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Tuesday, 5 May 1987
Page: 2639

Mr McGAURAN(9.54) —The Parliamentary Privileges Bill is a very important piece of legislation. It calls into question some of the most fundamental questions surrounding the powers as well as privileges of this Parliament. However, I very much fear that we will have to convince those people who are still listening to this broadcast of its importance. Those who were listening to the broadcast I very much suspect have tuned off in droves as we began what some may cynically regard as being navel gazing, or introspective examination of our own procedures surrounding this place. However, I do stress that the Parliamentary Privileges Bill has a wider importance to all members of the community and not just to members of parliament. The legislation which has passed through the Senate follows two basic elements. The first is to correct, for want of a better word, the judgments that have followed the well-publicised and now notorious Murphy trials in the New South Wales Supreme Court and, secondly, to give effect to the Joint Select Committee on Parliamentary Privilege, to which the member for North Sydney (Mr Spender) has referred at length.

In the first instance, I want to concentrate my remarks on the Murphy trials. Honourable members would be aware that Mr Justice Hunt in his judgment, in Regina v. Murphy ruled that parliamentary proceedings could be used as evidence of an offence or of a civil liability to establish the motive or intention of a person for the purpose of proving an offence or a civil liability as well as to attack the credibility of a person. So, this legislation seeks to restate what has always been thought to be the long-held position, which is the immunity of parliamentary proceedings from any such question or examination. Such immunity derives from Article 9 of the Bill of Rights of 1688, which is enshrined in our parliamentary system by virtue of section 49 of the Constitution. Article 9 is as follows:

That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place outside of parliament.

Since 1688 that has been a sacrosanct rule governing the proceedings of parliament, namely, that what was said in parliament or in the committees could not at a later time be called into question, certainly not least of all in a court of law. That is why I say that this legislation does raise fundamental questions of importance for every citizen, because, particularly in a climate of divisive politics, citizens are entitled to ask about the workings of privilege in this chamber. It is my view-and I suspect that this belief is shared by most honourable members-that the public is heartily sick of the slander and careless denigration of reputations that, sadly, occur too frequently in this place. Politicians are often their own worst enemies: The more times that a person's reputation is sallied in this place, it being known full well that the attacker is protected from any sort of defamation or recourse at law that would normally attend to such comments outside this chamber, the esteem in which the public holds politicians is again lowered. So, it is very important for people to consider the rights and privileges attending to this chamber.

It had always been believed that section 49 of the Constitution, which I have read, was previously taken to mean that parliamentary proceedings would not be called into question in a court or a tribunal. During the course of the trial of the late Mr Justice Murphy it was decided that Article 9 of the Bill of Rights of 1688 would be breached only if an adverse effect on parliamentary proceedings resulted. Furthermore, Mr Justice Hunt found:

The protection provided by Article 9 must be balanced against the requirement of court proceedings.

Honourable members would be aware that during the Murphy trial witnesses, as well as the accused himself, were cross-examined on the evidence which they had given to Senate committees-including, incidentally and probably most disturbingly of all in camera evidence. Submissions were also made by counsel for the various witnesses, for the accused as well as the prosecution, as to the credibility of those witnesses, based on evidence that they had given at the Senate committee hearings. So, for the first time persons were being challenged in a court of law on evidence that they had given in proceedings of the Parliament.

Mr Millar —On oath.

Mr McGAURAN —On oath, as my friend and colleague, the honourable member for Wide Bay says-one of the most experienced and, I might say, distinguished Deputy Chairmen of this chamber. The judgment to which I have referred might not necessarily be followed by other courts and indeed a judgment has been delivered since Mr Justice Hunt's judgment in the Murphy case which is quite contrary, and that was the case of the Australian Broadcasting Commission and Another v. Chatterton, as well as Chapman v. Chatterton, which judgment was delivered in August 1986. Interestingly, the Acting Chief Justice of the Supreme Court of South Australia, Mr Justice Zelling, adhered to the traditional interpretation of Article 9. Without going into all of the reasons for that judgment, I should simply say that Mr Justice Zelling found that what was said in parliament by a defendant could not be later used in a case of defamation against him for something that he had said outside parliament to explain or add to his comments made outside parliament. The South Australian Supreme Court again found that absolute privilege, unquestioned privilege, attached to the proceedings of parliament and that they could not be used even to describe a course of action or in any way to add to or subtract from comments made outside parliament.

However, it was the judgment of the Presiding Officers-the President and the Speaker, both of whom introduced legislation in their respective chambers-that one cannot leave as fundamentally important a matter as this hanging in the air. That is why this legislation specifically declares the immunity of parliamentary proceedings from any question or examination. Moreover, the legislation prohibits the unauthorised use of evidence taken in camera and not released by the parliamentary committee concerned.

I well understand, and the National Party of Australia is persuaded by, the arguments made out by the Presiding Officers in their second reading speeches. In summary, the Presiding Officers have argued that if Mr Justice Hunt's interpretation of Article 9 is followed there is a serious threat to the freedom of speech of members of parliament, to whom it applies, as well as witnesses, as in the case of the late Mr Justice Murphy, before a parliamentary committee. While a member may not be sued or prosecuted for something that he or she has said or done in the course of parliamentary proceedings, the member's participation in those proceedings could be used to establish the member's motive or intention in relation to the words said or acts done outside parliament. In other words, Mr Justice Hunt's judgment in Murphy's case would support a civil or criminal action in relation to words said or acts done outside parliament.

In summary, a member's participation in parliamentary proceedings could be used against the member in court proceedings in a way not previously thought possible. Similarly, use could be made of evidence given by witnesses before parliamentary committees. Witnesses, therefore, would become more reluctant to accept the invitation to give evidence before parliamentary committees. As Madam Speaker makes the point in her second reading speech, this may well lead to committees having to use compulsive measures which do not have a tradition in the system of committees of the Parliament. Moreover, that may be not only undesirable but also unproductive or impractical in some cases.

On behalf of the National Party, however, I raise some concerns which I do not think this legislation properly addresses. By that I mean that a number of us have had experience of sloppy, inaccurate or sometimes deliberately misleading evidence being given to parliamentary committees. Why cannot those witnesses be held to account at later court proceedings? I am quite worried by this. From my discussions with the honourable member for North Sydney, I know that he shares my fear that witnesses could give evidence before a parliamentary committee but, later in a court of law, could give a completely different type of evidence and there would be no way of cross-examining them to show that at that court they were perjuring themselves.

People in the community should understand that when they go before a parliamentary committee they have to tell the truth. Where in the legislation is there a mechanism for bringing people to account if one story is told to a parliamentary committee and another to a court of law? In other words, the deceptive witness under this legislation acquires the same immunity in a parliamentary committee as a member of parliament has inside this chamber. I worry that the Parliament has sanctions and it must be able to impose penalties on deceptive witnesses. The obligation of witnesses to tell the truth before parliamentary committees is not properly spelt out in this legislation. I very much hope that the Attorney-General (Mr Lionel Bowen), who has carriage of the legislation in place of Madam Speaker this evening, will address that issue of where in the powers of the Parliament we can ensure that witnesses are held to account for their evidence.

I realise that my time is limited this evening and that other members wish to speak, not least of all the honourable member for Fairfax (Mr Adermann) on behalf of the National Party. I restate my Party's view that we accept the legislation; we welcome it; we congratulate the honourable member for North Sydney and other honourable members who participated in the Joint Select Committee. I still have a grave fear that the immunity given to witnesses before parliamentary committees, where their evidence cannot be tested at a later tribunal or court hearing, is insufficiently addressed in this legislation.