PARLIAMENTARY PRIVILEGE PROPOSED RESOLUTIONS OF THE SENATE

These notes list the recommendations of the Joint Select Committee on Parliamentary Privilege on which the proposed resolutions are based, and indicate the nature of and the reason for any proposed modifications of the terms of the Committee's recommendations.

Some of the Committee's recommendations were for amendments to the Standing Orders, but the following all take the form of resolutions, in accordance with the practice of trying new procedures by resolution before they are written into the Standing Orders. It may also be desirable to keep all the matters together rather than have them scattered through the Standing Orders.

The proposed resolutions have been drafted so as to be consistent with the Parliamentary Privileges Act 1987.

Minor changes to the wording of resolutions recommended by the Committee and changes to take account of Senate practice and phraseology are not noted.

Proposed resolution 1: Procedures to be observed by Senate committees for the protection of witnesses

Recommendation 35 of the Committee. The Committee substantially adopted a suggested resolution put to it by the Senate Department, which reflected practices already adopted by Senate committees. The following modifications have been suggested to the resolution recommended by the Committee.

(1) The resolution recommended by the Committee was limited to "investigatory" committees. There would seem to be no reason for not extending it to all committees.

(2) Paragraph (5), referring to opportunity for witnesses to raise matters of concern to them before they give evidence, was not included in the Committee's recommendation, but it is suggested that it be included in the resolution.

(3) Paragraph (6) of the Committee's recommended resolution would require reasons for refusing a witness's application to be heard in camera to be given in public. It may well be that a witness would prefer not to have the reasons published, and this is reflected in the proposed resolution (paragraph (7)).

(4) Words have been added to paragraph (7) to make it clear that a witness may ask to give part of the witness's evidence in private session during the hearing of the witness's evidence. The witness may wish to answer a particular question in camera.

(5) Paragraph (9) has been altered to make it clear that it is the responsibility of the chairman to rule on the relevance and necessity of a particular question, but that it is open to the committee to deliberate in private session and to determine whether any particular question, the relevance or necessity of which has been questioned, should be asked.

(6) Paragraph (10) has been altered to make it clear that it is open to the committee to determine at once, without going into private session to deliberate, that a question objected to by a witness should not be pressed. It may happen that a Senator immediately withdraws a question to which objection has been taken, and the committee accepts the withdrawal of the question.

(7) Paragraph (12) of the Committee's recommended resolution would provide that a committee may give reasonable opportunity for a person to respond to evidence adverse to the person. There would seem to be no reason for not making the reasonable opportunity mandatory, given that a committee may decide what is a reasonable opportunity in the circumstances (paragraph (13) of the proposed resolution).

(8) Paragraph (14) has been changed to provide a criterion for a committee to use when determining whether a request for a witness to be accompanied by counsel will be granted, namely, the need for the witness to be accompanied by counsel to ensure the proper protection of the witness.

(9) Words have been added to paragraph (15) to make provision for application by a witness for the reimbursement of legal costs where the witness has been granted the right to be accompanied by counsel, and for the committee to consider such application.

(l0) Paragraph (16) is a new paragraph providing for a witness to make application for the reimbursement of expenses incurred in direct consequence of making a submission to a committee or giving evidence, and for the committee to consider such application.

Proposed resolution 2: Procedures for the protection of witnesses before the Privileges Committee

Recommendation 21 of the Committee. The Committee did not recommend the terms of a resolution. The procedures recommended by the Committee are cast in the form of conferring protection upon persons "against whom a complaint has been made". The difficulty with this formulation is that a reference to the Privileges Committee often does not contain a complaint against any person, but merely refers to a matter which may involve or may give rise to an allegation of contempt against a person. The Privileges Committee has the task of investigating the matter to determine whether any contempt has been committed, and if so, by whom, and of hearing evidence and making a determination in relation to any allegation of contempt which may emerge during the inquiry. In other words, it combines the functions of an investigative agency and a court of first hearing in a criminal matter. A person who is called merely as a witness may turn out to be the person against whom an allegation is made, and different allegations may be made against different people.

It would seem, therefore, to be preferable to confer protection on all persons involved in the Privileges Committee's inquiry against whom any allegation is made or any adverse evidence given, regardless of whether those persons are in the position of an "accused". This would have a considerable advantage over criminal proceedings in a court. In such proceedings very damaging accusations may be made against witnesses, by cross-examination and submissions, without those witnesses having any opportunity to respond or defend themselves; only the accused is protected, and only in relation to conviction for the specific charges before the court.

The proposed resolution had been drafted accordingly, and because of this it is substantially different from the rules suggested by the Committee. The proposed resolution having been drafted in this way, it subsumes recommendation 24 of the Committee, relating to the reputations of "third persons" in Privileges Committee inquiries.

Other modifications of the Committee's recommendation are as follows.

(1) Paragraph (a) of the Committee's recommended rules would give the Privileges Committee discretion to hear evidence in camera. Paragraph (7) of the proposed resolution would allow the Privileges Committee to hear evidence in camera only for the purpose of protecting witnesses or where the Committee considers it otherwise appropriate. It may be that the protection of witnesses should be the sole ground.

(2) Paragraph (h) of the Committee's recommended resolution would allow the person "against whom the complaint is made" to make submissions "at the conclusion of the evidence". This provision is based on the analogy with criminal proceedings. Paragraph (10) of the proposed resolution would allow any person affected by proposed findings of the Committee to make submissions on those findings before the findings are finally formulated and presented to the Senate.

Proposed resolution 3: Criteria to be taken into account when determining matters relating to contempt

Recommendation 14 of the Committee. The proposed resolution is cast in the form of a declaration by the Senate that it will take criteria into account in determining whether matters should be referred to the Privileges Committee and whether a contempt has been committed, rather than a resolution expressing an opinion as to how the penal jurisdiction should be exercised as recommended by the Committee. The proposed resolution would also require the Privileges Committee to take the stated matters into account.

Paragraph (a) of the proposed resolution contains the principle recommended by the Committee. Other matters not recommended by the Committee are suggested, as follows:

paragraph (b): the existence of another remedy, i.e., a civil or criminal action; and

paragraph (c): mens rea and reasonable excuse.

Proposed resolution 4: Matters to be taken into account by the President in determining whether a motion arising from a matter of privilege should be given precedence of other business

The Committee did not recommend any specification of the matters to be taken into account in determining whether a motion should have precedence, but it would seem to be desirable to give the President some guidance in exercising this discretion, and to use the same criteria as the Senate itself would adopt to determine whether a contempt has been committed, except those which would involve any judgement of the content of an alleged contempt. The proposed resolution has been drafted accordingly.

Proposed resolution 5: Protection of persons referred to in the Senate

Recommendation 3 of the Committee. The Committee did not formulate a specific resolution, but suggested a series of ground rules for incorporation on a trial basis in the Standing Orders.

Modifications have been made to the procedures recommended by the Committee, as follows.

(1) The Committee suggested that a complaint of misuse of privilege should not contain "any matter amounting either directly or indirectly to an attack or a reflection on any Member of Parliament". It is suggested that this criterion not be adopted. It may be extremely difficult for a person to claim that the person has been unfairly attacked in Parliament without at least indirectly reflecting on a member. Such a person may well need to state that a member did not tell the truth, which would be a grave reflection.

(2) The Committee suggested procedures that leave the Committee of Privileges at liberty to deal with the matter in any way it thinks fit. The proposed resolution would restrict the Committee to specific procedures and remedies. It is suggested that it would be desirable to do this to prevent undue interference with a member's freedom of speech.

Proposed resolution 6: Matters constituting contempts

Recommendations 27 to 33 of the Committee. The proposed resolution has been cast in the form of a declaration by the Senate, for the information of the public, as to matters it may treat as contempts.

The guidelines recommended by the Committee were taken from the Offences Against the Parliament Bill 1981 introduced by Senator Button. The Committee departed from the provisions of Senator Button's Bill in a few places, and these departures are the subject of suggested modifications.

The following comments are offered and modifications suggested in relation to the Committee's suggested guidelines.

(1) The Committee suggested, as part of its description of "molestation", that it would be a contempt to "engage in any course of conduct intended to influence a Member in the discharge of his duties as a Member". It is suggested that this formulation could be regarded as preventing normal, acceptable and democratic methods of influencing members, e.g., telling a member that a vigorous campaign will be conducted against the member in the next election unless the member votes for a particular measure.

(2) The Committee suggested a contempt involving a member receiving any benefit on the understanding that the member would be influenced in the discharge of the member's duties, or entering into any arrangement controlling or limiting a member's independence or freedom of action or involving the member acting as the representative of an outside body. Paragraph (2) of the proposed resolution contains the Committee's formulation. In so far as this is intended to relate to bribery and corruption of members, it may be regarded as already covered, to the extent necessary in a declaration for the guidance of the public, by paragraph (2) of the suggested resolution. It may be thought that the wording suggested by the Committee is too wide and could make contempts out of normal, acceptable and democratic activities, e.g., a member agreeing to be bound by the decision of the member's party, or accepting the political support of an interest group, or agreeing to make representations on behalf of an interest group.

(3) The contempt of impairing the respect due to the authority of a House or a committee has been omitted from paragraph (5), relating to disturbance of meetings. It is suggested that this phrase is too vague.

(4) The provisions referring to the publication of in camera evidence and premature publication of reports have been combined in paragraph (16), and drafted so as to be consistent with the Parliamentary Privileges Act 1987.

Proposed resolution 7: Raising of matters of privilege

Recommendation 20 of the Committee. No substantive changes are suggested to the procedures recommended by the Committee.

Proposed resolution 8: Motions relating to contempts

Recommendation 22 of the Committee. The Committee recommended that 7 days' notice be given of any motion for the imposition of a penalty for a contempt. It is not clear in the Committee's report or the recommendation whether it was intended that this apply to a motion declaring a person to be guilty of a contempt as well as a motion for imposing a penalty. It has been assumed that this was the intention, and the proposed resolution has been drafted accordingly.

Proposed resolution 9: Exercise of freedom of speech

Recommendation 4 of the Committee.

The following modifications of the Committee's recommended resolution are suggested.

(1) The Committee's resolution would enjoin members to take account of the listed matters when reflecting adversely on any person. It is suggested that members should be asked to take the listed matters into account before they make a decision to reflect adversely on any person. The suggested resolution is therefore drafted to request members to consider the matters whenever they speak.

(2) The Committee's recommended resolution would ask members to take into account the damage that may be done by unsubstantiated allegations. It is suggested that members be asked to consider the damage that may be done by any allegations, whether substantiated or not.

Proposed resolution 10: Reference to Senate proceedings in court proceedings

Recommendation 8 of the Committee.

The following modifications of the Committee's recommended resolution are suggested.

(1) It would not seem to be appropriate for a resolution to reaffirm a law which is not made by resolution in the first place. The terminology of non-derogation has been substituted.

(2) Reference is made to any relevant law under section 49 of the Constitution, rather than only article 9 of the Bill of Rights, to take account of any possible interpretation of the effect of the Parliamentary Privileges Act 1987.

(3) In order to take full account of the possibility of unauthorised publication of proceedings, it is necessary to refer to any relevant law (such as the Act) and any relevant order.

(4) It would not seem to be appropriate for the Senate to be giving leave for evidence to be admitted when the courts have determined that leave is not as a matter of law necessary. The proposed resolution therefore declares that leave is not required.

(5) The resolution recommended by the Committee refers only to records and reports of proceedings and documents. It is necessary to refer to any form of evidence relating to proceedings.

Proposed resolution 11: Consultation between Privileges Committees

Recommendation 26 of the Committee. No modifications of the recommendation are suggested.

Amendments to be moved by Senator Durack

NOTES ON THE AMENDMENTS

Resolution 1. Procedures to be observed by Senate committees for the protection of witnesses

Amendments (1) and (2). These amendments make it clear that a committee is not obliged to issue an invitation to appear or to produce documents before issuing a summons if the committee decides that a summons is warranted.

Amendments (3) and (4). These amendments remove the references to reimbursement of legal costs of a person who is accompanied by counsel before a committee and to the reimbursement of expenses incurred by a person in making a submission or appearing before a committee. In the normal course of committee inquiries witnesses are not accompanied by counsel and meet their own expenses except for travel to and from committee meetings.

Resolution 2. Procedures for the protection of witnesses before the Privileges Committee

Amendment (5). This is purely a drafting amendment to make it clear that, as contemplated by paragraph (2), a witness against whom adverse evidence is given may make application to have other witnesses called as well as to cross-examine witnesses.

Amendment (6). The proposed new paragraph (11) makes it clear that the President is to grant reimbursement of the costs of representation of witnesses before the Committee only where the President is satisfied that a person would suffer substantial hardship due to liability to pay those costs.

Resolution (5). Protection of persons referred to in the Senate

Amendment (7). This would place an additional restriction on submissions by aggrieved persons, namely that submissions should not contain anything offensive in character.

Amendment (8). The differences between the original paragraphs (2) to (8) and the proposed new paragraphs are as follows:

amendments consequential on amendment (7) have been made throughout

the requirement for the committee to invite the aggrieved person and relevant Senators to give evidence has been deleted, and an option for the committee to confer with those persons has been substituted, and other references to receiving evidence have been deleted throughout

a requirement has been inserted that a response by an aggrieved person be succinct and relevant and not contain any offensive matter.

PRIVILEGE RESOLUTIONS

RESPONSES TO QUESTIONS RAISED IN DEBATE ON 25 FEBRUARY 1988

(l) Senator Puplick asked (Hansard p. 634) whether there would be any difference between publication of a response by a person named in the Senate and incorporation of the response in Hansard. The only difference between the two methods is that when a document is ordered to be published by resolution of the Senate copies are distributed by the Table Office to the normal list of recipients or other inquirers, but the text does not appear in Hansard. It is envisaged that in particular circumstances, e.g., if a response were of considerable length or, possibly, a considerable time had elapsed since the debate in the Senate, the Senate may think it appropriate that the response be published rather than incorporated in Hansard.

(2) Senator Puplick asked (Hansard p. 634) whether a response published or incorporated in Hansard would attract absolute privilege. A response published or incorporated would attract absolute privilege; that is why the rules provide that a response be succinct and strictly relevant and not contain anything offensive in character.

(3) Senator Cooney asked (Hansard p. 636) about the appropriateness of considering whether a person had a reasonable excuse for committing an act which might be a contempt in relation to such offences as obstructing the Senate in the performance of its functions. Resolution 3 merely indicates that the Senate will consider whether any defence of reasonable excuse is available. Of course, there may be contempts which, by their nature, exclude any defence of reasonable excuse (e.g. threatening a witness), but that does not prevent the Senate from considering whether such a defence is available.

(4) Senator Cooney asked (Hansard p. 637) whether questions as to a witness's credit would be regarded as relevant to a matter under inquiry by a committee. As Senator Durack pointed out, the question of whether a question is relevant would be determined in the first instance by the committee. A committee may well regard questions as to the credit of a witness as relevant, depending on the circumstances, but it would be for the committee to decide, subject to any direction by the Senate. The same answer applies to a question asked by Senator Harradine (Hansard p. 638) concerning relevance of questions.

(5) Senator Harradine questioned (Hansard, pp. 638 and 639) the inclusion of the expression "improperly influence" in the list of matters which may be treated as contempts. Resolution 6, as its terms indicate, is intended to give some guidance as to matters which may be treated as contempts. It is in the nature of the offence concerned that it is not possible to specify in advance all methods of influencing Senators which may be regarded as improper. It is analagous to such statutory offences as attempting to pervert the course of justice.

(6) Senator Harradine asked (Hansard p. 638) whether the existence of another remedy for an act which may be held to be a contempt, in the criteria to be taken into account when determining matters relating to contempts, refers to the inability to sue a person for an act which may be held to be a contempt. The criterion does refer to the availability of any civil or criminal remedy, but it does not follow that, as Senator Harradine suggested, no account will be taken of a matter because a civil or criminal remedy is available; it is merely a matter to be considered.

(7) Senator Haines referred (Hansard pp. 639 and 640) to the inclusion in the list of matters which may be treated as contempts of the references to influencing Senators and Senators seeking benefits in return for the discharge of their parliamentary duties. That these statements may be too broadly worded was suggested in the explanatory notes accompanying the draft resolutions. Again it must be stressed, however, that Resolution 6 is simply an indication, for the guidance of the public, of matters which may be treated as contempts. The resolution does not commit the Senate Committee to treat any particular matters as contempts, nor does it affect the ability of the Senate to judge particular cases on their merits and according to circumstances. The resolution therefore does not create any difficulties or give rise to any questions which did not exist before the resolution was passed.