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Thursday, 22 August 1985
Page: 132


Senator MACKLIN(10.12) —by leave-I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

As a member of the Joint Select Committee on Parliamentary Privilege 1982-84 and as a member of the Senate Privileges Committee whose report is currently before the Senate, I have been part of the majority in both cases urging that the Parliament declare its position on privileges in accordance with the powers granted to it by the Constitution. I am aware of the Bill introduced during the last session by Mr John Spender, member for North Sydney, who was Chairman of the Joint Select Committee on Parliamentary Privilege. I am introducing a Bill on the same matter though not in the same format as his Bill. I have done so to provide an alternate legislative formulation of the recommendations of the Select Committee. I have made some additions and modifications to the recommendations of the Committee, particularly with regard to the definition of `proceedings in Parliament', the unauthorised publication of in-camera evidence the immunity granted members from arrest. I have also taken into account the recent judgment of Mr Justice Cantor in the New South Wales Supreme Court with regard to the immunity of parliamentary proceedings from examinations in cases before the courts. In general, the Bill preserves the existing law and changes it only to the extent necessary to carry out the recommendations of the Committee. I have made no attempt to restate an existing law where it is not changed.

The substantive clauses are as follows. Clause 3 provides definitions to shorten the language of the Bill. It anticipates the use by the Parliament of modern methods of information storage and communication by defining `document' to include such methods.

Clause 4 preserves the existing powers, privileges and immunities under section 49 of the Constitution, and provides that they are not diminished, except to the extent that they are expressly changed by the Bill.

Clause 5 abolishes the category of defamatory contempts as recommended by the Committee. The only way of doing this is to make unlawful any penalty imposed for such a contempt.

Clauses 6 and 7 provide that the Houses may impose a fixed term of imprisonment of 6 months or less or limited fines as recommended by the Committee. Unpaid fines may be sued for in the courts by a person appointed by a House for the purpose. Sub-clause (3) prevents both a fine and an imprisonment being imposed for the same offence.

Clause 8 abolishes the Houses' power of expulsion as recommended by the Committee. It is so worded that it would not affect the power of the houses to suspend their members. The word `place' instead of the more common `office' is used to conform with the wording of the Constitution.

Clauses 9 and 10 provide that a warrant for imprisoning a person for contempt is to state the offence and that the High Court may make an unenforceable review of any imprisonment of a person by a House, as recommended by the Committee. Instead of involving the Court in questions of what are contempts or breaches of privilege, sub-clause 10 (2) would focus the attention of the Court on the Question of whether a particular offence obstructs or interferes with parliamentary proceedings.

Clause 11 provides a definition as recommended by the Committee, but not the same definition. The Committee recommended a definition adapted from that recommended by a British committee. The British definition has a number of defects: It is limited to defamation proceedings; it unnecessarily relies on the concept of acts done ``in the presence of such House and in the course of the sittings''; it contains definitions best dealt with in separate provisions, and it is confined to particular named documents and particular classes of persons. The definition in the Bill is more comprehensive. It deals not only with the question of members' correspondence with Ministers as recommended by the Committee, but with other communications between members, such as speeches at parliamentary party meetings or committees.

Clause 12 provides qualified privilege, based on the defence of fair and accurate report, of reports of proceedings of the Parliament. It is substantially in the form recommended by the Law Reform Commission.

The Committee recommended that absolute privilege be provided for the limited publication of tabled papers. Since the standing orders of both Houses provide that all tabled papers are public, it would seem to be more rational to provide absolute privilege for any publication of a tabled document, and this is provided for in clause 13.

Clauses 14 and 15 make it an offence to attempt to improperly influence a witness or to injure a witness because of his evidence. Clause 16 makes it an offence to publish without authorisation evidence taken in camera.

Because the courts have delineated the boundary between civil and criminal matter in such a way that there is very little likelihood of a person being arrested in a civil matter, the immunity from arrest in civil matters is virtually worthless. This clause grants immunity to all matters punishable by less than a fine of $5,000 or 12 months imprisonment. The period of 12 months imprisonment has been proposed because conviction for an offence punishable by more than 12 months imprisonment disqualifies a member under section 44 of the Constitution. Clause 17 would attempt, therefore, to deal with the problem of members being kept from their parliamentary duties by proceedings under state laws.

Clause 18 limits the duration of these immunities as recommended by the Committee. Since these immunities are a matter of objective law, the only way of so limiting them is to provide that they do not have force or effect except at the times recommended by the Committee.

Clause 19 covers the application of laws to Parliament House. As a matter of law, all laws of general application apply in Parliament House just as they apply elsewhere in the jurisdiction, unless they are inconsistent with parliamentary privilege under section 49. Thus a person, including a member, who commits a criminal offence in Parliament House, say an assault, may be prosecuted and convicted in the normal way. Words or actions are immune from the criminal law only if spoken or done in the course of ``proceedings in Parliament''. There have been persistent expressions of doubt about this, however, partly due to an old and discredited English court judgment, and the Committee recommended that the doubt be resolved. Clause 19 attempts to do this in the most economical way and is not limited to any particular law. The phrase ``a property owned and occupied by the Commonwealth'' has been used since this phrase has been the subject of judicial interpretation.

Clause 20 restores the law to what it was thought to be before the judgment of Mr Justice Cantor. Under that law, it is still possible for evidence of parliamentary proceedings to be admitted in court for limited purposes, such as to prove a material fact. Sub-clause (2) makes it clear that evidence taken in camera and not published by a House or a committee may not be admitted in court for any purpose. Without this provision it might be thought that the courts are not subject to the general prohibition on the unauthorised publication of in camera evidence.

Clause 21 provides for proof in court of proceedings in committees in so far as it is necessary for the purposes of the Bill. It is not necessary to provide for proof of any proceedings in the Houses because the Journals of the Senate and the Votes and Proceedings of the House of Representatives are already admitted as proof of proceedings in the two Houses. I commend the Bill to the Senate.

Debate (on motion by Senator Grimes) adjourned.