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Wednesday, 3 October 1984
Page: 1146


Senator PETER RAE(6.13) —I wish also to refer to the draft report of the Joint Select Committee on Parliamentary Privilege and to add to what has been said in relation to the chairmanship of Mr Spender and the work that he put in. I refer also to the unholy alliance which took place between him and the Deputy Chairman, Senator Gareth Evans, but which eventually produced a report which I believe is an extremely important review of the total law of privilege as it relates to the Parliament. I emphasise that when I am referring to privilege, I am not using it in the sense that so many members of the public take the word privilege to mean; rather it is really the law of parliament, the procedures, the protection of the rights of people vis-a-vis the Parliament and the right of parliament to be able to operate with which we are dealing.

The concepts with which we are dealing are concepts which have developed since the whole Westminster system, as it is so often called-the British Parliament- developed in the past 800 years. A large number of the traditions and processes which we now apply were built up through the experience of those 800 years and the battles that took place between the Executive and the Parliament during that time.

It is important that there be a protection of the parliamentary process and it is important that there be a protection of the people who are affected by that parliamentary process. This is what the report is all about. It includes a number of matters to which reference has been made by my colleague Senator Jessop. As he did, I simply draw attention to the fact that in our report we dissented from a number of matters, but totally accepted the general thrust of the main report that there should not be any undue codification of the law of parliamentary privilege. There should not be any undue transfer of the powers of the high court of Parliament, which Parliament traditionally has been, to other judicial areas under our Constitution. We have therefore made a recommendation which I think reviews very rationally the rights of both parliament and the people who are affected by parliament. It ensures that some of the notions which have in the past been regarded as offending the principles of natural justice are reviewed and are to be applied. One could summarise the report by saying that it has opted for assuring that the rules of natural justice shall be applied to the law relating to the Parliament-the protection of parliamentarians , the institution of parliament and of the people who are affected by parliament .

One aspect I want to refer to in particular is the question of enforcement of fines. Whether there is or is not at the moment a power to fine, one of the recommendations of the report is that there should be a power to fine for certain types of contempt of the Parliament. As a member of the Senate Privileges Committee currently dealing with a complaint of breach of privilege, I do not want to comment in detail on that at the moment. For that reason I will be seeking leave to continue my remarks later, as I understand that the debate can then be adjourned and can be resumed after people have had an opportunity to read the full report. I will then feel a little more free to make some further comments.

One comment I wish to make at this stage is that if there is to be a power to fine, there needs to be a sanction, a way of enforcement. Enforcement by gaoling , I would have thought, is not a very satisfactory way of enforcement because if it is appropriate to impose a fine in the first place, it is appropriate to ensure that the fine is paid rather than impose a gaol sentence on a person for a breach of what amounts to the original offence.

We obtained an opinion which has, I believe, been tabled with the report in the other House. I wish it to be tabled in this chamber as well. It is an opinion from the Secretary to the Attorney-General's Department, dated 18 September 1984 and therefore received just a short time ago, in which he referred to a possible scheme. I commend that scheme to honourable senators for their consideration. That scheme proposes that in effect an order made by a House of Parliament would be registered as a judgment. I suggest it would be appropriate that it be registered on the certification of the Presiding Officer of either House, with the Supreme Court of the Australian Capital Territory, and with the powers of enforcement which a judgment of the Australian Capital Territory Supreme Court would have. That means that the normal processes of the law would then apply in the enforcement of the fine which had been imposed. I do not think that the Parliament is equipped to go through the sorts of processes necessary to enforce the payment of the fine. The only alternative, at least in the first instance, is gaoling, which is too draconian. I draw that to the attention of honourable senators. With those brief remarks, I seek leave to continue my remarks later.

Leave granted; debate adjourned.