Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 380 - 390)



Sir Patrick Cormack

  380. Or on whatever grounds appear to be appropriate, surely? We did lurch in the direction of individual waiver last year here, as you will know, in the case of a particular member, an amendment being passed much against the better judgment of a lot of us. I find that utterly unacceptable personally, but I do not find utterly unacceptable the House being able, in certain strictly defined circumstances, to waive. I infer from what you say that you are not a thousand miles away from that position.
  (Mr Marquet) Personally?

  381. Yes.
  (Mr Marquet) No, I am not. I was present when the presiding officers spoke to the royal commissioners, when this question of waiver was raised. One of the things that the presiding officers tried to impress on the royal commissioners is that there is a vast distinction to be drawn between actual waiver and non-enforcement. In other words, you can have a virtual waiver in a situation where the House decides not to take any action, without in fact positively waiving the privilege. That is a matter for the discretion of the House. Obviously, that did not satisfy the royal commissioners who were hell bent on having the Murphy doctrine applied in its full glory. But yes, there are cases where it may well be appropriate for the House to waive privilege. That is a decision for the House.


  382. The other aspect I would like to raise with you is this: there seems to be some support in Australia for the existence of a right of reply of some form within one of the Houses, where defamatory or uncomplimentary remarks have been made by a member in the House about a non-member. That right, as I understand it, does not exist in Western Australia. Would you favour the existence of such a right?
  (Mr Cash) Lord Chairman, the right exists in the Senate and also in the Legislative Assembly in Western Australia, but not the Legislative Council. In fact, there is a requirement at the moment for the Standing Orders Committee to consider a motion that calls on us to look at the advantages and disadvantages of providing the citizens with that form of redress. What we have in the Legislative Council at the moment is something that is far greater than an opportunity for an aggrieved person to put in a letter of complaint or have it incorporated in Hansard. What we have is a system of petitions. If somebody is aggrieved at something that is said, they are entitled to lodge a petition. That petition, by way of our standing orders, is referred directly to a particular committee and that committee is required to consider all petitions. It seems to me that, by referring it to a committee and allowing the members of that committee to consider whatever allegation is made, it provides the aggrieved person with a far greater opportunity than purely having the aggrieved person's letter incorporated in Hansard. The reason I say that is that the House remains in charge at all times of the particular incident. If it can be shown that a member falsely maligned someone else and it was the opinion of the committee that action should be taken against the member, then quite clearly that would be within the House's purview.

Lord Wigoder

  383. Would the petition be published?
  (Mr Cash) Yes. It is presented at the commencement of each day's sitting. Any petitions are called on at the commencement. They therefore become public documents.

Mr Michie

  384. Are they printed out in full?
  (Mr Cash) The petition is available. It is not printed in full in Hansard.
  (Mr Marquet) It is in the minutes.

Lord Wigoder

  385. What happens if the petitioner says, "It was not me. It was somebody else of the same name"? Is that person then entitled to present a petition?
  (Mr Cash) The answer is that anyone can present a petition if they feel aggrieved by comments made in the House. The suggestion I am making to you is that, rather than just have some operational format that allows an aggrieved person to write a letter and then have that incorporated in Hansard, I might say after some discussion with the Speaker in the Legislative Assembly—he will decide whether it can be published—I think a better way of dealing with it is to have it done by petition and a committee of the Legislative Council can then consider whatever accusations or comments that have been made. The House retains its rights in respect of disciplining a member, if necessary.
  (Mr Marquet) The trouble with the right of reply as practised by the Australian Senate and some other Australian Houses is the fact that it avoids the central issue in the whole business and that is whether the member was justified in making the statements complained of or not. There is no requirement under the right of reply provisions that I am aware of that requires either the Speaker or indeed any other person in the House to work out whether in fact the statements complained of were true or false, so it is a very cosmetic way of dealing with matters. What the President is saying is that we already have a system in place in the Legislative Council, and have done for about the last ten years, whereby any petition to the House stands referred to a Standing Committee for inquiry. There is no reason why a person aggrieved by what a member says in the chamber cannot petition the House, have that petition referred to the Standing Committee and a report made on the substance of the matter, rather than just a cosmetic overlay which is what the right of reply really provides. It does not come to grips with the real issue which is did the member have justification for saying what he or she said or not.

Mr Michie

  386. Does it allow the petitioner to say that this particular member is not only a liar but a wife beater, charlatan and whatever?
  (Mr Cash) Within the petition that he submits to the House?
  (Mr Marquet) No. Under our standing orders, in that situation, the petition would be simply one praying for relief. The petitioner then has to supply an affidavit alongside the petition which is deposited with me as the clerk and then sent straight through to the committee. It does not go into the House. It would be a petition praying for relief, but the actual content or prayer of the petition is in an affidavit which has to be countersigned by a solicitor.
  (Mr Cash) Lord Chairman, it seems to me that the system that we work within the Legislative Council accords very neatly with the recent decision in Arena v Nader, from our High Court in Australia: that the House does have a responsibility in respect to issues of public importance. I might also just add that we are not overwhelmed with petitions. It seems to me that, even though we operate our system in what I think is a very proper way, because there has been some publicity about an individual's right of reply through the Legislative Assembly, that is likely to be misconstrued and they will end up with a number of letters seeking relief from comments made. In my view, it also imposed an unreasonable burden on the Speaker to determine whether or not that right of reply should be admitted.

  387. Does the petitioner have any financial relief such as legal aid costs?
  (Mr Cash) No.
  (Mr Marquet) No, but may I say that the actual proceedings before the committee are at no cost to the petitioner.
  (Mr Cash) There would be no great expense involved.


  388. In this country, one of the practical problems that has arisen recently concerns contracts which are entered into by or on behalf of one of the Houses. Obviously, there will be contracts of employment, but there will also be contracts for repair, for maintenance and even for quite major construction work, out of which disputes in the courts arise from time to time. The question has then arisen about the production, the discovery, of documents from Parliament, even including minutes of committees or sub-committees, which would seem to fall plum within Article IX of the Bill of Rights, for the purpose of the orderly conduct of those civil proceedings. Is this a problem you have met with? How has it been handled in Western Australia?
  (Mr Marquet) No, it is not a problem and it is handled quite differently in Western Australia. The works carried on for and on behalf of Parliament are not commissioned by one or both Houses. They are commissioned by the officials of Parliament, using a department of state as the agent. Parliament itself does not become involved in those matters. If information were to be provided to one of our domestic committees in relation to, say, works being done at Parliament House, we would still consider that to be privileged, but it would be information that the committees themselves have no power to contract and no power to direct.

  389. The last point that I would like to seek your assistance on is this: one of the criticisms that is voiced in this country of parliamentary privilege is that it is obscure, it is technical; in important areas it is uncertain and it is simply not sufficiently accessible. It is not transparent. Therefore, there have been suggestions that we should consider the desirability, on balance, of seeking to codify the law of parliamentary privilege, not with a view to expressing the statute in any form which will constrain the application of principles to new circumstances, but to express the underlying concept of principles in the statute which then can be made available to all citizens as we go into the 21st century. From a remark that I think, Mr Cash, you made earlier, to the effect, if I noted it correctly, that you are not keen to codify matters, that particular problem and that possible approach to it may not accord with the approach in Western Australia. Can you help me at all?
  (Mr Cash) Firstly, I would agree that the community in general believes that parliamentary privilege is obscure, technical, uncertain and not transparent. However, that in itself, in my view, is not a reason to codify. That seems to me to be a very good reason for us, as members of Parliament, to have the community better understand what parliamentary privilege is all about. I go back to an earlier comment that I made. I think it is very convenient and perhaps too easy for the Parliament, when confronted with a problem in respect to one of its members, to reach out, outside Parliament, and have some other body act in its stead. That is the reason perhaps that people have not fully understood what true parliamentary privilege is all about. We tend to shy away from the hard problems and seek to rely on others. It seems to me that if you codify what you do, it crystallises thoughts at a particular point in time. It limits flexibility and prevents a responsiveness, so to speak, to general changes in community standards. I would have thought that any code that you are talking about in respect of parliamentary privilege could in fact be enunciated by way of a resolution of the House. Of course, it would then be open to change if required, without great problems in having both Houses necessarily agree. For instance, in Western Australia, if we had a situation where everything was codified, the different nuances between the Legislative Assembly and the Legislative Council, in my view, would not be able to be taken sufficiently into account. If, however, both Houses resolve in a particular way and are able to make any adjustments that they see fit over a period of time, that, in my view, would be a more appropriate way of dealing with it. Lord Chairman, I come back to a point that I think I made initially and that is that the community generally does not understand parliamentary privilege. It is convenient, because of actions of the media over a long period of time, to have a shot, so to speak, at members of Parliament generally when they try and exercise some disciplinary procedure against one of their own. Some people will argue that they are clearly biased and that it should be referred to an outside body—for instance, a court—alleging then that the court is the only one that can fully understand what is going on. I take the direct opposite view. I believe that parliamentary privilege is the responsibility of the House. Unless it is prepared to stand up and be counted in respect of parliamentary privilege, we will see the authority of the Parliament whittle away over a period of time. More than that: I do not believe that introducing outside bodies—in particular, the courts—does the Parliament any good because it raises often the question of judicial review. Again, I say that members of Parliament have a responsibility when it comes to parliamentary privilege, and I think it is a responsibility that, regrettably, we as a parliamentary community following the Westminster system have abrogated over a long period of time.
  (Mr Marquet) I think it is significant, Lord Chairman, that not even the United States has codified its speech and debate provisions in the Constitution. It has been left as the Speech and Debate provision in the Constitution and it has been left to common law to evolve it. If anybody was going to codify privilege, I would have expected it to be the Americans and they have not.

  390. We have trespassed a great deal on your time. Unless other members have any questions or unless, Mr Cash and Mr Marquet, there is something thing you would like to ask us, may we thank you very much for your help and assistance here this morning?
  (Mr Cash) Thank you, Lord Chairman, your Lordships and Honourable Members for the opportunity of joining you today. I said earlier that I hoped there would be an opportunity for some two way conversation. There certainly has been and I can assure you that both Mr Marquet and I have learned and gained from today's experience. Thank you.

  Chairman: Thank you very much for coming and we hope you will enjoy the rest of your stay in this country.

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Prepared 9 April 1999