PRIVILEGE 1988-1996 — RIGHT-OF-REPLY MATTERS
Introduction
3.1 Privilege resolution 5 enables a person who has been referred to
in the Senate in a way in which the person regards as adverse to seek
a right of reply in the same forum.This resolution was regarded at the
time of its creation as the most unusual of all the privilege resolutions,
and the Senate was the first legislature in the world to introduce the
procedure. As a result, it attracted the most controversy and concern
during the debate on the resolutions, resulting in a cross-party vote
in the Senate chamber.1 Concerns expressed at the time included the possible
vexatious use of the procedure, the philosophical difficulties of allowing
unelected persons the same access as senators to the absolute privilege
of the Senate and the possibility that permitting a response might imply
some criticism of the senators who were the subject of the response. However,
the majority of the Senate considered that the procedure should be adopted
and in the event none of these fears has been realised. Since the Senate
adopted the procedure in 1988, only 22 responses have been recommended
for publication, with a further five not proceeded with because the person
concerned chose not to pursue the matter further after the committee had
made contact. In no case has the committee refused a right of reply.
3.2 Because of the innovative nature of the process, the committee's
35th report devoted a chapter to the practices it adopted in dealing with
the proposed responses.This present chapter again describes the process,
but in the light of five further years of experience essays an analysis
of its effectiveness.
Method of operation
3.3 The method of operation is simple. If a senator when speaking in
or using the procedures of the Senate, whether directly or through tabling
or incorporation of material, refers to a person by name, or in such a
way as to be readily identified, in a manner that the person regards as
adverse, that person may make a submission in writing to the President
of the Senate, seeking the incorporation of an appropriate response in
the parliamentary record. If the President is satisfied that the subject
of the submission is not so obviously trivial, frivolous, vexatious or
offensive as to make it inappropriate for consideration by the Committee
of Privileges, and that it is practicable for the committee to consider
it, the President must refer the submission to the committee.
3.4 The committee in turn must make a decision as to whether or not to
consider the submission; if it decides not to consider it, it must report
that decision to the Senate. The committee has not yet refused to consider
a submission. Having decided to consider the submission, the committee
must meet in private; it may confer with the person concerned or with
the senator who referred to the person; and it must not itself publish
a submission or its proceedings in relation to the submission, but may
present minutes of its proceedings and all or part of the submission to
the Senate, recommending that it be published by the Senate or incorporated
in Hansard.
3.5 The Committee of Privileges is enjoined by the Senate resolution
not to consider or judge the truth of either the comment of the senator,
or comments in the response. This provision is necessary to prevent the
committee from becoming embroiled in exchanges between senators and persons
alleging they have been mentioned adversely in Senate proceedings. The
committee's only role is to ensure that a response channel is available
and that the response is succinct and relevant and does not contain material
which, for example, would reflect adversely on either a senator or any
other person.
3.6 As indicated in the 35th report (paragraphs 11 and 12), in interpreting
these requirements the committee has been guided by the criteria governing
senators' personal explanations and claims of misrepresentation. Some
degree of editing or amending of submissions is almost invariably involved,
although the committee has committed itself to allowing as much as possible
of the person's response to be published, subject to the resolution 5
requirements. In the interests of early redress of a person's perceived
grievances, the committee normally initially confers with the person concerned
by telephone, and makes, suggests or receives any changes to the person's
submission by telephone or facsimile. It has not found it necessary to
confer with the relevant senator, but advises the senator when it proposes
to table a report in the Senate.
Reports 1988-1996
3.7 The most interesting feature of the operation of the right-of-reply
procedure in the Senate has been the dearth of right-of-reply cases. At
the time of its 35th report in December 1991, the committee had received
only 18 submissions and had reported to the Senate on 14 occasions. The
four submissions which were not pursued to finality through the Committee
of Privileges are described in the 35th report. In the remaining 14 cases,
the agreed responses were incorporated in Hansard, on the committee's
recommendation. From 1992 onwards, the committee has recommended that
only eight further responses be incorporated in Hansard and has deferred
only one response for further consideration.
3.8 In the only case since 1991 in which a right of reply was initially
sought but not proceeded with, the person concerned wrote to the President
of the Senate claiming to have been adversely affected by one senator's
response to a matter raised in the Senate by another senator. Before referring
the matter to the committee, the President himself sought clarification
of the person's concerns. The person responded to the President who, in
accordance with the criteria set out in privilege resolution 5, referred
the submission to the committee. The committee, having decided to consider
the submission, in turn sought clarification from the person of the matters
of concern to him. The committee has not heard further from the person
but, in accordance with usual practice, would be willing to give consideration
to the terms of a response if a further approach were made.
3.9 The responses which the committee has recommended for incorporation
have come from a wide range of persons, including a former premier, the
chairman of Australian Airlines, the president of the RSL, the chairman
of the Advertising Standards Council, representatives of refugee associations,
the director of the Queensland Government Superannuation Office, public
servants, private citizens, a city councillor, a former town clerk, and
the spouse and staff of senators. The matters which they addressed were
matters raised substantively by senators on their own behalf or on behalf
of their constituents. There has been no appreciable change in the kind
of individual wishing to respond to an adverse mention since the inception
of the right-of-reply procedure; nor, broadly speaking, in the kind of
matter to which he or she sought to respond.
Analysis
3.10 While it is difficult for the committee to evaluate precise reasons
for the relatively few users of the provision, several features have,
in the committee's view, influenced the limited use of the procedure.
(a) It is not well known. Although on recommending a right of reply
the committee releases a report, the matter is incorporated in Hansard
and a press release is issued as a matter of course, it is rare for
the media to disseminate what is in fact news of a relatively uncontroversial
procedure which in all cases is recommended unanimously by the committee.
(b) Many of the matters arising in the Senate involving adverse comment
tend to be by senators on behalf of constituents at times such as the
adjournment or during discussions of matter of public interest, when
media interest in Senate proceedings is minimal. Generally, persons
seeking a response are likely to be affected within their own community
rather than nation-wide, and their concern is more to have their response
disseminated at the local rather than at the national level.
(c) It has been the experience of most members of the committee that,
on the whole, such abuse of parliamentary privilege as may occur within
each chamber tends to be directed primarily at persons within the same
arena, or alternatively at persons who have other mechanisms for asserting
a right of reply.
(d) Furthermore, the most likely sources of adverse comments against
individuals are committee proceedings, which have their own detailed
procedures to afford a person adversely named, usually by witnesses
in those proceedings, a right of reply.
3.11 Given the small numbers of persons availing themselves of the right-of-reply
procedure, the question arises whether the procedure is worth pursuing.
The committee reinforces the conclusion it reached in its 35th report
that the procedure is both desirable and successful. Indeed, the committee
suggests that the right-of-reply procedure may be applicable in forums
other than the Parliament. In its dealings with persons who have perceived
themselves to be adversely affected by comment made in the Senate, the
committee has found in most cases that the persons have been concerned
not with vengeance or apology, but rather to ensure that their voice is
heard or views are put in the same medium as the original comments were
made.
3.12 Another concern of persons seeking a right of reply has been the
swift redress of their perceived grievance. As a result, the committee's
approach has been to change only minimally the person's words, to consult
with the person, as required by the privilege resolution if any change
is to be made, at the earliest opportunity, and to report to the Senate
as briskly as possible. Sixteen of the committee's right-of-reply reports
have been completed within one month, and eight within one week. While
the average time taken for all right-of-reply reports has been 40 days,
this has included delays brought about by the committee's not meeting
during parliamentary adjournments or recesses and by the time taken to
negotiate with the persons affected. The most rapid report production
was one day from the receipt of the submission from the President to the
report's adoption by the Senate.
Conclusion
3.13 When the procedure was originally established committee members,
like other senators, were wary that it could be misused. For the reasons
stated above, this has not occurred and the committee emphasises the basic
simplicity of the process. The right-of-reply procedure is usually quick,
cheap and effective for the purpose of enabling persons to put their side
of the story. The procedure is available to all, regardless of either
skill or financial capacity. The committee suggests that this alternative
procedure should be examined by all who are contemplating changes to defamation
law.
3.14 It is pleasing to the committee as the implementer of the right-of-reply
process that several legislatures have now adopted the procedure in some
form.
Endnote
1 Journals of the Senate, 1988, p. 536.