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Thursday, 19 September 1974
Page: 1267

Senator BONNER (Queensland) -In accordance with the notice I gave on 1 1 July this year, I move:

That the Senate accepts the fact that the indigenous people of Australia, now known as Aborigines and Torres Strait Islanders, were in possession of this entire nation prior to the 1 788 First Fleet landing at Botany Bay, urges the Australian Government to admit prior ownership by the said indigenous people, and introduce legislation to compensate the people now known as Aborigines and Torres Strait Islanders for dispossession of their land.

Senator Cavanagh - I rise to order. I ask whether it is proper that we should be discussing this question. I claim that it is sub judice and if it is it would be against all precedent of this Senate for us to be discussing this matter when it is before a court of law. It may not be within your knowledge, Mr President, but to establish that it is a matter before the court I refer to the Australian Capital Territory Supreme Court action No. 1 103 of 1974. The Commonwealth has been served with a writ on behalf of one Paul Thomas Coe, a law student at Sydney University and the plaintiff, naming Queensland Mines Limited and the Commonwealth of Australia as defendants in an action to be heard before Mr Justice Fox. The action has been adjourned until 26 September and deals with the same matter as the motion before the Senate.

I might be pardoned for mentioning some of the references in the statement of claim. The plaintiff is a member and descendant of the Aboriginal people and alleges that prior to the invasion of the continent of Australia by persons from the United Kingdom, Great Britain and Ireland, the Aboriginal people enjoyed exclusive possession of the continent. Further, by reason of the facts set out in paragraphs 7 and 8 of the statement of claim, he alleges that all Aborigines had a relationship with the whole continent of Australia. Of course, it will be noticed that this motion before the Senate seeks a declaration that that is so and if it were proceeded with we would be prejudging the matter that is now before the court by a declaration of the Parliament of the Commonwealth. Furthermore, my Department has received a letter from Messrs Baker and McKenzie, solicitors and attorneys, asking for some assistance and advising that they are acting for Mr Paul Coe and that the matter will come before the Australian Capital Territory Supreme Court on 26 September 1974. From the Press reports of the preliminary hearing of this matter we find that Mr Paul Thomas Coe is also seeking an order restraining the Commonwealth from granting Queensland Mines Limited any mining lease or exploration licence which would allow the company to carry out mining in the Northern Territory area of Narbalek. The writ, which was brought before Mr Justice Fox yesterday afternoon, seeks orders to prevent persons from conducting mining activities without first consulting the plaintiff, Mr Coe. Mr Kelly, who represented Mr Coe in these proceedings, said that there was a claim by the whole of the Australian community to the whole of the Australian continent. He said that all Aborigines were entitled to all benefits obtained from the land and to take part in any decisions which might be made about the land. This is one of the claims of the plaintiff in this action. He said that any decision would have to be made on the basis of support for the great majority of the Aboriginal communities.

HisHonour Mr Justice Fox said that he was considering the action as an urgent ex parte application and he was prepared to keep an open mind on what he called an unusual application of a novel concept. The application is a declaration that the whole of Australia was owned by Aboriginals. When a matter is before a court we must take great care that we protect not only the interest of the applicant to the action but also the interests of all other parties appearing before the court. Today I had a telephone conversation with Mr Newman of the Aboriginal Legal Aid Service of New South Wales. He is the solicitor who is briefing counsel. He has made certain representations to me and has made known to me the case to be made out. Today I rang Mr Newman to see whether he thought that the debate, the discussion or any decision on the notice of motion could in any way affect the court hearing. His reply was that he was of the opinion that it would depend upon how much His Honour Mr Justice Fox could be influenced by the decision that was made here today. It may be that it would not influence His Honour's judgment on this particular question, but when there is a possibility of it I think it would be improper and against the procedure we have followed on this question to proceed with the discussion today. It could prejudice the hearing and it could prejudice some of the people who are involved in this action.

I understand that there is agreement that after Senator Bonner moves the notice of motion the debate will be adjourned. However, time will not permit a complete decision on this question so I do not know what is the value in bringing it on today when we could be infringing the normal procedures of discussing a matter at a time when it is sub judice.

Senator Sir Magnus Cormack - Can Senator Cavanagh answer a question? When did the application go to the court for a hearing?

Senator Cavanagh - The statement of claim was delivered on 16 September 1974. The writ was issued on 6 September 1974.

Senator Rae - In responding to Senator Cavanagh 's point of order, Mr President, I would suggest to you and to the Senate that there is no validity at all in the point taken. Whilst there is an importance and a necessity for this chamber to ensure that it does not infringe the rights of individuals to a fair trial within our legal system there is a balancing factor which must be borne in mind, and that is the balancing factor of the public interest. It is not possible for one arm of the government system within Australia to prevent all public discussion of matter of importance within other arms or within the public generally. From the point of view of balancing let me refer first of all to what is said in Mr Odgers' book, in the fourth edition of 'Australian Senate Practice', at page 199 and then let me go on to cite some examples from court decisions as to attitudes which have been taken by the courts both in Australia and in other countries. First of all Mr Odgers says:

Sub judice matters- Matters still under adjudication in a court of law cannot be brought forward in debate. That is to say, the Senate will not permit a debate which, in the normal way, would be regarded, if it occured outside Parliament, as a contempt of those court procedings. But the rule is not always confined to those limits.

Assuming that that is a fair statement of the position so far as the Parliament is concerned, let us see how it relates here to whether the discussion of this matter would be regarded, if it occurred outside Parliament, as a contempt of the Court proceedings to which Senator Cavanagh has referred. Let me by way of introduction to this consideration remind you, Mr President, that the Senate is not proposing at the moment to legislate in any way which would affect the rights of the parties involved in the litigation.

Senator Cavanagh - No, it is an expression of opinion.

Senator Rae - It is expressing an opinion only.

Senator Withers - If it were carried.

Senator Rae - If it were carried. It is still an expression of opinion one way or the other, but it becomes a matter of looking to what is the public interest in relation to the balance that I spoke to. I start by referring to a decision, which is very well known in Australia, of Sir Frederick Jordan, the Chief Justice in New South Wales, in ex parte Bread Manufacturers Ltd Re Truth and Sportsman Ltd, (1937) He said:

It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which might prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or defendant, and whether in relation to the matter which is under discussion or with respect to some other matter.

That portion of the judgment of Sir Frederick Jordan has been referred to in decisions of the High Court, and in particular in James v. Robinson (1963), with approval, and is, I believe, the law applying in Australia. The matter then is to see how applicable it is to this particular discussion and whether the discussion which is sought by Senator Bonner of the position relating to the rights to any form of compensation which members of the Aboriginal people of Australia may have is a matter of public interest. Undeniably- I am sure that Senator Cavanagh would agree- it is a matter of great public interest.

Senator Cavanagh - Yes, but superior to the public interest is the interest of Paul Coe.

Senator Rae - Then it is a matter only of the balance, of whether one outweighs the other. One has to look then to the question of prejudice. Will the debate on this matter in this chamber in which individual members of the chamber may express their own views in relation to the rights or otherwise of the Aboriginal people of Australia to compensation in any way affect the rights of those who are involved in the trial? My suggestion to the Senate would be that it would be impossible to believe that in any way the expression of an opinion here would preclude a judge of the Supreme Court of the Australian Capital Territory from giving judgment free from any fear that one or other judgment which he may give will be adversely commented upon in the Parliament. In history, judges simply have not aberrated in that way. In fact, they have been very keen to show in various cases that have come before them that they recognise the right of the public and of the Parliament to make comments on pending legal proceedings or judgments. It is simply a matter of whether those comments will have an effect which, particularly with a jury, would adversely affect the person's right to a fair trial or whether they might prevent witnesses from coming forward at a hearing. I find it very hard to believe that any witness likely to give evidence in the case to which Senator Cavanagh has referred would be put off or would be frightened to give evidence simply because the matter has been debated in this chamber. It is a matter about which, over the years, there has been public debate but perhaps not sufficient public debate. We certainly commend Senator Bonner for taking this step of making this matter the subject of a more immediate public debate in this chamber.

It would be incredible to suggest that any witness might be put off or frightened in any way by the debate which might take place in this chamber. It is incredible to believe that any judge would be affected in bis judgment by the debate which would take place in this chamber. I will quote briefly from a decision made in 1965.

Senator Georges - It would be interesting to know how you would interpret a matter that is to come up later today.

Senator Rae - The honourable senator can raise any matter in this chamber that he wishes. The case to which I was referring was from a judgment in 1965 in the United Kingdom in which it was stated:

What the Lord Justice was there saying, in my judgment, is that, if you had such a discussion in a paper of the rights of some pending litigation as is calculated to prejudice the proper trial of the action, that is a serious contempt which will be met with the necessary punishment. I do not think it is right to take that statement out of its context and say that anything which happens to amount to or be the equivalent to a discussion of the rights of some party's case in an action is thereby a contempt. The test must always be, in my judgment, whether or not in the circumstances of the particular case what has happened is something that is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk.

Referring to the likelihood or otherwise of judges being affected, it was stated in the quite famous Quinton Hogg case in 1968 in the United Kingdom:

Though the court has jurisdiction to consider an allegation of contempt of itself, the jurisdiction will never be used to protect the court against criticism of itself or its decisions in exercise of the right to freedom of speech.

In continuing, a comment was made that I think is appropriate here. It was:

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.

Reference is then made to the right of Mr Quinton Hogg to criticise the proceedings. I believe that so far as the Supreme Court of the Australian Capital Territory is concerned it would adopt a similar attitude. No debate in this Parliament is likely adversely to affect a judge in the carrying out of his duty. It would be different if it were to be a jury. This matter will be heard by Mr Justice Fox. It is not likely, by being discussed today, in any way to affect a fair trial either by frightening witnesses, putting off the plaintiff or the defendant or affecting the judge. In my submission, Mr President, it is clearly a matter which should proceed and is in no way sub judice.

Senator Murphy - I will endeavour to assist you, Mr President. This is obviously a difficult question. It is quite obvious that a question arises because of the proposition of Senator Bonner and the existence of the case to which reference has been made. Senator Rae could see this question looming so large that he came into the chamber armed with various legal authorities on the matter. Senator Cavanagh has rightly raised the matter for your consideration, Mr President, so that the Senate may be aware of the issue and may be able to determine a course of action. If you, Mr President, examine the matter before you you may realise- I suggest this also for Senator Cavanagh 's consideration- that there may be somewhat different issues involved.

I will go even further than Senator Rae did. If one analyses the court case it seems to me that the plaintiff is really relying upon the existing legal rights. He is saying there is a legal right and that he is entitled in the administration of the law to a specific order from the court. That is one issue. It seems to me that what is raised here by Senator Bonner, when it is analysed, is a different issue. If honourable senators read Senator Bonner's motion carefully they will find, it seems to me, that he is saying that the Senate accepts the fact that the indigenous people of Australia, now known as the Aborigines and Torres Strait islanders, were in possession of this entire nation prior to 1788 and the First Fleet landing at Botany Bay. That is not a contention of existing legal right but something that no one would question at all.

Senator Cavanagh - It puts the legal right in doubt.

Senator Murphy - Yes- but urges the Australian Government to admit prior ownership by the said indigenous people. That is capable, I suppose, of being viewed in 2 different ways: As giving an existing legal right or saying that we should admit they have a prior ownership and a previous right. Senator Bonner in his motion has said that we should introduce legislation to compensate the people now known as Aborigines and Torrest Strait islanders for dispossession of their land. It may well be that this matter, depending upon how Senator Bonner puts his case to the Senate, may not involve any question of the same issue arising. One might say there is a certain ambiguity. If Senator Bonner is saying that because of the previous rights that the indigenous people had we should legislate to compensate them but he is not alleging an existing legal right -

Senator Cavanagh - I would have thought he was denying it.

Senator Murphy - If he is, all the more so. It seems to me that there would be no question of the same issue even arising. If that is the way Senator Bonner is going to put it, may I suggest with respect, Mr President, to assist you, that the same issue would not be arising here at all? In the one case the plaintiff is saying: 'I am wishing to assert existing legal rights and to obtain a certain order'. In the other case, Senator Bonner is saying: 'Look, there were rights before the First Fleet landed and because the people were dispossessed of their land legislation should be introduced to compensate them'. They are 2 different issues if it is put in that way. One need not go into the question of the balance of convenience in relation to this matter. May I suggest with respect, Mr President, that the wise course in this case may be to let Senator Bonner be heard and to let the matter proceed. In any event, there will be an opportunity when Senator Bonner has spoken to adjourn the debate with a view to resuming it when the other matter has been determined. The best assistance I can give is to say that, on the way the motion is worded, the matter which arises for consideration by the Senate is not the same as that which has been presented to the court. Strictly, a question of sub judice does not arise.

Senator Sir Magnus Cormack - I rise only to present myself in the role of a friend in your court, Mr President. I have to go back over some history which will be of importance and interest to the Senate. Over the years there grew up a habit here in the Senate concerning matters that were of some embarrassment from time to time: Ministers representing other Ministers- certainly representing the Crown, the Crown being present in the Parliament in the person of the Ministers- representing to the Presiding Officer of the day that matters were sub judice and therefore should not be ventilated in the Parliament. Some years ago this reached the stage where debate in the Parliament tended to be stifled by this accretion to the sub judice rule. It became a matter of some concern to me. I studied the sub judice rulings in other legislatures. I came to the conclusion that the preceding rulings that had been given in the Senate from time to time in fact were stifling the capacity of the Senate to carry out its business. Therefore I expanded the sub judice definitions. I said that the rule should be on the basis that if there is an obvious and manifest prejudice to the rights of a citizen before the courts the presiding officer at that stage should say: 'I think the matter is sub judice. The plaintiff may be prejudiced and therefore it would be inadvisable for the Senate to discuss it further. '

But that situation does not arise in this context. On Senator Murphy's suggestion, or rather on the implication in his suggestion, a decision on whether the plaintiff is being prejudiced can be taken only on subsequent statements made by Senator Bonner. Those statements may or may not cause you, Mr President, to invoke the sub judice rule on the application of a senator. I think that Senator Cavanagh, who always has been a staunch upholder of the rights of the Senate, is ill advised to attempt to invoke the sub judice rule before the honourable senator whose motion has been on the notice paper since July is able to make a statement in the context of his motion. Such a course would stifle him in his duties as a senator.

The courts have ruled constantly on these matters. I remember quoting to the Senate one such ruling of this order and nature: The court does not hear the arguments that take place within the walls of Parliament. It is not our function here in the Senate to protect, as it were, the courts and the judges. The courts, and the judges presiding over them, are quite capable of protecting themselves. What we have to avoid at all costs is invoking this sub judice rule to prevent senators from standing in their places and discussing matters of public interest. Therefore I conclude as I began: The test must be whether or not the plaintiff before the courts is prejudiced by discussion which takes place in the Parliament.

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