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Tuesday, 5 May 1987
Page: 2635

Mr SPENDER(9.25) —The Parliamentary Privileges Bill seeks to achieve two purposes: First, to give effect to the recommendations of the Joint Select Committee on Parliamentary Privilege, being recommendations which can only be given effect to by changes to the statute law; and, secondly, to overcome the effect of certain decisions of the New South Wales Supreme Court, most notable the decision in the case Regina v. Murphy.

The Bill is an historic occasion for the House since this House, together with the Senate, acquired the powers, privileges and immunities of the House of Commons at the time of the framing of the Constitution. So the privileges, to use an omnibus expression of this House, go back to the privileges of the House of Commons in 1901. If one looks to the history of the privileges of that House, one finds that they go back to the sixteenth and seventeenth centuries. It is all very good to have an interest in how our privileges came into existence but it is at least surprising that the privileges of this House should depend upon precedents, some of which go back so far. The obvious question arises: Are the privileges of the House fit and apt for these days? The decision that was reached by the Joint Select Committee on Parliamentary Privilege was that they were not and that changes should be made. So if this Bill is passed by this House-and it has already been passed by the Senate-it will have the effect of giving substantial effect to the proposals of the Joint Select Committee.

The Bill will be historic in another sense. Most parliamentary reports seem to gather dust in some archive or other but this is going to be a parliamentary report which will not gather dust. As the Chairman of the Joint Committee, I am particularly glad that that should be so. I am glad not simply because I was Chairman but because reformation of parliamentary privileges was long overdue. It seems to me peculiar that we should have to look for our precedents to the practices of the House of Commons of many years ago. For all the respect and perhaps the veneration that some honourable members here would have for the House of Commons, we are Australians, not English.

I now wish to say something about the recommendations which have been given effect to. Some have been modified. Some of the changes were so obviously needed that one can only remark that it is a wonder that they were not made earlier. For example there is a delightful rule to the effect that members of parliament are exempt from arrest on civil process 40 days and 40 nights at either side of the parliamentary sitting. This rule goes back to times many years ago when it might have taken one 40 days to get down over the cart tracks of England to the House of Commons. But even allowing for some of the iniquities of this Government, I must confess the transport system of this country is such that we do not really need those old rules.

Mr Lionel Bowen —They are State run.

Mr SPENDER —The Attorney-General says that the roads are straighter now. So long as they do not veer too far to the left from time to time.

Mr Lionel Bowen —They are State matters, too.

Mr SPENDER —Yes, they are State matters. Before going to the main recommendations of the Committee which are given effect to, let me deal with the proposal to overcome the decision in the case of the Queen v. Murphy and one other case. The effect of the decision in the case of the Queen v. Murphy was to allow the accused to be cross-examined on a written statement which he had submitted to a Senate committee and which had been treated as in camera evidence and also for the prosecution to make submissions to the jury questioning the truthfulness of the accused on the basis of that evidence despite objections by the defence. I have very real concerns about this proposal in the Bill to overcome the effect of that decision. It had nothing whatsoever to do with the case but with the question of principle, which I will outline. Let us take a hypothetical case in which a witness comes before a parliamentary committee and gives evidence which is quite untruthful and which amounts to a charge of serious criminal conduct against a third person. That third person is charged. The same witness is called and gives different evidence but the evidence is vital to the case for example, vital to the prosecution. Should it not be open to the accused person to say: `The evidence he is giving is untruthful. What he says now is different from what he said before the parliamentary committee.'?

That, I think, concerns Senator Gareth Evans very greatly. He was Deputy Chairman throughout the life of the Privilege Committee. He had in mind moving an amendment to overcome this problem but came to the conclusion in the end that he would not. I quote from Senator Evans's speech in the other place on 17 March this year when, after referring to what Senator Cooney had said, he stated:

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.

Let me give an example of what Senator Evans may have had in mind. Let us assume that somebody is called before a parliamentary committee to give evidence, he gives certain evidence and then later in a court case gives different evidence. He is then cross-examined on the difference between the evidence he gave before the parliamentary committee and the evidence that he gives in court. He says: `Well, of course I said that before the parliamentary committee but the chairman interrupted me as I tried to state my evidence more fully and directed the Hansard reporter not to take my evidence down'. He might say: `The Hansard report has been edited', or that members of the committee displayed a bias against him and effectively stood over him during the giving of his evidence so that he was not able to give a fair account of himself. Those are the kinds of problems that might arise. Concerned as I was at the need to make sure that anyone who goes to court has the right to test evidence brought against him-and so concerned was I that I circulated a memorandum to all my colleagues referring to this problem and saying that I intended to move an amendment to overcome what I saw as something that could give rise to real injustice-I have come to the conclusion that I agree with Senator Evans and that whatever one does there will be problems but it is probably better that we accept the Bill as it is presently expressed and not try to adjust it by amendment.

I am also concerned to see that this Bill becomes law. It is important that it should. It has been passed by the Senate. If we amend it here and it then has to go back to the Senate, one does not know what its fate will be because it is not a Bill which has high priority in Government business, even though the Speaker herself presented the Bill to this House. So on balance I accept the proposal which is contained in clause 16 of the Bill. I will now pass on to some other matters.

One of the chief matters the Bill deals with is that parliamentary offence called contempt by defamation of parliament. It goes back hundreds of years and it is astonishing that the Australian Parliament would need this sort of protection. We saw an example some years ago when Mr Oakes wrote an article which was uncomplimentary to some of the members of this House. It said that some of the members of the back bench were division fodder and worked too little and that some of them may have drunk too much. I must confess that I did not find that very disturbing. When the matter was raised here in this House I and some others on what was then the Government side called for a division. I seem to recall voting with the present Minister for Science (Mr Barry Jones), the Minister for Communications (Mr Duffy), the honourable member for Boothby (Mr Steele Hall) and a few others. On the other side was a most unlikely combination of faces, including the present Prime Minister (Mr Hawke), who was perhaps wondering what he was doing voting to send off a matter of privilege concerning Mr Oakes.

Is there any need for such a thing to happen? Of course there is not. If we are called incompetents, fools or drunks, so be it. We have in this House the most robust capacity to say things about others and absolute privilege attends anything we do say. So we can hardly complain that we are badly done by. If we are defamed individually we can take out individual remedies. It is a very good thing that that absurd anachronism should be disposed of by this Bill.

Next, as the law presently stands, if someone is imprisoned by this Parliament-and the only case of imprisonment that has taken place is that of Browne and Fitzpatrick back in the 1950s when a journalist and I think an editor were effectively gaoled for three months without a hearing-because he is charged with contempt and it is thought fitting that he should go to gaol, the power of the Parliament lasts only so long as the life of the House. So if a person commits a contempt of a most serious kind on the last day of the session, he can be put into gaol for one day only and then when the House reconvenes after, for example, an election, the person can be recommitted.

It is perfectly stupid that we do not have a power, to fine-and the balance of opinion is that we do not-and that we do not have a power, should it ever be necessary, to sentence someone to a precise term of imprisonment with an outer limit. That is now provided for. The outer limit is six months. The fine is a fine of no more than $5,000 in the case of a natural person and not exceeding $25,000 in the case of a corporation-although it seems to me, judging by recent events, that some corporations would treat $25,000 with about as much interest as one would treat buying a bus ticket. However, we will worry about whether or not the amounts are sufficient if that problem ever arises in the future. I hope that we never have to use these procedures but it is salutary that they should now be laid out clearly with outer limits so that we know what our powers are and so that everybody else knows what the limits to those powers may be.

Next, the Bill provides that the House will not have a power to expel a member from membership of a House. This is right. It has happened on only one occasion. The person who was expelled, if I recall correctly, was expelled on the motion of William Morris Hughes. The man was dealt with most unfairly and in an atmosphere of high prejudice. It should not have happened. One could see the intrusion of party bias in what took place, and it should never happen again. We have rules in our Constitution which lay down the qualifications for holding office in this House and provide disqualification from holding office in this House. It is the electors whose right it is to determine who should be here. It is therefore right that that provision go out.

Next, the Bill includes a provision that, where a person is committed for contempt of the House, the resolution and the warrant which follows that resolution should specify the grounds on which the person has been committed. That is only right. If we are to go to the extreme of gaoling someone, we should state our reasons so that those reasons appear on the face of the warrant. The provision in the Bill departs somewhat from the recommendation of the Joint Select Committee, but it departs from it in a way which I support. If this Bill is passed, it will now be open for the High Court to examine whether, on the basis of the grounds stated in the warrant, a contempt had been committed. That is quite right because it is wrong that someone should be sent to gaol without any right of review being open to that person.

Next, there are certain protections for witnesses who appear before parliamentary committees. We do not have statutory protections for witnesses-that is, statutory protections which create offences for those who seek to interfere with witnesses who are giving evidence before committees. Such protection should exist; there should be criminal penalties which can be proceeded with by reference to the ordinary criminal trial processes, rather than always having to invoke the cumbersome procedure of the House itself taking action against an individual. Those who seek to influence wrongly the evidence that a person is to give before a parliamentary committee should understand that from now on that will be a criminal offence which can be dealt with in the same way as any other criminal offence.

The absurd immunities from arrest to which I have referred have been scaled down considerably. We now no longer need protection 40 days and 40 nights either side of our attendance here; we have five days and five nights which, allowing for strikes, inclement weather, State problems or any other problems that might arise, would still be enough to get us from wherever we find ourselves in this country to this House. Indeed, since arrest on civil process is, as far as I can recall, a legal curiosity, we should not have to be bothered with it in any event.

This Bill effects major changes in the laws of parliamentary privilege. I have introduced a Bill into this House to give effect to the recommendations of the Committee's report, but these are substantially covered by this Bill. Senator Macklin did the same in the Senate. I am perfectly content that this Bill should give effect to the recommendations of the Committee and that mine will now pass into the dustbin of history, along with that of Senator Macklin. I ask all members to support the Bill. I believe that it is necessary for us to come into the 1980s. As Australians we should state what our main privileges should be and say that there are some privileges which we inherited in 1901 which have nothing to do with the way in which this Parliament should run in the 1980s.

Finally, I wish to thank all members of the Committee. The Committee started off in the days of the Fraser Government with me as Chairman with Senator Gareth Evans as Deputy Chairman. The other members of the Thirty-Second Parliament's Committee were the honourable member for Fairfax (Mr Adermann), Senator Georges, the honourable member for Melbourne Ports (Mr Holding), as he then was, Senator Jessop, the honourable member for Lalor (Mr Barry Jones), as he then was, Senator Kilgariff, Senator Macklin and the honourable member for Barker (Mr Porter). In the next Parliament it was agreed that I should continue as Chairman, which was a fairly gracious gesture, particularly as this was a reconstituted committee, since, as a general rule, when governments change, chairmanships also change. Senator Gareth Evans, who was then the Attorney-General, continued as Deputy Chairman. The other members were the honourable member for Fairfax, Senator Georges, the honourable member for Maribyrnong (Mr Griffiths), who joined the Committee, the Minister for Aboriginal Affairs (Mr Holding), who continued his membership, as did the Minister for Science (Mr Barry Jones), and Senators Jessop, Macklin and Ray.

I wish to pay particular tribute to all members of the Committee and perhaps especially to those government members who became Ministers but who stayed on the Committee showing a very real interest in its work. Senator Gareth Evans had a major portfolio to hold down, and it was very good of him to stay on the Committee and still attend its meetings when he had many other things that he would no doubt rather have been doing. The same could be said about the Minister for Science and the Minister for Aboriginal Affairs. I wish also to pay tribute to the clerk of the Committee, Mr Bernard Wright, and to the draftsman of this Bill, Mr Comans, who has approached a difficult subject and dealt with it with great clarity. I commend the Bill to the House.