Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 305 - 319)




  305. Mr Cash, Mr Marquet, may I, on behalf of the Committee, welcome you to this morning's meeting. The Committee is very grateful to you for coming here today during your visit to this country to give us the benefit of your experience and knowledge. The Parliament in Western Australia is, of course, one of the many parliaments throughout the world based on the Westminster model. We believe that the Westminster model is one of the systems of government which has much to commend it in a free, democratic system, but we are not so insular as to think that we have the best answers to everything. We are anxious to have the benefit of the experience and ideas of others, such as yourselves in Western Australia, who confront similar problems to those we are considering on this Committee as we approach the 21st century. The political and social background of the two countries is, of course, not identical, but we are in no doubt that there is sufficient similarity for us to stand only to gain by having your assistance today as part of the continuing co-operation between your Parliament and Westminster. We count ourselves fortunate that you are in this country and available to help us. Before I ask questions—to which, in due course, please, either or both of you respond, just as you find convenient—is there anything you would wish to say to us?

  (Mr Cash) Thank you, my Lord Chairman. Your Lordships, Honourable Members, on behalf of Mr Marquet and myself, firstly thank you for your kind invitation to address the Committee this morning. We appreciate the comments that you have just made and recognise that as a Parliament in Australia that follows the Westminster system we regard this very much as a learning experience for ourselves. We trust that perhaps you will also gain something from our comments. However, that is for you to decide, in due course. We certainly come in good faith, and I am pleased, my lord Chairman, that you have indicated that there will be an opportunity for questions to be put—perhaps both ways—so that we can also benefit from the experience of your Members.

  306. Mr Cash, I wonder whether you could just briefly set the scene for us by telling us something about the political framework in which you operate—the size and functions of your two Chambers, the Legislative Council and the Legislative Assembly, and so forth?
  (Mr Cash) Without attempting to dwell on history, I think it is useful to recognise that Australia is a relatively young country. Some five years ago, when I was in the United Kingdom, I had the opportunity of attending a police conference. I asked one of the senior police officers just how old a particular stone building was that was to the rear of their headquarters and he advised me it was about 500 years old. I wanted to use that as the opportunity to explain to him that we are a country that is only just over 200 years old. As you will be well aware, we were founded by the British on the East Coast in 1788. Perth, Western Australia, as you will be aware, is located on the West Australian coast and it was not until 1829 that the British took possession of that side of Australia. In respect of my own Parliament, we come from Western Australia. It represents about one-third of the whole of the Australian land-mass—about 1 million square miles in area—and we have a population in the city of about 1 million people and, in the balance of our State, a very sparse population numbering just over 700,000—so about 1.7 million in all—in what is a rather large area. As far as the Parliament goes, in Western Australia we have two Houses of Parliament, the Legislative Assembly—the Lower House—and the Legislative Council—the Upper House. The Legislative Assembly comprises 57 Members of Parliament from 57 separate constituencies across our State. The Legislative Council comprises 34 Members, 17 from the metropolitan area and 17 from the country areas. As you will be aware from my earlier comments, those 17 country areas represent huge land-masses with, in some cases, relatively few people. We have 17 Ministers under our Constitution in Western Australia; 13 currently come from the Legislative Assembly and 4 from the Legislative Council. Our Constitution provides that there shall be at least one Minister provided from the Legislative Council at all times. Generally there are either three or four but we have had as many as five Ministers in the Upper House. Obviously, where Ministers do not have a particular portfolio in either House they are represented by Ministers in the other House. That is a very brief outline of the Parliament. You will be well aware that we have a Federation of States in Australia and in 1901 the various States got together (following the passing of the Imperial Act that brought into being the Australian Constitution and created or established a Federal Parliament) and agreed to the division of power or authority between Federal Government and the respective States. Our Constitution is Clause 9 of the Imperial Act, but Section 51 of that particular Constitution outlines very clearly the specific powers that the Federal Government enjoys. The residual powers are enjoyed by the States. The Federal Government has a taxing power. There is an argument to say that the States still have a taxing power, but some years ago we handed over that great opportunity to Federal Government, who have used it ever since. There is a provision within the Constitution that prevents them from any discrimination in respect of raising taxes. However, there are other provisions within the Constitution that allow them to discriminate in respect of the distribution of revenue. Quite clearly, that is always an argument that ensues between the States and the Commonwealth Federal Parliament. Perhaps, my Lord Chairman, other Members may wish me to deal with other particular areas.

Lord Wigoder

  307. To give us some idea of the workload, would you be good enough to indicate about how many days a year each of the two Houses sit?
  (Mr Cash) In the order of 24 weeks, and a parliamentary sitting week comprises three days. Both Houses commence on Tuesday afternoon—there are generally Party meetings on Tuesday morning. The hours of the Legislative Council are 3.30 pm Tuesday until 11.00 pm Tuesday night, or later as the House determines. On Wednesday morning we have Committee meetings. There is a time set aside for Committee meetings until 4 pm. The House then sits from 4 pm until 11 pm. On Thursday the House sits from 11 am until 6 pm. Obviously, these hours vary, as required by the House. The Legislative Assembly sits slightly longer, by four hours, but they do not have the whole of Wednesday, so to speak—morning and afternoon—devoted to Committees.

Lord Waddington

  308. Do you, sir, preside over the Upper House with roughly the same powers as the Speaker presides over the Lower House?
  (Mr Cash) Yes, very similar powers, with the ability to expel a Member if required.

Sir Patrick Cormack

  309. Are you totally impartial?
  (Mr Cash) Yes, I believe I am.

  310. Do you have to renounce your political allegiance?
  (Mr Cash) No, not at all. I am a Member of a political party. However, on my election I was elected unanimously. I must say, Sir Patrick, I had the opportunity of being Leader of the Opposition and Leader of the Government for a significant period of time, and I guess that Members worked out for themselves whether I was impartial.

  Sir Patrick Cormack: I just wanted to establish how it worked. In the Federal Parliament the Speaker is a politician, whereas here, of course, the Speaker has to renounce all party allegiance.

Lord Mayhew of Twysden

  311. Could I ask, sir, whether each State Parliament is free to make its own rules? To what extent, if at all, is it trammelled by the Constitution of the Commonwealth of Australia?
  (Mr Cash) Each State is a sovereign State and is entitled to make its own laws, so long as they do not infringe any of the Section 51 areas that are specifically assigned to the Federal Government.

  312. That is in its legislative capacity, but for its own management, its own cognisance of its own affairs, it is completely autonomous?
  (Mr Cash) Absolutely. Yes, that is correct.
  (Mr Marquet) If I could add, with the exception of the State of New South Wales all the Australian States have passed statutes similar to our Act which provides to them the powers, rights and immunities of the United Kingdom House of Commons, either as they were at the passing of that Act or, in some cases, such as ours, as they are from time to time. New South Wales is what I describe as a Kielly v Carson jurisdiction, it has not as yet legislated in terms of its own parliamentary privilege. In 1961 it adopted as part of its own statute law the Bill of Rights of 1689, but up until that time the Bill of Rights was not necessarily part of the law of New South Wales. If you like, New South Wales is very much a common law jurisdiction, and other States have statute-based privileges.

  313. The founding act, the Imperial Act, does not make any reference to the Bill of Rights?
  (Mr Marquet) No, not at all. That is actually provided in Section 49 of the Commonwealth Constitution, so far as the two Houses of Commonwealth Parliament are concerned. They, by operation of Section 49, have the powers and privileges of the United Kingdom House of Commons.


  314. If we turn to the Western Australian position regarding parliamentary privilege, our understanding—and correct me if I am wrong—is that by virtue of the Constitution of Western Australia Act 1889, taken in conjunction with the Parliamentary Privileges Act of 1891, the practices and privileges of the Parliament of Western Australia are, really, very closely linked to those of the Westminster Parliament. In particular, there is a statutory provision that the privileges of the Western Australian Parliament must not exceed the privileges, for the time being, held by the House of Commons at Westminster. Is that still the position today?
  (Mr Cash) Yes, it is. Section 1 confers the Commons powers but it goes on to provide that where there is a conflict between the Commons powers and those enacted in our Parliamentary Privileges Act of 1891 the latter are to prevail. We modified the scope of privilege. For instance, in Section 8 we provided that either House in Western Australia could impose fines on its Members—and, indeed, others—for committing the contempts that are set out in that particular section. I will provide a copy of the Parliamentary Privileges Act later on for the Committee.

  315. Thank you. There were some recommendations, am I right in thinking, by the Commission on Government that these close links should be severed?
  (Mr Cash) Yes, the Commission on Government, which sat in Western Australia about three years ago and reported about 18 months ago, did suggest in part that we should sever the direct connection, or break the nexus. We have not, as yet, implemented that recommendation. The Legislative Assembly in Western Australia is currently looking at the situation. However, there are those that would argue, my Lord Chairman, that the system of government that you have had for a very, very long period of time has, in fact, stood the test of time. We have picked up and utilised that system of government and, at the moment, we see no reason to break that nexus. It was convenient for the Commission on Government to make that observation, but I would suggest that it was no more than an observation. There are many things said, from time to time, as a matter of convenience, but I cannot see where there is great support for such a change.

Lord Mayhew of Twysden

  316. It is quite ironic, in a way, is it not, Mr President, that we are in existence as a Committee of both Houses because of concern about our present arrangements on privilege, and you are putting up a valiant defence of maintaining the link!
  (Mr Cash) Yes, Lord Mayhew. I can understand the dilemma. We can only look at 200 years of history, and our privileges have served us well for that period of time. There is an argument that can be put that perhaps some of the criticism of parliamentary privilege that has ensued over recent years is directly related to the fact that parliaments, following the Westminster system, have not sufficiently demonstrated the worth of parliamentary privilege. I speak, in particular, of my own State, and as the presiding officer there, supported by Mr Marquet, who is the Clerk of the Parliaments, we want to ensure that our people understand better what parliamentary privilege is all about. We are somewhat concerned that it is convenient from time to time for Parliament to pass off its responsibility to independent organisations—or just by statute create some other organisation—to deal with matters that we would see are, in fact, within the absolute purview of Parliament. It has been convenient over periods of time (and, again, I am referring to the Australian scene) for the media to be critical when the Parliament has exercised its powers in respect of its privileges. I think most of it is based on a misunderstanding of what privilege is, and from where the privilege derives, and the fact that privilege has stood in good stead for so many years. We have, my Lord Chairman, in recent times, had reason to prosecute people in respect of—in one case—a contempt of the House by way of a petition. The petition was found to be flawed, the House ordered the petitioner to apologise to the House, he refused and, as a result of that, the person was sentenced by the House to a period of imprisonment. That period was, in the end, about seven days, before he was released. There was some criticism of the House for exercising its authority. I might say that as a Member of the House I would have preferred there to be other options in respect of sentences rather than being required to imprison one of our people. For instance, if we had the opportunity for a Community Service Order, or Community Work Order—that type of thing—I am quite sure that the media, in particular, would have been more understanding. Sending someone to jail is not something that necessarily impressed the media—although, I hasten to say, only because they were not prepared to understand all the reasons for the situation. We had another situation recently where someone perjured themselves before a parliamentary select committee. The House took the opportunity to direct the Attorney General to launch a prosecution against that person. The Director of Public Prosecutions, in fact, carried out the prosecution and that person was jailed for three months. So we do take privilege seriously; it is getting the message across to the community on why we act in a particular way.

Lord Wigoder

  317. Is that a prosecution in the courts?
  (Mr Cash) Yes, the second was a prosecution in the courts, launched at the instance of the Attorney General.

  318. Did it arise directly out of what would be called "proceedings in Parliament"?
  (Mr Cash) Yes, indeed, it was perjury before a select committee.

  319. How do you get round Article IX of the Bill of Rights?
  (Mr Marquet) I should explain. In all Australian jurisdictions, except New South Wales, there is no such thing as common law crime. You can only commit a crime if it is one of those crimes specified in the Criminal Code or where the criminal law is fully codified. One of the provisions in the Criminal Code expressly includes perjury before a committee of either House. It was under that provision, coupled with a provision in the Parliamentary Privileges Act, that the House directed the Attorney General to prosecute the person for perjury under the Criminal Codes. That is how it came about. Western Australia, to some extent, has what I describe as a concurrent jurisdiction in relation to parliamentary privilege. There are certain contempts, as opposed to breaches of privilege, that are specifically provided for in the Criminal Code, and that can be used to lay an indictment without prior consent of the relevant House. At the same time, either House has concurrent jurisdiction to proceed against the same person on the same facts under the Parliamentary Privilege Act—in other words, virtually common law. So there is a danger that if the Government wished to lay an indictment on the grounds of the criminal code, it can do so without prior consent of the House. Of course, that brings about a situation where you could have conflicting interpretations of the same type of offence between the House and the courts. There has, in fact, been no conflicting decision handed down, as yet, but the potential is always there. So yes, there is a Criminal Code jurisdiction in relation to a Member of Parliament—such as for obstruction of a Member, or creating a disturbance in the presence of either House—which, at the same time, is also within the jurisdiction of the House itself.

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Prepared 9 April 1999