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Wednesday, 6 May 1987
Page: 2669

Mr HODGMAN(11.49) —I count it an honour to take part in this historic debate. I have listened with great care to the comments of the honourable member for Prospect (Dr Klugman) and would like to make some brief responses to them. I think the honourable member for North Sydney (Mr Spender), the shadow Attorney-General, did the right thing by withdrawing the amendment for the reason that, without its being the wish of this House that such would happen, any amendment which tends to qualify the operation of Article 9 of the Bill of Rights would have added to the very confusion and uncertainty which this legislation is endeavouring to put to an end. I put to the honourable member that there are three possibilities which would reduce substantially the chance of the sort of injustice to which he adverted, namely, that an accused person could not utilise the prior inconsistent statement made by the witness if that statement had been made to a committee of the Parliament.

I put it to honourable members that counsel for the accused would be quite within his rights to ask this straight question: `Have you on any previous occasion said that the money was paid in $100 notes?'. That question would not relate specifically to the proceedings before the committee. If the witness said `Yes, I have--

Dr Klugman —What if he said no?

Mr HODGMAN —Just a moment; if a witness said `Yes I have', one would have him. I will come to what would happen if he said no. Secondly, it is, in all modesty, my professional experience after 25 years in the law that witnesses do not just make one prior inconsistent statement. It is quite probable that the hypothetical witness, having said what he said to the committee, might also have said it to other persons. In other words, if he says no, one cannot say `Well, didn't you say to the committee x, y and z', because the amendment we would pass would prevent that. But if one puts it to him in such a way that he does not know whether one knows that, in addition to saying it to the committee, he said it to somebody else, one may well find him saying: `As a matter of fact I did say words to that effect to a journalist on the way out of Parliament House in Canberra'. In other words, he has repeated it outside to another person. The third point, of course, which the honourable member for Prospect has not mentioned-and which has only just come to me; I have quickly checked with the honourable member for North Sydney and I am sure I am right-is this: It would be open to the committee, if it were still sitting, or to the Privileges Committee of this Parliament--

Mr Spender —Or the House itself.

Mr HODGMAN —Or the House itself to bring that person back before us to be dealt with for having given false evidence to the committee, in that he referred to $100 notes to the committee and $20 notes to the court. I do not want to take it further except to say I am sympathetic to both the motives of the honourable member for North Sydney in the original amendment that he proposed, and the views which the honourable member for Prospect has expressed, because I can see that there can be a situation in which an injustice could occur. The final crunch point is this: If that witness referred to $20 notes in the court, ipso facto his evidence before the committee was false. It was evidence given on oath, and it would constitute a very serious contempt and a very serious breach of privilege for a witness deliberately to give false evidence to a committee of the Parliament. It would be at least on the same basis as perjury in a court of law. I believe that in those circumstances the House would bring that person back. He is then caught, is he not, on the horns of a dilemma because his evidence in the court has directly contradicted his evidence before the committee.

Mr Deputy Speaker, this is an historic debate. The debates of the founding fathers in constitutional conventions are interesting in that there was no real disagreement between delegates from all States and from all sides of the political spectrum on this point. Section 49 of the Constitution states:

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, 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 what is stated in section 49. The date of the establishment of the Commonwealth, of course, was 1 January 1901. Here we are, in 1987, for the first time approaching the situation of declaring, as the founding fathers invited us so to do, at the constitutional conventions in the 1980s.

Mr Barry Jones —We did not want to rush into it.

Mr HODGMAN —That would be the understatement of the century. This legislation is half-way there, largely, I believe, as a result of the work of the Joint Select Committee on Parliamentary Privilege. I pay tribute particularly to the shadow Attorney-General, the honourable member for North Sydney, on the work of that Committee, and the initiative of the Government in bringing forward this Bill, brought as it was uniquely before Parliament by the then Mr President and our Madam Speaker. I believe that that is a significant and important fact, because the Speaker and the President are, in their own right, the protectors of the members of this House and of the Senate and are therefore duty bound to uphold the rights and privileges of all the members of the Parliament. This gets us half-way there. But the next and fundamental step is the passage of the resolution.

I am in a curious position in that I have been a member of the House of Representatives Committee on Privileges since 1975. I chose quite deliberately not to sit on the Joint Select Committee which was chaired by the honourable member for North Sydney, because I had formed certain views. One of the matters which caused me to form views was the Oakes case to which the honourable member for Dundas (Mr Ruddock) has adverted. I formed certain views in relation to whether we as a parliament should continue to uphold the privileges or whether we should go along with the proposal that the question of privilege be handed over to the courts. In other words, I had a number of preconceived views. I had views about the right of legal representation. I had a view about public hearings.

In the Oakes case, it is a matter of public record-unintentional, but I can speak of it quite freely without being involved myself in any breach of privilege-that when Mr Oakes sought the right to be legally represented and appeared at the hearing, the Committee decided to hear his counsel, the Hon. T. E. F. Hughes QC, on the question of his right to be heard on Mr Oakes's behalf. After hearing Mr Hughes, and Mr Hughes and Mr Oakes withdrew-members of the Press were well aware of that, as they were waiting outside-in one of those horrible accidents that can happen they were let back into the room whilst I, as Deputy Chairman of the Committee, was writing out the decision of the Committee in longhand. The Chairman of the Committee, the present member for Fadden (Mr Donald Cameron), said to me sotto voce: `Could you hurry up, please'. I turned and, to my horror, saw that Mr Hughes, his junior, about half a dozen instructing solicitors and Mr Oakes were back in the committee room. We had to rule on that occasion that, as at 1 January 1901, counsel were not permitted to appear before the House of Commons Privileges Committee.

Mr Connolly —House of Commons?

Mr HODGMAN —The House of Commons Privileges Committee, because section 49 translated and transferred the rights, privileges and procedures of the House of Commons to this House. It did not matter what we thought about it. I will be quick because I gave a commitment to take only 10 minutes. I hope the Parliament and the people have noted that in the current matter before the House of Representatives Privileges Committee-I cannot speak as to the matters which are in camera because that would be the grossest breach of privilege-as a matter of public record, because the public transcript is available, two significant things have occurred. The first is that the hearings have been in public. That has occurred for the first time. The House might say: `You were wrong to do that because public hearings were not available in the House of Commons in 1901'. But we made that decision and we have chanced our arm. The second is that counsel have been heard in public as to their right to be heard. That has produced a ruling from the Committee, as enunciated by the Chairman, the honourable member for Canning (Mr Gear). That is a matter of public record.

The time commitment I gave has expired. It is better to be quick in a matter such as this. We have gone so fast in 87 years that I would hate to spoil the momentum. I commend the Attorney-General (Mr Lionel Bowen) and I commend the Government. I commend with pride the Opposition view, as so properly put by the honourable member for North Sydney. I conclude by making just one fundamental comment. The day this House ever contemplates handing over the question of privilege to anybody outside of this House, judicial or otherwise, will be the day that this Parliament abdicates its responsibilities to itself, to every individual member thereof and to the concept of constitutional parliamentary democracy in this country. I think it is a matter for me to enunciate as strongly as that. I thank the Government and the Opposition for the manner in which this Bill is a step down the line to ensuring that privilege stays within the bounds of this Parliament and is exercised properly by those who are charged with upholding it.