CHAPTER 1
PRIVILEGE 1901-1987
Meaning of privilege
1.1 Because of the misunderstandings that continue to arise about the
meaning of privilege, the Privileges Committee repeats the description
given in its 1991 report, as follows, and endorses its conclusions.
Privilege, immunity, contempt
The word "privilege", in modern usage, connotes a special
right accorded to a select group which sets that group apart from all
other persons. The Macquarie Dictionary's primary definition of privilege
is as follows: "A right or immunity enjoyed by a person or persons
beyond the common advantages of others." The privileges of Parliament
are immunities conferred in order to ensure that the duties of members
as representatives of their constituents may be carried out without
fear of intimidation or punishment, and without improper impediment.
These immunities, established as part of the common law and recognised
in statutes such as the Bill of Rights of 1688, are limited in number
and effect. They relate only to those matters which have come to be
recognised as crucial to the operation of a fearless Parliament on behalf
of the people. As pointed out in a submission by the Department of the
Senate to the Joint Select Committee on Parliamentary Privilege, a privilege
of Parliament is more properly called an immunity from the operation
of certain laws, which are otherwise unduly restrictive of the proper
performance of the duties of members of Parliament.
The most obvious and the most important privilege or immunity,
recognised by the 1688 Bill of Rights, is the privilege of freedom of
speech. Such a privilege or immunity ensures that no member of Parliament,
and no person appearing before a committee of the Parliament, can be
called to account in another forum on the basis of matters raised in
the course of parliamentary proceedings. Thus, for example, members
of Parliament when speaking in the Parliament, and witnesses appearing
before parliamentary committees, are immune from suit or prosecution
under the laws relating to defamation.
While such freedom has given rise to some degree of disquiet in the community,
it is generally agreed that the necessity for freedom of speech in Parliament
and its committees outweighs any countervailing danger of unfairness in
the misuse or abuse of the freedom. Later in this report details are given
of the operation of a mechanism introduced by the Senate to give redress
to persons who may be affected by the exercise of that freedom. As the
submissions by the Department of the Senate to the Joint Select Committee
on Parliamentary Privilege also pointed out, a further confusion has arisen
between the immunities of the Houses of Parliament and their members on
the one hand, and the powers of the Houses, particularly the power to
punish contempts, on the other. The submission goes on to explain the
distinction in the following terms:
The power of the Houses in respect of contempts is a power
to deal with acts which are regarded by the Houses as offences against
the Houses. That power is not an offshoot of the immunities which
are commonly called privileges, nor is it now the primary purpose
of that power to protect those immunities, which are expected to be
protected by the courts in the processes of the ordinary law (Transcript
of Evidence, 3 August 1982, pp. 14-15).
In other words, when a House of the Parliament is constrained to examine,
and perhaps punish persons for, acts which impede the proper operation
of that House, it performs a function similar to that of a court to
protect the integrity of its proceedings. It is appropriate that the
Parliament, the primary law making body, should have the powers to protect
its proceedings. [1]
Scope of the report
1.2 In order to place the recent activities of the Committee of Privileges
in the context of parliamentary privilege generally, this chapter goes
on to describe the operation of privilege from 1901 to 1965, before the
establishment of the Committee of Privileges. It then describes the work
of the committee from its establishment in 1966 to 1987, before the introduction
of the Privileges Act and resolutions. Discussion of the Act and resolutions
and of all cases considered by the committee following the passage of
the Act and resolutions form the subject matter of later chapters.
Privilege 1901-1965
1.3 In the first sixty-five years of the Senate, 17 cases of privilege
were raised. They included reflections upon the Senate and senators, unauthorised
disclosure of evidence given to a Senate committee, and alleged bribery
or intimidation of senators. In all but one case, the matter was resolved
on the floor of the chamber: the related motion was withdrawn, negatived
or ruled out of order, or no action was taken. The only instance of committee
examination of possible contempt occurred early in the life of the Senate,
when in 1904 a select committee was appointed to investigate the matter
of the alleged harassment of Senator Lt-Col John Neild by Major-General
Hutton. Although the committee concluded that Major-General Hutton had
recommended that the senator be placed on the retired list of the military
forces partly in consequence of speeches delivered in the Senate, and
had attempted to interfere with Senator Neild in the discharge of his
duties as a senator, the committee concluded that the Major-General's
actions did not amount to intimidation.[2] This
report represented the approach which has subsequently been followed by
the Senate and the Committee of Privileges in dealing with possible intimidation
of senators, the 1904 committee probably taking the view that senators
are capable of looking after themselves.
1.4 On one occasion, the Senate concluded that a grave breach of privilege
had been committed. This was in relation to the sending of an intimidatory
telegram from the secretary of the Linesmen's Union, Mr McCarthy, to the
President of the Senate on 14 March 1917. Mr McCarthy intimated that
if the Senate persisted in delaying the passage of the supply bills, his
members would go on strike. The matter was raised in the Senate on 15
March and debated on the following day. The Journals recorded the outcome
of the debate as follows:
[I]n view of the fact that no such attempt to influence the deliberations
of the Senate had occurred before, the Senate is of the opinion that
the said McCarthy in forwarding the telegram was ignorant of, and did
not appreciate, the seriousness of the offence he was committing, and
therefore deems it sufficient to affirm that the telegram in question,
both in its terms and purpose, constitutes an offence, and that, if
repeated, other action will be taken.[3]
1.5 This approach, too, has foreshadowed the relatively tolerant approach
by the Senate and its Privileges Committee towards persons who are not,
and could not reasonably be expected to be, familiar with Senate operations.
1.6 No other matters of privilege led the Senate to take action in the
ensuing years.
House of Representatives Committee of Privileges
1.7 On 7 March 1944 in the House of Representatives, Prime Minister Curtin
moved a motion to adopt a new standing order, 322A, which provided for
the appointment at the commencement of each Parliament of a seven-member
committee of privileges. The motion was agreed to, members were appointed
and the newly-formed committee received its first reference on the same
day: 'That the matter of Privilege, brought before this House on 25th
February by the Honourable Member for Barker regarding the opening by
censors of letters addressed to Members of this House, be referred to
the Committee of Privileges for enquiry and report'.[4]
1.8 The Hansard record does not indicate why this particular matter should
have necessitated the formation of a standing committee to deal with it;
nor did the committee recommend further action on the matter referred.
1.9 Several matters were referred to the House of Representatives Privileges
Committee in the next twenty years, including most markedly the cases
of Mr Fitzpatrick and Mr Browne in 1955, leading ultimately
to their imprisonment - the only time in the history of the Australian
Parliament that such action has occurred.
1.10 Still the Senate did not follow suit, and indeed appears not to
have considered the establishment of a comparable committee until 1965,
following another privilege case in the House of Representatives. Eight
Australian newspapers had published an advertisement copied from an official
photograph showing the Leader of the Opposition, Mr Arthur Calwell, at
the table of the House, but with the addition of words advertising a motor
vehicle issuing from his mouth. Mr Calwell raised the matter in the House
on 18 August 1965 and it was duly referred to the Committee
of Privileges.[5] While the committee found a contempt, it did not recommend
further action. However, the House recorded a censure and reprimand against
the offending newspapers and ordered that they print the resolution.[6]
The establishment of the Senate Committee of Privileges
1.11 Whether the reference of this matter inspired action in the Senate
is uncertain, although the Senate Committee was first proposed by Senator
George Branson on 26 August 1965, after the reference to the House of
Representatives Committee but before it reported. The following exchange
took place during question time:
Senator BRANSON - My question, with due respect, is addressed to
you, Mr President. Will you, Sir, give consideration to the setting
up of a permanent standing committee to consist of seven 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? I believe that this is done in the House of Representatives
at the commencement of each Parliament. By this means it would be possible
for the Senate to deal speedily with any questions of privilege.
The PRESIDENT - The honourable senator's question is interesting and
has considerable merit. Fortunately, we have not had to worry about
a Privileges Committee in the past. The question requires a good deal
of thought and consideration. I shall be pleased to refer it to the
Standing Orders Committee.[7]
1.12 The Standing Orders Committee duly considered the matter, along
with a number of other procedural matters including rules for parliamentary
questions and the appointment of committees on a duration-of-Parliament
rather than a sessional basis. In recommending the committee's establishment,
along with changes to other procedures, the report echoed Senator Branson's
justification of a privileges committee, noting that that the advantage
of a standing committee was that the Senate `would be in a position to
deal speedily with any Question of Privilege which might arise'.[8]
1.13 The recommendation regarding the establishment of a privileges committee
was regarded as so uncontentious that it was agreed to without debate
on 2 December 1965,[9] with all the changes to
Standing Orders to come into effect as at 1 January 1966. Thus the
Committee of Privileges came into being, on paper at least, on that date.
It preceded by nearly five years the establishment of a comprehensive
legislative and general purpose standing committee and estimates committee
system but followed at a considerable distance the Standing Committee
on Regulations and Ordinances, established in 1932.
1.14 In the measured way characteristic of the Senate's approach to the
question of privilege, it took more than a year to appoint members of
the Committee. This occurred on 5 April 1967, soon after the 50th
session of the Parliament began.[10] The members
were Senators Branson, Cant, Cormack, Drake-Brockman, Morris, Poke, and
Wheeldon, who between them had some 47 years of parliamentary experience.
Reports 1971-1987
Unauthorised disclosure of committee report
1.15 The Committee of Privileges `stood ready' to receive references
for a further four years. It was not until 4 May 1971 that the Committee
received its first reference. Not surprisingly, given the increased use
of Senate committees during the 1960s, culminating in the establishment
of the comprehensive committee system in 1970, this reference concerned
the premature publication of a report of a select committee. The report
was tabled in the Senate by the chairman, Senator Drake-Brockman, on 13
May 1971.[11] Several features of the report
are noteworthy, in that many of the issues have been raised in later proceedings.
1.16 At the commencement of the committee's inquiry, one member (Senator
Wheeldon) disqualified himself from proceedings, on the ground that he
was a member of the select committee which had reported the premature
release to the Senate. By contrast, a second member of that committee
(Senator Branson) did not do so. The question whether members of committees
which have referred matters to the Privileges Committee should disqualify
themselves from participation on the Privileges Committee has been considered
by the committee several times since. The committee's current view of
disqualification was explained in detail at paragraphs 42 to 46 of its
35th report;[12] in brief, it concluded that it was a matter for the
senator concerned, and ultimately the Senate, whether he or she should
participate in an inquiry.
1.17 In 1971, no attempt was made by the Committee of Privileges to establish
who might have given the material to the offending newspapers: the editor
and publisher of the newspapers concerned were regarded as culpable and
the offence as a strict liability offence. In all subsequent cases, the
committee has considered itself bound to attempt to find the source of
the improper disclosure, and has recommended that any committees the documents
or proceedings of which have been improperly disclosed should themselves
investigate the source before making a decision to refer a matter to the
committee.
1.18 In this first inquiry, no public evidence was taken and the only
point at issue was the contrition of the offenders. By contrast, in a
case of unauthorised disclosure undertaken by the committee in 1984, almost
all evidence was taken in public and all witnesses were sworn. This procedure,
as refined by privilege resolution 2, has been followed since.
1.19 In its report, the committee asserted that the Senate had the power
to commit to prison, to fine, to reprimand or admonish or to otherwise
withdraw facilities held by courtesy of the Senate in and around its precincts.
One element of this assertion was challenged during the 1984 case, that
is, the Senate's power to fine. As a result, the committee recommended
that the power to fine be clarified by legislation; this was achieved
by the passage of the Parliamentary Privileges Act.
1.20 Despite the apologies by the editor and publisher of the relevant
newspapers, the 1971 committee recommended that they be reprimanded before
the Bar of the Senate and that any further breach be met with a heavy
penalty. The committee has not recommended that any penalties be imposed
since 1971, although several findings of contempt have been made. In some
cases the committee has not recommended any penalty because the persons
against whom a finding of contempt has been made have apologised.
1.21 The 1971 report was adopted on the same day it was tabled,[13]
and the persons concerned attended at the Bar of the Senate for reprimand
by the President the following day.[14] Present
practice requires seven days' notice before a motion may be moved to determine
that a person has committed a contempt or to impose a penalty upon a person
for contempt.
Claims of executive privilege
1.22 The next matter on which the committee reported occurred in 1975,
at the height of controversy between the Senate and the executive. The
question whether the then government had been involved in improper loan
dealings was the subject of much debate throughout the year, and contributed
to the dismissal of the government by the Governor-General on 11 November
1975.
1.23 In July of that year, both Houses of the Parliament held special
sittings to examine the issue. The Senate summoned several public servants,
including the departmental heads of Treasury, the Attorney-General's Department
and the Department of Minerals and Energy, together with the Solicitor-General,
to appear at the Bar of the Senate and answer questions relating to the
matter. All attended at the Bar in response to the Senate's summonses,
but all public servants refused to answer any questions of substance,
citing instructions from their respective ministers, and referring to
a letter from the Prime Minister, read to the Senate by the President,
claiming crown privilege in respect of the matters.[15]
The Solicitor-General, while not subject to any ministerial instructions,
felt it his duty to observe them.
1.24 It was clear that the Senate did not wish the public servants to
be punished for the actions of government ministers , a view which has
been a feature of Senate concerns and actions subsequently. Consequently,
the question before the Senate became whether the claims made by the Prime
Minister, the Treasurer and ministerial colleagues had any legitimacy,
and it was this question which was referred to the Committee of Privileges
on 17 July 1975.
1.25 The committee report, tabled by the Chairman, Senator Button, on
7 October 1975, is unique. It is the only one of the 61 Privileges
Committee reports which consists of majority and dissenting reports on
party lines; it also features five addenda, composed by five of the seven
members in various combinations. The government members found that no
breach of privilege was involved, while the minority opposition senators
concluded that claims of executive privilege were misconceived, although
they recommended that no action should be taken by the Senate.
1.26 While the reports, majority and minority, reflect the political
exigencies of the time, one feature of the reports, and of the proceedings
leading to their publication, which has characterised the operations of
the Privileges Committee over the thirty years of its existence, is that
there was no acrimony within the committee, and each of the reports is
balanced and carefully argued.
1.27 Within a week of tabling, the Privileges Committee reports were
overtaken by events, with the Senate's withholding of supply taking precedence
on the political agenda. As a result, the reports were not debated in
the few weeks before both Houses of the Parliament were dissolved. The
author of the dissenting report, Senator the Hon. Reginald Wright, subsequently,
as a government senator, moved a motion for the adoption of the dissenting
report in February 1977.[16] The parliament was
prorogued before the motion could be debated and the report was not again
considered.
Security measures at Parliament House
1.28 During the years between 1975 and 1984, privilege matters were sporadic.
In the Senate, privilege cases have never been concerned with the dignity
of senators as such and, as the 1904 case illustrates, the Senate has
generally taken a robust attitude towards what might constitute an improper
interference with a senator. Nevertheless, matters to do with the proper
functioning of the Senate and the possible obstruction of senators in
the performance of their functions were the subject of several committee
inquiries. One concerned security in Parliament House. In 1978 the Committee
considered the establishment of reasonably stringent security measures
and concluded that no question of privilege was involved in their implementation.[17]
Unparliamentary language used in debate
1.29 The next report of the committee concerned the quoting of unparliamentary
language in debate. The committee concluded that the question of the incorporatation
in Hansard of words which would not be permitted in debate was not a matter
of privilege and recommended that the Senate consider asking the the Standing
Orders Committee to consider the matter.[18]
Detention and harassment of senators
1.30 The committee' s following report, tabled in June 1981, concerned
the imprisonment of Senator Georges, a senator for Queensland. While the
committee concluded that Senator Georges' imprisonment did not attract
the privilege of freedom from arrest, it made useful recommendations,
agreed to by all Australian governments, concerning notification to the
Senate of the imprisonment of senators.[19] A refinement of the procedures, to cover proceedings
on the arrest of senators, was recommended by the same committee in relation
to the same senator on 5 December 1986,[20] and
has similarly been followed by Commonwealth and State authorities.
1.31 The last matter considered by the committee during this period concerned
the harassment of a senator by phone calls. Calls were traced to the home
of the staff member of another senator. In its report tabled on 11 June
1981 the committee found that a contempt had occurred but, in view of
an apology made by the person concerned, did not recommend any action
except the adoption of the report.[21]
Improper disclosure of in camera evidence and of proposed amendment
to bill
1.32 The reference which revolutionised the Senate's approach to privilege
and which led at least in part to the procedures which the Committee of
Privileges now follows occurred in June 1984.[22]
This matter, which involved the unauthorised publication of in camera
evidence received by the Senate Select Committee on the Conduct of a Judge,
constituted one of the most serious matters of privilege arising in the
Senate, and its ramifications were considerable.
1.33 Briefly, a serving magistrate in the New South Wales courts gave
in camera evidence to the select committee that was subsequently published
by the now defunct National Times. The matter was referred by the Senate
on the motion of the chairman of the select committee, Senator Tate. The
National Times repeated its act of publishing in camera proceedings after
being notified of the referral of the first matter. Consequently, these
second publications were themselves referred to the Privileges Committee,
on the motion of its chairman, Senator Childs. Newspaper articles questioning
the actions of a member of the select committee were referred to the Privileges
Committee on the same day, on the motion of the member concerned. This
matter was not pursued by the committee.
1.34 The Privileges Committee examination of the improper publication
was exhaustive, initially involving taking sworn evidence, most of which
was publicly presented, from among others members and staff of the committee,
and the magistrate, as to the possible source of the disclosure. In giving
both written and oral evidence to the committee, Senator Tate declared
that the publication had the potential to impede the inquiry in the future
and also that there was potential immediate damage to the select committee's
work.
1.35 At a further public hearing, evidence was taken from the editor,
publisher and author of the articles. The structure of that hearing was
not dissimilar to court proceedings, with counsel representing the witnesses.
The only prohibition was on cross examination.
1.36 The committee found that a serious contempt had been committed by
the editor, publisher and author of the articles. It was not able, however,
to discover the source of the disclosure and thus whether the disclosure
was deliberate or inadvertent. The committee's report was tabled on 17
October 1984, and was adopted without debate a week later.
1.37 The committee decided to report separately on the question of penalties
arising from its conclusions after it gave the opportunity for further
submissions by the persons affected by its findings. An election then
intervened, and it was not until February 1985 that the question of penalty
was further considered by the committee. The committee, with membership
identical to the committee in the previous Parliament, held further hearings
to receive submissions from the counsel appearing on behalf of the newspaper.
It recommended that the publishers be placed on what in effect was a good
behaviour bond for the life of the Parliament. The committee also suggested
that, owing to contemporary challenges to the Senate's power to fine,
which had previously been asserted by the Senate in 1971, legislation
be introduced to put the power to impose a fine beyond doubt.[23]
The report was again unanimous, but no further action was taken between
its tabling on 23 May 1985 and the simultaneous dissolution of both Houses
more than two years later. However, the power to fine was declared in
the Parliamentary Privileges Act in 1987, in accordance with the committee's
recommendation.
1.38 The last privilege case of this nature reported by the committee
before the passage of the Parliamentary Privileges Act and the Senate's
privilege resolutions of 1988 involved the improper disclosure and misrepresentation
by a departmental officer of an amendment prepared by a member of the
Australian Democrats in the Senate. While in its report, tabled on 16
September 1985, the committee recommended that the matter be not further
pursued, it was critical of the actions of the officer.[24] The committee's practice of being critical of what
it has regarded as inappropriate behaviour by persons the subject of references
to it, without finding a contempt, has been followed in several of its
reports since.
Footnotes
1 Senate Committee of Privileges, 35th report, PP 194/1992,
pp. ix-x.
2 Journals of the Senate, 1904, p. 564.
3 Journals of the Senate, 1917, p. 562.
4 House Votes and Proceedings, 1944, p. 80.
5 House Votes and Proceedings, 1964-66, p. 347.
6 House Votes and Proceedings, 1964-66, pp. 373,
386.
7 Senate Hansard, 26 August 1965, p. 128.
8 Journals of the Senate, 1964-66, p. 674.
9 Journals of the Senate, 1964-66, p. 427.
10 Journals of the Senate, 1967-68, p. 50.
11 Journals of the Senate, 1971, pp. 605-6.
12 Senate Committee of Privileges, 35th report, PP 194/1992,
pp. 16-18.
13 Journals of the Senate, 1971, p. 606.
14 Journals of the Senate, 1971, p. 612.
15 Senate Hansard, 15 July 1975, pp. 2727-31.
16 Senate Notice Paper, 15 February 1977, p.
3701.
17 Senate Committee of Privileges, 3rd report,
PP 22/1978.
18 Senate Committee of Privileges, 4th report,
PP 214/1979.
19 Senate Committee of Privileges, 5th report, PP
273/1979.
20 Senate Committee of Privileges, 10th report,
PP 433/1986.
21 Senate Committee of Privileges, 6th report,
PP 137/1981.
22 Senate Committee of Privileges, 7th report, PP
298/1984.
23 Senate Committee of Privileges, 8th report, PP
239/1985.
24 Senate Committee of Privileges, 9th report,
PP 506/1985.