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Wednesday, 22 March 1972
Page: 810

Senator MURPHY (New South Wales) (Leader of the Opposition) - I am indebted to the Committee and to Senators O'Byrne and Cotton. It seems to me that in the inquiries conducted by the Senate one may discern 2 different kinds. One of those is the inquiry directed to the individual. The clearest case of that is where there is a complaint against a person, for example, that he has committed some contempt of the Senate. That is in the nature of a charge. It is fairly clear that some person or persons is under charge or complaint. It may not be precisely framed but the committee would be asked to look into this matter and it would do so. If the committee found that there was some basis of complaint, it formulates some precise charge against the person, and brings that person before it and proceeds to deal with the complaint. In that case it seems to me that the. proceedings of the committee should be assimilated as far as possible to the traditional procedures of a court of justice. If a person is under charge he should be given the protections which he would be given in a court. They would not necessarily be the precise kind which occur in any particular court because courts vary from jurisdiction to jurisdiction and from country to country. But he is entitled to the traditional protections - he is entitled to be heard and he is entitled to representation - of counsel if he wants it. If he is unable to afford counsel, counsel should be provided for him. Perhaps counsel ought to be provided for him in any case. He should be heard. He should be able to take privilege against incrimination. I think that he ought to be afforded all the traditional protections which have been evolved in this community to surround a person who is on trial. Those protections should apply whether the matter arises in any court of the land or in this Senate acting in its incidental judicial proceeding. We know that notwithstanding the separation of powers in this community we have incidental administration and judicial powers.

The second category of inquiry by a committee is one which is not directed towards any particular individual, or the determination of, let me call it, guilt or the establishment of facts in relation to a particular individual as a result of something in the nature of a complaint, but rather is the sort of inquiry with which we are familiar, namely, an inquiry into some matter that might be the subject of legislation or in general the subject of supervision of the administration. These may be wide ranging inquiries. It is true that in the course of such inquiries allegations of wrongdoing, criminality and so forth may be made, but they are really incidental.

Let me depart from my theme to give an example. In New South Wales there was a royal commission - not a parliamentary inquiry - into the liquor industry. Day after day evidence was given of apparent breaches of the law. The royal commission went into those - and rightly so - because the real inquiry was into what was happening. The particular breaches did not matter so much. The purpose of the inquiry was not to show that persons were committing crimes in order that they might be prosecuted. But, whether aimed or not, it was successful in showing that there were widespread breaches of the law such as to give rise to the suggestion that the law required amendment.

It may be that in many of the inquiries the Senate conducts there will be incidental, and perhaps fairly persistent, revelations of various kinds of wrongdoing. They arc not the object of the inquiry. The Senate is not setting out to obtain evidence that may be used against persons. That may be incidental. It may be more important to show that the state of the law is not good enough and that there should be changes. In that area a different approach should be taken. It may be necessary for the facts to be elicited from witnesses. That ought to be done in circumstances of courtesy to them and by inquiring into their private affairs as little as is possible and as is consistent with the carrying out of the charter that has been given by the Senate; but, if it is necessary in the public interest and in the carrying out of that charter, not hesitating to elicit the facts. Perhaps it ought to be done in circumstances in which the witnesses are not exposed to further proceedings. One would think that their answers certainly should not be admissible elsewhere. That, as I understand it, is the position. Thought might well be given to immunities for such persons in order that they may give their evidence without hesitation.

It is not only the witnesses who come before the Senate committees who are involved. I believe that proper steps ought to be taken to see that no reflections are made upon persons, whether they are witnesses or not, except insofar as it is necessary in the public interest and is involved in the carrying out of the committee's functions. I think we can devise procedures that will ensure that any person who is reflected upon is given an opportunity to answer. I am satisfied that, as far as possible in the absence of more specific standing orders, the committees have endeavoured to do that. They have endeavoured to act fairly, responsibly and properly. It would be the will of the Senate that they should do so. I am sure that the Senate, would have reacted very strongly if it had thought that the committees were acting improperly in any way. We expect a high standard from the committees of the Senate. But that high standard ought not to depend upon the persons on the committees. It is not sufficient that the standards should have to be evolved by the members, or in particular the chairmen, of committees. lt is time, and over time, that we laid down standards, and those standards ought to be in our own orders.

I do not believe that there should be legislation dealing with these matters, unless that is unavoidable. If there is legislation it means that the construction of that legislation will be for persons outside of these chambers. It would be much better for us to put in our Standing Orders the guidelines, protections, immunities and responsibilities of senators and all other persons in relation to the proceedings of the Senate and its committees, and to adapt those to our own experience. I am sure that senators on all sides of the chamber want to see that the committees are conducted fairly and that they discharge their high responsibilities with a due regard to the rights of not only the persons who give evidence before them but also the persons who are affected by them. Therefore I suggest, along with Senator Sir Kenneth Anderson, that this item of the Standing Orders Committee report be adopted. As was suggested on an earlier occasion, perhaps there could be some widening of the reference that has been given to the Privileges Committee.

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