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Wednesday, 22 March 1972
Page: 807

Senator MURPHY (New South WalesLeader of the Opposition) - I agree with the observations of the Standing Orders Committee on this matter. Paragraph 25 of the report states: . . the Standing Orders Committee recommends to the Senate that the scope of the reference to the Privileges Committee be enlarged to include a consideration of the general question of provision for protective procedures where individual interests are under inquiry.

The question of the right of witnesses arises in a practical way because of the great expansion of committee work of the Senate. Until recent times the Senate was not operating largely by way of committees. There was an occasional committee. Probably, on average, a new committee was established once every 5 or 7 years. The committees which operated in that way performed very well and submitted extremely important reports. I have looked at a number of those reports and I have studied the way in which the recommendations contained in them were carried out. Contrary to what is often said, many recommendations of such committees were carried out. One committee in particular was the Senate Select Committee on Road Safety. Most of its recommendations were implemented.

We have experienced a tremendous increase - indeed, an explosion - in the operation of select committees and standing committees of the Senate, and we on this side of the chamber are responsible for many of these committees. But along with the responsibility comes a duty to deal with the inevitable consequences of having these committees. After the system of standing committees was set up, I proposed in the Senate, I think on 29th September 1970, that there be an amendment to the Standing Orders. The Standing Orders in relation to privileges then provided, and still do, that there should be set up a Committee of Privileges, to consist of 7. senators, to be appointed at the commencement of each Parliament to inquire into and report upon complaints of breach of privilege which may be referred to it by the Senate. Honourable senators will appreciate that the Committee of Privileges dealt only with complaints of breaches of privilege. It was intended that the Committee of Privileges deal only with a situation in which somebody said that there had been a breach or that somebody had done the wrong thing.

It seems to me that this is not quite enough. It is necessary that there be laid down - and the Privileges Committee seems to be an appropriate body - a set of standards, of rules and guidelines, so that everyone involved in the operations of committees and in the proceedings of the Senate will know where they stand. People - senators and others - would be guided by those rules, and the staff, witnesses and others involved would know what were their rights, obligations, immunities and protections. I moved, therefore, that standing order 33a. be amended to include: and also to inquire into and report upon matters concerning rights, responsibilities, obligations and protection of senators, and, rr; relation to proceedings of the Senate, of members of the public, which may be referred to it by the Senate.

In this way the Privileges Committee would be a body which at least could look into matters without any occasion of complaint of breach and it would be able to say that this is the way in which some matter should be conducted, these are the rights, these are the responsibilities and these are the protections. The Government then wanted to consider that matter, so nothing more was done about it until 29th April 1971 when, on the motion of the Leader of the Government in the Senate (Senator Sir Kenneth Anderson) it was referred to the Standing Orders Committee. Along with that was the reference also of a matter which I had suggested, namely, an inquiry by the Committee of Privileges into what were, the rights, responsibilities and so on in connection with the publication of papers or documents by such committees. Then on 1 9th May 1971 the Senate, on the motion of the Leader of the Government, referred back to the Committee of Privileges a particular matter which had arisen in this place and which amounted to some complaint or inquiry in connection with privilege, together with the same, matter to which I had earlier referred. The purpose of that reference was to have ascertained the rights, responsibilities, obligations and protection of senators, members of the Press and others in relation to committee proceedings.

It is obvious that something ought to be done about these matters. We on this side of the chamber anticipated the difficulties that might arise and we thought that a committee should be empowered to consider the questions from time to time, irrespective of any breach of privilege. These are important questions because they affect the conduct of affairs of the Senate and the conduct not only of senators but also of all other persons who might be involved. The same problem arises with other legislative chambers. We proposed that certain simple principles be laid down so that when committees were considering matters they would have a charter which had been set by the Senate, and they could keep to the terms of that charter. It was proposed that insofar as witnesses were brought either willingly or unwillingly, before committees to assist the committees, they be treated fairly as citizens and that proper procedures be, used to bring them before the committees.

In practice persons are brought before the committees by request, but there is available also the summons procedure to bring them before a committee. But when they are before these committees they should be treated fairly. The committees should see to it that the questions directed to the citizens who are before them are put in a manner which is compatible with the standards of fairness which exist in the community. Some of these standards appear in legislation which is common throughout English speaking communities. We suggest that questions should not be put in a way which introduce irrelevant considerations or which are needlessly offensive either in their substance or in their form. Perhaps the Standing Orders of the Senate also could be amended to ensure that those principles are adopted.

In my opinion the Standing Orders should be amended at some stage to ensure that, except so far as the public interest requires it, the privacy of persons coming before a committee shall not be invaded by the committee. It is clear that in some cases a person's privacy would need to be invaded. If a committee is charged with investigating matters which have come into the public domain it could well be necessary for questions to be asked or material to be brought forward which otherwise would be regarded as an invasion of privacy. Fairly strict limits should be placed upon the use of that power and, so far as possible, committees should act in such a way that there is no unnecessary invasion of privacy. There should be a standing order to ensure that that is the situation. There may be practical ways of dealing with this aspect.

We already have the custom that persons may ask to have their evidence heard in private by a committee. I think that in some cases that is obviously necessary. It may be that because of the nature of the reasons for the person seeking privacy the application may need to be heard in private. No doubt these are ways which will be looked at. When we are framing the Standing Orders I think the guiding rule should be that publicity ought well to be given to affairs which are public affairs, otherwise the privacy of the individual ought to be maintained. Private affairs ought to remain private, and public matters probably ought to be given much more publicity than they receive now.

Senator Rae - How would the honourable senator define the distinction between public and private in those circumstances?

Senator MURPHY - One of the criteria for that distinction is to be found in the very decision by the Senate to set up a committee. If a committee is charged to inquire into and report upon some matter then it starts to enter into the public domain.

Senator Rae - That is the point I was finding hard to follow. If that applies, does it not mean that so long as it is relevant it is public, on your definition?

Senator MURPHY - No, it does not because there may be matters which are ordinarily considered as private while, on some technical stretching, they may be considered to be within the scope of the committee's inquiries. I think that if the committee's inquiries can be conducted fairly without stretching into all the details of private affairs, then one should not go into them. If it is necessary to do that in order to carry out the reference by the Senate, then let that be done. One would think that a committee would act on the basis that it would be cautious before entering into the private domain. I shall give an example. Take the reference which was made by this Senate regarding a project which, as I understand it, probably will not be carried out. That is why I shall refer fairly freely to it. It is the reference in relation to the Clutha project. It is my understanding that the project is being abandoned and that, therefore, the committee will not proceed with the matter. I should imagine that in that case the committee would probably have had to make a fairly exhaustive investigation into that project to find out exactly what was happening, and go into all sorts of details which it would not do if it were concerned with some more general topic of investigation. If there were an inquiry by a standing committee or a special committee into some allegation which might involve, say, some malpractice such as a suggestion of corruption - I am not speaking of a charge against an individual at the moment but of an inquiry into some area - it would be clear that the committee would investigate fairly closely into that area. Where it was a more general topic one would think that there would be less inclination and probably less warrant for entering into affairs which were private. One cannot lay down any definite standards which will apply to every circumstance.

Senator Rae - I am sorry, 1 rather thought that is what the honourable senator was doing. That is why I-

Senator MURPHY - No, I am not suggesting that. I am saying that there must be a balance. The nature of the reference and the problem with which the committee is faced at the time will determine how far one will go into the domain which would ordinarily be considered private. I think that a committee should do that only where it is clear to the committee that it is in the public interest and necessary or at least desirable that it do so in order to carry out the committee's function.

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