Examination of Witnesses (Questions 305
TUESDAY 10 FEBRUARY 1998
MLC AND MR
LAURENCE B MARQUET
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 questionsto which, in due course, please, either
or both of you respond, just as you find convenientis 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 putperhaps
both waysso 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 operatethe 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-massabout 1 million square
miles in areaand 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 700,000so about 1.7 million
in allin what is a rather large area. As far as the Parliament
goes, in Western Australia we have two Houses of Parliament, the
Legislative Assemblythe Lower Houseand the Legislative
Councilthe 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
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
afternoonthere 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 speakmorning
and afternoondevoted to Committees.
308. Do you, sir, preside over the Upper House
with roughly the same powers as the Speaker presides over the
(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
(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
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
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 understandingand
correct me if I am wrongis 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
Membersand, indeed, othersfor 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 organisationsor
just by statute create some other organisationto 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 ofin one casea 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 Orderthat
type of thingI am quite sure that the media, in particular,
would have been more understanding. Sending someone to jail is
not something that necessarily impressed the mediaalthough,
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.
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
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 Actin 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 Parliamentsuch
as for obstruction of a Member, or creating a disturbance in the
presence of either Housewhich, at the same time, is also
within the jurisdiction of the House itself.