Examination of Witnesses (Questions 380
TUESDAY 10 FEBRUARY 1998
MLC AND MR
LAURENCE B MARQUET
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?
(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.
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.
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.
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 Assemblyhe
will decide whether it can be publishedI 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.
386. Does it allow the petitioner to say that
this particular member is not only a liar but a wife beater, charlatan
(Mr Cash) Within the petition that he submits to the
(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 bodyfor instance, a courtalleging
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 bodiesin particular, the courtsdoes
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
(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.