Thursday 27 Octobber 2005
16TH CPA SEMINAR 2005
HON. KERRY FINCH (TASMANIA): Thanks Mr Chairman and thanks everyone for your concern. I am much better and I didn’t want to miss the opportunity to stand up here at the lectern. A good setup.
While the concept of Parliamentary privilege is often reported and discussed, it is not widely understood. So even though I am about to recount my personal experiences of the concept, I would like to just briefly summarise what privilege is all about. Now I know I risk stating the obvious, but I would just like to set the scene, as it were.
The tradition of Parliamentary privilege in the Westminster system is as important as Parliamentary democracy itself – the voice of the people. Parliamentary privilege protects the voice of the people’s representatives on the floor of Parliament. The basis of Parliamentary privilege in Britain and Australia is Article 9 of the Bill of Rights 1689 (UK) which states: “That the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any Court or place out of Parliament.”
Now from this come the accumulated privileges in our Parliamentary system which preserve the right of the people’s representatives to speak in Parliament without threat of retribution or punishment by any other authority than his or her own Assembly.
So in summary, these privileges include the right of a Parliamentary Assembly to conduct business without the hindrance of civil laws which restrain ordinary citizens. However, there is a restraint on Members, and that is through the House itself.
I will quote from the Australian House of Representatives Practice, 4th Edition: “Despite the immunity from suit or prosecution which Members have in respect of what they say in Parliament in carrying out their duties, ultimately they are still accountable to the House itself in respect of their statements and actions. It is within the power of the House to take action to punish or penalise Members, for example, for some form of extreme obstruction of the business of the House.”
So a Member can be deemed to be in contempt or breach of privilege – not the same thing.
I will just, if you will bear with me, quote from Halsbury’s Laws of England: “The power of both Houses to punish for contempt is a general power similar to that possessed by the superior Courts of Law and is not restricted to the punishment of breaches of their acknowledged privileges. Certain offences which were formerly described as contempts are now commonly designated as breaches of privilege, although that term more properly applies only to an infringement of the collective or individual rights or immunities, of one of the Houses of Parliament.”
So much for the legalise of Halsbury.
Now perhaps we could sum up the difference simply by saying: “All breaches of privilege amount to contempt; contempt does not necessarily amount to breach of privilege.”
Perhaps while we’re on this subject, I might touch briefly on the subject of unparliamentary language. This is in the ear of the Speaker, but there are some precedents.
In Australian Parliaments, terming a Parliamentary colleague a liar is not on. Some terms ruled as unparliamentary at Westminster include: Blackguard, coward, git, guttersnipe, hooligan, ignoramus, liar, rat, swine, stool pigeon, traitor. Insulting you’ll admit, but they’re fairly out of date.
Creative Australian politicians are constantly coming up with new ones for the Speaker to rule on. I liked former Prime Minister, Paul Keating’s “sleazebag”.
I will probably refrain from quoting some of the terms invented by a more recent Labour Leader, Mark Lathem, but to return to the main reason for parliamentary privilege, to allow Members to conduct business without the hindrance of civil wars restraining ordinary citizens. This right of Members of Parliament to conduct business free of the constraints of civil laws, include:
· unfettered use of Parliament and its precincts;
· speech unhindered by the laws of friend and libel;
· protection of person an property; and
· Members’ legislative duties taking precedence over their civil obligations.
I might mention there that I did talk in a comment about our Mayor of Lauceston, the young lady who was voted in the 26 years of age now 29, and I thought that she may have been re-elected as Mayor, that is in fact not the case. She was being defeated by one of my parliamentary colleagues, Avon Deen, who in fact as a Member for ………. in Lauceston and a Member of the Council, has stood as Mayor to oppose her and he has won the Mayor of Lauceston. So, it is interesting how who combine the two jobs. He is not taking both salaries by the way, he is going to dominate his mayoral salary to the city.
The need for full knowledge of facts to assist decision-making also requires that any committee established by the resolution of Parliamentary Assemblies, has the power to question individuals and examine with certain exemptions or exceptions, documents in the position of individuals, organisations or the State. That last sentence is highly relevant to the story that I am about to recount.
First, I would like to say just a little bit more about Parliamentary privilege in my State of Tasmania. The Tasmanian Parliament passed its Parliamentary Privilege Act in 1858 and with subsequent amendments that 1858 Act remains the basis of privilege in Tasmania. Tasmania was the first self-governing body to codify parliamentary privilege. Some of the states have been left behind. Funny, for example, as in the case of Western Australia, because of statutory provisions linking their parliament’s parliamentary privilege to better the House of Commons, the changes in London can, in fact, change the law in Western Australia without the Western Australian Parliament having any say in those changes. The Queensland Parliament found it was in a similar position and enacted legislations in 2001 to resolve the different by specifying that the law in the UK at a particular date is that which applies.
Tasmania’s 1858 Parliamentary Privilege Act authorises Houses of Parliament to call for information, examine persons, protect its Members, offices and precincts and to punish those who refuse its directions. Just before I tell a personal story, I would like to quote a short passage from the Tasmanian Legislative Council Members’ Handbook, and this sums up the whole issue in a few words.
“Parliamentary power about the normal laws of the land is essential to ensure that those normal laws continue to be made by the people’s representatives for the people’s good. The Handbook urges all Members of Parliament to make themselves familiar with the Act for parliamentary privilege must never be weakened, yet must be wielded with statements like wisdom.
Now, to my personal story, I was very much aware that admonition when I prepared for the proceedings of the Government Business Enterprises Scrutiny Committee Meeting in March, 2004. It was, in fact, my second Scrutiny Committee since my election to the Legislative Council and having learnt the ropes, I was determined to make a maximum contribution to the working of this highly important scrutiny process. Afterall, Government business enterprises in Tasmania are responsible for many millions of Tasmanian taxpayers’ money.
Some months before that March 2004 scrutiny session, I had received a considerable amount of information relating to the purchase of Tasmania’s new Bass Strait ferries Spirit 1 and Spirit 2. This information from a European-based shipbroker related to the prices paid for the two ferries and the procedures leading to their purchase. I am not a shipbroker and like most people know very little about paying ships for hundreds of billions of dollars. I thought that the GB Scrutiny Committee would be the appropriate body to supply the information that I had to executives of the State-owned line and the Minister responsible. So I thought deeply about the best way to put those questions, although the Committee’s work is, of course, protected by Parliamentary Privilege. I wanted to be careful not to make any personal suggestion or accusation against either the TT Line or the State Government over the purchase of the Bass Strait ferries.
I am not protected by Parliamentary Privilege here in this forum, so I will not give you the details of the information in my position, except to say that it led to questions about the purchase price of the two Spirit ferries and include accusations about the London-based broker involved, Mason Shipbrokers by a competing Norwegian-based broker. My main purpose was to ensure that the future ship dealings by the TT Line were transparent and above any criticism from any quarter. My concern, of course, is that we have two ferries at that stage, we now have the third and we are going to be buying and selling ferries for a long time in the future.
My first question on 4th March, 2004 was to the Chief Executive of the TT Line Peter Simmons. Here is a demonstration about how parliamentary privilege works. I made certain statements to the Scrutiny Committee, they are recorded in Hansard and recorded by the news media. They are on record, you can look at them and you can even quote them that I cannot.
I cannot quote from a parliamentary record of what I said in Parliament because of a deed, it will be seen as repeating the obligations originally under privilege, but now repeated by me outside Parliament. There is certain logic there. If I quote to you from Hansard, which is of course, protected by parliamentary privilege, as was the news media is reporting of the proceedings of the Scrutiny Committee, I would be seen as making my allegations outside parliamentary privilege. I am afraid I cannot tell you the really juicy bit of the story because that is the way parliamentary privilege works, but it is interesting. Perhaps, if I brought copies of Hansard and distribute them, we could have done it that way. Where would I still then? Nevertheless, I am allowed under parliamentary privilege to report to the response of TT Line’s Chief Executive, Peter Simmons, and he said that the accusations were absolute rubbish. I thought that was fair enough. I felt I had fulfilled my obligation to air the accusation and not being an expert in shipbrokering procedures, I had no qualms in accepting the response. However, it did not end there.
In my second year as a Member of the Upper House and on a very steep learning curve, I was about to receive a definitive and defining lesson in politics. This lesson can be summed up quite simply by:
· messengers get shot; and
· experienced politicians will stop at nothing to denigrate the bearer of embarrassing tidings.
I think that under Parliamentary Privilege, I can quote the then Acting Premier, Mr. Lennon’s aggressive and defensive response to my questions. I quote Paul Lennon’s statements from the Hansard:
“Madam Chair, before the Member continues with the question, that is an extraordinary allegation to make under parliamentary privilege without even attributing the allegation to anybody. You did say at the start that we were here to answer questions but that is an extraordinary allegation to make, without even attributing the allegation to anybody but yourself as the Member. I would ask if this line of questioning is going to continue, that you at least attribute who the allegations are being made by.”
I had, of course, said in my opening statements that I would be providing the name of my source and other material. However, the Acting Premier continued along the line that I have just quoted:
Well, the State Government decided that its best line of defence against the allegations that I had put to the Committee was to accuse me of abusing parliamentary privilege, and this was the line taken by the State Government media office and picked up by the press the next day. The Acting Premier was quoted as saying that mine was the worst abuse of parliamentary privilege he had seen in his 13 years in Parliament. Unfortunately, my record did not stand for long, because a few months later, Mr. Lennon accused a Member of the Lower House of perpetrating the worst abuse of parliamentary privilege he had seen in his 14 years in Parliament. As I have said, the Government pushed its media line accusing me of abusing parliamentary privilege and predictably the media picked up a line it had been fed.
I will quote the headline on the editorial in the Mercury Newspaper: “Finch abuses Privilege”.
Indeed most of the media picked up the Government’s line on the first day after the row in the committee. It was not until a day later that some political observers started to defend me, saying that I had, in fact, been doing my job, and that was what parliamentary privilege was for – to enable such an issue to be raised.
It was very gratifying when pressure was on that our top legal commentator with the Mercury Newspaper, Wayne Crawford, actually wrote quite a large piece, defending my actions and he said that he could, of course, merely have raised them privately with the Government and the TT Line, but as the University of Tasmania Political Scientist Associate Professor, Richard Herse says, that would be like privately asking Richard Nixon if he bugged the Watergate Building.
The Acting Premier obviously found his approach effective, for he repeated it in a similar situation about a year later when he was Premier. This time, it was before the Budget Estimates Committee and Mr. Lennon’s target was a Green’s Member, Kim Booth. Mr. Booth was trying to get to the bottom of reports that a property developer expected State Government funding of $10 million for a skybridge, which was part of his development proposal in Launceston. Probably unfortunately, he referred to the developer as, and I quote from Hansard (I am able to do in this case and Mr. Booth is not):
“A well-known architect of bottom-of-the-harbour schemes”
I would just like to quote a passage from Hansard which gives a flavour of the exchange that went on:
Mr. Booth to the Premier:
“You are shaking your head sideways.
“I am shaking my head at the way in which you just abused parliamentary privilege, that is what I am doing. That is just incredible.”
“No, I am asking Mr. Lennon whether in fact the skybridge has been funded.”
“Was the whole purpose of this question for you to defame another person using parliamentary privilege?”
So, it went on.
Accusing a questioner of abusing parliamentary privilege is a well-worn response to embarrassing questions in Tasmanian politics and unfortunately, it often seems to work, but I shall be prepared the next time.
The Mercury editorial described parliamentary privilege as a double-edged sword. There is some truth in that, but where would we be without it?
Thank you very much.
MR DEPUTY CHAIRMAN (Mr Teina Bishop – Cook Islands): We have about 15 minutes of questions and statements. Yes Mr John Carter.
HON. J. CARTER (New Zealand): Thank you, Kerry, for that comment. What was the name of the ACT Member who got into trouble?
HON. K. FINCH (Tasmania):- Mr. Paul Lennon.
HON. J. CARTER (New Zealand): If you are not familiar with it indeed, all of the MPs here will want to get hold of a court decision made around Owen Jennings of New Zealand, who got done for breaching parliamentary privilege by a statement, where he made a comment. I cannot remember the details Keith might be clear on it than I.
HON. K. FINCH (Tasmania): He said that the War Board had sponsored a rugby tour of England at the request of one of the Board Members, Mr. Bucannon.
HON. J. CARTER (New Zealand): He has made that statement in Parliament and commented on it at length and then outside of Parliament, he made this utterance; “I stand by everything I said”. That is all he said, he did not confirm or confirm that he had said it, he merely made that statement.
We have been told, though we are looking to now change the law around parliamentary privilege, to give parliamentarians greater protection (and I will tell you why in a minute), but the only comment you can make, having made a statement in Parliament that might be defamatory is; “Read the Hansard”. You make any other comment at all and you can be held up in court as a consequence of Owen Jenning’s ruling. The consequence of that, of course, is that it is likely then to apply in other Commonwealth countries, because as you know, your Judiciary extends its boundaries beyond that of just a country generally and will use it as a precedent. So, Owen Jenning’s case is important for us all.
The interesting thing, of course, is that what that has done is now put at risk, not just people as parliamentarians in our Parliament making statements in the Parliament itself, but also put at risk the fact that someone (layperson) might come and make a privileged statement in front of a Select Committee that may or may not be deemed to be defamatory and then be questioned by the media after they have made the statement; “Can you elaborate on that comment” or “Do you stand by it” – “Yes, I do”, bang, they are defamed.
Even more or as importantly, the worry is now that it could well extend into our court system, whereby you could have someone innocently coming to court to give evidence and that witness will say; “I saw Kerry Finch do x, y and z”, you are protected by the privilege of the court …
HON. K. FINCH (Tasmania).- I deny it.
HON. J. CARTER (New Zealand).- …but of course, you step out of court and the reporter says; “Can you elaborate on X” and you are then possibly/likely to be held up for defamation.
So, the Owen Jenning’s case in New Zealand (and I suspect across the Commonwealth), is a very serious issue that I think (not just in the New Zealand Parliament) but all Parliaments needs to address, Kerry. So, thank you for bringing that and allowing us in this forum to at least be aware of the Owen Jenning’s case. I do urge you, for those who are not familiar with it, go and study and get your Clerk of the House to study it and make sure that your own parliamentary privilege laws cover you, because they probably do not.
HON. K. FINCH (Tasmania): I do have a copy of that, if anyone wants to take a particular interest in it.
MR DEPUTY CHAIRMAN (Mr Teina Bishop – Cook Islands): Thank you Honourable John Carter. Katrina did you want to say something.
HON. K. HODGKINSON (NSW): Thank you, Kerry, a very interesting subject and one which we all should certainly brush up our knowledge on. It is very easy to get caught out.
HON. K. FINCH (Tasmania): It was a very interesting time. I tell you what happened, it was interesting, because in my first GBE, I had Premiere Jim Baker and he was quite, would say, fantastic in GBE, a terrific performer. He really wanted to embrace all of the questions, all of his agencies and wanted to really get down to the nitty-gritty of being fulsome with answers and was a terrific performer. He had subsequently fallen very ill and I am assuming it would be the same atmosphere and that I could be quite not aggressive, but questioning with the questions that I had. It took me a little while to get used to the environment that was actually created by Paul Lennon.
HON. K. HODGKINSON (NSW): I know, I have certainly been through a point in my parliamentary career, where I have had to exercise parliamentary privilege and I dare say that most Members in this room will, at one stage or another, have to exercise that. So, you have really pointed out today the importance of being very careful about how you say what you say once you are outside those timber doors.
I want to also just refer to your opening statements about language in Parliament and how the word ‘liar’ is not used. I would invite you into the NSW bear pit at some stage. I think if the British Parliament wants to brush up on where the issue of language is in parliaments, perhaps it should come and spend a session in the NSW Parliament as well. Very rarely a day goes past, where someone is not called a ‘liar’ in the NSW Parliament and an awful lot worse to boot.
So, it is a very provocative place and the Speaker often loses control. We have a situation, where the Labour Government has been an incumbent Government and been there for a long time (nearly 11 years) and the Speaker is obviously is a Member of the Government and is always ruling against the Opposition and the Opposition is just about fed up with it and really puts it on the Speaker all the time.
So, the language issue is one, which really seems to be falling into a bit of a heap right now.
HON. K. FINCH (Tasmania).- It does not service well, does it, because it must be very confusing for the general public, because they must be confused by the fact that in one minute, we will be in Parliament (and we do not do that sort of thing in Tasmania, of course, we are much more polite), but when you see it reported in your federal politics and other arenas and where it is reported as a stouch or a contest where bad language is used. Well, that is the peoples’ assumption of the way we behave and feel about each other.
HON. K. HODGKINSON (NWS).- No, I think it creates a very poor image.
HON. K. FINCH (Tasmania).- Yes, and then the public is confused, because the next thing you see, there will be an official opening of something or other and then the two people who have been stouching are out there shaking hands and glad-handing, as if they are old mates. It is a camaraderie that we share in Parliament, but it must be confusing for the general public, to see that twist in behavior.
HON. K. HODGKINSON (NSW).- Just a third small point. The Spirit of Tasmania – wonderful ships, they really are. I know that there has been a lot of controversy surrounding that, but as a passenger, they are great boats.
HON. K. FINSH (Tasmania).- Terrific. With our Scrutiny Committee, we were able to travel up to Sydney and back on the new Spirit III to give it a test run and it was just excellent. I was very proud of that edition to what we offer in Tasmania. Unfortunately, it has not been as successful as we would have liked it to have been, but we are working through that. It is a big operation to run. We have had a new change on the Board, you might remember Dennis Rogers who was the Chairman of the Australian Cricket Board –he has now taken over as Chairman, nothing to do with me, I might say. He is certainly bringing a new attitude to the operations of TT line and hopefully, we will see a recovery.
HON. K. HODGKINSON (NSW).- Just one other point. Who has been thrown out for breach of parliamentary privilege? Is there a case, where someone has been suspended or has it just been trial by media? What has happened?
HON. K. FINCH (Tasmania).- No, I cannot answer that, I do not know.
MR. CHAIRMAN.- Talking about the Spirit of Tasmania, we hope to see the Spirit of Aitutaki one day and we will come back to Tasmania for that exercise.
HON. B. BALDWIN (NSW).- I am one of those people that is fortunate/unfortunate to actually sit on our Privileges Committee of Parliament and also have the privilege of actually been before our own Privileges Committee of Parliament.
The one that has actually probably not well known by most parliamentarians and where they create a subjudice issue is presenting of documents to the Parliament, which then null and void them being used in legal proceedings in court. When a person brings in an allegation and supporting documentation, if you are not aware and you make the allegation and then table the supporting documents, none of those documents can actually be used in a court proceedings. Therefore, you have effectively destroyed any opportunity of prosecution.
The same can be said that if you were perhaps not as morally strong a politician as you should be and you had some people that you were involved with dark influences and you want to destroy a court case against them, you can take the original copies of the document into, table them and then again, they cannot be used in that prosecution.
We have had that situation recently, where I am involved in an investigation into a council and councilors in an area North of my electorate, in another State and for reasons of privilege, I will not go too far there at the moment. I raised it with our Speaker as a matter of privilege, not on the basis of the allegations of corruption, but indeed, the person who the allegations were against, that she made threats against me.
The problem is that what we found unprivileged, one thing is to be threatened and the other is for the action to be taken through carriage, the fact that a threat does not imply a breach of privilege against an MP. So, if someone threatens to sue you or threatens you with physical harm, that is actually not a breach of privilege, unless they actually bash you or commence legal actions, does it become a matter of privilege.
HON. K. FINCH (Tasmania).- I cannot see anyone bashing you, Bob.
HON. B. BALDWIN NSW).- The other part of it just on privileges, back in 1953 in the Australian Parliament, there were two people Fitzpatrick and Brown who refused to provide names of people for an article that they wrote and the threats against politicians. They were subsequently jailed for three months through the Australian Parliament.
We now have a case before the courts at the moment of two journalists who received confidential information (Cabinet and confidence documents) and published extracts from those documents. The crime at this stage is not for publishing those documents, though that will be heard later on, their crime is for failing to give up the sources of where they got those documents.
So, privilege, whilst it is a good thing, I think can also make martyrs out of people. Those journalists will not give up their source, but the Australian public today would look at the jailing of two journalists for contempt of the Parliament, for not giving up a source, actually is an exact abuse by the Parliament of its powers and privileges bestowed upon it.
I am one that actually thinks that the whole of the privileges laws should be brought up to date with modern time and thinking and perhaps, allowed the common law courts to take a direction and base that on the understanding of the rules of evidence and the jeopardy position that you can place court actions in. The fact that it can be as John says, you can make a statement in the House and Kerry did say that if you brought along the hansards, can I tell you that by the very sheer fact that you have brought hansard with an intent, with what is contained in there, you actually leave yourself open to that extent. You cannot refer people to the hansard website to go and look it up. All you can say is as John quite rightly said; “I made a statement in the House and it is in the hansard”.
HON. K. FINCH (Tasmania).- Whew, I nearly made two mistakes then.
HON. B. BALDWIN (NSW).- It a double-edged sword, as you have correctly said and it is as much protection as a danger for the average person. Whilst all committee proceedings are protected by privilege and I think as John and Katrina rightly said, if a person goes outside that committee and unknowingly and repeats the same thing, not only can they be sued for defamation, unless the committee has actualled tabled its reports at that time, can actually be charged for contempt of the Parliament for publishing information provided to a committee ahead of its report.
These things need to be modernised, brought into a realistic framework that modern people can actually duplicate.
HON. K. FINCH (Tasmania).- Those comments, it is a fascinating area of law.
HON. K. LOCKE (New Zealand).- Mr. Chairman, just to go a little beyond the Jennings case that my colleague John has just outlined. It did go further than that the Privileges Committee actually developing a report to change the definition of privilege so that you could affirm, outside of the House, what you said in the House. As long as you just said the equivalent to what Owen Jennings said, I don’t rezyle from the comment I made. If you go beyond that and elaborate in any way the first accusation then you would be done.
But that decision of the Privileges Committee to recommend the change has met with – there’s a lot of division in the community about that. The legal profession I think by and large is against that change. It is a difficult issue and I can’t really see my own way through the issue because, on the one hand you do have members of the community slandered by Parliamentarians that is being able to use the cover of Privilege. So, to extend that ability of slander by effective repetition does upset many in the community.
There is a little provision in our Parliamentary Procedures whereas if you are member of the community and you feel slandered and underprivileged, you have the right to apply to the speaker to have a counter-position printed and distributed in the Parliament which several people have taken up. But that doesn’t mean that the person slandered you is up for breach of privilege.
So, I’m not quite sure what the best solution is.
HON. KERRY FINCH (Tasmania): Cause you’ll be part of that debate won’t you Keith?
HON. KEITH LOCKE: Yeah.
HON. KERRY FINCH: When that takes place?
HON. KEITH LOCKE: Yes, we’ll be, myself and John will be part of that.
HON. KERRY FINCH: I suppose it was left until after this Election and you would then be proceeding with it? Well, it could be an interesting debate then?
MR CHAIRMAN: Okay. Thank you Honourable Member. We’ve got a couple more? Our time is running out. Wayne, the Honourable Member please?
HON. WAYNE MATTHEW (South Australia): Mr Chairman, I just wanted to briefly share some experiences from the South Australian Parliament by standards of behaviour and also privilege.
Firstly, in relation to standards of behaviour, Terry. Another one you could add to your list of words is the word “hypocrite”. One of my colleagues was actually suspended from the House for a day for using the word “hypocrite”. And he was asked to explain his case, and he pleaded his case, and requested of the Speaker to be given an alternative word to describe the actions of the Minister in view of the fact that the Minister was a hypocrite his actions were hypocritical. So what other word could he use? And for again re-using the word “hypocrite” he was expelled from the Parliament.
Having said that it hasn’t been particularly consistent because I’ve used the word twice since and haven’t been thrown out. Indeed one of my colleagues has as well. But of the moment the word was obviously one that shouldn’t have been used.
I was actually suspended from the House for a day, not for the use of un-Parliamentary language, but for rather describing particular actions taken by the then Speaker during the course of his time as a Member of Parliament. And some of you may be aware that while my political party gained the majority vote at the last election, one of my former colleagues decided that he’d like to be Speaker in a Labour Government and put us into Opposition. And we’d had problems as a Party with that particular Member for some time and I was often his lone defender if he wasn’t in the room, simply on the basis that I believed that if someone was going to be criticized they ought to be there to defend themselves. So, for that reason he regarded me with some respect knowing that I had at least defended him in his absence. But only to allow him to be there to defend himself. So I was given the task by my Party of unburdening some information to the South Australian community, and the Speaker wasn’t in the House when I was doing that, I did it through a closing grievance debate in the House one evening. And the next day at the start of Parliament he requested before the Parliament proceed any further that I apologise for my comments and withdraw. Upon which I said; “Well, Mr Speaker, I’m not sure which of my comments you object to, so perhaps you could detail to the House which ones you object to so that I can reflect upon them and decide whether I should withdraw.” He’d been around for too long to get caught into that trap, with all the TV cameras there and wasn’t going to repeat any of what I had said. Just simply wanted me to apologise and withdraw for the lot. And I just responded; “Well, Mr Speaker, that’s very difficult for me to withdraw that which I put on the record would be to withdraw that which is true.” Upon which I was immediately suspended from the House for a day. But it caused the Media to go back to what it said the night before and to air it publicly throughout the Media for the next two days. So I’m not sure it was actually a wise thing for him to do to bring attention to it. But I’ve never had so many phone calls of support at my office in my entire time as a Member of Parliament. It was quite amazing. My staff and I were just answering the phone for the whole of the next days.
So, I did find there are occasions on which it is okay to get thrown out of Parliament and not upset the electors.
HON. KERRY FINCH: Were those phone calls from the members of the Bowls Team?
Of which he was the Skip!
HON. WAYNE MATTHEW: I wasn’t identifying the Speaker involved but, yeah, there were a couple of interesting asides from those people as well.
The last matter I wanted to share is a matter of privilege that I was actually involved in when I was a very new Member of Parliament. And I’d only been in the Parliament for two weeks and some information had come to me about a murder that had occurred in Yatla Prison, our State’s main Prison. And the allegations were that the cameras had been turned off and this murder had occurred and the cameras in the Prison then went back on again.
I raised questions, in the Parliament, about that and the source of my information was a very accurate source. The Minister tried that perhaps some of the bluff that’s been used in the Tasmanian Parliament and accused me of abusing Parliamentary Privilege. That if I had information I should have gone to the Police or seen him in private and he would have ensured that occurred. And that he was so concerned about my allegations that he would immediately have the Police see me at the end of question time, which did occur. And I did give them a statement. I did highlight to them in giving them this statement that my informant had been to them but was concerned that his information wasn’t being taken seriously.
The next day the Minister waved my Police Report around in the Parliament. And said that the information I’d given to the Police they already had. And any Member who wanted to read my Police Statement could do so to see that I was simply repeating information that had previously been given to the Police. I thought, well hang on a minute, I’ve given a statement to the Police, any other citizen doing that doesn’t have their statement waved around in Parliament, nor offered to anyone else. So, I was a new Member, but I stood up and took a Point of Order, and asked the Speaker if such behavior was permissible and asked if it might not be a breach of Privilege, and could he consider that matter and if necessary come back to the House.
Well, the Speaker did in the next day, came back to the House and advised the Minister had in fact breached Privilege, and the breach was in his offering to furnish any person who wished to have my Police statement, and therefore called upon the Minister to explain himself.
The Minister, who was the Deputy Premier, very experienced in suing a Minister, humbly apologized and the Speaker accepted his apology and left the matter there. But I was warned by his colleagues he was absolutely livid, particularly being done over by a then 30 year old Member of Parliament and my life would hell thereafter.
And I have to say, he made my life hell thereafter!
So it was a very shallow victory.
HON. KERRY FINCH: It hasn’t served you too bad don’t worry.
MR CHAIRMAN: Thank you Honourable Member. If it’s okay, we are going beyond time. But, I think, if it’s okay with the Members, because we are supposed to start back at a quarter to ten, which means a 15 minute break.
So after Honourable Tom Stephens, I’d like to ask the Deputy Chair, before you finish things. Tom?
HON. TOM STEPHENS: I’ll be very quick. The Privilege discussion goes in a variety of different directions at any given time. In my own particular case, in the Western Australian Parliament, I’ve watched three sort of related issues that Members may find of interest.
One was the issue of a family law dispute. One party chose to start the discussion by having the issue raised in the Lower House.
The second party to the family dispute, then in response, had a Petition presented to the Upper House to raise their side of the dispute. This was immediately followed by the first party then committing suicide which changed the whole dynamics so dramatically that the question of the abuse of the Parliamentary Privilege then started to get introduced and focussed in on one side of the issue. And it played itself out in an extraordinary way in West Australian politics, and Australian politics as you’re probably aware, because the knowledge of the people involved in the Petition who knew it was about to be tabled, did the Premier and the Cabinet of the day know? Not long after there was a change of Government the new incoming Coalition Government utilized a Royal Commission to investigate everything about what went on in the Cabinet room in deciding whether or not to table that Petition or no.
And there would be people that would argue that a very illustrious career is being destroyed on the basis of that particular Petition – I’m speaking of the then Premier, Dr Carmen Lawrence, whose the question involved here that became the subject of the assessment was did she know that the Petition was about to be tabled before it was presented in the Parliament? Was the tabling of the Petition being used to create a political storm involving the people who had first raised the family law matter in the Lower House, that was her political opponent Richard Court. And because of the change of Government the focus only focussed in, in the Royal Commission, on the issue being raised in the Upper House and ignored where it had started with Ross Lightford and Richard Court in the Lower House. And the tragedy of the tabling, over the tragedy of the suicide, just shifted the whole dynamic to one side of the discussion, and had enormously painful repercussions politically, and of course in the domestic life of that family, and the tragic loss of life.
The second thing. The use of words. I once used the word “you’re biased” or “he’s biased”, typically wouldn’t be of enormous moment other than the fact that there was some time sensitive legislation about to be rammed through the Upper House of our State Parliament. It was considered to be time sensitive. It dealt with the Native title issues. I was Leader of the Opposition at the time and I have the Chamber’s record for the philibuster of 13 hours speeches are not unknown to me, sometimes. And as a result I was conscious that one of the best techniques that I could deploy would be a long speech on an issue that I knew a fair bit about. And the Presiding Officer was very well aware of what I was going to be doing and he was also a Member of the other side of politics, a long standing Presiding Officer, President Griffiths, and he was keeping me check-mated in a most unusual way that I’ve never – I’m a long serving Member of that House and I’ve watched the light hand of the Presiding Officer typically being applied in these circumstances and it was being vigorously deployed to keep me in check in a way that I would not be able to exercise the philibuster to prevent the passage of the Bill at the time that they were seeking. They were seeking the Bill to be passed prior to a Court decision. So I, inadvertently, described to the Press my views of the Presiding Officer as being biased. And I thought better of it a few moments later and went up to the Press and said “Look you’d better not put that in the Paper. Just say, some people might consider him to be biased.” He said “It’s too late it’s in the first Edition!”
The next day I’m in the House apologizing profusely. I begged the House’s pardon. I was charged and found guilty of contempt of the Parliament, breached the Privileges of the House and my philibuster was avoided because I was no longer in the House for the Native Titles Bill debate. I was thrown out having been found as a convicted felon the House in contempt of the House’s Privileges.
And the Native Title legislation that they had went through the Parliament and was subsequently struck down by the High Court, seven votes to zero. So they got nowhere with that.
Finally, I was going to say that in use of the processes of robust debate in the Parliament the whole use of related matters sometime you can find yourself defending the privileges of the place as we are attacked as a group of Parliamentarians – three sides of parliament or parties or for parliamentary committee into NZ. While away one the Members of the House accused us of being on a junket and this offended the Members greatly so we were going to explore the issues of privileges instead we chose stupidly to explore the issues of liable and went against him and his comments in the paper. It ended up eventually in a High Court in a case that come down Stephens and Others which the High Court found available the defence of public figure defence fair comment. It changed the Australian law liable to a point where there was a very futile exercise in terms of the sensitivities of Members of several sides of politics that we were all in that Committee offended by one of the Members of the House. We might been better of just going on for contempt for privileges in the Parliament.
MR CHAIRMAN (Hon. Teina Bishop, Cook Is.): Thank you honourable Member.
HON. BOB BALDWIN (NSW): There is a case in Australia, the Theophanus case. Theophanus was a Member of Parliament but under charge and subsequently found guilty on criminal aspects trying to actually table all the documents into the Parliament to avoid prosecution. He also tried on the basis of taking it to an Appeals Board and lost on the basis things along similar lines and came back on the same day because being a public figure, it was pretty hard to define a public figure such as a politician.
MR CHAIRMAN (Hon. Teina Bishop, Cook Is.): Thanks Bob. Sir Geoffrey Henry!
HON. SIR GEOFFREY HENRY, KBE (Cook Is.): Or perhaps Keith!
MR CHAIRMAN (Hon. Teina Bishop, Cook Is.): Yeah!
HON. KEITH LOCKE (NZ): One thing that came into my mind is the Jennings case is that what the Privileges Committee in recommending our law change said this that the question of separation of powers between the Court and the Parliament and what is said in the Parliament should be interrogated in a Court which is a long standing tradition. What the Privileges Committee argued that if by just saying that I do not recile from what I said in Parliament then that leads to court proceedings. The only way the court can deal with that substantive matter is to go and interrogate what the Member said in Parliament which gets away from the separation of power so that is interesting.
HON. KEITH FINCH (Tasmania): It is just that Chair, Bob does actually want a copy of this. If we got the numbers that how many want it who might want it we might get the copied off.
HON. SIR GEOFFREY HENRY, KBE (Cook Is.): Thank you Mr Chairman. One document I really enjoy reading is “The Rulings of Speakers”.
I was reading the ruling of the Speaker of the Federal Parliament of Australia and I go to a page where he had ruled certain expressions were un-parliamentary. I kept that document in my table in Parliament because I found un-parliamentary terms like Australians use is actually colourful compare to what we use and what the NZ parliament uses. There was one particular person I wanted to throw some colourful words that and that is none other than the Honourable Norman George. He was he then Leader of the Opposition. I looked through the book and there was a term that was considered un-parliamentary “babbling didgeridoo”. (…….Laughter………)
During the course of our debate, I threw that term on Honourable Norman George and fetch such a laughter. The Speaker did not know what to say. (Laughter)
But let me just share with you a couple of things in our as far at the Privileges Committee was concerned in the Cooks. At one time and this was back in 1988, we were in Opposition at that stage. Ministers were travelling overseas so frequently and became obvious that the budget for Ministerial of Parliamentary travel have been greatly exceeded. I mean they were travelling for any kind of reason just to get out of the Cook Islands. We did not mind them we were quite happy for them to be out of the Cook Islands but if they stay permanent we would have been happier.
I raise the question of travel by Ministers and the Speaker made a ruling that my comments could not be published in the newspaper and he that went further and ruled that details of the ministerial travel were not to be published at all.
The Speaker and I got into quite an argument and he realised he was loosing the argument and he kicked me out of the House for one day. It just happens that he and I are great sports people, love our sports and we were actually on the panel selecting the national rugby team. The next day he called me into his office and apologised for kicking me out and I apologised for being cheeky to him and we were back in the House all very normal.
As it happen, one newspaper did publish details of ministerial travel and the chap was brought before the Privileges Committee and charged with contempt and the charge held. The newspaper publisher was required to publicly apologise to the Speaker and to the Ministers for the information he had published. That was the first time our Privileges Committee had met. The second occasion was one where the daily newspaper published a cartoon and the cartoon which I did not think was objectionable indicated a gun going through the head of one of the Minister’s and exploding through the other ear on the other side. The Minister found this particularly objectionable brought it before the Privileges Committee and the young cartoonist was held in contempt and was required to apologise. Those are the only two occasions that our Privileges Committee has been called to and for your information a recent article really denigrated the current Speaker of our Parliament and he has now required that the Privileges Committee be convened when Parliament reconvenes in order to deal with that particular argument, just for your information. Thank you, Mr Chairman.
MR CHAIRMAN (Hon. Teina Bishop, Cook Is.): Thank you Sir Geoffrey and thank you very much Honourable Kerry.