Memorandum by the Clerk of The Legislative
Assembly for the Australian Capital Territory
SETTING THE
SCENE
Introduction
In 1988 the Commonwealth Parliament of Australia
passed a package of four Bills, the principle becoming the Australian
Capital Territory (Self-Government) Act 1988 (the Self-Government
Act). This legislation provided self-government (by establishing
the Territory as a body politic under the Crown) for the Australian
Capital Territory. The Territory had been created within the boundaries
of the State of New South Wales soon after Federation to house
the capital of Australia, Canberra. Prior to 1988, although there
were advisory bodies created that were partly and later wholly
made up of members elected by citizens of the Territory, the people
of the Territory had been governed essentially by a Commonwealth
Minister who was answerable to the Federal Parliament. Citizens
of the Territory had, at the best, four representatives elected
to the Federal Parliament and until the early 1960s the (then
one) representative had limited voting rights.
The first meeting of the Legislative Assembly
for the Australian Capital Territory was held in May 1989 in accordance
with the provisions of the Self-Government Act which also established
the Legislative Assembly and sets down its powers. Of the 17 Members
that were sworn that day, only 10 Members belonged to an established
political party within Australia and it would be safe to say that
the majority of Members did not have a strong link with the traditions
of Westminster and that some actively argued for a legislature
not steeped in the past but one relevant to the people of today.
Wigs and gowns held no place and the first meeting place was a
rented office space (although, since 1994, the Assembly has had
a Chamber purpose-built in a building of its own).
It is from this perspective, one from a jurisdiction
that differs significantly to Westminster (although it has it
as its basis) and one that has not recoiled from being innovative
in developing practice and procedure and actively pursuing a modern
parliamentary tradition (the Government is currently conducting
an inquiry into governance in the Territory) that I make this
submission.
Powers, Privileges and Immunities of the Assembly
The Self-Government Act (which can be regarded
as the constitution of the Territory) clearly sets out the powers,
privileges and immunities of the Assembly. In section 24 it provides:
"powers" includes privileges and immunities,
but does not include legislative powers.
(2) Without limiting the generality of section
22 [relating to the power of the Assembly to make laws], the Assembly
may also make laws:
(3) Until the Assembly makes a law with
respect to its powers, the Assembly and its members and committees
have the same powers as the powers for the time being of the House
of Representatives and its members and committees.
(4) Nothing in this section empowers the
Assembly to imprison or fine a person.
The final subsection marks a significant departure
from the tradition of Australian Parliaments and has had a significant
impact in the consideration of issues relating to contempt and
parliamentary privilege in the Territory.
To date the Assembly has passed legislation
which has been enacted relating to the broadcasting of its proceedings
to both the public and government offices and, late in the last
sitting year, the Government introduced the Legislative Assembly
(Privileges) Bill 1997. The Bill takes up subsection 24(2) in
the Self-Government Act relating to the Assembly declaring its
own powers. The Bill also addresses the issues of privilege (seeking
to clarify some areas of the law relating to the privileges applying
to authorised publications of the Assembly and its committees
and sets in place certain statutory offences in relation to breaches
of privilege or contempts) as well as that of the Assembly's precinct.
It provides the following definition of proceedings:
"proceedings in the Assembly" means
all words spoken and acts done in the course of, or for the purposes
of or incidental to, the transacting of the business of the Assembly
or of a committee, and, without limiting the generality of the
foregoing, includes—
(a) the giving of evidence before the Assembly
or a committee, and evidence so given;
(b) the presentation or submission of a document
to the Assembly or a committee;
(c) the preparation of a document for purposes of
or incidental to the transacting of such business; and
(d) the formulation, making or publication of a document,
including a report, by or pursuant to an order of the Assembly
or a committee and the document so formulated, made or published.
As the Assembly is a new institution the issue
of the potential for the corruption of Members has been addressed
by the Self-Government Act which provides that Members vacate
their office as a Member if they take or agree ". . . to
take, directly or indirectly, any remuneration, allowance, honorarium
or reward for services rendered in the Assembly, otherwise than
under section 73." [Section 73 provides, in effect, that
a Remuneration Tribunal determines Members' remuneration and allowances].
Members are advised to be very careful about this disqualification
provision, its intention being seen to ensure that Members receive
a set amount of remuneration and allowances for their work and
do not receive any additional benefits by virtue of their position.
The Self-Government Act also provides that a
Member vacates office if the Member, at any time after the beginning
of the first meeting of the Assembly after a general election,
is not qualified to take a seat as a Member. The Electoral Act
1992 provides that persons are not eligible to be Members of the
Assembly if, inter alia, they are convicted of certain
offences under the Electoral and Crimes Acts (including bribery,
violence and intimidation). The Assembly can, by resolution, refer
any question relating to the eligibility of a Member to be an
MLA to the Court of Disputed Elections.
This legislation is reinforced by the Crimes
(Offences against the Government) Act 1989 which provides (in
section 15) that a Member of the Legislative Assembly
. . . who asks for, receives or obtains, or offers
or agrees to ask for, receive or obtain, any property or benefit
of any kind for himself or herself or for any other person, on
an understanding that the performance by the member of his or
her duty, or the exercise by the member of his or her authority,
as such a member will, in any manner be influenced or affected,
is guilty of an offence punishable, on conviction, by imprisonment
for a period not exceeding 2 years.
A further provision provides that a similar
offence, with a similar penalty, is committed by anyone seeking
to "corrupt" a Member of the Assembly.
ISSUES
Particular issues that have arisen that are
noteworthy are:
— the use of Assembly proceedings or
the proceedings of Assembly committees in courts and tribunals;
— possible contempts arising out of
premature publication or disclosure of committee proceedings;
— the questioning of the level of protection
that is available to the publication of reports or records of
Assembly proceedings beyond the Assembly;
— the level of protection available
to the inter-State publication of reports or records of Assembly
proceedings (ie publication within Australia but beyond the borders
of the Australian Capital Territory);
— the limitation on the Assembly's
powers to punish contempts;
— the perceived need for, and later
adoption of, procedures for citizens right of reply; and
— the occasional resistance of the
Executive to requests by committees for documents.
THE JOINT
COMMITTEE'S
INQUIRY
General Comments
Before making specific comments on certain issues
I would like to make a general comment on the issue of privilege
as an official of a relatively new and developing legislature.
The Legislative Assembly, because of its relatively short history
and the climate in which it has grown, has perhaps been more prepared
than most Parliaments with a strong history of tradition that
is respected, to push the boundaries. In many respects it has
been innovative and has actively sought to respond to the mood
of the people. In doing so it has questioned many of the precedents
that have existed in Australian Parliaments and the concepts of
parliamentary democracy.
The institution of Parliament must, if it is
to continue to have a valid role in the governance of the people
and if people are to have a respect for it, evolve and meet its
challenges. One of these challenges for the concept of parliamentary
privilege is the technological advances of the 20th century. Internet
distribution of parliamentary debates and other documents gives
rise to a number of problems that could not have possibly been
foreseen only a generation ago.
It is not only the technological advances of
the day that are providing challenges but also the evolution of
today's society. In Australia the legal system has expanded beyond
that of the courts with the development in recent decades of a
strong quasi-judicial system. The interaction of this system and
the courts alter the context in which the legislatures operate
and again have implications for parliamentary privilege. Furthermore,
Australian courts are no longer reluctant to become involved in
matters that were once considered the domain of the Parliament.
Recently, in the State of New South Wales, a Minister who had
been suspended from the Chamber pursued the matter in the courts.
However, as well as the ability to bend (to
a certain extent) with the prevailing wind, the Parliament must
ensure that it maintains the ability to function effectively in
the worse case scenario. It would be ill advised to give up or
erode immunities and powers that would perhaps become vital in
a less than ideal world—one example of disorder or dislocation
within the community (either social or economic). To give up its
rights may also be to lose sight of one of its major functions,
ie to make government accountable.
SPECIFIC COMMENTS
There are a number of specific comments I would
like to make in response to the issues listed in the invitation
to submit evidence.
Citizen's right of reply
In the early days of the Assembly, Members were
quick to grasp that material that became part of the Assembly's
proceedings could receive wider publication as a report of those
proceedings. In one notable case a Member made allegations about
the criminal activities of a businessman from another State in
Australia and these allegations received press coverage. The businessman
strenuously denied the allegations in letters to Members of the
Assembly and, after a period of over a year, the Member who made
the allegations informed the Assembly that the source of the material
was not who he had purported to be and the allegations were false.
The Member then apologised to the businessman.
The case was a matter of some concern amongst
the other Members of the Assembly, including the Speaker, and
led to an Assembly Committee recommending that a citizen's right
of reply procedure (similar to that in operation in the Australian
Senate) be adopted by the Assembly. In 1993 the Assembly adopted
the procedure for the term of that Assembly. The Assembly formed
following the next elections again passed the resolution but gave
it continuing effect. On both occasions the resolutions were accompanied
by another which seeks to remind Members of the responsibility
that they must exercise when using the valuable right of freedom
of speech.
Although the right of reply has been in effect
for four years, the first use that was made of it was in December
1997. The Assembly Committee charged with the responsibility of
considering the request for a reply and reporting to the Assembly
was not unanimous in recommending the request for incorporation
into Hansard be agreed to, but the majority of the Committee
took the view that the request should be treated in a similar
manner to a Member asking for leave to make a personal explanation.
On presentation of the report the Assembly agreed to the recommendation
for incorporation into Hansard.
I am aware that a House of Commons Select Committee
has previously investigated the procedure as it operated in its
infancy in the Senate and decided against adoption. However, I
would recommend that it be reconsidered. As Clerk I have discussed
the procedure with a number of residents in the Territory who
have taken exception to statements made about them in Assembly
proceedings and it is my belief that the effectiveness of the
procedure lies partly in its existence. For Members, the existence
of the resolution relating to freedom of speech reminds them of
their responsibilities and also empowers the Speaker to refresh
their memory should the situation so demand, and for some within
the community, just knowing that the opportunity to respond to
statements made about them (or their corporations) exists, is
sufficient for them to believe that they are not locked out of
the process with no defence should they so desire it. The terms
of the resolution require a certain amount of work on behalf of
the citizen seeking redress and to some extent act as a measure
of their commitment to the process. Its usage in the Senate where
it has operated for greater time span would suggest that very
few seek it without believing that they have true cause.
Use of Assembly proceedings in courts and tribunals
An issue that has given concern to Speakers
in the brief history of the Legislative Assembly is the issue
of the use of or reference to Parliament's records in courts and
tribunals.
Boards of inquiry established pursuant to the
Inquiries Act have been seen to seek to inquire into the proceedings
of the Assembly as such and, as recently as July last year, the
Executive appointed a Board of Inquiry to inquire into, inter
alia:
The circumstances including all considerations
by the Assembly, the Executive, Ministers, officials and Agencies
relating to the demolition of Royal Canberra Hospital, since the
Acton-Kingston Land Swap.
These terms of reference were agreed to, apparently,
following consultation with Members of the Assembly. The issue
did not come to a head as, for other reasons, the particular inquiry
has not proceeded.
On another occasion it was believed that the
Commonwealth and Territory Ombudsman was questioning evidence
that had been given to a committee of the Assembly and action
had to be taken to bring to the attention of the Ombudsman the
provisions of section 16 of the Parliamentary Privileges Act (Commonwealth)
to which the Assembly is linked via section 24 of the Self-Government
Act.
The level of protection available to the publication
of parliamentary records beyond the boundaries of the Territory
The Assembly has in the past and is currently
examining the issue of the publication of records of the proceedings
of the Assembly and other documents authorised by the Assembly
to persons residing interstate (ie beyond the boundaries of the
Territory). The current examination of the matter relates to addressing
the question of what protection, if any, is there against actions
for defamation or other civil or criminal proceedings for officers
of the Assembly and others who make the Hansard and other
documents of the Assembly or its committees available on the internet.
In other words, would the Clerk or officers of the Assembly have
immunity from proceedings that are based on interstate law? The
extent to which immunity is available is seen to vary according
to the law in each jurisdiction.
The advice we have to date refers to a recent
case in the High Court (Lange v Australian Broadcasting Commission
(1997) 145 ALR 96) where the principles that will determine
whether a defence of qualified privilege is available as an answer
to a claim based on alleged defamation were restated. The advice
received was that this statement by the Court provides a basis
for concluding that, on balance, Hansard and other documents
of the Assembly may safely be made available on the internet although
it could not provide a guarantee that this would not result in
adverse consequences.
Limitation on power of Assembly to punish contempts
As mentioned above, section 24 of the Self-Government
Act specifically limits the powers of the Assembly by providing
that the Assembly cannot imprison or fine a person.
The Bill currently before the Assembly seeks
to create certain statutory offences relating to the operation
of the Assembly, thus enabling a court to impose a punishment
by means of fine or imprisonment. The facts relating to an offence
would be established through production of evidence by certificate—thus
limiting as far as possible the extent to which a court must examine
the proceedings of the Assembly in order to establish the facts
at issue. Offences contained in the Bill are:
— contravention of an order prohibiting
publication of words spoken or material published in proceedings
in the Assembly or a committee;
— unauthorised disclosure of evidence
taken in camera or on a confidential basis;
— the failure of a person, without
reasonable excuse, to attend or produce a document or other thing
as required by summons;
— refusal or failure, without reasonable
excuse, to take an oath or affirmation or to answer questions
when required after being summonsed;
— knowingly providing false or misleading
evidence or documents when attending on summons; and
— improperly influencing witnesses
in relation to evidence given or to be given or inducing a person
to refrain from giving evidence.
The Bill includes a clause retaining the legislative
and common law framework of powers, privileges and immunities
that apply to the Assembly by virtue of section 24 of the Self-Government
Act to the extent that these powers are not dealt with by the
Bill.
Although our Assembly has an unusual restriction
on its powers in that it cannot imprison or fine a person and
to some extent the genesis of the Bill was to address this issue,
the Bill also reflects an acceptance by the Government and, I
believe, the people of the Territory that Parliament should not
be a remote body with unfettered powers, and the appropriate venue
for a decision concerning guilt or innocence is the courts.
Other matters the Joint Committee is investigating
Your invitation lists a range of matters the
Joint Committee is investigating. Some of these issues I have
addressed either directly or in the context of the Australian
Capital Territory experience. Further comments I would make are
as follows.
I see legislatures as having particular constitutional
roles, usually a legislative and scrutiny role including, in our
case, the making of governments, the surveillance and appraisal
of Government administration and initiation, examination and approval
of legislative proposals including financial proposals. The purpose
of privilege is to enable the legislature to perform its functions
effectively and its scope must be limited to what is necessary
for it to perform its functions free from interference.
Should it be seen as desirable to modify the
scope and application of parliamentary privilege there could be
a danger of eroding the powers and immunities that have been seen
as essential for the legislature and its Members to fulfil their
role.
I can see merit in codifying the necessary protections
however there would also be merit in retaining the residual powers
except to the extent that any resolution or legislation otherwise
provided.
Whilst there may be a more modern phrase to
replace "parliamentary privilege" it is widely known
and self explanatory and to replace the phrase could run the risk
that it could develop a different identity.
Proceedings in Parliament
One issue that arises from the exclusive jurisdiction
of a House over its Members and internal proceedings is that it
is important that it be seen to be able to prevent abuse by Members
of their immunities and to demonstrate the ability and willingness
to act on improper behaviour. As mentioned above, in Territory
law any Member accepting or seeking bribes in relation to the
exercise of his or her duty or authority is guilty of an offence
and it is also an offence to seek to influence a Member. In addition,
the Self-Government Act contains a provision whereby any Member
who is a party to or has a direct or indirect interest in a contract
made by or on behalf of the Territory or a Territory authority
is precluded from taking part in a discussion of a matter or voting
on a question in a meeting of the Assembly where the matter or
question relate directly or indirectly to that contract. Any question
concerning the application of this provision shall be decided
by the Assembly. Similar provisions are contained in the standing
orders.
The decision of the Federal Parliament to provide
self-government for the Territory was a contentious decision and
the response of the people of the Territory was, initially at
least, somewhat wary. The Assembly must have various powers and
immunities to function effectively and I believe by its Members
accepting and putting in place some checks and balances (whether
they be legislative provisions regarding bribery and corruption
or regarding unauthorised disclosure of evidence) so that the
Parliament is not seen as law beyond all else by the electorate,
confidence in the institution has been enhanced without paring
down or removing those powers.
Mark McRae
3 February 1998
| 
