CHAPTER 3 — PRIVILEGE 1988-1999 — 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 involved in 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.
3.2 Since the Senate adopted the procedure in 1988, only 26 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. The committee has refused a right
of reply only once, and, in accordance with the requirement set out in
paragraph (2) of the resolution, reports to the Senate on this refusal
at paragraph 3.15 below.
3.3 Because of the innovative nature of the process, both the committee's
35th and 62nd reports devoted a chapter to the practices it has adopted
in dealing with the proposed responses. This present chapter again describes
the process, and also confirms the committee's earlier evaluations of
its effectiveness.
Method of operation
3.4 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.
3.5 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. 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.
3.6 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.
3.7 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
usually 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 1988-1999
3.8 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.
3.9 Two of the reports recommended responses from persons not named in
the Senate but who regarded themselves as referred to in such a way as
to be readily identified. The four submissions which were not pursued
to finality through the Committee of Privileges are described in detail
in the 35th report, and are summarised as follows. In two of the cases,
despite the committee's having communicated with the persons seeking a
response, the persons concerned did not proceed with the matter. This
led the committee to report to the Senate at that time as follows:
The committee has decided that, in matters of this kind, if no response
to the committee's inquiries is received within three months, it should
consider the matter closed and report accordingly to the Senate, in
general terms, in due course. The committee does not consider it appropriate
that matters such as these should be kept “on ice” indefinitely,
to be resurrected at a time suitable to the complainant, and makes this
report to place on notice its intentions in this regard. In this context,
it may be noted that the committee itself, in dealing with matters of
this nature, has a policy of dealing with them as expeditiously as possible,
within the constraints imposed by the Senate's sitting patterns and
the terms of the resolution. [2]
3.10 The third case involved a right of reply which, before the committee
had an opportunity to consider it, was incorporated directly into Hansard.
Under those circumstances, since the remedy sought had already been obtained,
the committee did not proceed with the reference and so advised the person.
3.11 The final case reported in the 35th report involved the naming of
a person in papers tabled in the Senate. The committee found that the
remedy sought had been given in later tabled papers and advised the person
accordingly. The person chose not to pursue the matter. One feature of
this matter was that the person had become aware of the initial tabling
some considerable time after the tabling had occurred. The committee noted
that special circumstances would need to exist before it would consider
a submission at such a distance from the original naming in the Senate,
but did not consider it appropriate to exclude consideration of a submission
solely on the ground of the lapse of time.
3.12 In the period covered by the 62nd report, the committee recommended
that only eight further responses be incorporated in Hansard and,
following a reference of a further matter to it, wrote to the person concerned.
The committee did not hear from that person and regards the matter as
having concluded.
3.13 This present report covers six submissions, five of which the committee
recommended for incorporation, and one, under paragraph 5(2) of the Privilege
Resolutions, which the committee refused to consider. Although only four
reports were made, in respect of five submissions, two of the reports
are of particular interest. The first, tabled in March 1997, recommended
for incorporation in Hansard a response by a visitor from New Zealand,
who regarded himself as named adversely in the Senate. To the committee's
knowledge, this is the first occasion on which a response has been made
by a person who is neither a citizen nor a resident of Australia.
3.14 The second report, in September 1997, covered two responses, one
of which was from a person identified by the relevant senator, while the
second was from a person unnamed by the Senator but, because he regarded
himself as associated with the person originally named, and therefore
as adversely mentioned in such a way as to be readily identified, the
committee decided to recommend that he be permitted to make a response.
3.15 The final matter derived from a letter by the President of the Senate
attaching a submission by a person requesting the publication of a response
to comments made about him in the Senate. Contrary to usual practice,
the submission did not contain the terms of the person's proposed response,
although the President had invited him to provide it. Following several
attempts by the committee to glean a response, extending over a period
of some eight months, the person made a submission to the committee. Given
the nature of the submission, the committee decided, under Privilege Resolution
5(2), not to consider it and determined under Privilege Resolution 1(12)
to return it to him. The committee also advised the person that it had
disposed of the matter, and now reports to the Senate accordingly under
Privilege Resolution 5(2).
3.16 The responses which the committee has recommended for incorporation
since the passage of privilege resolution 5 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, a scientist, and the spouse and
staff of senators. The matters which they have addressed have been 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. In all cases the Senate has adopted the Committee's
recommendation that the response be incorporated in Hansard.
Analysis
3.17 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 usually issued, 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 or referred to, usually by witnesses
in those proceedings, a right of reply.
3.18 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 continues to believe 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 forum
as the original comments were made.
3.19 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
3.20 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.
3.21 It emphasises that a primary reason for the success of the process
is that the committee makes no judgment as to the truth or otherwise of
the assertion made by either the senator concerned or the responders.
This feature is vital, as otherwise the process would be bogged down endlessly
by claim and counter claim involving the committee in an inappropriate
adjudicative function. The opportunity can be, and has been, taken for
both parties to carry the matter further in the chamber and by another
rejoinder. This has not distorted the right-of-reply process and, as with
most claims of misrepresentation made by one senator against another,
has died down after another exchange.
3.22 It is pleasing to the committee as the implementer of the process
that most Australian legislatures have now adopted the procedure in some
form.
Footnotes
[1] Journals of the Senate, 1988, p.
536.
[2] Senate Committee of Privileges, 35th
report, paragraph 17, PP 467/1991.