CHAPTER 5

CONCLUSION

5.1 The committee's purpose in giving such a detailed account of the operation of privilege in the Senate is, as stated in the preface to the report, to give guidance to all persons who might be affected by its operations as to the context in which the committee considers matters of privilege. It is difficult for the committee itself to evaluate its effectiveness in considering matters of privilege. As its discussion of each report demonstrates, however, matters of considerable complexity, which have gone to the nature of the relationship between the Parliament, the executive and the judiciary, have been considered in both specific and general terms. While the committee does not claim that it provides the best model for the consideration of matters referred to it, it believes that one of the important purposes of its developed expertise is to enable informed discussion on matters which are common to many legislatures.

5.2 As stated in the 35th report:

The committee would be less than honest if it were to declare that it has welcomed the plethora of matters referred to it. Nonetheless, the variety and constancy of the matters have meant that it has had an opportunity to work out the implications of the new procedures, identify weaknesses, and develop for itself informal guidelines to supplement, in a practical way, the formal rules under which it must work. The committee considers that the process which it has been required to undertake has been worthwhile and has concluded that the new procedures adopted by the Senate on 25 February 1988 will continue to facilitate the consideration of matters such as these in years to come.1

The present committee continues to support that conclusion.

5.3 As the committee has dealt with cases under the various categories, it has built on its own experience to make comment and recommendations in addition to its findings. In the eight years since the passage of privilege resolutions the committee has had a core membership which, because of the number of matters referred to it and the need to develop methods, both formal and informal, of accommodating and interpreting the rules under which it conducts its proceedings, has developed considerable expertise in privilege matters. Three of the present committee members, including the deputy chairman and a former chairman, have been members for the eight years and for the production of 51 reports. One of these members has been a member since 1983, was chairman for four of those years, and has participated in 55 of the 61 reports presented to the Senate since the committee was established.

5.4 A feature of all the reports of the committee since the passage of the privilege resolutions has been their unanimity, with the exception of limited reservations by two individual senators, one in respect of the 11th report2 and the other in relation to the Committee's 42nd report.3 Such unanimity on matters, many of which related to highly contentious political issues has, the Committee believes, lent authority to its conclusions. As a result, the Senate has endorsed the findings and adopted the recommendations of all the reports.

5.5 In looking at the history of privilege in the Australian Senate, several significant points emerge. As was demonstrated in the first case considered by a Senate committee and continued thereafter, senators are expected to fend for themselves in their dealings with the wider public, unless extreme forms of obstruction occur. The Senate and the Committee of Privileges have been gentle with persons who they have judged are unfamiliar with parliamentary processes and have no concept that their actions might constitute contempt. On the other hand, the committee in particular has reserved its harshest criticisms for persons who should have been in a position to know the law of privilege and the consequences of flouting that law.

5.6 Although the committee has been forthright in making critical comments about the actions of such persons, it has been reticent in finding contempt because of the difficulty in proving causation or intent. Suggestions have thus been made from time to time that the committee is therefore ineffectual. However, success is not necessarily measured in terms of findings. It has long been acknowledged that high principle grows out of case law. The experience of the Senate Committee of Privileges, particularly as a result of the matters which it has considered over the past eight years, reinforces the truth of this principle. The committee has been consistent in its examination of cases, and has attempted to place its determination of matters within the historical context of the privilege which binds and protects all parliaments and the people whom the parliaments represent.