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Monday, 29 February 2016
Page: 1234

The PRESIDENT (10:29): Last Wednesday during question time I undertook to consider further an issue about the use of inappropriate language by way of quotation. In answering a question from Senator Lindgren about instances of bullying, harassment or intimidation in the building industry—versions of which have been asked on several occasions now—Senator Cash sought to demonstrate the nature of these incidents by quoting specific examples of derogatory language alleged to have been used. Senator Moore took a point of order and senators addressed the point of order.

In my response, I indicated: firstly, that quoting something does not provide a shield for inappropriate language; secondly, that I was concerned about the language being used; and, thirdly, that I was also concerned about the rights of senators to express what they want to express in an answer.

Rather than making an immediate ruling on a very complex matter, I undertook to consider it further, including by accepting written submissions from senators. In the meantime, I asked senators to exercise restraint in their language. I thank Senator Cash, in particular, for the way she responded to that request by reframing her answers to describe the alleged words and actions while respecting my advice. I also thank Senator Wong and Senator Cash for their individual submissions, and Senators Brandis, Cormann, Fifield and Scullion for their joint submission. The submissions raise numerous useful arguments and I table them for the information of all senators.

In this statement, I wish to address the role of the President, the concept of freedom of speech in parliament, the practices of the Senate in relation to unparliamentary language and, finally, the way forward.

Role of the President

As the Presiding Officer of the Senate, the President is responsible for the proper conduct of the business of the Senate, for interpreting the standing orders and their application, and for regulating the procedure of the Senate. The standing orders do not—and cannot—provide a complete code for the operation of the Senate. In the absence of a standing order, the President may give a ruling on any question not provided for. Rulings which have not been dissented from are equivalent to resolutions of the Senate and must be complied with.

The Senate took an early decision in 1904 to build up its own set of rules, forms and practices through rulings of the President—as an alternative to following the usages of the United Kingdom House of Commons, as other comparable parliaments have done. Consequently, Presidents today apply a body of rules comprising both the standing orders and undisputed rulings, most of them of long standing.

Freedom of speech in Parliament

Speech and other proceedings in parliament are protected from outside interference by the law of parliamentary privilege which applies to the Senate in the terms of section 49 of the Constitution. This is a barrier that keeps external forces from interfering in parliamentary proceedings so that the houses can perform their functions and regulate their own affairs as they choose, including by making their own rules and orders under section 50 of the Constitution.

The position is summarised by Sir William Anson in his Law and Custom of the Commonwealth as follows:

Speech and action in Parliament may thus be said to be unquestioned and free. But this freedom from external influence or interference does not involve any unrestrained licence of speech within the walls of the House.

In other words, freedom of speech in parliament is subject to the rules, forms and practices of the relevant house.

In the Senate, one constraint is the prohibition against use of offensive words reflecting on a vote of the Senate; against the Queen, the Governor-General or a state governor; against either house of parliament; against a house of a state or territory parliament or any member thereof; or against a judicial officer. These are the prohibitions contained in standing order 193, as interpreted through innumerable rulings of Presidents.

Another constraint is the sub judice convention which is entirely based on Presidents' rulings.

A further constraint is inherent in the duty of the chair to regulate the proceedings of the Senate and to maintain order. In carrying out this duty, chairs exercise discretion about what is appropriate language for the chamber in any given situation. Many senators in their time will have been asked by the chair to withdraw inappropriate language, even when it is not directed against a protected person or institution. It is part of the cut and thrust of debate in this place.

These days, searches for particular coarse words will produce many examples of this. Comparable terms will not be found in earlier Hansards because either the Hansard reporters would have not taken the words down unless directed to, or Presidents would have instructed the Principal Parliamentary Reporter to expunge them. But there are numerous injunctions from chairs to withdraw or not to use particular language, including President Givens's ruling that it is not in order to swear or President Kingsmill's ruling that it is not in order to use slang and coarse expressions. Later rulings include a famous ruling from President Reid in relation to quotation of an obscene word.

The practices of the Senate in relation to unparliamentary language

In practice, the term 'unparliamentary language' covers the spectrum of language that is unacceptable either because it is contrary to the various prohibitions in standing order 193 or because it is regarded by the chair as unacceptable in debate.

It is a longstanding practice, dating back at least to 1908 in the Senate and observed in other parliaments, that quoting another source does not allow a senator to bypass the normal rules in relation to unparliamentary language.

A particular incident in 1979 led to both the Privileges Committee and the Standing Orders Committee (now called the Procedure Committee) examining and confirming that principle.

The Privileges Committee, in its report on Quotation of unparliamentary language in debate, concluded that it was a matter of order rather than a matter of privilege, but the committee observed:

It is undeniable that the most basic freedoms attaching to any parliament and to its members is the freedom of speech, but it is equally undeniable that every parliamentary chamber has its rules of order, including those directed against the use of objectionable, offensive or 'unparliamentary' words and expressions.

The Standing Orders Committee observed that the rule against quotation of unparliamentary language 'is a fundamentally sound one and to abandon it would allow speeches to be made deliberately circumventing the prohibition'. The committee continued:

The fact that certain language is used outside the Senate with impunity does not mean that such language should be acceptable in the Senate. The Committee therefore considers that no change should be made to the existing practice and that the President should continue to apply the rule with discretion and with a due regard for the right of Senators to refer in debate to matters of public interest.

The way forward

The key issue in this case was summed up by Senator Cormann in addressing the point of order last week. It is whether, in exercising their freedom of speech in the Senate, it is in order for senators to substantiate a serious concern they are explaining by quoting what is alleged to have actually happened.

As I mentioned, there had been previous questions and answers on this matter. No objection was taken until last Wednesday, despite Senator Cash's quotation of some very colourful language on previous occasions. I believe that the difference with the alleged remarks that Senator Cash quoted last Wednesday was the use of language that many people in the community would reject as offensive to community standards and abhorrent to particular sectors of the community. However, I expect that this was the very point that Senator Cash wished to make about those persons alleged to have used that language in the first place.

Had the quotes been in relation to a protected person, there is no question that they would have been completely out of order and required to be withdrawn. Had the offensive words been scattered through a debate, it is again highly likely that any chair in this place would have queried them as inappropriate. Where no protected person is involved, however, and where the language used is strictly necessary to make the point, it makes it very difficult for the chair to prevent a senator from quoting such language or to require its withdrawal. If senators choose to enter this territory, they do so at their own responsibility.

In these circumstances, I believe it is incumbent on me to draw senators' attention to Senate privilege resolution No. 9 which reminds senators of their responsibilities when they exercise the great privilege of freedom of speech. Copies will be circulated, along with the text of my statement.

As I indicated at the outset, this is a complicated matter. In exercising their judgement on whether to quote in full from sources containing offensive material, I would encourage senators to be mindful of the wider audience that views or listens to proceedings, including the frequent presence of young students in the public galleries. Secondly, to ensure that the freedoms of senators are not impinged and the standards of the Senate are not compromised, I intend to refer this statement and the submissions I received to the Procedure Committee for its consideration of the general principles.

I thank the Senate.