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Wednesday, 22 March 1972
Page: 821

Senator RAE (Tasmania) - I note that the main objective of the discussion is the question of the reference of a number of these matters to the Privileges Committee so that the Privileges Committee may complete the inquiry which it has undertaken for some considerable period. I therefore do not intend to go at any length into a number of the matters that I believe are of most considerable importance, but will refrain and debate them as a member of the Privileges Committee. However, I do think that it is necessary and desirable to refer to a couple of points.

The first is in relation to the distinction made by Senator Murphy between the penal jurisdiction and the inquisitorial jurisdiction of the Senate committee. There is considerable confusion in the minds of many people, including the authors of some public commentary on the matter of the Senate committee or the parliamentary committee, in their approach to the two. Whether they come to the conclusion that the same protection should apply in either instance to a witness is another question. 1 feel that it is necessary and desirable that they should distinguish between the 2 and realise the different considerations which apply in relation to them. I felt that Senator Murphy was drawing attention to an important point of distinction during his earlier speech.

The matter which has been more latterly discussed is the' standing order relating to evidence being taken in camera and the possibily of publication of that evidence. I simply wish to remind honourable senators that there may be many reasons for taking evidence in camera. The bald statement that one would expect that that evidence will never be released unless with the consent of the witness or that it will never be released under any circumstances which would exclude one situation which readily comes to mind. That is this: It may be necessary in the interests of the fair trial of a person or the fair trial of some litigation which is to take place between persons that evidence should be taken in camera until the conclusion of those proceedings which are to take place in a court. But it may be also a matter which is particularly relevant to the inquiry of the Senate committee and particularly relevant to the report which the Senate committee will make. It may be that the appropriate way to deal with the matter is to take the evidence in camera and to make quite clear to the witness that the evidence is being taken in camera not permanently but to prevent publication at the time of taking-

Senator Murphy - But, Senator, that is a special situation. Senator Brown was raising the position where it was absolute in camera. You are saying: 'Look, we will take this evidence privately because of a particular circumstance and it will be revealed later'. That is not what he or I was addressing our minds to.

Senator RAE - I realise that. I am simply referring to that example not by way of criticising what was said by Senator Murphy or by Senator Brown but simply to indicate that if we leave this discussion on the point that that is all there is to say about it we are excluding a vast number of considerations that can lead to the taking of evidence in camera with no intention that that evidence should be permanently retained by the Senate committee in private and never revealed. I have mentioned but one example of a situation which could give rise to that consideration.

It may very well be that there are some other situations of doubt at a specific time. It may be that, for a wide variety of reasons, a Senate committee may decide to accede to a request to hear evidence in camera making it clear, I would hope, to the witness at the time that the committee would be reviewing its decision and reserves the right to publish that evidence at some later time. It may be a matter of very considerable importance to the committee's report that it should be free to publish that evidence. I feel that it is important that very special consideration be given to standing order 390 which provides the general protection to which reference is made in the report of the Standing Orders Committee. That general protection is stated in these words:

All Witnesses examined before the Senate, or any Committee thereof, are entitled to the protection of the Senate in respect of anything that may be said by them in their evidence.

But the question which immediately arises so far as 1 am concerned is what the Senate does to protect the person if the evidence given has been misused. It can only use its privileges powers to punish the person who has misused the evidence, but it may very well be that by then damage has been done. I am inclined to the view that the Senate could very well give serious consideration to suggesting some greater protection than the protection which is provided by standing order 390. When one makes that suggestion one immediately is likely to receive the answer: Yes, but greater protection is already given by the Bill of Rights of 1688. I agree that the Bill of Rights does provide substantial protection, a very important protection, but one wonders whether there are not some imperfections in standing order 390 and whether there are not some doubts in relation to the Bill of Rights. Not the least of the doubts is the meaning of 'proceedings of Parliament'. One may very well feel that these doubts could be. overcome by a new approach which took into account the need to give adequate protection, clearly, unambiguously and at the time it is needed, not simply by punishing someone afterwards for a breach that they might have committed. That is another matter which one could debate at very considerable length. I simply draw attention to it because it is directly relevant to the standing order which has been reported upon by the Standing Orders Committee.

I should like to sum up in general what I see the argument as being. It is an argument between those who would favour codification and those who would favour the common law approach. One of the other things I say, not by way of criticism of Senator Murphy or of anything that he or any other honourable senator might have said, but simply because I feel that it is desirable to put this beyond doubt, is that this debate has tended to give the impression, because of the points that have been raised, that there are insufficient rules to protect witnesses and that in fact one might have concluded that there were not very many rules at all. I think an examination of the existing rules in the Standing Orders will show that there are many standing orders which specifically protect witnesses. It is only when one goes through the Standing Orders and lists the ones providing protection that one is able to get a full list. It is an impressive list. I should hate anyone either listening to or reading the debate which has taken place tonight to go away with the impression that Senate committee procedures are inadequate at the moment. It may be that they could be improved and it may be. that a number of things should be done, but to suggest that they are inadequate, or for one to have the impression that they were inadequate, would be mistaking the nature of the debate and the comments made by various speakers.

The other aspect which is of very great importance in a consideration of the rights of witnesses before parliamentary committees and particularly Senate committees is the law of the customs of Parliament or the common law. It has been built up on the same principle as the common law which governs much of the law of the people not only of Australia but also of the United Kingdom. Of course we inherited it from the United Kingdom originally, or much of it, and have since built more.

Senator Murphy - We have made a few changes in it.

Senator RAE - Yes, we have made a few changes in it, and it may be that we should make more changes in the law in relation to the customs of Parliament. I simply refer to the existence of that law and the fact that one can quite readily ascertain a very great body of law which does apply to committees and to committee hearings, and applies particularly to provide a substantial protection to witnesses who appear before committees. That law is definable, discernible and effective. I should not like to allow the opportunity to pass while speaking here tonight without drawing attention to this protection because a false impression that there is inadequate protection might otherwise be obtained. That we may be able to improve that protection is one thing; that it does exist at the moment and does work is another. I simply leave it on the basis that I applaud the reference to the Privileges Committee for the very full consideration which the subject does deserve with the growth of the Senate committee system. But, please, let there be no misunderstanding. There are rules, both written and unwritten, which do protect witnesses at the moment. Those rules are effective, although they may be in need of greater perfection and greater modernisation or greater ease of application.

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