Examination of Witnesses (Questions 340
TUESDAY 10 FEBRUARY 1998
MLC AND MR
LAURENCE B MARQUET
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
(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
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
toI think you saidwhat 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 allbecause the assumption is that evidence is truthful
evidenceperjury 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.
346. I think we should certainly adopt thatit
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 Parliamentnotwithstanding
that it might also be a civil offenceshould 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 Membersboth
Senators and Members of the House of Representativesas
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 crimefor the moment a crime
associated with his work as an MLA as opposed to something separatein
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
(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
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 Parliamenthundreds 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
(Mr Marquet) In that case the Director of Public Prosecutions
would no doubt seek advice from both the Solicitor Generaland
in Western Australia he is a State official, he is not a Member
of Parliamentand the Attorney General, who is a Member
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.
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.