, and might then make his defence. Surely all those considerations demonstrate that we should be extraordinarily careful before we decide that we shall send over the air a partial account of the debates in this Parliament, not only to all persons listening in Australia but also to those who might find themselves able to listen to it outside Australia.

I have always been troubled, as I am sure other honorable members have' about one matter which I have regarded as a defect of the Standing Orders. Some honorable member makes, perhaps in the heat- of debate, a grossly improper statement about another- honorable member. Mr. Speaker intervenes, and orders the honorable member to withdraw the grossly improper statement. He complies with the request of the Chair. But the offensive remark still . appears in Hansard. It is still available to be reported to the public, and as the public do not pay too much attention to withdrawals, the statement may do almost infinite harm to the man to whom it was applied, long after the heat went out of the debate.-

Mr Barnard - How would the Leader of the Opposition correct that?

Mr MENZIES - For a long time I have considered that the proper way in which to correct it is not by removing the privilege of Parliament - that would bc a tremendous step, and a very dangerous step - but by providing that when an honorable member has withdrawn a Statement, it shall not appear in the records of the Parliament, and no privilege shall attach to its publication outside.

Mr Guy - Once Mr. Speaker directs that fee remark shall be withdrawn?

Mr MENZIES - Once Mr. Speaker directs the withdrawal- of the statement and the honorable member concerned complies with the. request.

Mr Calwell - That is a form of political censorship.

Mr MENZIES - It is not. We do not contend that it is political censorship when Mr. Speaker asks an honorable member to withdraw a statement that he has made about another honorable member. 'We merely say that Mr. Speaker is preserving the decorum of the Parliament, and is endeavouring to maintain the necessary standard of debate. I, for one, have never been able to understand why a statement- that has been withdrawn should still appear in the records of the Parliament, or why privilege should attach to its publication outside the Parliament. If this bill be passed, my comments on this matter will become completely pointless and irrelevant, because once a statement is broadcast no withdrawal will recall it. That is another reason why we should be exceedingly careful to broadcast the whole of the proceedings - the debate, the whole debate and nothing but the debate. If that is to be done, the people will be put in the same position as if they were listening to the debate from the galleries of this chamber. If that is not to be done, we shall regret the day when we decided to send out to the people only a portion of what was said in the House, and conferred, whatever the consequences to individuals, complete immunity upon the broadcasts of that portion, and that portion only.

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