CHAPTER 6 — CONCLUSION
6.1 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.
6.2 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.
6.3 A feature of all the reports of the committee since the passage of
the privileges act and resolutions has been their unanimity, with the
exception of limited reservations by two individual senators, one in respect
of the 11th report [2] and the other in relation
to the committee's 42nd report. [3] Such unanimity
on matters, many of which have 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.
6.4 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.
6.5 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 eleven
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.
Robert Ray
Chair
Footnotes
[1] Senate Committee of Privileges, 35th
report, PP 194/1992, p. 23.
[2] Senate Committee of Privileges, 11th
report, PP 46/1988, pp. 13-16.
[3] Senate Committee of Privileges, 42nd
report, PP 85/1993, pp. 49-55.