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Wednesday, 3 October 1984
Page: 1491


Mr BARRY JONES (Minister for Science and Technology) —by leave-I welcome this opportunity to participate in the presentation of the final report of the Joint Select Committee on Parliamentary Privilege. After dissatisfaction with the existing law of privilege was expressed in the Berthelsen case of 1980 and the Oakes case of 1981, on 23 March 1982 the House of Representatives resolved to set up a joint select committee on the law and practice of parliamentary privilege. On 29 April 1982 the Senate concurred. When the original Committee convened the honourable member for North Sydney (Mr Spender) was appointed Chairman. Senator Gareth Evans became Deputy Chairman. We began work in 1982 and continued with minimal change after the election of the Hawke Government in March 1983. Indeed, it was a measure of the bipartisanship in the Committee that the original officeholders were kept on.

The report makes 35 major recommendations. Twenty-eight are unanimous. In seven cases reservations were expressed in a joint dissent by Senator Rae and Senator Jessop. The majority wanted to abolish the category of contempt by defamation; the senators wanted to retain it. We thought that the power to expel members was now politically quite unrealistic. The senators disagreed. We thought that the power to fine needed to be secured by legislation. The senators thought that this was an inherent power of the Houses. On the broad thrust of the report we all agreed.

When I went on the Joint Committee I was strongly of the opinion that the conduct of privilege hearings ought to be transferred to a court. That was a view put by the honourable member for Holt (Mr Duffy) and me in our joint dissent in the Oakes case, which was heard at the end of 1981. This was the position taken in 1908 by the last Joint Select Committee on Privilege, in its strangely named Quick report. No action was ever taken on its findings.

Whilst I still feel some reservation about whether parliamentarians should be judges in their own cause I am prepared to support the traditional position on the basis that the method by which the hearings are carried out is reformed. In our dissent in the Oakes case the honourable member for Holt and I wrote:

The present methods of conducting privilege hearings are objectionable on the following grounds:

(a) Hearings, including the cross-examination of witnesses, are held in secret and witnesses are warned that they may not even discuss the conduct of the hearings with their legal advisors.

(b) Persons summonsed are denied the right to be assisted by counsel.

(c) Members of Parliament, attacks on whose dignity and function are the subject of contempt proceedings, are not only the victims but also take roles as prosecutors and judges.

The first two objections were dealt with very well in the report and I think that much of my objection in the third point is removed by the abolition of the category of contempt by defamation. It means that when the power to hold hearings is exercised it will be done sparingly, in major cases. Because the activity of the committee will be subject to scrutiny there will be perhaps as much restraint exercised by the committee as would be expected of a judicial tribunal. In these circumstances I think that the Star Chamber nature of the proceedings is removed. It must also be said in fairness that the Senate has already acted, somewhat in advance of the House of Representatives, in reforming its privilege proceedings, which are much more open and much more in conformity with the contemporary spirit of justice.

One historical point that should be made is that section 49 of the Constitution declares:

The powers, privileges, and immunities of the Senate and of the House of Representatives . . . shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom , and of its members and committees, at the establishment of the Commonwealth-

That is, on 1 January 1901, in the last three weeks of Queen Victoria's life. In a sense that is where the House of Representatives still is. It was frozen on 1 January 1901. Standing Order 1 of the House of Representatives provides:

In all cases not provided for hereinafter, or by sessional or other orders or practice of the House, resort shall be had to the practice of the Commons House of the Parliament of the United Kingdom of Great Britain and Northern Ireland in force for the time being, which shall be followed as far as it can be applied.

For the first time we can make a small declaration of parliamentary independence . It is one of the very rare cases when it will be possible to bring about a change in the Constitution by a simple resolution of this House and the Senate.

I express the hope that this report will be adopted. Whether the duration of this Parliament will be long or short is not for me to speculate on. But because of the broad sympathy for the report I hope that it can be dealt with expeditiously. With good will and a recognition that there might not be an abundance of time to talk about the subject I hope that it can be adopted before the House rises. Accordingly, I move:

That consideration of the report be made an order of the day for the next sitting.

Question resolved in the affirmative.