Chapter 3 – Privilege 1988-2005 – 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.[58] 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. By a majority of two to one, however, 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 45
responses have been recommended for publication, with another six 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
three times. In accordance with the requirement of paragraph (2) of the
resolution, it reported on the first refusal in the 76th report,[59] and on the two further refusals in its
107th report.[60]
3.3
The committee has continued to devote a separate
chapter to right of reply matters because, there has continued to be significant
interest in how the procedure works, even though the procedure has not been
used with any great frequency. 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.[61]
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 element of the resolution accords
with the duty of senators to present petitions to either House of Parliament
for redress of a grievance. A senator
is obliged to present the petition but this action does not indicate any view
on the merits of its content.
3.7
Because the
committee does not judge the truth of the original comments or the proposed
response, and makes no finding of wrongdoing on the part of a senator, the only
role of the committee is to ensure that a response channel is available.
This addresses early concerns that the resolution raised
philosophical difficulties about allowing unelected persons the same access as
senators to absolute privilege and that the procedure entailed implicit
criticism of senators. Neither of these concerns has become an issue.[62]
3.8
The provision has also been essential in preventing the
committee from becoming embroiled in exchanges between senators and persons
alleging they have been mentioned adversely in Senate proceedings. As long as 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, the
committee is likely to recommend a response.
3.9
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
may be 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, if the committee proposes any changes to the text of a
response it normally confers with the person concerned by telephone, and makes,
suggests or receives any changes to the person’s submission by telephone or
facsimile. It advises the senator that it proposes to table a right-of-reply
report in the Senate, but does not otherwise confer with the senator.
Reports 1988-2005
3.10
The most interesting feature of the operation of the
right-of-reply procedure in the Senate has been that, contrary to the initial
fears, the committee has not been swamped with such 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. This present
report reiterates some of the features referred to in the 35th
report, as that report contained the blueprint for the committee’s future
operations.
3.11
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 are summarised as follows.
3.12
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.[63]
3.13
This restriction has been slightly modified to
accommodate exceptional circumstances where the persons could not reasonably have
responded within the timeframe. As a corollary, the committee has also decided
that the three month rule should generally apply to persons who seek a right of
reply in the first instance, again, unless there are exceptional circumstances.
3.14
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.
3.15
The final case involved the naming of a person in
documents tabled in the Senate. The committee found that the remedy sought had
been given in later tabled documents 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.
3.16
In the period covered by the 62nd report,
the committee recommended that eight further responses be incorporated in Hansard and, following a reference of
another matter to it, wrote to the person concerned. The committee did not hear
from that person and regarded the matter as having concluded.
3.17
The 76th report covered six submissions,
five of which the committee recommended for incorporation, and one which, under
paragraph 5(2) of the Privilege Resolutions, the committee refused to consider,
for reasons outlined in paragraph 3.15 of that report. An interesting feature
of one of the right of reply reports was that the response involved an overseas
visitor who, to the committee’s knowledge, was neither a citizen nor a resident
of Australia.
3.18
The 107th report covered twelve
right-of-reply responses and two refusals by the committee to permit a
response. Further details are contained in paragraphs 3.13 to 3.15 of that
report.
3.19
This present report covers a further seven reports,
none of which is appreciably different in kind from previous reports. One
interesting outcome, however, which has never been demanded or expected by
either the Committee of Privileges or resolutions is that, following the
tabling of a report in the Senate, the senator to whom the response was
directed apologised for the aspersions cast against one of the persons.[64]
Types of responses
3.20
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 and former senators, the chairman
of an Australian airline, the president of the Returned and Services League of
Australia, the chairman of the Advertising Standards Council, representatives
of refugee associations, public servants, statutory office holders, private
citizens, local government representatives, scientists, academics and
educationists, on their own behalf and on behalf of the institutions for which
they work, 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 representing their constituents.
3.21
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 has sought to respond. While the resolution formally does not permit
responses by corporations, the committee has had no difficulty in dealing with
institutions because invariably any adverse comment about an organisation or
institution necessarily involves persons within them, and the committee has effectively
dealt with responses under the existing resolution 5 provisions.
3.22
In all cases the Senate has adopted the committee’s
recommendation that a response be incorporated in Hansard. The effectiveness of the right-of-reply procedure has been
enhanced by the immediate publication of responses in hard copy and
electronically, as soon as the report is tabled.
Analysis
3.23
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.
- It is not well known. On recommending
a right of reply the committee releases a report, the response is
incorporated in Hansard and
placed on the Internet. Except for the occasional high profile response,
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.
- 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 discussion of
matters 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.
- It has been the experience of committee
members that, on the whole, adverse comment within each chamber is
relatively rare, and tends to be directed primarily at persons within the
same arena, or alternatively at persons who choose other mechanisms for asserting a right of reply.
- Furthermore, the most likely sources
of adverse comments against individuals are proceedings of committees,
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.
3.24
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. 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.
3.25
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, if at all, 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, usually by telephone;
and to report to the Senate as briskly as possible. Thirty-three (or 73 per
cent) of the committee’s right-of-reply reports have been completed within one
month, and twelve (27 per cent) within one week. While the average time taken
for all right-of-reply reports has been just over a month, 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. In one case, at the end of a sitting period, when the committee was
anxious to ensure that a right-of-reply was availed of with minimal delay, the
committee received and considered a submission in the morning and tabled a
report, immediately adopted by the Senate, later that same day.[65]
Conclusion
3.26
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. 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 usually died down after another exchange.
3.27
Having taken the lead in this matter, the committee is
pleased to note that most Australasian legislatures have now adopted a
right-of-reply procedure in some form, and that the British Commonwealth
Parliamentary Association Study Group on Parliament and the Media has included
a recommendation that other legislatures follow the Senate’s lead in providing
such a right of reply.[66]
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