Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 320 - 339)



  320. If you will forgive me asking one other question, would a similar process be possible in relation to a Member who had committed, in the House, a breach of the Official Secrets Act, and a similar question about bribery?
  (Mr Marquet) As far as a Member committing an offence such as breaching the Official Secrets Act in the course of a proceeding in the House or a Committee, no, Article IX would step in to protect a Member, because it is a proceeding in parliament. As far as bribery is concerned, there is no privilege against the operation of the criminal law. Members are treated the same as any other citizen so far as the criminal law is concerned. There are specific Criminal Code provisions relating to the acceptance of a bribe by a Member or an attempt to bribe a Member by another person, and the House itself could proceed against a Member on the same grounds, but it is likely that the Criminal Code provisions would be used in that case.

Sir Patrick Cormack

  321. Have you had any examples in recent years?
  (Mr Marquet) No, we have not.

  322. You are aware that we have had certain incidents here which have led to the setting up of this Committee?
  (Mr Marquet) Yes.

  323. So you are familiar with the background against which we are trying to evaluate matters?
  (Mr Marquet) Correct.

  324. Just to get this absolutely clear: if a Member of either of your Houses is accused of taking or giving a bribe, then his alleged offence will not be investigated by a Committee of either House but will immediately be referred to the civil authorities?
  (Mr Marquet) Yes.

  325. If, during the course of any subsequent action, Members of the House—either House—who are not themselves accused of anything, are subpoenaed to appear in court to testify, can they invoke privilege in order to refuse to give that evidence?
  (Mr Marquet) No, because it is not considered to be a proceeding of Parliament. In fact, if the Committee could bear with me, I can read you the statutory provision, which is Section 60 of the Criminal Code. "Any person who, being a Member of either House of Parliament, asks, receives, obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind, whether pecuniary or otherwise, for himself or any other person, on any understanding of his vote, opinion, judgment or action of the House of which he is a Member, or any Committee thereof, or any Joint Committee of both Houses shall be influenced thereby, or shall be given, in any particular manner, or in favour of any particular side of any matter, is guilty of a crime and is liable to imprisonment with hard labour for 7 years."

  326. So any other Member of Parliament who is reckoned to have evidence that is germane—
  (Mr Marquet) Is compellable.

  327.—is compellable, even though that evidence may, in fact, hinge upon a statement in either House?
  (Mr Marquet) If it was solely a statement in either House and that statement was given in the course of a proceeding in Parliament, then the criminal court could not question or impeach that statement.

  328. So, in fact, can a subpoena be resisted if the evidence was entirely concerned with speech?
  (Mr Marquet) A subpoena itself could not be resisted, but the point would be taken when the Member appears as a witness that this was solely within the purview of the House itself and it was improper—and, indeed, unlawful—for the court to question a Member in relation to that proceeding of Parliament.

  329. Thank you. I have one final question: do you have a Register of Interests and are there legitimate outside interests that a Member can engage in without running the risk of any sort of charge?
  (Mr Marquet) Yes, we have a Members of Parliament Pecuniary Interests Act. Under that Act all Members, when first elected, are required to make an initial return and each Member thereafter—once every year—is required to update that return. The series of returns constitutes the record, so it is not necessary to repeat information in each annual return. The Act goes on specifically to provide that a breach of the Act is to be considered a contempt and is to be dealt with by the House to the exclusion of any other authority.

Mr Williams

  330. Can I just follow on from that? How many cases have there been in recent years of Members being subpoenaed, and if they have been subpoenaed how were they protected from the sort of general fishing questions that can take place?
  (Mr Cash) We have recently had a Royal Commission in Western Australia that was asked to investigate a certain action that occurred within Parliament—not as proceedings of parliament, these were meetings that occurred—and Members were subpoenaed to attend that Royal Commission. They attended, yes.
  (Mr Marquet) I should perhaps explain it. We use Royal Commissions in the way that you would use a Tribunal of Enquiry under the 1921 Act, except that we tend to use them more frequently than you use a Tribunal of Enquiry. Royal Commissions, under our 1968 Act, have very wide coercive powers. A number of subpoenas were issued to serving Members to attend and give evidence before that Royal Commission. The Members can certainly resist the subpoena on the 40-day rule, if I can put it that way, or while the House is sitting, but that, of course, did not prevent Members from voluntarily appearing should they so desire, and they did—they attended the Royal Commission voluntarily. A number of Members were also subpoenaed to produce documents. We had a very interesting situation where the Royal Commission seized the documents that were owned by a particular Member, basically without his consent, and a privileges committee had to determine whether that seizure of documents was, in fact, a contempt. The privileges committee reported back and said that the actual seizure was not a contempt, but the committee accepted the principle set down by the High Court in Baker v Campbell that a seizure of documents if only for the purposes of ascertaining what classification you can give to those documents was not a contempt. As it happened, the day before the documents were seized, the House, in fact, had granted this Member leave to appear before the Royal Commission in answer to the subpoena, which was, in fact, a subpoena not only to appear as a witness but, also, to produce documents. The House held, on that basis, that having granted leave in answer to that subpoena there could be no contempt because the Member would have gone along with the documents anyway, had they been relevant to the Royal Commission's enquiries.

  331. What about Members being called in actual criminal cases in the court? Has that happened? Can it happen? What has been the experience, if it has happened?
  (Mr Cash) Certainly Members can be called to give evidence in criminal cases. I must say I am not aware of any instances in recent times. Prior to the Royal Commission that Mr Marquet was referring to, there was an earlier Royal Commission in the early 1990s. The Commissioners there relied purely on invitation to various Members of Parliament to give evidence and no one resisted.

Lord Waddington

  332. When did the Bill which made it an offence for a Member to accept a bribe become law?
  (Mr Cash) 1913.

  333. A long time ago. Was this question of whether the Bill of Rights, Article IX, should be disapplied mentioned at all in debate? Was it recognised that the Act would not be as potent as otherwise it might be and would not be able to bring a Member to account in respect of the accepting of a bribe for him to do something in the course of parliamentary proceedings? Was it recognised that by not disapplying the Bill of Rights the offence of accepting a bribe would not be as potent as otherwise it might be?
  (Mr Marquet) I have actually read the debates on the Criminal Code, and that issue was, in fact, never raised.

  334. It is, of course, the case that the Act is nothing like as potent as it might, at first blush, appear to be, because the Bill of Rights, Article IX, was not disapplied.
  (Mr Marquet) That is right. I should explain the Western Australia Criminal Code is virtually a direct take of the Queensland Criminal Code of 1888, which was drafted by Sir Isaac Isaacs, who later became a chief justice. It appears from the records to have been taken over by Western Australia virtually intact from Queensland, without any thought being given to the impact of Article IX on these particular provisions.

Lord Merlyn Rees

  335. These prosecutions you talk about are in Western Australian courts?
  (Mr Marquet) Yes, they are.

  336. What is the relationship in this matter between a State court and the Federal court?
  (Mr Marquet) The only Federal court that would have jurisdiction in this matter is the High Court of Australia itself, as the final appellate court.

  Mr Tyler: Can I pursue this question of the federal relationship? You will appreciate we are still novices in this country; we are just creating a federal constitution now, at this very moment, so it is very interesting.

  Sir Patrick Cormack: That is a matter of view!

Mr Tyler

  337. I wonder whether either of you would like to give me a bit more indication about the variations between the various state legislatures and the Commonwealth path? For example, I saw in a letter from the Clerk of the House of Representatives in Canberra to our Clerk the comment "Bear in mind that under our system there are also states and local government, and at those levels many important matters are dealt with—eg police, prisons, land and planning issues. Some state parliamentarians have been charged, convicted and imprisoned in recent years in relation to their official conduct". First of all, is that a fair summary? Second, is there a cause for confusion between the, perhaps, different rules on both privilege and related matters that may be affected by behaviour of Members within the Commonwealth Parliament and the various State Parliaments? Thirdly, one thing I ought to know, is there any dual membership? Are Members of your legislature—some at least—Members also of the Commonwealth Parliament?
  (Mr Marquet) No.

  338. So there is no confusion on an individual basis, but there might be confusion on a more general basis?
  (Mr Marquet) Both Federal and State Constitutions specifically forbid a Member being a Member of any other House. You can only be a Member of one House, whether it is State or Commonwealth.
  (Mr Cash) As to the first area, I am not sure that there is too much confusion at all. The Federal Constitution clearly sets out what responsibility they have, and the States have the residual responsibilities—you talk about land, planning, prisons, police, etc. That is the case right across Australia in respect of the State governments. As far as the privileges go, I see no confusion at all in respect to the State privileges and the Federal privileges. In fact, it is fair to say that as far as the Federal Government goes, they have codified their privileges into the 1987 Act. They follow closely the privileges that we enjoy in Western Australia. They have varied the 40-day rule down to a 5-day rule, but apart from that it would appear to be very similar. We would argue that we are not keen to continue to codify matters; statutory action, in my view, should be a last action to provide merely flexibility and be able to recognise changing times.

  339. So, from the point of view of the citizen, there would be no real difference between the way in which privileges were addressed in the Commonwealth Parliament and within the State legislature?
  (Mr Cash) No significant differences at all.
  (Mr Marquet) There is only one thing the Commonwealth Parliament did not make an exception of, which I think they now regret, and that is they abolished the right of either House to expel its Members.

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Prepared 9 April 1999