Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 360 - 379)



  360. One scenario which occurred to us at our last meeting was where, undoubtedly as part of a proceeding in Parliament, a member names a child, let us say, whose name has been ordered to be protected by a court under the anonymity provisions. One suggestion was you could make the member liable for that, while protecting the Article 9 provision by stipulating that it should be dealt with as a contempt. You have that illustration in your Register of Interests Act, but that was a specific provision in that, as I understand it?
  (Mr Cash) Yes. If we had a member who in fact named a juvenile whose name was suppressed by the court, then I would expect that we would immediately convene our Privileges Committee to deal with that particular incident. What Mr Marquet and I have discussed in recent times is the penalty that should be applied and whether or not the member should be liable for damages to an outside party. It is an issue that we are still very much discussing.

Sir Patrick Cormack

  361. What penalties can your Privileges Committee inflict? Presumably it is a recommendation to the House and the House has to approve it, but what penalties have been inflicted in recent years?
  (Mr Cash) One gentleman who refused to provide information to a select committee was brought before the bar of the House and was censured. I have given an instance of a petitioner who was found to have provided false information. He was in the end jailed by the Parliament.

  362. I am particularly interested in the penalties that you would inflict on members of Parliament. Have you, for instance in recent years, suspended or expelled a member?
  (Mr Cash) We have not expelled a member. As to being suspended, no, we have not suspended members. We have certainly censured members.

  363. That is merely a verbal denunciation of an official nature?
  (Mr Cash) Yes.

  364. It does not have any financial consequences?
  (Mr Cash) That is true.

  365. Of course a suspension here does have financial consequences. The member does not receive his pay during that period.
  (Mr Marquet) We actually looked at that, Sir Patrick. I am also the accounting officer as well as being the Clerk and I was asked whether it would be proper for the member's salary to be suspended. I said no. Certainly a standing order cannot override the general law and the general law is that the member, while he or she is a member, is to be paid. There is no provision for suspension of that salary whilst the member is suspended from the service of the House, so the member is still paid.

  366. Have there been any examples in recent years of members being found guilty by a criminal court and punished severely?
  (Mr Cash) Yes, as recently as six months ago. No, I take that back. The person by the time he was convicted by the court was a former member. However, there was a case where a former member had given incorrect evidence to a Royal Commission and he was jailed for six months. He was a former member at that time.

  367. Had he been a member at that time, because the sentence was less than a year, he would have been able to remain a member?
  (Mr Cash) No, not in this case, because the maximum term was in excess of one year. So long as the term is in excess of one year, notwithstanding the particular sentence that may be passed which might be less, he loses his seat.

Lord Waddington

  368. I am interested to know where, in your opinion, public opinion is now focused. Reading the paper which was submitted, I gather that there were a number of meetings held throughout Western Australia to ask members of the public what was their view about the conduct of members of Parliament. When I read through this paper, I got the impression that most people were complaining not about the fact that members of Parliament were being bribed, not about the fact that members of Parliament were behaving in a raucous, noisy and undisciplined fashion, but about the fact that members of Parliament were abusing privilege in order to libel people outside Parliament. If that is correct, that is a very much more difficult thing to deal with, is it not? Would you consider in Western Australia limiting a member's privilege so that he could be actually liable in the courts for libelling someone outside Parliament, a non-member? Or is it accepted that this is something which the public have to put up with and that in reality a lot of the mischief can be dealt with if there is a strong person in the chair? A case was brought to my attention the other day where, in a Parliament which runs on the Westminster model, a member of Parliament got up and proceeded to launch a vicious attack against a public servant on the basis of an anonymous letter which he said was in his possession. If anybody got up in this Parliament and acted in such a way, that person would get a lesson that he or she would not forget in a very long time. I am just wondering whether we are fully aware yet of the problems which you are facing in Western Australia and whether perhaps we are arguing about things which actually pale into insignificance when it comes to the matters which really concern the public, namely the fact that there does seem to have grown up a habit in Western Australia of members of Parliament getting up and launching vicious attacks on members of the public who cannot respond.
  (Mr Cash) If that is the impression, Lord Waddington, then I am sorry. I accept that, in reading that document that you referred to, one could gain that impression. However, the true position is that the majority of people in Western Australia do not make continual complaints about the activities of members of Parliament. The instances to which you refer are very specific. Approximately four years ago, there was a concerted effort by certain members of the Legislative Assembly to claim that members of Parliament and persons associated with a particular political party were involved in improper practices in the northern suburbs of Perth. It was an absolutely concerted attack. A Royal Commission was in due course called and the Royal Commission found that the accusations and allegations made—some of which, I might say, suggested that a person close to a political party had killed someone; it was that extreme—had no substance. Regrettably, those allegations were being made at the time that the Commission on Government was in fact taking evidence around Western Australia, so the community's focus was very much on the sorts of things they were reading in the paper on a daily basis. It is a pity that it takes so much time for things in fact to play themselves out to later find that the allegations were false. The Commission on Government however had reported, prior to the Royal Commission establishing that the allegations were false, so the types of things that were being raised at that stage were not really reflective of a usual situation in Western Australia. You said earlier, sir, that in the first instance it seems it would be the presiding officer's responsibility to maintain order. I hasten to say that I said it was the Legislative Assembly in which those comments were made, not the Legislative Council. I think that is a very important point because my predecessor, who was the president for 20 years, maintained a particular level of order in the House that would never ever have allowed those matters to have been uttered. I obviously worked with the former presiding officer for a long time and the level of discipline that is maintained in the House today again would not allow that to happen. It is, in my view, in the first instance, the absolute responsibility of the presiding officer to see that those things are not said, especially when there is a very clear indication they are probably not true anyway and they are being said for purely political purposes. We had recently a situation in the New South Wales Legislative Council where one member, a Labour member in an area that currently has a Labour Government, raised various issues and the Parliament itself was somewhat alarmed, I think rightly so, based on the press reports that were published. The Parliament in New South Wales, the Legislative Council, enacted the Special Commissions of Inquiry Amendment Act 1997 to enable a commissioner to investigate those comments and report back to the House. That member sought recourse to the High Court and it is interesting that in October of last year—so the decision is very current—the High Court said, if I may read it: "The Act"—that is, the Special Commissions of Inquiry Amendment Act 1997—"could not be said so to affect the parliamentary privilege of free speech as to erode invalidly the institution of the legislature itself. Nor could it be said that the Act exceeded whatever limits there may be upon Parliament's legislative power to affect its privileges. On the contrary, the legislature had a legitimate interest in knowing, and perhaps a duty"—and that is the area that interests me—"in ascertaining whether there is substance in allegations made under privilege by a member on a matter of public interest." If I now take the decision in Arena v Nader of October 1997 and go back four years, had the Legislative Assembly at the time those allegations were being made about the conduct of various people done exactly what the New South Wales Parliament did, I think the episode would have been shortened to no more than a few months. Had that occurred, the sorts of things that the Commission on Government heard when it visited people around Australia would have never been reported to them.

Lord Merlyn-Rees

  369. Why was the change made? Was there a large amount of criminality? Did some issue arise which forced us to think again? What was the situation?
  (Mr Cash) In respect to—?

  370. A member of Parliament can be dealt with through the criminal code. Why was the change made?
  (Mr Cash) As Mr Marquet said, that goes back to 1913.

  371. What happened?
  (Mr Marquet) In 1913, Western Australia decided to codify its criminal law and abolish common law crime. It took over virtually intact the Queensland Parliament's criminal code. Australian jurisdictions have always relied on statutes in a way that this jurisdiction relies on its common law, for fairly obvious reasons. The common law in Australia has not had the history or development that it has in England. Australian legislatures have been very quick to legislate for problems and difficulties rather than let the common law work it out through a progression of cases. Parliament has stepped in and said, "This is going to be the law. We will not worry and we will abrogate the common law rules to that extent." A member of an Australian Parliament has never been considered to be a sub-species, if you like, who is entitled to a degree of privilege beyond that which relates solely to his or her activities as a member of Parliament in the chamber or in committee. There has never been a view that the privilege of Parliament should extend to a member's activities so as to provide him or her with a shield against the ordinary run of the criminal law. That has not been the Australian tradition and I think that is probably the best explanation as to why these criminal code provisions that relate solely to members of Parliament appear in our criminal law.

Lord Mayhew of Twysden

  372. You have been very helpful in explaining the preponderance of public opinion in answer to my colleague Lord Waddington's questions. Is this a fair comment upon the way in which the Commission on Government came down: that, notwithstanding a very agitated public opinion deriving from what you have explained to us, they nevertheless defended unequivocally and recommended unequivocally the defence of Parliament's privilege. "All of the original fundamental reasons for granting Parliament its privileges still pertain in the modern world." I am quoting from paragraph 10.6.4. It is a very powerful statement of their opinion, underpinning their recommendation in 10.6.5 that the Parliamentary Privileges Act 1891 should not be amended. I suppose if one wanted to pick out a single sentence, it would say, "Its privileges are Parliament's greatest source of strength but, at the same time, represent the greatest threat to Parliament's continued relevance and stature if they continue to be abused." It is enormously interesting to me, the way in which you have explained the evidence that they took in the light of the very strong recommendation at the end.
  (Mr Cash) Lord Mayhew, I think that the comments made there by the Commission on Government reflect what I have said. I think the Commission on Government themselves recognised that they were dealing with a unique situation where one or two members of the Legislative Assembly were, for political reasons, making all sorts of outrageous allegations. I think it is fair to say that the Commission on Government, notwithstanding the comments made by the community to it, were able to see through it to a degree and recognise that this was not a common situation. We are pleased the Commission on Government was prepared to recognise that parliamentary privilege should be maintained in its present form. If anything, I think you will see that the Commission on Government encourages the Parliament to educate better the community so that they understand what parliamentary privilege is all about, so that when Parliament does take action against one of its members the community will understand that that is part of the process of Parliament, and a very proper process at that. I think that we have failed—I speak of our own Parliament; I think of Australian Parliaments—to educate the public sufficiently. If I may be so bold, I realise that your committee is considering privilege as it applies in the United Kingdom. We see, as a very young country, tremendous benefits in maintaining the privileges that we have today, which flow from the Commons.

Sir Patrick Cormack

  373. Do you think, if we made a change, it would put pressure on you?
  (Mr Cash) No, I do not think so.

Lord Mayhew of Twysden

  374. It would do under the 1891 Act.
  (Mr Cash) It would change our law by an automatic flow but we have the ability to rectify that by statute. We may obviously be forced to do it.
  (Mr Marquet) You did not ask us about section 13 of the Defamation Act.


  375. That is coming!
  (Mr Cash) If you change the law, I suppose yes, we would have to consider our position. I believe that our Parliament, as small as it is and therefore perhaps being able to understand and recognise the foibles of its own members, would probably resist any change at this stage. The Commonwealth changed in 1987 and codified its parliamentary privilege. We have never felt pressure on us to follow their position in respect to particular areas.
  (Mr Marquet) Lord Chairman, there is one issue that has almost been raised here which perhaps the Committee would be interested in discussing a little. That is what is called the Murphy doctrine. Various questions have been in line with the Murphy doctrine. If I could just explain briefly what the Murphy doctrine is, the Murphy cases in the New South Wales Supreme Court arose from proceedings in the Senate in relation to Mr Justice Murphy of the High Court. The Senate appointed three retired judges as commissioners to enquire into certain matters alleging impropriety against the judge and report back to the Senate with a view, if those allegations were sustained by the commissioners, to moving the necessary address to the Crown for the removal of the judge. As a result, there were a number of a criminal prosecutions brought in the New South Wales Supreme Court arising from the same facts and, in the course of trial, evidence was adduced that was taken before the Senate Select Committee in camera. Of course, objection was taken on the grounds that this was a clear breach of Article 9. The two judges involved, Justices Hunt and Cantor, rejected that argument and gave a very narrow interpretation of Article 9. It was that very narrow interpretation that prompted the federal Parliament to pass the 1987 Act. Section 16 of that Act was specifically approved by their Lordships in the Privy Council in the case of Prebble v Television New Zealand, which you will be familiar with. The Murphy doctrine is simply this: any proceeding in Parliament can be questioned or impeached but no legal consequences can flow to or be visited upon someone who is otherwise protected by the privileges of Parliament. In other words, Article 9 protects you from the legal consequences of your acts; it does not prevent the courts from questioning or impeaching the actual proceedings themselves. That obviously was seen by most of us as true heresy. The federal Parliament took the opportunity to reverse those judgments by statute. Because of a case decided in 1899 in Western Australia by our full court, the Murphy doctrine would not apply in Western Australia as a jurisdiction. That is the Murphy doctrine in a nutshell. You can do whatever you like at the parliamentary proceedings; you simply cannot visit the legal consequences upon the disciplines.


  376. Can I tidy up two points arising on the question of defamation? The first indeed concerns section 13 of the Defamation Act 1996 which, as I understand it, currently therefore represents part of the law of Western Australia?
  (Mr Cash) Yes, that is correct, Lord Chairman.

  377. Is that provision considered desirable or undesirable?
  (Mr Cash) It is considered undesirable, then it is a matter we have not given great publicity to in Western Australia, in the hope that, perhaps before that publicity is given, Parliament in the United Kingdom may consider changes.

  378. Is there any particular reason you would like to mention why that is the view in Western Australia? I can guess what it is but would you like to spell it out?
  (Mr Cash) Mr Marquet has been involved in doing some research on section 13, so perhaps he might make some comment.
  (Mr Marquet) Lord Chairman, section 13 as it currently stands is seen as the thin end of the wedge because it does something which the two presiding officers in the Western Australian Parliament specifically told the three royal commissioners at the Western Australia Royal Commission that we would never countenance and that is: waiver. The New Zealand House, as you know, decided that it had no power to waive privilege. The Legislative Council in Western Australia takes exactly the same view, that it has no power to waive privilege and certainly no individual member has the power to waive privilege, so far as it applies to him or her. Section 13 of course cuts across that entirely. Once you allow an individual member or indeed a non-member to waive privilege in relation to themselves, so far as the Defamation Act is concerned, it is not long before the whole question of a general waiver is raised. If you allow waiver in one particular instance—that is a defamation action—then why would you not allow waiver in every other case? That is seen as an undesirable development, particularly in a situation where not even the House itself is given the power to waive. The power devolves upon the individual member. That is a complete negation, as we understand it, of the whole approach to privilege. It is the privilege of the House, not the individual member. It is not up to the individual member to waive it, or purport to waive it.

Lord Wigoder

  379. Would the same objection apply, if it was provided for waiver by the House as a whole and not by an individual?
  (Mr Marquet) If waiver was vested in the House, there would be far less objection because then the decision can be made by the House on political grounds.

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