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Wednesday, 6 May 1987
Page: 2654

Mr SMITH(10.10) —The Parliamentary Privileges Bill is a piece of legislation which does not capture the interest of the public much, but it should capture the keen interest of all honourable members in this House. Last night and this morning I listened to the comments of my fellow member of the Standing Committee on Privileges, the honourable member for McEwen (Mr Cleeland), and while I do not know whether I agree with everything he said, I will certainly read his contribution because he put a lot of thought into it.

It is important that you, Madam Speaker, should be in the chamber to listen to this debate because this is your legislation. It is an unprecedented step for a Presiding Officer to initiate legislation. As you said when you introduced the draft Parliamentary Privileges Bill on 4 June 1986, the reason for your action was that you and the former President of the Senate, Senator Douglas McClelland, thought that the issues were of fundamental importance to both Houses. The advice given to you and the former President was that the judgments given by the Supreme Court in New South Wales in particular, which I will discuss later, represented a serious threat to freedom of speech in parliament and the capacity of members to `speak for their constituents' and an equally serious threat to the protection of witnesses who give evidence to parliamentary committees. Therefore, the debate on this legislation represents a reasonably historic occasion. The Bill will go through with bipartisan support.

The essence of this Bill revolves around the meaning of article 9 of the Bill of Rights of 1688, which, by virtue of section 49 of the Australian Constitution, applies to this Parliament. Article 9 is worth quoting in full. It says:

That the freedom of Speech and Debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

This has long meant that both here and in Britain parliamentary proceedings are not called into question before the proceedings of a court or tribunal. Indeed, based on authorities reaching back as far as 1688, this has been the case. Recent authorities, such as the Church of Scientology of California v. Johnson-Smith case, a United Kingdom case of 1972, and, in Australia, the Comalco Ltd v. the Australian Broadcasting Commission case in 1973, are obvious examples. A similar provision can also be found in the United States Constitution. It says that for any speech or debate in either House, members shall not be questioned in any other place. The Supreme Court of the United States summarised the position in 1966 in the case of Johnson. I wish to quote that because it encapsulates the overall position. It said:

This formulation of 1688 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilised the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain and throughout US history, the privilege has been recognised as an important protection of the independence and integrity of the legislature.

Let us not then underestimate the fundamental nature of this Bill, nor the very great significance that article 9 of the Bill of Rights bears in the Westminster tradition. Indeed, the very significance is encapsulated in the judgment of Mr Justice Brown in the Scientology case of 1972, which was a Queen's Bench decision. He said then:

A member must have a complete right of free speech in the House without fear that his motives or intentions or reasoning will be questioned or held against him thereafter.

That is the fundamental premise on which this Bill is based and which is specified in clause 16.

The general import of Article 9 may appear clear enough, but it does lend itself to wide interpretation and that is the major reason why this Bill is now before the Parliament, as you said, Madam Speaker, in your statement in June 1986. Indeed, the judgment of Mr Justice Carruthers of the New South Wales Supreme Court in the celebrated case of Mr Rex Jackson illustrates the point. The prosecution in the Jackson case sought to prove that the sole motive for telling alleged lies in the House was a realisation of guilt by Jackson and a fear of the truth. Mr Justice Carruthers responded by saying:

If I were to have allowed the tender of Hansard for these purposes against Jackson, this would necessarily have involved an inquiry into his motives and intentions in that which he said in the House. Such an inquiry, would, in my view, contravene article 9. It would necessarily have involved an impeaching or questioning in this court, debates or proceedings in the Parliament.

That example ought to make clear to all honourable members the significance of the privilege afforded to us as members of this place, something which this Bill now seeks firmly to establish and clarify. The doubt about the meaning of Article 9 has arisen out of the whole saga of the Murphy affair-no doubt a matter that historians, constitutional lawyers and political scientists will pore over for many years. However, we in this place must respond to part of the fall-out of those decisions, as it were, on the whole matter to establish beyond doubt exactly what the privileges of the members of this House are, as near as we can be exact about the legislative definition of `privilege' in this instance.

The doubt arose from the trials in New South Wales in the Murphy matter. In those cases the President of the Senate submitted to the court via counsel that Article 9 of the Bill of Rights prevented the cross-examination of witnesses or the accused on evidence which they gave before parliamentary committees, and prevented it for the purpose of impeaching the evidence of witnesses or the accused.

Mr Justice Cantor, in the first trial-there were two trials-gave judgments that Article 9 did not prevent such cross-examination. He found that the protection of parliamentary proceedings must be balanced-and I emphasise the word `balanced'-against the requirements of the court proceedings. Following his decision there ensued vigorous cross-examination on evidence given before the Senate Committee. In the second decision, by Mr Justice Hunt in the second Murphy trial, Mr Justice Hunt gave judgment that Article 9 was to be interpreted in a very restrictive manner. He decided on the restricted use of parliamentary proceedings as evidence of an offence to impeach the evidence of witnesses or the accused or to support a cause of action.

As I mentioned earlier, Article 9 has application throughout those countries operating under the Westminster system and also of course in the United States, as well as in the parliaments of the Australian States. Obviously, those other places would be desirous of Australia being in step, as it were, and that is what this Bill seeks to do, by ensuring that the very restrictive interpretation given by Justices Hunt and Cantor will not be followed to the detriment of the privileges of members of this Parliament. Clause 16 of the Parliamentary Privileges Bill 1987 is the very key to what this is all about. Clause 16 (2) describes the `proceedings of Parliament' as meaning:

. . . all the words spoken and acts done in the cause of or for the purposes of or incidental to the transacting of the business of a House or of a Committee.

I support the clause. There are reservations about the practical application of clause 16 (2) (a), and the honourable member for North Sydney (Mr Spender), who has had a keen interest in these matters for some period of time, pointed that out. The inclusion of the provisions in clause 16 (2) (a) could mean that witnesses in courts could never be questioned on anything said by them when giving evidence before a House or a Committee. The honourable member for North Sydney cited the example that a prosecution witness in a criminal trial who gives evidence totally contrary to evidence given by him before a parliamentary committee could not be cross-examined on his parliamentary committee evidence for the purposes of proving that he was giving perjured evidence. The result, of course, could be that an innocent person could be convicted of a serious criminal charge and sentenced to a heavy term of imprisonment on the basis of such perjured evidence. The honourable member for North Sydney articulated those concerns well, and he mentioned that that is perhaps an area at which we ought to look closely. As we see the further practical applications of this Bill in the years to come, that is a matter that we might perhaps like to look at again. But it is worth signalling the danger that might lie in that provision.

Other provisions in the Bill were covered by the honourable member for North Sydney. Of those of significance that I want to mention briefly in my remarks is the matter of penalties, covered under clause 7. Clause 7 provides for a fixed term of imprisonment not exceeding six months and it also allows the Parliament to impose fines ranging from $5,000 for individuals to $25,000 for companies. Mr Comans, QC, in his opinions, tabled in the Senate on the draft Bill, about the relationship between clause 5 and clause 7 of this Bill, pointed out that the Bill must be read as a whole and, as such, the six-month period of imprisonment is a fixed limit not to be varied by the prorogation of Parliament, as existed under the previous privilege. The suggestion of the opinion is picked up in this Bill. It is a sensible one, and it removes a further uncertainty of interpretation of the extent and application of the penal power.

Clause 7 (4) also follows the suggestion of Mr Comans, QC, to permit the Speaker or President to order a discharge of a prisoner when the Parliament is not in session, provided, of course, that a resolution of the chamber so provides. The certainty that clause 7 brings to the penalties area of privilege is one that I certainly welcome. If we are to charge a privileges committee with the task of determining whether a breach of privilege, so referred to it, does prima facie exist, it would be most useful for the expedition of the determination of such questions if such a committee were to be certain of what penalty is available and thus be able to recommend such to the House for consideration in any particular case. It must be stressed, however, that the matter of penalty is ultimately one for the relevant chamber to determine.

This is an important Bill. This is one of the few occasions in the life of the Parliament when the privileges of members come before us in the form of a Bill. The intrinsic importance of the issues being legislated for ought to be apparent to all members, as they go to the very heart of our rights as members of this place. At a time when Parliament appears to be under attack the residual power of the freedom of expression that privilege gives to members ought, in my view, to be used sparingly and judiciously, but it ought to be used in a way to buttress the institution of Parliament, to enhance its standing in the community and to provide a real opportunity for the community's views to be heard through its representatives. In the short time that I have been here the Parliament has sadly been viewed as somewhat of a tarnished coin. I do not think a new building will change things, but it falls within our preserve as members to reverse that situation as it does the other players within the activity of parliamentary life, such as the Press.

I hope that when members look at this legislation they realise the significance of it and the residual power that resides in us as members to be able to put views across without challenge. The Bill certainly establishes clearly the rights of members and the activities of committees which I think are particularly important because we are seeing more and more the work of Parliament being done through committees. The work that was done by the Joint Select Committee on Parliamentary Privilege, which led to the private member's Bill of the honourable member for North Sydney from which this Bill follows on, was a step in the right direction. Hopefully we will see that tarnished coin with which some equate Parliament start to shine again because of all the systems in the world this is far and away the best. It is not perfect, but it is a heck of a lot better than many of the others that are around. I commend the Bill, and I commend the Speaker for bringing it to the House.