Examination of Witnesses (Questions 320
TUESDAY 10 FEBRUARY 1998
MLC AND MR
LAURENCE B MARQUET
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 Houseeither Housewho 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
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 improperand, indeed, unlawfulfor 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
thereafteronce every yearis 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.
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 Parliamentnot as proceedings of parliament,
these were meetings that occurredand 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 didthey
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.
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!
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 witheg 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 legislaturesome at leastMembers also of the
(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
(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 responsibilitiesyou 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
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
(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.