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Wednesday, 22 March 1972
Page: 812

Senator BYRNE (Queensland) - This extremely valuable report comes before the Committee for further examination, certain sections of it having been discussed and adopted already. Item 8, with which we are now dealing, is extremely important and will have increasing importance as the committee system develops and as the committees themselves proliferate. Therefore it is extremely important that, if it is necessary to lay down guidelines, a formula or a code, it should be done as soon as possible and with the greatest precision - if with precision is considered the desirable way in which these rights should be determined.

When there is an over-presentation in detail of a code of rights there is always the possibility of interpretation destroying the rights which are not stated explicitly. Perhaps part of the strength of the British constitutional system has lain in the vagueness of the constitution and the indefinite and unspecified rights which, in a crisis, in some way can be discovered and implemented. Therefore, whilst I agree with Senator Murphy that some guidelines are necessary, I would not be anxious to have them denned too clearly or delineated too specifically because if they were there might be a process of exclusion by an over-strenuous or over-severe interpretation.

It is regrettable that we are again considering this report, which came from the Standing Orders Committee in August 1971, while there remains on the notice paper the following motion in my name:

With a view to the Standing Orders Committee being as representative as possible of the composition of the Senate at any time, the Senate resolves that:

(1)   Standing Order 33 be amended by leaving out the words 'seven Senators' and inserting in lieu thereof Mie words 'such other Senators as may be appointed by the Senate'; and

(2)   Senator Gairbe appointed a member of the Standing Orders Committee.

If the Senate is to embark upon a delineation of its rights and privileges in relation to the conduct of its business, it is most appropriate, even highly important, that the Standing Orders Committee be as rep resentative as possible, and it is quite unreal that the Standing Orders Committee should not have as one of its members a representative of a significant party in the Senate.

Senator Cavanagh - That has been recommended in item 1 and adopted.

Senator BYRNE - No. That does not specify that Senator Gair should be appointed to the Committee. It merely says that there should be an additional senator on the Committee. After all, the Standing Orders designate that the Opposition and the Government shall be represented on the Standing Orders Committee. We are asking specifically that Senator Gair, representing the Democratic Labor Party, be appointed to the Committee. It is not merely a question of increasing the number of members by one; it is a question of increasing the number by a specified one with reference to a particular party. I understand there has been an objection to that proposal. To me it is quite unreal and quite beyond understanding that the Standing Orders Committee would be affected by the intervention of anybody or by the disposition of any honourable senator.

The Committee should be as embracing and as representative as possible. The DLP has 5 senators out of a total complement of 60. It represents a substantial portion of the national electorate. It speaks for a substantial portion of the Australian people. It plays its part in discussions on the deliberations of the Committee. Therefore I think that it should be represented honestly, fairly and adequately on the Committee. I commend the motion standing in my name and I hope that it is resolved by the Senate as soon as possible. I leave it at that, but I do rely on the good judgment and the proper disposition of honourable senators to see that the position is rectified as soon as possible. If the Standing Orders Committee is to embark upon a delineation of its powers and a reconsideration of the Standing Orders, we should ensure that the body which carries out that function will be as representative as possible.

I was very interested in Senator Murphy's observation, with which I agree, that the Privileges Committee in its deliberations should assimilate itself with the procedures of a judicial tribunal. That is a proposition with which I agree. We are dealing with very precious things, with the rights and liberties of people. A body which is not a judicial body by creation but which is operating judicially should, when it is so acting, as far as possible assimilate its procedures to those of a judicial tribunal. That is the proposition I, advanced in the Senate last year when I attempted to have revoked the punishment imposed on 2 journalists who had not been given an opportunity, in terms of judicial procedures, to show cause why they should not be punished. On that occasion the rest of the Senate, including honourable senators on my right and Senator Murphy, voted against my proposition.

Senator Murphy - I do not recall voting on that.

Senator BYRNE - Senator Murphy may not have been here. The argument advanced against my proposition on that occasion was that I was over-precious in trying to discover a resemblance between the procedures of the Senate sitting judicially and a judicial tribunal properly constituted and called by that term. Yet tonight it is suggested that the Privileges Committee should operate along judicial lines as far as possible' That was all I asked for on the previous occasion. I do not know why my proposition was not accepted on that occasion. On the facts presented on that occasion, I do think there was a denial of natural justice. My proposition was denied by those who now put forward exactly the same proposition. On that occasion Senator Greenwood, in a very explicit and detailed examination in response to my presentation, pointed out that sometimes the House of Commons operated, as I suggested on that occasion the Senate should, along different lines. I think that if he were to address himself to the proposition tonight, as J am now, possibly he would re-present that proposition. I cannot understand why the Opposition should take this stand now when in a particular case the very sensitive matter of natural justice, in my connotation, was being attacked and assailed. On that occasion I was not supported. If the view now is that the Senate should have proceeded judicially, and that the Committee of the Senate should have proceeded judicially, I do hope that in future guide lines will be laid down so that people in a similar position will get the protection that was denied these individuals on that occasion. I think that these gentlemen are now entitled to be very concerned that apparently they were judged on that occasion on principles different from those now being enunciated by the Leader of the Opposition (Senator Murphy). Yet the vote was against my motion and them on that occasion.

I wish to make one reference, because it is very relevant, to the protection of witnesses and the privilege generally afforded to those who appear before committees. I refer to standing order 308 in its original form. It stated:

The evidence taken by any Select Committee of the Senate and documents presented to such Committee, which have not been reported to the Senate, shall not be disclosed or published by any member of such Committee, or by any other person.

That standing order was amended on 7th April 1970. The amended standing order reads:

The evidence taken by any Select Committee of the Senate and documents presented to such Committee, which have not been reported to the Senate, shall not, unless authorised by the Senate or the Committee, be disclosed or published by any member of such Committee, or by any other person.

I can see the basis for the new form of that standing order. What I am unable to see is this: If, for example, a committee should decide that certain evidence should not be published and if an individual member of that committee, thinking that the matter should be published, refers it to the Senate, by way of appeal as it were, the Senate is asked to sit in judgment on the decision of the committee. On what will the Senate base its judgment? It has not the transcript of the proceedings before the committee, the evidence or anything else. It is asked to make an appellate judgment on a matter in relation to which it is denied the material on which a judgment can be based. Is there any way in which that standing order can be operated? How would the Senate operate in those conditions? If a member of a committee says: 'I think certain evidence given before the committee should be published', the Senate would have to ask: 'What evidence?' The member of the committee would say: T am not allowed to tell, but I am asking the Senate to form an opinion and to say that it should be published'. How could the Senate possibly make a judgment on the matter?

Senator Cavanagh - That is why the standing order was altered.

Senator BYRNE - It may have been altered but I am sure the honourable senator will see how fatuous it is to attempt to give the Senate the opportunity of making a judgment when it does not have before it the materia] on which to make a judgment. How could the honourable senator, whom I know directs his mind calmly to many matters which involve the process of judicial definition, make a judgment in those circumstances?

Senator Cavanagh - 1 think the facts would be before the Senate.

Senator BYRNE - How could the facts be before the Senate? It is an offence to publish the material unless directed by the Committee or by the Senate. The committee has said that the material is not to be published. That is the first prohibition. The Senate can override the decision of the committee, but the Senate has no material on which it can consider the matter. Can anybody tell me exactly how that standing order will be operated? When the standing order was to be amended I did intend to move an amendment, but unfortunately I was not in the chamber when the standing order was dealt with. It went through at great speed, almost like lightning, due to other business falling away. I was not able to put my proposition. 1 seek the opportunity to do it now. I would be interested to hear the Minister for Civil Aviation (Senator Cotton) or the Attorney-General (Senator Greenwood). They might assist me because my approach to this might be inaccurate. I am unable to see how the Senate, vested with this power, could possibly exercise it. The Senate is asked to overrule a decision of a committee when the evidence on which it could make a decision is denied to it. How is that to be done? Obviously this is another matter which should come before the Standing Orders Committee for review. A further rewrite of standing order 308 is desirable and is called for quite explicitly and quite definitely.

I repeat that the DLP is not represented on the Standing Orders Committee. I hope that the Government will give me the opportunity to move the motion standing in my name so that if there is to be a review of the Standing Orders in any way the Senate, in its most representative capacity and representing all parties, should through that Committee be able to give the matter the scrutiny which it deserves and which is called for.

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