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Wednesday, 11 September 1985
Page: 459


Senator MISSEN(3.24) —Mr President, I think it is time we shed some of the rubbish which has been said today and expressed this matter as it is. I have seen how Senator Evans has slid away from the proposition he originally argued. He has changed it. Senator Durack finds it very embarrassing to address the issue and does not want to do so. Senator Haines does not want to do so. Frankly, I think it is high time we talked about the way this Senate is falling into disrepute in the public eye because of the way it is pushing-mainly through the Clerks in this chamber-a view which is not the view held by learned judges of the New South Wales court or many other people.

Let me remind honourable senators of the people who do not hold the view which is cosily held by the leaders of the parties in this chamber. There is Mr Temby, who makes it clear that he holds the view that it was within the power of the Senate to allow the petition to be granted that sought access to the evidence and that it should have allowed it to be granted. That is the view, likewise, of counsel who appeared before Mr Judge Cantor, counsel for both parties-the people who were concerned with the matter. I will not go into detail about those matters because I recognise that they are matters of appeal. However, that will not stop me talking about the central matter which is in issue before us today. Both those counsel took a view--


Senator Haines —Protection of witnesses-is that not the central issue?


Senator MISSEN —You are concerned, Senator--


The PRESIDENT —Order! The honourable senator will address his remarks through the Chair.


Senator MISSEN —The senator finished on the note of fear of difficulties to which some senators might be caused. I will come to that. She is not so concerned about witnesses-she is concerned that she might be affected. I want to reassure her about that because in the judgment it is clear-this is one of the things I want to start with, and in no way is it a criticism of you, Mr President-that this is the result of a constant propaganda campaign by Clerks of this Parliament who held the view, honestly and sincerely, that the power was as was thought by learned luminaries like Senator Evans and Senator Durack and which we now find, to our horror apparently, is no longer the situation.


Senator Durack —What about legal privilege? Is that going to be swept away?


Senator MISSEN —Senator Durack should not try to change the subject. He would not even talk on this subject, so I am not going to change it to something else. I am going to talk about this subject alone. I have read many times what is said--


Senator Haines —What are you going to do? Are you in favour of selective privilege?


Senator MISSEN —Senator Haines will not silence me. She should not worry, I will keep on talking until I have said what I have got to say. The opinions which are expressed in the statement by the President we have seen very often in the statements put out by the Clerks in the last few months.


Senator Haines —Does that make them wrong?


Senator MISSEN —It does not make them wrong, but honourable senators should make the decisions and not the Clerks in this chamber. We are concerned with the good name of this Senate and we are concerned to know about what is happening.


Senator Haines —I am making my own decisions.


Senator MISSEN —I hope you are. I hope the Australian Democrats are making an honest decision. I hope the Democrats are trying to keep people honest in this chamber because I do not see it happening in this particular debate at all. Let me look at the statement of the President. It contains some crucial remarks. He said:

I draw the attention of the Senate to Mr Justice Cantor's judgment, particularly because, if it is accepted, it will mean--

Why should we not accept what is decided by a court of law-

that persons who give evidence before, or make submissions to, parliamentary committees may be cross- examined on that evidence in subsequent court proceedings, which until now had been thought to be prohibited by the law of parliamentary privilege.

That was thought by some people in this chamber-not by Senator Cooney, Senator Georges, or many of my colleagues who were, perhaps, a little timid and did not get up in this debate earlier but who, I hope, will do so when the debate ultimately comes on again. The President continued:

The judgment and the subsequent conduct of the proceedings before Mr Justice Cantor also appear to indicate that evidence or documents given by a person to a parliamentary committee, including unpublished evidence given during in camera proceedings, may subsequently be used against that person through cross-examination in criminal proceedings in which that person is the defendant.

That is right. The statement continues:

This would appear to be a complete repudiation of article 9 of the Bill of Rights.

That is a complete repudiation of what the judge has said. The judge said that he would comply with article 9. He took a proper definition of article 9 and he said that it did not, in fact, include the wide definitions and wide interpretations which our Senate representatives had put forward. Why do we say it is a complete repudiation when the judge makes it clear that he was enforcing that particular article? The President then went on to say:

Since the judgment draws no distinction between witnesses and members of Parliament, and as there is no rationale suggested in the judgment for any such distinction, it would also appear that members of Parliament could be cross-examined in court on their parliamentary speeches and could have their parliamentary speeches used against them through cross-examination in subsequent criminal proceedings.

That is the sort of thing which upsets Senator Haines. She fears that this might be so. That is just not true. That is not a correct interpretation of the judgment. If we look at Mr Justice Cantor's judgment we will find that he referred specifically to this distinction. At page 4 of the judgment Mr Justice Cantor referred to Henning and Anor v. Ausn Consolidated Press Ltd, a defamation case which followed that of Uren v. John Fairfax and Sons Ltd. I will not give the references to those cases. Begg J. held in the defamation action of Henning and Anor v. Ausn Consolidated Press Ltd:

. . . that to prove as a matter of fact that speeches were made in the House of Representatives would not involve a breach of the privilege of Parliament. Hunt J's decision was that a Hansard report is admissible in evidence to prove what a person said in Parliament and its tender does not constitute a breach of parliamentary privilege. He said `Parliamentary privilege is properly invoked to prevent any inquiry into the motives or intentions of members of Parliament in relation to anything they said or did in Parliament . . . but that principle . . . has nothing to do with the case where all that a copy of Hansard is tendered to prove was the very fact that it proclaimed to the world, namely the particular statement had been made by a particular member of Parliament.'

It is made specific and clear that it is not a case of looking into the motives and intentions of members of Parliament. This is a different matter altogether. It involves the right of people to bring forward statements made in Parliament and to have them tested to determine whether people's recollections are different and whether, when appearing before a court, they are giving different evidence. This is a fundamental right of a defendant. It is more important than Senator Haines's privileges. That right is even more important than the possible embarrassment of a witness. It is more important that a defendant should have the right to have the matter considered and to be able to test the truth or otherwise of evidence.

On the following page of the judgment Mr Justice Cantor refers to Comalco v. The Australian Broadcasting Commission over which Blackburn J. presided. Justice Cantor stated:

A copy of Hansard was tendered to prove that a member of the Queensland Parliament made a certain statement in that House. The evidence was admitted. Blackburn, C. J., expressed the view, with which I am inclined to agree, that there is no rule of evidence that evidence of the proceedings in a Parliament is not admissible except with the consent of Parliament.

Mr Justice Cantor, in this excellent judgment, goes on to talk about that matter. I suppose I think it is an excellent judgment because it happens to be what Senator Cooney, Senator Georges and I have said all along. Apart from that the judgment refers to the authorities and proves that the wide interpretation taken by the Senate is false and one which should not be taken. The judgment continued as to whether what takes place in Parliament can be impeached or questioned. Mr Justice Cantor stated:

The word `impeached' would include affected prejudicially, hurt, impaired, challenged, attacked, discredited or disparaged.


Senator Gareth Evans —But what is the test of adverse effect? That is what is left up in the air. Does it necessarily follow that cross-examining a member of parliament in relation to what is said is an adverse effect on Parliament?


Senator MISSEN —Mr Justice Cantor said earlier in his judgment that a member's motives shall not be questioned. That was his first point. Secondly, Mr Justice Cantor said that Article 9 of the Bill of Rights merely means that one cannot question or impeach in this way. There has to be some intention to disrupt or destroy the evidence and the validity of the parliamentary statement. Mr Justice Cantor gives the example which Senator Cooney and I have used. He says that every day the Press says that so and so has said something stupid in Parliament. Why is the Press not up for contempt for saying that? Because it is not a questioning in a sensible sense. Therefore, the judge was perfectly right. He has been supported in exactly the same way by Mr Justice Maxwell, who has said that indeed there is no need to take this wide interpretation.

The Senate has been shown by these judges to be wrong. We know we have been heavily criticised round the country for taking this cosy attitude in relation to the protection of our privileges and for sparing our witnesses from being criticised elsewhere. This Parliament should be more concerned with the rights of defendants and with the rights of people who want to check evidence given. We should be more concerned that people, whether rightly or with bad motives or whatever, can give such evidence before a court. We have had a lot of evidence and a lot of cases relevant to this matter of privilege. We have had a lot of instances of people appearing before committees of this Parliament and then appearing before the courts of this land. The courts should not be denied the opportunity of testing the evidence.

The very idea that we should now try retrospectively to change the law to what some honourable senators thought it was is an outrage. I would oppose that vehemently. Senator Macklin of the Australian Democrats has had the cheek to bring this forward in the form of a Bill. I gather that we cannot discuss the Bill, but the Bill is for the purpose of trying to reverse the law. Its purpose is to tell the judges that they are wrong. I think that is an outrage. Let me remind honourable senators-


Senator Haines —What is wrong with reversing a bad law if that is in fact what we are doing?


Senator MISSEN —Senator Haines has said it is a bad law. Senator Haines does not like such a law because it happens to interfere with her privileges. I think the members of the public will think very carefully before they let us change the law to suit our convenience.


Senator Haines —And the witnesses' privileges.


Senator MISSEN —Be quiet, Senator Haines; you talk like a jackass.


The PRESIDENT —Order! I ask the honourable senator to address his remarks through the Chair.


Senator MISSEN —I am sorry, Mr President. I should not say such things because I am a member of the Australian Conservation Foundation and a number of animal welfare organisations.

I refer honourable senators to the New South Wales Council of Civil Liberties, one of the organisations which have shown very considerable interest in this matter. Unfortunately, members of our Press have disappeared today; they are not interested in this matter. The Council stated in relation to our first action-not our last action-in interfering in court proceedings:

The Council strenuously objects to the interference by the Senate in the course of the proceedings for the committals of Lionel Keith Murphy and John Foord. The Council does not believe that the arguments of law proposed by Senators Evans and Durack have any validity and is astonished that the Senate should refuse petitions for leave to use evidence given before a Senate committee for the purpose of testing the testimony of witnesses in criminal proceedings. The council believes that it is not only an abuse of privilege to so interfere in those or any other criminal proceedings, but it is a denial to both the prosecution and defence of due process rights.

Both the prosecution and the defence in these cases complained that these matters should be brought before the criminal courts. We sought to deny that. I thought it was a disgrace. If we go further and try to change the law to suit the injured pride of some honourable senators, I think we will rue the day we do it .


The PRESIDENT —I simply respond to Senator Missen's remarks about the Clerks by saying that the submission to the court was made on my behalf and the decision to be represented was taken by me after discussion with representatives of the political parties in this House. I do not try to shelter behind the robes of the Clerks, who naturally are not able to speak for themselves in this House. Whilst Senator Missen clearly is entitled to make his comments, I must come to the defence of my advisers and say that if there is to be any criticism it is to be made of me and not of them. The Clerks have been giving me advice based on the long held beliefs of parliarmentary privilege so far as the parliamentary institution itself is concerned.