Chapter 1 – Privilege 1901-1987
Meaning of privilege[1]
1.1
The privileges of Parliament are immunities from the
operation of certain laws conferred in order to ensure that the duties of
members as representatives of their constituents may be carried out without
fear of intimidation or punishment, and without improper impediment.
1.2
For example, members of Parliament when speaking in the
Parliament, and witnesses appearing before parliamentary committees, are immune
from suit or prosecution under the laws of defamation. While such freedom has
given rise to some degree of disquiet in the community, it is generally agreed
that the necessity for freedom of speech in Parliament and its committees
outweighs any countervailing danger of unfairness in the misuse or abuse of the
freedom.
1.3
As a submission by the Department of the Senate to the
Joint Select Committee on Parliamentary Privilege pointed out, a further
confusion has arisen between the immunities of the Houses of Parliament and
their members on the one hand, and the powers of the Houses, particularly the
power to punish contempts, on the other. The submission goes on to explain the
distinction in the following terms:
The power of the Houses in respect of
contempts is a power to deal with acts which are regarded by the Houses as
offences against the Houses. That power is not an offshoot of the immunities
which are commonly called privileges, nor is it now the primary purpose of that
power to protect those immunities, which are expected to be protected by the
courts in the processes of the ordinary law (Transcript
of Evidence, 3 August 1982, pp. 14-15).[2]
1.4
In other words, when a House of the Parliament is
constrained to examine, and perhaps punish persons for, acts which impede the
proper operation of that House, it performs a function similar to that of a
court to protect the integrity of its proceedings. It is appropriate that the
Parliament, the primary law making body, should have the powers to protect its
proceedings.
Scope of the report
1.5
The Joint Select Committee on Parliamentary Privilege
reported to both Houses in 1984[3]
recommending changes to the law of parliamentary privilege. Certain of these
changes were given legislative effect through the passage of the Parliamentary Privileges Act 1987; other
non-legislative changes were effected by the passage of the Senate Privilege
Resolutions in February 1988.
1.6
The workload of the Senate Committee of Privileges,
which was established in 1966, increased significantly since this codification
of the law and practice of privilege. In order to place the activities of the
Committee of Privileges in the context of parliamentary privilege generally,
this chapter describes the operation of privilege from 1901 to 1965, before the
establishment of the committee. It then describes the work of the committee
from its establishment in 1966 to 1987, before the introduction of the
Privileges Act and resolutions. Discussion of the Act and resolutions and of
all cases considered by the committee following the passage of the Act and
resolutions form the subject-matter of later chapters.
Privilege 1901-1965
1.7
In the first sixty-five years of the Senate, 17 cases
of privilege were raised. They included reflections upon the Senate and
senators, unauthorised disclosure of evidence given to a Senate committee, and
alleged bribery or intimidation of senators. In all but two cases, the matter
was resolved on the floor of the chamber: the related motion was withdrawn,
negatived or ruled out of order, or no action was taken.
1.8
In one case, conducted in the chamber, the Senate
concluded that a grave breach of privilege had been committed. This was in
relation to the sending of an intimidatory telegram from the secretary of the
Linesmen’s Union, Mr
McCarthy, to the President of the Senate on 14 March 1917. Mr McCarthy
intimated that, if the Senate persisted in delaying the passage of the supply
bills, his members would go on strike. The matter was raised in the Senate on
15 March and debated on the following day. The Journals recorded the outcome of the debate as follows:
[I]n view of the fact that no such attempt to influence the
deliberations of the Senate had occurred before, the Senate is of the opinion
that the said McCarthy in forwarding the telegram was ignorant of, and did not
appreciate, the seriousness of the offence he was committing, and therefore
deems it sufficient to affirm that the telegram in question, both in its terms
and purpose, constitutes an offence, and that, if repeated, other action will
be taken.[4]
1.9
This approach has been the template for the relatively
tolerant approach taken by the Senate and its Privileges
Committee towards persons who are not, and could not
reasonably be expected to be, familiar with Senate operations.
1.10
The second case involved the only instance of committee
examination of possible contempt before 1971. This occurred early in the life
of the Senate, when in 1904 a select committee was appointed to investigate the
matter of the alleged harassment of Senator Lt-Col John Neild by Major-General
Hutton. Although the committee concluded that Major-General Hutton had
recommended that the senator be placed on the retired list of the military
forces partly in consequence of speeches delivered in the Senate, and had
attempted to interfere with Senator Neild
in the discharge of his duties as a senator, the committee concluded that the
Major-General’s actions did not amount to intimidation.[5] This report represents the general approach which has
subsequently been followed by the Senate and the Committee of Privileges in
dealing with possible intimidation of senators, the 1904 committee probably
taking the view that senators are capable of looking after themselves.
House of Representatives Committee of Privileges
1.11
On 7 March 1944
in the House of Representatives, Prime Minister Curtin
moved a motion to adopt a new standing order, 322A,[6] which provided for the appointment at
the commencement of each Parliament of a seven-member committee of privileges.
The motion was agreed to, members were appointed and the newly-formed committee
received its first reference on the same day: ‘That the matter of Privilege,
brought before this House on 25th February by the Honourable Member for Barker
regarding the opening by censors of letters addressed to Members of this House,
be referred to the Committee of Privileges for enquiry and report’.[7]
1.12
The Hansard
record does not indicate why this particular matter should have necessitated
the formation of a standing committee to deal with it; nor did the committee
recommend further action on the matter referred.
1.13
Several matters were referred to the House of
Representatives Privileges Committee in the
next twenty years, including most markedly the cases of Mr Fitzpatrick
and Mr Browne
in 1955, leading ultimately to their imprisonment — the only time in the
history of the Australian Parliament that such action has occurred.
1.14
Still the Senate did not follow suit, and indeed
appears not to have considered the establishment of a comparable committee
until 1965, following another privilege case in the House of Representatives. Eight
Australian newspapers had published an advertisement copied from an official
photograph showing the Leader of the Opposition, Mr
Arthur Calwell,
at the table of the House, but with the addition of words advertising a motor
vehicle issuing from his mouth. Mr Calwell
raised the matter in the House on 18 August 1965
and it was duly referred to the Committee of Privileges.[8] While the committee found a contempt, it did
not recommend further action. However, the House recorded a censure and
reprimand against the offending newspapers and ordered that they print the
resolution.[9]
The establishment of the Senate Committee of Privileges
1.15
Whether the reference of this matter inspired action in
the Senate is uncertain, although the Senate committee was first proposed by Senator
George Branson
on 26 August 1965,
after the reference to the House of Representatives committee but before it
reported. The following exchange took place during question time:
Senator BRANSON
— My question, with due respect, is addressed to you, Mr President. Will
you, Sir, give consideration to the setting up of a permanent standing
committee to consist of seven senators to be appointed at the commencement of
each Parliament to inquire into and report upon complaints of breach of privilege
which may be referred to it by the Senate? I believe that this is done in the
House of Representatives at the commencement of each Parliament. By this means
it would be possible for the Senate to deal speedily with any questions of
privilege.
The PRESIDENT — The honourable senator’s question is interesting
and has considerable merit. Fortunately, we have not had to worry about a Privileges
Committee in the past. The question requires a good deal of
thought and consideration. I shall be pleased to refer it to the Standing
Orders Committee.[10]
1.16
The Standing Orders Committee duly considered the
matter, along with a number of other procedural matters including rules for
parliamentary questions and the appointment of committees on a
duration-of-Parliament rather than a sessional basis. In recommending the
committee’s establishment, along with changes to other procedures, the report
echoed Senator Branson’s
justification of a privileges committee, noting that the advantage of a
standing committee was that the Senate ‘would be in a position to deal speedily
with any Question of Privilege which might arise’.[11]
1.17
The recommendation to establish a privileges committee
was regarded as so uncontentious that it was agreed to without debate on 2 December 1965,[12] with all the changes to Standing
Orders to come into effect as at 1 January 1966.
Thus the Committee of Privileges came into being, on paper at least, on that
date. It preceded by nearly five years the establishment of a comprehensive
legislative and general purpose standing committee and estimates committee
system but followed at a considerable distance the Standing Committee on
Regulations and Ordinances, established in 1932.
1.18
In the measured way characteristic of the Senate’s
approach to the question of privilege, it took more than a year to appoint
members of the committee. This occurred on 5 April 1967, soon after the 50th session of the
Parliament began.[13] The members were
Senators Branson, Cant, Cormack, Drake-Brockman, Morris,
Poke, and Wheeldon, who between them had nearly half a century of parliamentary
experience.
Reports 1971-1987
Unauthorised disclosure of
committee report
1.19
The Committee of Privileges ‘stood ready’ to receive
references for a further four years. It was not until 4 May 1971 that the committee received its first
reference. Not surprisingly, given the increased use of Senate committees
during the 1960s, culminating in the establishment of the comprehensive
committee system in 1970, this reference concerned the premature publication of
a report of a select committee. The chairman, Senator Drake-Brockman,
tabled the Privileges Committee report in the
Senate on 13 May 1971.[14] Several features of the report are
noteworthy, in that many of the issues have been raised in later proceedings.
1.20
At the commencement of the committee’s inquiry, one
member, Senator Wheeldon,
disqualified himself from proceedings on the ground that he was a member of the
select committee which had reported the premature release to the Senate. In
contrast, a second member of that committee, Senator Branson,
did not do so. The question whether members of committees which have referred
matters to the Privileges Committee should
disqualify themselves from participation on the Privileges
Committee has been considered by the committee several times
since, and will be discussed further in Chapter 5.
1.21
In 1971, the Committee of Privileges made no attempt to
establish who might have given the material to the offending newspapers: the
editor and publisher of the newspapers concerned were regarded as culpable and
the offence as a strict liability offence. In all subsequent cases, the
committee has considered itself bound to attempt to find the source of the
improper disclosure, and has recommended that any committees the documents or
proceedings of which have been improperly disclosed should themselves
investigate the source before making a decision to refer a matter to the
committee.[15]
1.22
In this first inquiry, no public evidence was taken and
the only point at issue was the contrition of the offenders. By contrast, in a
case of unauthorised disclosure undertaken by the committee in 1984, almost all
evidence was taken in, or made, public and all witnesses at hearings held by
the committee were sworn. These procedures, as refined by privilege resolution
2, have been followed since.
1.23
In its 1971 report, the committee asserted that the
Senate had the power to commit to prison, to fine, to reprimand or admonish or
to otherwise withdraw facilities held by courtesy of the Senate in and around
its precincts. One element of this assertion was challenged during the 1984
case, that is, the Senate’s power to fine. As a result, the committee
recommended that the power to fine be clarified by legislation;[16] this was achieved by the passage of
the Parliamentary Privileges Act in 1987.
1.24
Despite the apologies by the editor and publisher of
the relevant newspapers, the 1971 committee recommended that they be
reprimanded before the Bar of the Senate and that any further breach be met
with a heavy penalty. The committee has recommended that penalties be imposed
only once since 1971,[17] despite
several findings of contempt having been made. In addition it has recommended
penalties if certain conditions are subsequently met.[18] In some cases the committee has not
recommended any penalty because the persons or organisations against whom a
finding of contempt has been made have apologised.[19]
1.25
The 1971 report was adopted on the same day it was
tabled,[20] and the persons concerned
attended at the Bar of the Senate for reprimand by the President the following
day.[21] Present procedures require
seven days’ notice before a motion may be moved to determine that a person has
committed a contempt or to impose a penalty for contempt,[22] and the only further reprimand was
delivered in writing as the committee had recommended.[23]
Claims of executive privilege
1.26
The next matter on which the committee reported
occurred in 1975, at the height of controversy between the Senate and the
executive. The question whether the then government had been involved in
improper loan dealings was the subject of much debate throughout the year, and
contributed to the dismissal of the government by the Governor-General on 11 November 1975.
1.27
In July of that year, both Houses of the Parliament
held special sittings to examine the issue. The Senate summoned several public
servants, including the departmental heads of Treasury, the Attorney-General’s
Department and the Department of Minerals and Energy, together with the
Solicitor-General, to appear at the bar of the Senate and answer questions relating
to the matter. All attended at the bar in response to the Senate’s summonses,
but all public servants refused to answer any questions of substance, citing
instructions from their respective ministers, and referring to a letter from
the Prime Minister, read to the Senate by the President, claiming crown
privilege in respect of the matters.[24]
The Solicitor-General, while noting that he was not subject to any ministerial
instructions, observed:
The Crown has claimed its privilege. As one of its Law Officers,
I may not consistently with my constitutional duty intentionally act in
opposition to its claim.[25]
1.28
It was clear that the Senate did not wish the public
officials to be punished for the actions of government ministers — a view which
has been a feature of Senate concerns and actions subsequently. Consequently,
the question before the Senate became whether the claims made by the Prime
Minister, the Treasurer and ministerial colleagues had any legitimacy, and it
was this question which was referred to the Committee of Privileges on 17 July 1975.
1.29
The committee report, tabled by the Chairman, Senator
Button, on 7 October 1975, is unique. It is the only one
of the 124 Privileges
Committee reports which consists of a majority and a
dissenting report on party lines; it also features five addenda, composed by
five of the seven members singly or in various combinations. The government
members found that no breach of privilege was involved, while the minority
opposition senators concluded that claims of executive privilege were
misconceived, although they recommended that no action should be taken by the
Senate.
1.30
While the reports, majority and minority, reflected the
political exigencies of the time, one feature of the reports, and of the
proceedings leading to their publication, which has characterised the
operations of the Privileges Committee over
the nearly forty years of its
existence, is that there was no acrimony within the committee, and each of the
reports was balanced and carefully argued.
1.31
Within a week of tabling, the Privileges
Committee reports were overtaken by events, with the Senate’s
withholding of supply taking precedence on the political agenda. As a result,
the reports were not debated in the few weeks before both Houses of the
Parliament were dissolved on 11
November 1975. In February 1977, the author of the dissenting
report, Senator the Hon. Reginald
Wright, by then a government senator, moved
a motion for the adoption of the dissenting report.[26] The Parliament was prorogued before
the motion could be debated and the report was not again considered.
Security measures at Parliament
House
1.32
During the years between 1975 and 1984, privilege
matters were sporadic. In the Senate, privilege cases have never been concerned
with the dignity of senators as such and, as the 1904 case illustrates, the
Senate has generally taken a robust attitude towards what might constitute an
improper interference with a senator. Nevertheless, matters to do with the
proper functioning of the Senate and the possible obstruction of senators in
the performance of their duties were the subject of several committee
inquiries. One concerned security in Parliament House. In 1978 the committee
considered the establishment of reasonably stringent security measures and
concluded that no question of privilege was involved in their implementation.[27]
Unparliamentary language used in
debate
1.33
The next report of the committee concerned the quoting
of unparliamentary language in debate. The committee concluded that the
question of the incorporation in Hansard
of words which would not be permitted in debate was not a matter of privilege
and recommended that the Senate consider asking the Standing Orders Committee
to examine the matter.[28]
Detention and harassment of
senators
1.34
The committee’s following report, tabled in June 1981,
concerned the imprisonment of Senator Georges,
a senator for Queensland. While
the committee concluded that Senator Georges’
imprisonment did not attract the privilege of freedom from arrest, it made
recommendations, agreed to by all Australian governments, concerning
notification to the Senate of the imprisonment of senators.[29] A refinement of the procedures, to
cover proceedings on the arrest of senators, was recommended by the same
committee in relation to the same senator on 5 December 1986,[30]
and has similarly been followed by Commonwealth and state authorities.
1.35
The last matter of this nature considered by the
committee during this period concerned the harassment of a senator by phone
calls. Calls were traced to the home of the staff member of another senator. In
its report, tabled on 11 June 1981,
the committee found that a contempt had occurred but, in view of an apology
made by the staff member concerned, did not recommend any action except the
adoption of the report.[31]
Improper disclosure of in camera
evidence and of proposed amendment to bill
1.36
The reference which revolutionised the Senate’s
approach to privilege and which led at least in part to the procedures which
the Committee of Privileges now follows occurred in June 1984.[32] This matter, which involved the
unauthorised publication of in camera evidence received by the Senate Select
Committee on the Conduct of a Judge, constituted one of the most serious
matters of privilege ever to arise in the Senate, and its ramifications were
considerable.
1.37
Briefly, a serving magistrate in the New
South Wales courts gave in camera evidence to the
select committee that was subsequently published by the now defunct National Times. The matter was referred
by the Senate on the motion of the chairman of the select committee, Senator
Tate. The National Times repeated its act of publishing in camera proceedings
after being notified of the referral of the first matter. Consequently, these
publications were themselves referred to the Privileges Committee,
on the motion of its chairman, Senator Childs. Newspaper articles questioning
the actions of a member of the select committee were referred to the Privileges
Committee on the same day, on the motion of the member
concerned, but were not pursued.
1.38
The Privileges Committee
examination of the improper publication was exhaustive, initially involving
taking sworn evidence, most of which was publicly presented, from among others
members and staff of the select committee, and the magistrate, as to the possible
source of the disclosure. In giving both written and oral evidence to the
committee, Senator Tate declared that the publication had the potential to
impede the inquiry in the future and also that there was potential immediate
damage to the select committee’s work.
1.39
At a further public hearing, the Privileges
Committee took evidence from the editor, publisher and author
of the articles. The structure of that hearing was not dissimilar to court
proceedings, with counsel representing the witnesses. The only prohibition was
on cross-examination.
1.40
The committee found that a serious contempt had been
committed by the editor, publisher and author of the articles. It was not able,
however, to discover the source of the disclosure and thus whether the
disclosure was deliberate or inadvertent. The committee’s report was tabled on 17 October 1984, and was adopted
without debate a week later.
1.41
The committee decided to report separately on the
question of penalties arising from its conclusions after it gave the opportunity
for further submissions by the persons affected by its findings. An election
then intervened, and it was not until February 1985 that the committee had the
opportunity to consider the question of penalty. The committee, with membership
identical to that in the previous Parliament, held further hearings to receive
submissions from counsel appearing on behalf of the newspaper. It recommended
that the publishers be placed on what in effect was a good behaviour bond for
the life of the Parliament. The committee also suggested that, as the Senate’s
1971 assertion of its power to impose fines was under challenge, legislation be
introduced to put the power to impose a fine beyond doubt.[33] The report was again unanimous, but
the Senate did not consider it between its tabling on 23 May 1985 and the simultaneous
dissolution of both Houses more than two years later. However, the power to
fine was declared in the Parliamentary Privileges Act in 1987, in accordance
with the committee’s recommendation.
1.42
The last privilege case reported by the committee
before the passage of the Parliamentary Privileges Act and the Senate’s
privilege resolutions of 1988 involved the improper disclosure and
misrepresentation by a departmental officer of an amendment prepared by a
member of the Australian Democrats in the Senate. While in its report, tabled
on 16 September 1985, the
committee recommended that the matter be not further pursued, it was critical
of the actions of the officer.[34] The
committee has followed this precedent, of being critical of what it has
regarded as inappropriate behaviour by persons the subject of references to it
without finding a contempt, in several of its reports since.
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