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Thursday, 11 May 1989
Page: 2256

Senator MACKLIN(11.09) —by leave-I have two amendments, Nos 7 and 8, rather than amendments Nos 6 and 7 as listed, to proposed amendment No. 7. I move:

(7) Page 3, proposed subsection 230fc (2), leave out the proposed subsection.

(8) Page 3, proposed section 230fd, leave out the proposed section.

I am not sure that these amendments need to be debated at length. It is fortuitous that both the Minister for Consumer Affairs (Senator Bolkus) and Senator Hill are as familiar as I am with the proposition governing this area, because a similar problem arose in the interpretation of the law with regard to the establishment of the parliamentary committee which dealt with the National Crimes Authority (NCA).

Undoubtedly, in terms of the drafting provided by the Government, proposed section 230fc (2) and proposed section 230fd were both included in an abundance of caution or an abundance of something else. Whatever it was, a little of the history of the NCA committee would have rapidly disabused the minds of those who put them in of the problem that they perceived to be existing, which is not there, that is, that the parliamentary committee in no way will seek to inhibit, prevent or get in the way of the legitimate operation of the Commission, the panel or the disciplinary board. The role of the parliamentary committee will, in fact, be far more a supportive mechanism, an investigatory mechanism, so that it can report to Parliament on whether or not any changes in the law should occur.

The difficulty with the way this is drafted is that it says that it is not allowed to investigate a matter-again both the Minister and Senator Hill know it depends on what is meant by `investigate'-that has been investigated or is to be investigated or is about to be considered or has been considered or is being considered. It is also stated that there can be no reconsideration of an act, an omission, a decision or a finding. The NCA committee soon found that, if that is interpreted literally, all the committee can do is actually meet. It could not actually do anything that would be of any use to the Parliament. Our parliamentary committees will, in future, be as responsible as they have been in the past. There is no need for proposed section 230fc (2) because it is restrictive in a way that could render the work of the Committee totally ineffective.

Secondly, section 230fd is a most extraordinary proposition. It says that the fact that the parliamentary committee has found a fact or matter to exist is not evidence of that fact or matter. As it has never been evidence of a fact or matter under any rules of evidence I do not know why that is there. It could have application to a tribunal not bound by the rules of evidence but, quite frankly, it is highly unlikely that any tribunal could admit as evidence a finding of fact by a parliamentary committee.

My real concern about 230fd is paragraph (b). I have served on the Joint Committee on Parliamentary Privilege and hence have a continuing interest in this matter. I was the person in this place who made the suggestion that we should break the log jam on this matter by getting the Presiding Officers to introduce the Parliamentary Privileges Bill, which they eventually did. I believe that 230fd (b) could be a very dangerous proposition. It is not something of minor concern but rather it is something that is very dangerous to the Parliament. It seeks to prohibit something that section 16 of the Parliamentary Privileges Act 1987 already does. The difficulty is that section 16 defines the proceedings in Parliament to include a report of a parliamentary committee, hence it is relevant to this, and prohibits the admission of evidence concerning proceedings in Parliament for the purpose of, amongst other things, drawing, or inviting the drawing of, inferences or conclusions from those proceedings in Parliament.

Apart from any new provisions being redundant because the matter is already covered, the view could be taken in subsequent litigation that, because the Parliament had passed that new provision, it had made some interpretation of section 16. One interpretation could be that the Parliament did not intend section 16 of the Parliamentary Privileges Act to prohibit the admission of evidence concerning a finding by a parliamentary committee. Those people who were involved in the privileges legislation know how crucial section 16 is to us. Some court findings prompted this Parliament finally to take action. An interpretation of what proceedings of the Parliament or its committees can or cannot be admitted in a court is vitally important for our freedom as parliamentarians so that we can act in a way we believe is proper and in the general interest. That freedom should not be circumscribed in any fashion by any court.

To go down the path suggested here with, as it were, a throw-away line in the legislation now before us could be quite dangerous. The Parliament should not contemplate for an instant the passage of legislation which brings into doubt some part of the Parliamentary Privileges Act which was passed by this place, after 87 years of federation, with a great deal of blood, sweat and tears.