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Clerk of the Senate explains why the Supreme Court cannot issue an injunction against any parliament.

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CHRIS UHLMANN: In the middle of last year, pressure grew in the ACT Legislative Assembly for an inquiry into disability services after the third death in care in the space of 12 months. The Humphries government at first resisted the push, saying any inquiry could interfere with the conduct of coroners’ inquests, and that was a view which was supported by the Chief Magistrate. In the event, the inquiry went ahead, conducted by former Supreme Court Judge, John Gallop, and the report was handed to government. What happened next, though, was unprecedented in the ACT’s short history of self-government. On Christmas eve, four public servants sought and won an injunction against the publication of the report from the ACT Supreme Court, an action which raises serious constitutional questions about the separation of powers. And when we asked practitioners in this area who we should speak to when talking about parliamentary privilege and separation of powers, we were told we should speak to Harry Evans who is Clerk of the Senate; and good morning to you.


HARRY EVANS: Hello there, how are you going?


CHRIS UHLMANN: Very well, thank you. Now in a word, I guess, can the Supreme Court issue an injunction against any parliament?




CHRIS UHLMANN: Why can’t it?


HARRY EVANS: Because of the law of parliamentary privilege. The ACT Assembly has the same parliamentary privilege as the two houses of the federal parliament. That is provided for in the ACT Self-Government Act. The two houses of the federal parliament rely on section 49 of the Constitution and the Parliamentary Privileges Act of 1987 which apply to the ACT Assembly. Under those provisions, proceedings in parliament cannot be impeached or questioned in any court, and a proceeding in parliament is defined to include the tabling of a document in a house and the ordering of the publication of a document by a house and the document published. So there is no doubt that a court injunction simply cannot interfere with a proceeding in parliament, including the tabling and publication of a report.


CHRIS UHLMANN: And just so we are clear on this point, this is what the Supreme Court had to say on the day it issued the injunction. It said ‘The Chief Minister is restrained from laying the report into disability services or a copy of the report or any part of that report before the Legislative Assembly or making a copy of that report available to the public.’ And it is, then, the laying of the report before the Legislative Assembly which the court has no place in saying: Can’t be done.


HARRY EVANS: No. The court cannot restrain a proceeding in parliament, including the tabling of a document in the house and the ordering of the publication of the document by the house.


CHRIS UHLMANN: Is there any similar case in Australian parliamentary history where a court has sought to injunct a parliament?


HARRY EVANS: No. No. You have had cases where houses have voluntarily restrained themselves from publishing documents which might interfere with court cases, but that is a different matter of course. That is a voluntary restriction which houses sometimes impose on themselves, but it is crystal clear that a court cannot stop something happening in parliament.


CHRIS UHLMANN: What about the Westpac papers in the early nineties where, of course, there were some embarrassing papers about Westpac and people sought to table them in parliaments around the country?


HARRY EVANS: Yes. Westpac had court orders suppressing the documents and people tried to publish them via the Senate in the South Australian parliament; but the question was, there, whether the houses ought to voluntarily refrain from publishing the documents so as not to prejudice Westpac’s case. For a while, the Senate restrained a senator from presenting the papers in the Senate but, eventually, they were presented in the South Australian parliament and in the Senate and were published by that means. But nobody ever suggested that the court order actually prevented the publication of the documents in the Senate. It was a matter of voluntary restraint on the part of the Senate at the time.


CHRIS UHLMANN: Does this matter, Harry Evans? There are many people who might say: this sounds like a fairly esoteric discussion; does it really matter to our day-to-day lives?


HARRY EVANS: The whole purpose of parliamentary privilege is that there is one place, namely in a house of the parliament, where the elected representatives of the people can speak freely and can publish anything they like without fear of being suppressed by law suits. That is extremely important and it is becoming more and more important. As society gets more and more tangled up in litigation and law suits and we become more and more a litigious society—you now can’t say boo to a goose without somebody threatening to take you to court—it is all the more important that court proceedings can’t be used to suppress freedom of speech in parliament.


CHRIS UHLMANN: How seriously would you view it if a court tried to do the same thing with the Senate?


HARRY EVANS: The Senate would view it extremely seriously and I am sure someone would be sent down to the court by the Senate to tell the court that they couldn’t do it, but, seriously, I don’t think any court would attempt to do such a thing.


CHRIS UHLMANN: Do you think that there has been a lack of understanding either by the court or perhaps by the executive which, of course, was represented at the court hearing and apparently didn’t say, ’Oh, don’t do that’, at the Supreme Court hearing?


HARRY EVANS: I don’t know how the proceedings in the court went so I can’t really say that and, also, you were dealing with a case of an interim injunction and courts are fairly cooperative in applying interim injunctions to things while the full argument can be heard. But, obviously, there was a lack of understanding somewhere that a court injunction can’t restrain proceedings in parliament.


CHRIS UHLMANN: Does it set a bad precedent because, of course, the way that this has been resolved is that the four people who sought the injunction have basically allowed it to be lifted? So it hasn’t been resolved in the court; it has been resolved by people deciding they just won’t proceed with it.


HARRY EVANS: I would say it is simply not a precedent. It is simply something—you get these, from time to time, in court actions and court judgments. It is simply something that is wrong. It wasn’t corrected through the court processes but it is clearly wrong, so it is not a precedent of anything.


CHRIS UHLMANN: Should the parliaments be robust in protecting their particular privileges—and they are very ancient ones, of course; this goes back to the Bill of Rights of 1688—because we know that courts are extremely precious about their privileges?


HARRY EVANS: Yes, and I think houses of parliaments around the country will be very robust. If they strike cases where courts are trying to restrain what happens in parliament and freedom of speech in parliament, I am sure they will be very robust and will very vociferously point out the law to the courts. As you say, of course, there is a mutual respect between courts and parliament. That voluntary restraint that I mentioned earlier whereby houses don’t engage in debates or inquiries which might interfere with court proceedings, that voluntary restraint is part of that mutual respect for each other’s functions, but it is crystal clear that court processes can’t be used to restrain proceedings in parliament.


CHRIS UHLMANN: Finally, then, Harry Evans, I know that there are a whole bunch of people who work in your particular field having a meeting, I think, at Parliament House at the moment over these very issues. Is it important to have these discussions in making sure that it is crystal clear where the powers of each arm of government lie?


HARRY EVANS: Oh, yes, it is. One of the things I find in our system is that significant things happen in different jurisdictions, particularly in the states from my point of view, and we don’t necessarily get to hear about them at the federal level and vice versa, so there is a great need for exchange of information on these matters so that we can all be aware of what is going on around the country.


CHRIS UHLMANN: Well, Harry Evans, I am sure that the Clerk and the Deputy Clerk of the ACT Legislative Assembly will be sitting at your knee on this one shortly.


HARRY EVANS: I am sure they know what the score is about this. It is unfortunate this happened during the holiday period—I think that was part of the problem—when attention was fixed on other matters, but I am sure all the clerks of all the jurisdictions are very well aware of this point.


CHRIS UHLMANN: It will give you something to discuss over lunch, at least, and thank you.




CHRIS UHLMANN: That is Harry Evans who is the Clerk of the Senate.