Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 340 - 359)



Lord Wigoder

  340. My Lord Chairman, could I be forgiven for going back to the question of bribery? I think I might have made a fundamental misunderstanding of what you said a little earlier. I understood you to say that if a Member were charged with bribery, even though it was a bribery that related to proceedings in Parliament the Criminal Code took jurisdiction and were able to try the matter freely, despite the Bill of Rights.
  (Mr Marquet) That is correct.

  341. It is only where the Member is called as a witness that the Bill of Rights may have an effect and give some protection.
  (Mr Marquet) That is correct, yes.


  342. You say there have not been any such prosecutions, but how is it thought it would work? How can you proceed satisfactorily with a prosecution in respect of something done in parliamentary proceedings without expecting to call Members, and maybe others, to give evidence of the parliamentary procedure?
  (Mr Marquet) There are two aspects. The first is that the Criminal Code being later in time than the Bill of Rights, follows the ordinary rule of statutory construction. Over and above that, the prosecution would be taken precisely in terms of Section 60 itself. You would run into difficulty, obviously, if other Members were called to give evidence and what evidence they had was counted as a proceeding in parliament. It would then depend ultimately on the decision of the High Court as to what actually, in those circumstances, constituted a proceeding of Parliament.

  343. The point remains unresolved?
  (Mr Marquet) It is moot.

  344. May I, while we are turning to this particular point, ask a similar question in relation to the point that was made regarding a criminal court prosecution for perjury in relation to—I think you said—what had been said in committee?
  (Mr Cash) A select committee, yes.

  345. Again, how could such a prosecution proceed without either being somewhat abortive if Article IX, as we understand it, is applied, or overriding Article IX if the evidence is to be in the fuller form one might expect?
  (Mr Marquet) It is the latter. If I could read Section 57 to you: "Any person who, in the course of an examination before either House of Parliament or before a Committee of either House, or before a Joint Committee of both Houses, knowingly gives a false answer to any lawful or relevant question put to him in the course of the examination, is guilty of a crime and is liable to imprisonment with hard labour for 7 years." The argument, my Lord Chairman, is that because perjury, in fact, is not evidence at all—because the assumption is that evidence is truthful evidence—perjury is not caught by Article IX of the Bill of Rights. That is the rationalisation. Perjury is not evidence, it is false evidence, and, therefore, the protection of parliamentary privilege does not extend to it.

Mr Tyler

  346. I think we should certainly adopt that—it is very clever.
  (Mr Marquet) That is the official view.
  (Mr Cash) My Lord Chairman, just before we move on, Mr Marquet mentioned that we had concurrent jurisdiction with Parliament and Criminal Code for certain offences. I should just advise the Committee that very recently we had a situation where three Members of a particular trade union obstructed the President and caused him not to be able to enter Parliament. Clearly there was a contempt against Parliament, and there was also a breach of the Criminal Code. Parliament, because it went into recess very soon after that particular incident, did not have an opportunity to pursue it, and the Director of Public Prosecutions launched his own prosecution in respect of that matter. That is a matter that is currently before the courts. The question that arises there is whether or not the Director of Public Prosecutions, or the Attorney General perhaps, should have advised the House and sought the House's concurrence in a prosecution. You have a dual situation. If the court is now being asked to determine a question of parliamentary privilege, would it be a matter that was clearly open to the House but, because of a long break, did not occur? We would advance the argument that it would be, in our view, more convenient for matters to be referred firstly to the Parliament and then, if there is a need, authorise the Attorney General to take a certain action. That type of thing, in my view, is the responsibility of the Parliament, and allowing outside bodies to interfere, I think, reduces the authority of Parliament and, also, adds to the confusion that is in the community.

Sir Patrick Cormack

  347. What you are saying is it is your very firm view that anything that is a transgression against the Parliament—notwithstanding that it might also be a civil offence—should be dealt with primarily by Parliament?
  (Mr Cash) Certainly in the first instance.

  348. May I ask one question, almost en passant, your colleague referred to the Federal Parliament, as I understood him, having abandoned its power to expel Members of Parliament.
  (Mr Cash) Yes.

  349. Could you just tell us what it put in its place and whether you have also abandoned your powers to expel?
  (Mr Marquet) Nothing was put in its place, it was simply an outright abolition of the power to expel. We have not abandoned the power to expel Members. Indeed, there was a time in the 1980s when the Legislative Council was totally fed up with Ministers in the Chamber avoiding answering questions as to the activities of the Government, and the matter was solved by the House passing a series of resolutions that said "Minister, you produce these documents within two sitting days of the Order being made, or your seat is declared vacant".

  350. And you have the power to do that?
  (Mr Marquet) Well, we have not been denied it.

  351. That is a very interesting point, and some of us may reflect on that. What does the Federal Parliament do now if it cannot expel a Member in any circumstances? Does that mean that if a Member is guilty of a criminal offence he or she can still see out the parliamentary turn?
  (Mr Marquet) No. If a Member is convicted of a crime for which the penalty is one year's imprisonment, the Member's seat is vacated automatically by operation of that conviction. You may be aware that recently the Federal Parliament has caused a bit of uproar, where certain Members have been found to have been less than frank about their travelling expense claims, and there are a number of prosecutions pending against those Members—both Senators and Members of the House of Representatives—as a result. If any or all of those Members are convicted then their seats will automatically be vacated.

Lord Merlyn Rees

  352. If it is alleged that a Member of the Legislative Assembly (MLA) has committed a crime—for the moment a crime associated with his work as an MLA as opposed to something separate—in deciding how to handle this who gives advice? Does the Attorney General play a part in deciding how to handle it? Or is it you two gentlemen?
  (Mr Marquet) No. It is the Director of Public Prosecutions.

  353. Entirely of his own volition?
  (Mr Marquet) Yes. The Director of Public Prosecutions has an unfettered discretion as to whether to lay an indictment or not.

  354. Because I have read all the papers and I have no idea of the nature of the alleged crimes that may have taken place, it may be very difficult, in the context of this country, for the Director of Public Prosecutions to comprehend what goes on in Parliament—hundreds of new Members are still trying to comprehend what goes on in Parliament! It may be that the Director of Public Prosecutions would not comprehend the nature of what happened, as he would do with a normal alleged criminal offence.
  (Mr Marquet) In that case the Director of Public Prosecutions would no doubt seek advice from both the Solicitor General—and in Western Australia he is a State official, he is not a Member of Parliament—and the Attorney General, who is a Member of Parliament.

  355. So the Solicitor General is a Member—
  (Mr Marquet) Is not a Member of Parliament.

  356. But is a Member of the government?
  (Mr Marquet) Yes, he holds a statutory office. My Lord Chairman, if I may, the Committee seems rather interested in this question of criminal law and so on. Perhaps, if the Committee is interested, I could introduce another aspect into this. The Western Australian Parliament has passed an Act entitled the Anti-Corruption Commission Act 1988, which was substantially amended two years ago in the wake of a number of matters. The Anti-Corruption Commission, effectively, is a Standing Royal Commission, and its operations are carried out very much in secret. However, it does have jurisdiction in relation to the activity and behaviour of Members of Parliament, whether or not their behaviour constitutes a criminal offence. In other words, if the ACC deems that behaviour to be improper or corrupt it can then investigate the activities of a Member, whether or not those activities relate to the Member as a Member of Parliament. Indeed, the Act provides that in making decisions about these matters the Commission can apply to the conduct of a Member a Code of Conduct or Ethics that is not necessarily one which in fact applies to a Member. For example, a Code of Conduct or Ethics in the public service could be applied to the Member's behaviour by the Commission to determine whether that conduct was improper or corrupt. Now, at the time that the amendments were going through, two years ago, the Attorney General, who is a Member of the Legislative Council, was at great pains to stress that in no way, shape or form would the provisions of the Act impeach or alter or modify the parliamentary privileges conferred by the 1891 Act. Frankly, I think, despite the Attorney General's assertion, there will come a time when there will be a clash between the Anti-Corruption Commission and one of the Houses as to the conduct of its Members and who ought to deal with the matter.

Lord Mayhew

  357. Speaking for myself, I think we are facing a conflict between two important concepts. The first is that freedom of speech is protected, historically, through the Bill of Rights. The second is a much more modern thing: a considerable body of Members of Parliament feel that they ought to be subject, without protection, to the same criminal obligations and sanctions as everybody else. That is the conflict that we have to find a way through, so it seems to me. It is in that context I would like to ask your help about something you said a little while ago to my colleague, Sir Patrick Cormack. I think it was in the context of a register of interests which has some statutory significance. The Legislative Assembly has said in Western Australia that any breach of their criminal provision would be dealt with as a contempt of the House. I may not have that right.
  (Mr Cash) A breach of the Pecuniary Interest Act will be dealt with by the House as a breach.

  358. Presumably the Pecuniary Interest Act provides a punitive sanction, does it not?
  (Mr Cash) There are no penalties set down in the Act. That is up to the House.

  359. Do you have any other instance in which the Legislative Assembly, the Parliament of Western Australia, has said, "Yes, our people, our members, are liable like everybody else to a particular statute but, in their case, if they are found to have broken it, we are going to have the handling of the penalty"?
  (Mr Cash) No. Our members are certainly bound by the criminal code, the ACC, the Anti-Corruption Commission. The Equal Opportunity Act expressly is applied to members of Parliament and, as has been stated, the Financial Interests Act or the Pecuniary Interests Act. There are too many others that I cannot recall that are specifically directed to members. The Constitution Acts Amendment Act that Mr Marquet has referred to will cause a member's seat to be vacated on various grounds: insanity, bankruptcy, taking an office of profit, adherence to a foreign prince or power, those sorts of things.

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Prepared 9 April 1999