Examination of Witnesses (Questions 360
TUESDAY 10 FEBRUARY 1998
MLC AND MR
LAURENCE B MARQUET
360. One scenario which occurred to us at our
last meeting was where, undoubtedly as part of a proceeding in
Parliament, a member names a child, let us say, whose name has
been ordered to be protected by a court under the anonymity provisions.
One suggestion was you could make the member liable for that,
while protecting the Article 9 provision by stipulating that it
should be dealt with as a contempt. You have that illustration
in your Register of Interests Act, but that was a specific provision
in that, as I understand it?
(Mr Cash) Yes. If we had a member who in fact named
a juvenile whose name was suppressed by the court, then I would
expect that we would immediately convene our Privileges Committee
to deal with that particular incident. What Mr Marquet and I have
discussed in recent times is the penalty that should be applied
and whether or not the member should be liable for damages to
an outside party. It is an issue that we are still very much discussing.
Sir Patrick Cormack
361. What penalties can your Privileges Committee
inflict? Presumably it is a recommendation to the House and the
House has to approve it, but what penalties have been inflicted
in recent years?
(Mr Cash) One gentleman who refused to provide information
to a select committee was brought before the bar of the House
and was censured. I have given an instance of a petitioner who
was found to have provided false information. He was in the end
jailed by the Parliament.
362. I am particularly interested in the penalties
that you would inflict on members of Parliament. Have you, for
instance in recent years, suspended or expelled a member?
(Mr Cash) We have not expelled a member. As to being
suspended, no, we have not suspended members. We have certainly
363. That is merely a verbal denunciation of
an official nature?
(Mr Cash) Yes.
364. It does not have any financial consequences?
(Mr Cash) That is true.
365. Of course a suspension here does have financial
consequences. The member does not receive his pay during that
(Mr Marquet) We actually looked at that, Sir Patrick.
I am also the accounting officer as well as being the Clerk and
I was asked whether it would be proper for the member's salary
to be suspended. I said no. Certainly a standing order cannot
override the general law and the general law is that the member,
while he or she is a member, is to be paid. There is no provision
for suspension of that salary whilst the member is suspended from
the service of the House, so the member is still paid.
366. Have there been any examples in recent
years of members being found guilty by a criminal court and punished
(Mr Cash) Yes, as recently as six months ago. No,
I take that back. The person by the time he was convicted by the
court was a former member. However, there was a case where a former
member had given incorrect evidence to a Royal Commission and
he was jailed for six months. He was a former member at that time.
367. Had he been a member at that time, because
the sentence was less than a year, he would have been able to
remain a member?
(Mr Cash) No, not in this case, because the maximum
term was in excess of one year. So long as the term is in excess
of one year, notwithstanding the particular sentence that may
be passed which might be less, he loses his seat.
368. I am interested to know where, in your
opinion, public opinion is now focused. Reading the paper which
was submitted, I gather that there were a number of meetings held
throughout Western Australia to ask members of the public what
was their view about the conduct of members of Parliament. When
I read through this paper, I got the impression that most people
were complaining not about the fact that members of Parliament
were being bribed, not about the fact that members of Parliament
were behaving in a raucous, noisy and undisciplined fashion, but
about the fact that members of Parliament were abusing privilege
in order to libel people outside Parliament. If that is correct,
that is a very much more difficult thing to deal with, is it not?
Would you consider in Western Australia limiting a member's privilege
so that he could be actually liable in the courts for libelling
someone outside Parliament, a non-member? Or is it accepted that
this is something which the public have to put up with and that
in reality a lot of the mischief can be dealt with if there is
a strong person in the chair? A case was brought to my attention
the other day where, in a Parliament which runs on the Westminster
model, a member of Parliament got up and proceeded to launch a
vicious attack against a public servant on the basis of an anonymous
letter which he said was in his possession. If anybody got up
in this Parliament and acted in such a way, that person would
get a lesson that he or she would not forget in a very long time.
I am just wondering whether we are fully aware yet of the problems
which you are facing in Western Australia and whether perhaps
we are arguing about things which actually pale into insignificance
when it comes to the matters which really concern the public,
namely the fact that there does seem to have grown up a habit
in Western Australia of members of Parliament getting up and launching
vicious attacks on members of the public who cannot respond.
(Mr Cash) If that is the impression, Lord Waddington,
then I am sorry. I accept that, in reading that document that
you referred to, one could gain that impression. However, the
true position is that the majority of people in Western Australia
do not make continual complaints about the activities of members
of Parliament. The instances to which you refer are very specific.
Approximately four years ago, there was a concerted effort by
certain members of the Legislative Assembly to claim that members
of Parliament and persons associated with a particular political
party were involved in improper practices in the northern suburbs
of Perth. It was an absolutely concerted attack. A Royal Commission
was in due course called and the Royal Commission found that the
accusations and allegations madesome of which, I might
say, suggested that a person close to a political party had killed
someone; it was that extremehad no substance. Regrettably,
those allegations were being made at the time that the Commission
on Government was in fact taking evidence around Western Australia,
so the community's focus was very much on the sorts of things
they were reading in the paper on a daily basis. It is a pity
that it takes so much time for things in fact to play themselves
out to later find that the allegations were false. The Commission
on Government however had reported, prior to the Royal Commission
establishing that the allegations were false, so the types of
things that were being raised at that stage were not really reflective
of a usual situation in Western Australia. You said earlier, sir,
that in the first instance it seems it would be the presiding
officer's responsibility to maintain order. I hasten to say that
I said it was the Legislative Assembly in which those comments
were made, not the Legislative Council. I think that is a very
important point because my predecessor, who was the president
for 20 years, maintained a particular level of order in the House
that would never ever have allowed those matters to have been
uttered. I obviously worked with the former presiding officer
for a long time and the level of discipline that is maintained
in the House today again would not allow that to happen. It is,
in my view, in the first instance, the absolute responsibility
of the presiding officer to see that those things are not said,
especially when there is a very clear indication they are probably
not true anyway and they are being said for purely political purposes.
We had recently a situation in the New South Wales Legislative
Council where one member, a Labour member in an area that currently
has a Labour Government, raised various issues and the Parliament
itself was somewhat alarmed, I think rightly so, based on the
press reports that were published. The Parliament in New South
Wales, the Legislative Council, enacted the Special Commissions
of Inquiry Amendment Act 1997 to enable a commissioner to investigate
those comments and report back to the House. That member sought
recourse to the High Court and it is interesting that in October
of last yearso the decision is very currentthe High
Court said, if I may read it: "The Act"that is,
the Special Commissions of Inquiry Amendment Act 1997"could
not be said so to affect the parliamentary privilege of free speech
as to erode invalidly the institution of the legislature itself.
Nor could it be said that the Act exceeded whatever limits there
may be upon Parliament's legislative power to affect its privileges.
On the contrary, the legislature had a legitimate interest in
knowing, and perhaps a duty"and that is the area that
interests me"in ascertaining whether there is substance
in allegations made under privilege by a member on a matter of
public interest." If I now take the decision in Arena
v Nader of October 1997 and go back four years, had the Legislative
Assembly at the time those allegations were being made about the
conduct of various people done exactly what the New South Wales
Parliament did, I think the episode would have been shortened
to no more than a few months. Had that occurred, the sorts of
things that the Commission on Government heard when it visited
people around Australia would have never been reported to them.
369. Why was the change made? Was there a large
amount of criminality? Did some issue arise which forced us to
think again? What was the situation?
(Mr Cash) In respect to?
370. A member of Parliament can be dealt with
through the criminal code. Why was the change made?
(Mr Cash) As Mr Marquet said, that goes back to 1913.
371. What happened?
(Mr Marquet) In 1913, Western Australia decided to
codify its criminal law and abolish common law crime. It took
over virtually intact the Queensland Parliament's criminal code.
Australian jurisdictions have always relied on statutes in a way
that this jurisdiction relies on its common law, for fairly obvious
reasons. The common law in Australia has not had the history or
development that it has in England. Australian legislatures have
been very quick to legislate for problems and difficulties rather
than let the common law work it out through a progression of cases.
Parliament has stepped in and said, "This is going to be
the law. We will not worry and we will abrogate the common law
rules to that extent." A member of an Australian Parliament
has never been considered to be a sub-species, if you like, who
is entitled to a degree of privilege beyond that which relates
solely to his or her activities as a member of Parliament in the
chamber or in committee. There has never been a view that the
privilege of Parliament should extend to a member's activities
so as to provide him or her with a shield against the ordinary
run of the criminal law. That has not been the Australian tradition
and I think that is probably the best explanation as to why these
criminal code provisions that relate solely to members of Parliament
appear in our criminal law.
Lord Mayhew of Twysden
372. You have been very helpful in explaining
the preponderance of public opinion in answer to my colleague
Lord Waddington's questions. Is this a fair comment upon the way
in which the Commission on Government came down: that, notwithstanding
a very agitated public opinion deriving from what you have explained
to us, they nevertheless defended unequivocally and recommended
unequivocally the defence of Parliament's privilege. "All
of the original fundamental reasons for granting Parliament its
privileges still pertain in the modern world." I am quoting
from paragraph 10.6.4. It is a very powerful statement of their
opinion, underpinning their recommendation in 10.6.5 that the
Parliamentary Privileges Act 1891 should not be amended. I suppose
if one wanted to pick out a single sentence, it would say, "Its
privileges are Parliament's greatest source of strength but, at
the same time, represent the greatest threat to Parliament's continued
relevance and stature if they continue to be abused." It
is enormously interesting to me, the way in which you have explained
the evidence that they took in the light of the very strong recommendation
at the end.
(Mr Cash) Lord Mayhew, I think that the comments made
there by the Commission on Government reflect what I have said.
I think the Commission on Government themselves recognised that
they were dealing with a unique situation where one or two members
of the Legislative Assembly were, for political reasons, making
all sorts of outrageous allegations. I think it is fair to say
that the Commission on Government, notwithstanding the comments
made by the community to it, were able to see through it to a
degree and recognise that this was not a common situation. We
are pleased the Commission on Government was prepared to recognise
that parliamentary privilege should be maintained in its present
form. If anything, I think you will see that the Commission on
Government encourages the Parliament to educate better the community
so that they understand what parliamentary privilege is all about,
so that when Parliament does take action against one of its members
the community will understand that that is part of the process
of Parliament, and a very proper process at that. I think that
we have failedI speak of our own Parliament; I think of
Australian Parliamentsto educate the public sufficiently.
If I may be so bold, I realise that your committee is considering
privilege as it applies in the United Kingdom. We see, as a very
young country, tremendous benefits in maintaining the privileges
that we have today, which flow from the Commons.
Sir Patrick Cormack
373. Do you think, if we made a change, it would
put pressure on you?
(Mr Cash) No, I do not think so.
Lord Mayhew of Twysden
374. It would do under the 1891 Act.
(Mr Cash) It would change our law by an automatic
flow but we have the ability to rectify that by statute. We may
obviously be forced to do it.
(Mr Marquet) You did not ask us about section 13 of
the Defamation Act.
375. That is coming!
(Mr Cash) If you change the law, I suppose yes, we
would have to consider our position. I believe that our Parliament,
as small as it is and therefore perhaps being able to understand
and recognise the foibles of its own members, would probably resist
any change at this stage. The Commonwealth changed in 1987 and
codified its parliamentary privilege. We have never felt pressure
on us to follow their position in respect to particular areas.
(Mr Marquet) Lord Chairman, there is one issue that
has almost been raised here which perhaps the Committee would
be interested in discussing a little. That is what is called the
Murphy doctrine. Various questions have been in line with the
Murphy doctrine. If I could just explain briefly what the Murphy
doctrine is, the Murphy cases in the New South Wales Supreme Court
arose from proceedings in the Senate in relation to Mr Justice
Murphy of the High Court. The Senate appointed three retired judges
as commissioners to enquire into certain matters alleging impropriety
against the judge and report back to the Senate with a view, if
those allegations were sustained by the commissioners, to moving
the necessary address to the Crown for the removal of the judge.
As a result, there were a number of a criminal prosecutions brought
in the New South Wales Supreme Court arising from the same facts
and, in the course of trial, evidence was adduced that was taken
before the Senate Select Committee in camera. Of course, objection
was taken on the grounds that this was a clear breach of Article
9. The two judges involved, Justices Hunt and Cantor, rejected
that argument and gave a very narrow interpretation of Article
9. It was that very narrow interpretation that prompted the federal
Parliament to pass the 1987 Act. Section 16 of that Act was specifically
approved by their Lordships in the Privy Council in the case of
Prebble v Television New Zealand, which you will be familiar
with. The Murphy doctrine is simply this: any proceeding in Parliament
can be questioned or impeached but no legal consequences can flow
to or be visited upon someone who is otherwise protected by the
privileges of Parliament. In other words, Article 9 protects you
from the legal consequences of your acts; it does not prevent
the courts from questioning or impeaching the actual proceedings
themselves. That obviously was seen by most of us as true heresy.
The federal Parliament took the opportunity to reverse those judgments
by statute. Because of a case decided in 1899 in Western Australia
by our full court, the Murphy doctrine would not apply in Western
Australia as a jurisdiction. That is the Murphy doctrine in a
nutshell. You can do whatever you like at the parliamentary proceedings;
you simply cannot visit the legal consequences upon the disciplines.
376. Can I tidy up two points arising on the
question of defamation? The first indeed concerns section 13 of
the Defamation Act 1996 which, as I understand it, currently therefore
represents part of the law of Western Australia?
(Mr Cash) Yes, that is correct, Lord Chairman.
377. Is that provision considered desirable
(Mr Cash) It is considered undesirable, then it is
a matter we have not given great publicity to in Western Australia,
in the hope that, perhaps before that publicity is given, Parliament
in the United Kingdom may consider changes.
378. Is there any particular reason you would
like to mention why that is the view in Western Australia? I can
guess what it is but would you like to spell it out?
(Mr Cash) Mr Marquet has been involved in doing some
research on section 13, so perhaps he might make some comment.
(Mr Marquet) Lord Chairman, section 13 as it currently
stands is seen as the thin end of the wedge because it does something
which the two presiding officers in the Western Australian Parliament
specifically told the three royal commissioners at the Western
Australia Royal Commission that we would never countenance and
that is: waiver. The New Zealand House, as you know, decided that
it had no power to waive privilege. The Legislative Council in
Western Australia takes exactly the same view, that it has no
power to waive privilege and certainly no individual member has
the power to waive privilege, so far as it applies to him or her.
Section 13 of course cuts across that entirely. Once you allow
an individual member or indeed a non-member to waive privilege
in relation to themselves, so far as the Defamation Act is concerned,
it is not long before the whole question of a general waiver is
raised. If you allow waiver in one particular instancethat
is a defamation actionthen why would you not allow waiver
in every other case? That is seen as an undesirable development,
particularly in a situation where not even the House itself is
given the power to waive. The power devolves upon the individual
member. That is a complete negation, as we understand it, of the
whole approach to privilege. It is the privilege of the House,
not the individual member. It is not up to the individual member
to waive it, or purport to waive it.
379. Would the same objection apply, if it was
provided for waiver by the House as a whole and not by an individual?
(Mr Marquet) If waiver was vested in the House, there
would be far less objection because then the decision can be made
by the House on political grounds.