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Wednesday, 6 May 1987
Page: 2653

Mr CLEELAND(10.01) —Stephen distinguished between those who held a feudal view of society and those who took a democratic view of the role of officers of the State. I must say that I strongly take the democratic view. Clause 4 of the Parliamentary Privilege Bill 1987, which is now before the House, fundamentally changes the historical view of contempt. Australian parliaments have held that the mere publication of a committee's proceedings, of evidence taken by a committee, of documents presented to a committee, of a committee's report, and of draft reports before these materials have been presented or reported, as the case may be, to the relevant House, constitute a contempt. Clause 4 is important as it introduces the notion that to constitute contempt it is necessary to show that, in the circumstances outlined, publication amounts to or is intended or likely to amount to an improper interference with the free exercise by a House, or of a committee, or of its authorities or functions.

Clause 4 of the Bill is also in line with decisions of the High Court of Australia, where in Gallagher's case and Victoria's case it was held that to constitute contempt of court the acts charged must have a real and definite tendency, as a matter of practical reality, to interfere with the functions of the court. One concern that I have about clause 4 is the failure to establish the criteria of the burden of proof. It would be my submission that the House should not find that a contempt has been committed unless it is satisfied beyond reasonable doubt that the acts complained of caused, or were likely to cause, a substantial interference with the functions of the Parliament. This approach is consistent with the well-established proposition that the Parliament should use its contempt powers only when it is essential to provide necessary protection for the House or one of its committees. The scheme of the Bill ensures that the offence sections, such as clause 13, dealing with unauthorised disclosure of evidence, must be read in conjunction with clause 4.

I have previously expressed the view that, in my opinion, this Bill does not go far enough. Having studied the private members' Bills introduced by Senator Button and by the honourable member for North Sydney (Mr Spender) I would express a strong preference for the approach adopted by Senator Button. I do not believe that a body such as the Parliament can, in a matter having sanctions as serious as in the area of contempt, be all things. It cannot possibly or fairly be prosecutor, judge and defence counsel at the one time. The concept is, without question, a breach of natural justice and would not be acceptable to any tribunal established by this Parliament. In fact, one could imagine that, if this Parliament established a tribunal consisting of a body which acted in all three areas, there would be a public outcry and it would not be accepted.

Whilst the Bill represents an undoubted improvement on the existing state of affairs we should not forget that this House is unfettered in its power to punish. That power, which can include the power to inflict capital punishment, should, by any reasonable standard, be subject to review by the High Court of Australia. The process by which the Parliament determines the question of guilt or innocence is not subject to the normal rules of evidence. There is no independent chairman to rule on procedural or evidentiary questions in dispute, and no right of counsel to appear for the accused person.

If this Parliament is to maintain the right to enforce its own rules on contempt or a breach of privilege it must of necessity establish proceedings recognised in any civilised country as according natural justice to those whom the Parliament wishes to accuse of breaching its rules. In conclusion, I refer the House to the conclusion drawn by Sally Walker in a research paper prepared for the Adelaide Law Review Association in 1984. She said:

The powers which may be exercised by Australian Houses of Parliament are not insignificant and contempt of parliament is a source of potentially arbitrary power which is subject to little supervision by the courts. There is uncertainty not only about what powers a House may exercise in any particular case, but also about the concept of contempt of parliament. The many unsolved problems of principle and the fact that it is not possible to draw binding conclusions from previous examples are symptomatic of this uncertainty. Hence, despite the fact that Houses of Parliament rarely exercise their powers, journalists are justified in perceiving contempt of parliament as a source of restraint upon their freedom to inform the public.

There is an incongruity between the nature of contempt of parliament as a measure to protect the functions of Houses of Parliament, Members of Parliament and officers of Parliament and the notion that the House concerned may punish conduct that constitutes contempt. This incongruity may explain the fact that although the Houses of Parliament often resolve that conduct constitutes contempt of parliament, comparatively few of the persons responsible are punished. The incongruity also leads this writer to suggest that the powers of the various House of Parliament be limited to self-preserving powers.

If the powers of the various Houses of Parliament to deal with contempt of parliament were limited to self-preserving powers this would reflect the nature of contempt of parliament. Nothing in the analysis of the exercise of the contempt powers by Australian Houses of Parliament suggests that, in order to deal with contempt of parliament, powers more extensive than self-preserving powers are necessary. Another advantage of such a reform would be that the courts would be able to review the exercise of the power to some extent.

Such an alteration in the powers of Australian Houses of Parliament should be accompanied by legislation removing the power of those Houses to deal with certain conduct which can be dealt with more properly under the general law and enabling the courts to review a House's finding that particular conduct or a particular omission impedes either a House of Parliament, a Member of Parliament or an officer of Parliament in the performance of their respective functions. This would diminish fears that Houses of Parliament may be influenced by political considerations in contempt cases. It would also ensure that the concept of contempt of parliament could gradually evolve and the problems of principle referred to could be solved. It would also limit the undesirable effects of Houses of Parliament acting as judges in their own cause. These reforms would place contempt of parliament on a more rational basis, balancing the respective requirements of Houses of Parliament and the media.

The public should not consider this problem to be obscure or irrelevant: we rely on the media for accurate information about and legitimate criticism of Parliament and, in so far as the powers of the Houses of Parliament and the uncertainties associated with contempt of parliament circumscribe the freedom of the media to provide this information and criticism, we are all affected.