Joint Committee on The Draft Corruption Bill Written Evidence

Memorandum from Harry Evans, Clerk of the Senate, Australia (DCB 2)

  I ask your committee to consider the following submission concerning section 12 of the Draft Corruption Bill now before the committee.

  Similar points were made to the Joint Committee on Parliamentary Privilege, but I am not sure whether they were ever laid before that committee.

  Section 12 of the bill makes a very significant inroad on the law of parliamentary immunity contained principally in article 9 of the Bill of Rights of 1689.

  Article 9 is part of the law of many jurisdictions other than the United Kingdom. It is, for example, incorporated into the law of each of the Australian states and territories and of the Commonwealth of Australia by constitutional or statutory reference. Although a change to the law in the United Kingdom does not affect the law in those jurisdictions, any dilution of article 9 in the United Kingdom would weaken its status as a statement of major constitutional principle and thereby indirectly undermine the constitutional principle in those jurisdictions.

  Section 12 would allow proceedings in Parliament to be used in criminal prosecutions, against the participants in those proceedings, whether members or witnesses, or against other persons. That is the very thing which article 9 principally prevents. If the words or actions in proceedings of a member or a witness could be used to prosecute the member or witness or some other person, proceedings in Parliament would no longer be free from all external interference. Members and witnesses would be aware that what they say and do in the course of proceedings could be turned against them or other persons in some future criminal investigations, and therefore would not speak freely.

  A necessary but not sufficient condition for such an inroad to be made on parliamentary privilege would be total confidence in the integrity of all criminal investigations and prosecutions, total confidence that criminal investigation and prosecution will never be used to silence discussion in parliamentary proceedings. No one can ever have that total confidence.

  Even if that necessary condition were met, the provision would not be justified. Parliamentary privilege at present means that even a member who may be liable for prosecution for some corruption offence should be able to speak freely in Parliament so long as that member remains a member and a representative of his or her electors; and even a witness who may be so liable should be able to give evidence freely in the interest of full disclosure to Parliament.

  Some criminal investigations and prosecutions take months or years to conclude. A member or witness under investigation would effectively be silenced at the discretion of police and prosecutors for the duration of an investigation. It has never been satisfactorily explained why it is thought necessary to repudiate parliamentary privilege in order to prosecute a member, or any one else, for a corruption offence. It is highly unlikely that an offence would actually occur in the course of parliamentary proceedings, for example, by a member offering a bribe in the course of a parliamentary speech. The act constituting the offence will be outside the protected sphere of parliamentary proceedings and therefore liable to prosecution. Parliamentary proceedings currently may not be used as evidence to support the prosecution, but that is as it should be. Prosecutors simply have to obtain other evidence, not part of parliamentary proceedings, of the offence. In any event, it is unlikely that parliamentary proceedings will provide clear and direct evidence of an offence; it is more likely that such evidence will be of an inferential and contentious character, and the drawing of inferences or contentious conclusions from proceedings in Parliament is now prevented to preserve freedom of speech in Parliament. To allow prosecutors to trawl through parliamentary proceedings in search of supporting evidence of an offence committed outside parliamentary proceedings would be extremely dangerous, and would signal an end to freedom of speech in Parliament.

  For many years the Australian federal Crimes Act included provisions against corruption of members of Parliament, including the acceptance of a bribe by a member (these provisions have now been transferred to another statute in a law revision exercise). The same act contained a provision that nothing in the act impinged on parliamentary privilege. It was never dreamed that there was any inconsistency between those provisions. A member could be prosecuted for acceptance of a bribe without any reference to proceedings in Parliament. In several instances members have been prosecuted for corruption-type offences without reference to parliamentary proceedings and without it being thought that the prosecution was hampered thereby. In two recent cases, the Australian Senate has gone to great lengths to ensure that written material closely related to proceedings in the Senate and seized under search warrant could not be used in any prosecution. The police and the prosecuting authorities have not complained that this has hampered their work. I cannot imagine how the work, properly performed, of investigating police and prosecutors would be hampered by the absence of section 12 from this bill.

  I therefore urge the committee to think very carefully of the consequences of allowing this serious attack on parliamentary immunity to proceed to the statute book, and to consider the precedent which would be set and the indirect effects for other jurisdictions.

  I would be pleased to enlarge on these points should the committee so require.

April 2003

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