ARTICLE 9 AND FREEDOM OF SPEECH

  A recent case in the Legislative Council illustrates the operation of Article 9 and freedom of speech in an era (at least in Australia) of increasing executive domination of the Parliament and a strong party system. The case involved a Member in effect seeking to use parliamentary privilege as a shield against the consequences of a collective waiver of privilege by the House.

  Legislation passed by the Parliament in September 1997 permitted either House to authorise an external inquiry into matters arising in parliamentary proceedings and to waive parliamentary privilege in connection with such inquiry. Although the legislation authorised an inquiry to proceed, it preserved the right of any individual Member to assert parliamentary privilege in relation to the inquiry.

  In the terms allowed by the Act, the Legislative Council authorised the establishment of an inquiry into the truth of certain highly controversial statements made by a Member in the House concerning alleged conduct by prominent political figures and a judge. The member asserted her right to claim parliamentary privilege and refused to co-operate with the inquiry. The inquiry, having investigated the matter, concluded that the Member had no evidence to support her allegations. The Member's conduct was then referred to the Standing Committee on Parliamentary Privilege and Ethics for inquiry and report on what sanctions should be imposed on the Member in light of the findings of the inquiry. Among the sanctions being considered by the committee is whether the Member should be expelled from the House.

  The Member challenged the validity of the legislation in the New South Wales Court of Appeal and the High Court of Australia, alleging, inter alia, breach of Article 9 of the Bill of Rights. Both Courts rejected the arguments advanced on behalf of the Member on this point. While the Courts accepted that there may be limits to the extent to which the privileges of the Parliament may be altered, they held that this Act did not exceed those limits.

  Details of this case will be provided in an article to be submitted for publication in the next edition ofThe Table. The transcript of the High Court proceedings incorporating the Court's decision (Arena v Nader and Anor, unreported) may be viewed on the Internet at: www.austlii.edu.au/au/cases/cth/high<fy10>-<fy1>ct

REMEDIES FOR CITIZENS WRONGED BY WORDS OR ACTIONS IN PARLIAMENT

  In line with developments in a number of Australian Houses, the New South Wales Legislative Council has adopted a procedure which provides certain remedies for persons aggrieved by statements made about them in the House. A copy of procedure, adopted on 13 November 1997, is attached. The procedure has not yet been applied in any particular case.

SCOPE OF "PROCEEDINGS IN PARLIAMENT"

  A case in 1993 raised the issue of the extent of "proceedings in Parliament".

  Over a number of years, a Member of the Legislative Council, the Honourable Stephen Mutch, made speeches in the House expressing concern at the activities of various cults and the mind control techniques allegedly practised by such organisations. Much of the material on which the speeches were based was obtained by the Member in confidence from informants.

  In 1993 Mr Mutch was served with a subpoena issued out of the Local Court in the course of a criminal trial of one Kenneth Dyers on a charge of sexual assault. Mr Dyers was a leader of one of the cults which had been the subject of speeches by Mr Mutch and the alleged assault was supposed to have occurred during the course of cult activities. The subpoena required Mr Mutch to produce certain documents which would have revealed the identity of informants and other confidential information gathered in the course of preparing speeches given in the House. Mr Mutch claimed that the documents were covered by parliamentary privilege and should not be produced. He also argued that production of the documents could have had the effect of obstructing the flow of information to him on matters which he was pursuing in the House, thereby impeding his ability to carry out his duties as a Member of Parliament. The Magistrate in the case ruled that the documents were protected from production on the grounds of public interest immunity and parliamentary privilege.

LEGISLATION ON CORRUPTION

  No specific legislative attempt has been made in New South Wales to subject Members' conduct to the criminal law or to the jurisdiction of the courts. However in 1988 the New South Wales Parliament "legislated for corruption" in a sense by passing the Independent Commission Against Corruption Act. The Act established the Independent Commission Against Corruption (ICAC) which investigates and reports to Parliament on "corrupt conduct" by public officials. The operations of the ICAC are oversighted by a joint parliamentary committee.

  Corrupt conduct as defined in the Act includes various criminal offences such as extortion, bribery, and obtaining secret commissions (s 8). Although "public official" under the Act includes a Member of Parliament, the powers of the ICAC with respect to Members are limited. This is because, by virtue of s 9, conduct does not amount to corrupt conduct unless it "could constitute or involve" a criminal offence, or a disciplinary offence, or reasonable grounds for dismissal. As only one of these alternatives applies to Members of Parliament, the ICAC was, before the Act was amended in 1994, limited to investigating conduct which could amount to a criminal offence.

  An attempt to broaden the ICAC's jurisdiction with repsect to Members was made in the ICAC (Amendment) Act 1994. This Act expanded the definition of corrupt conduct by including two additional matters, namely:

—  conduct which "would cause a reasonable person to believe that it would bring the integrity of the office concerned or of Parliament into serious disrepute" (s 9 (4)); and

—  conduct which could amount to a "substantial breach" of an applicable code of conduct adopted by the relevant House (section 9(1)(d)).

  While draft codes of conduct have been recommended by ethics committees in each House, neither House has as yet adopted a code for the purposes of the Act, so this provision remains inoperative at present.

WHAT SHOULD CONSTITUTE CONTEMPT?

  The following matters involving possible contempts have been considered in the Legislative Council or its committees in recent times:

  1.  In 1969 the Legislative Council resolved that a Member, the Honourable Alexander Ewan Armstrong, be adjudged guilty of "conduct unworthy of a Member" and be expelled from the House and that his seat be declared vacant. The relevant conduct by the Member included participating in an arrangement to procure false evidence for the divorce court, and stating in evidence before a court of law that he would consider bribing a judge.

    The validity of the House's actions was upheld by the New South Wales Court of Appeal in Armstrong v Budd (1969) 71 SR (NSW) 386.

  2.  In 1988 a minor party Member, the Reverend the Honourable Fred Nile, circulated a letter to certain party officials alleging that a Select Committee of the House was conducting a "witch-hunt" with the aim of discrediting a government minister and gaining electoral advantage for the major opposition party. The matter was referred to the Privileges Committee of the House. The Privileges Committee found that, although Reverend Nile's actions may have been intemperate and reflected on the motives of Members, they did not constitute a contempt as they did not have the effect of obstructing or impeding the Select Committee or its Members in the discharge of their duty. (Report of the Standing Committee upon Parliamentary Privilege together with the proceedings of the Committee, December 1989).

  3.  In 1993, certain evidence given in camera before a select committee of the House was published in a Sydney newspaper. The Legislative Council referred the matter to the Standing Committee on Parliamentary Privilege for investigation. The Committee found that no contempt had been committed, as the publication had not impeded the Select Committee in the performance of its functions. It found that a breach of privilege had occurred but recommended that no action be taken against the journalist responsible or the editor of the newspaper concerned, as the principal offender was the person who originally disclosed the information and whose identity had not been able to be ascertained. (Report concerning the publication of an article appearing in the Sun Herald newspaper containing details of in camera evidence, Standing Committee upon Parliamentary Privilege, October 1993).

  4.  In 1995 the Legislative Council passed a series of resolutions requiring that certain documents held by the Government be tabled in the House. When the resolutions were not complied with, the House resolved that the Treasurer and leader of the Government in the Council be adjudged guilty of contempt and be suspended from the service of the House for the remainder of the sitting day. The Treasurer refused to leave the Chamber and had to be escorted from the premises by the Usher of the Black Rod.

    The New South Wales Court of Appeal subsequently found that the expulsion and suspension of the Treasurer were within the scope of the inherent powers of the House (Egan v Willis & Cahill, unreported, 29 November 1996). The High Court of Australia has granted leave to the Treasurer to appeal against this decision.

  5.  In 1996 the Financial Controller of the Parliament (the parliamentary accountant) refused to provide direct answers to questions from a Legislative Council estimates committee. The Financial Controller had been directed by the Speaker to take this action on the ground that, in the Speaker's view, the Financial Controller is an officer of the Legislative Assembly and therefore not required to answer to a Council committee.

    The Legislative Council Standing Committee on Parliamentary Privilege and Ethics investigated the matter. The Committee affirmed that the Financial Controller is an officer of both Houses, but recommended that in the circumstances it was not appropriate to invoke any sanctions against him. (Report on inquiry arising from Special Report of Estimates Committee No. 1, Standing Committee on Parliamentary Privilege and Ethics, May 1997)

  6.  As indicated in the first item of this submission ("Article 9 and freedom of speech"), the Standing Committee on Parliamentary Privilege and Ethics is currently considering whether a Member who made statements in the House which were subsequently discredited by an external inquiry is guilty of contempt and should be expelled from the House.

    In light of this case, one possible advantage of codifying the actions which can be treated as contempt is the reduction of opportunities for parliamentary sanctions to be used as a political tool.

John Evans

Clerk of the Parliaments

9 February 1998