Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Hansard source

In which case, Mr Speaker, I move :

That so much of the standing orders be suspended as would prevent the Honourable Member for Sturt from moving the following motion forthwith:That this House:

(1)

condemns the Government for its contemptible treatment of the Parliament in refusing to release legal advice it has that pertains to the operations of this House;

(2)

condemns the Government for its hypocrisy, in that it claimed a new era of “disclosure and transparency” in the Governor-General’s speech to the Parliament at its opening, while covering up legal advice that has a direct bearing on the protections for members of this place afforded by parliamentary privilege;

(3)

condemns the Leader of the House for his reckless indifference to the impact the Government’s changes to the standing orders may have in relation to parliamentary privilege by suspending quorum requirements, and urges the Government to proceed with an abundance of caution;

(4)

insists that the suspension of quorum requirements for Monday, Tuesday and Friday sittings be abandoned until the Government and the Parliament can be convinced that there is no ambiguity surrounding the Government’s proposal; and

(5)

in the alternative to (4), proposes a moratorium on Friday sittings, until the legal status is unambiguous.

The Leader of the House is unfortunately drunk with power, acting like an Ottoman potentate when it comes to the standing order changes being proposed for Fridays, Mondays and Tuesdays. Unfortunately, the government’s changes show that it is acting with reckless indifference to the doubts that still exist over the suspension of quorum on a Friday. It is indicative of a government already out of touch after less than three months in office.

This is a very important debate. Members of the House should be aware that for them it has a direct bearing on how they operate as members of parliament in this place. They are putting all their trust in the member for Grayndler to have gotten this right. They have not seen the legal advice. We have not seen the legal advice either. The Speaker, who is responsible for the parliament, has not seen the legal advice. It is a disgraceful display on behalf of the government. If members of parliament on both sides of the House—and Labor should be particularly interested in this—were aware of the danger to them on a Friday sitting, or even on a Monday or a Tuesday between 6.30 and 8 pm, in speaking in this parliament without parliamentary privilege, they might well have a different view about the standing orders being implemented by the government.

My view, after the last two weeks of studying this change to the standing orders, is that there is a serious ambiguity about whether the Constitution of Australia at section 39 allows for quorum to be suspended. I will get to that in a moment but, first, the culture of disclosure and transparency. The Governor-General was given a speech, as he is by the government at the opening of a new parliament, in which he said:

Laws relating to government information will be enhanced by promoting a culture of disclosure and transparency.

On two occasions in the last two weeks, the opposition has—I think quite sensibly—asked for legal advice to be given to it, and to the Speaker in one case, about two issues. One of course was the issue of compensation for stolen generations. That is not the subject of debate today. The subject of debate today is parliamentary privilege attaching to the House when a quorum is not present and when there is a suspension of quorum requirements.

We sought that legal advice in this new culture of disclosure and transparency, and it was denied to us by the government. I asked on behalf of members whether the legal advice would be provided to the Speaker, who has a responsibility to the parliament and also, being a sensible Speaker, wants to know exactly how the parliament is operating. He was denied that legal advice. In his statement to the House yesterday morning, he made it clear that he had sought advice from the clerks, who are excellent, but had not been able to obtain legal advice from outside the parliament, nor would the government give him the legal advice.

So how does that fit with the new culture of disclosure and transparency? Tragically, for the House it is yet another one of Kevin Rudd’s smoke and mirrors. He puts out a statement but he never intends to back it up, and the danger for Labor members in their great new confidence in government, having just won seats with 42 new members on that side of the House, is that they are putting all their trust in people who operate only on the basis of smoke and mirrors.

But to go the substance of this debate, section 39 of the Constitution says:

Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.

Section 39 conceives of a quorum having to be present or there being quorum requirements. Certainly it says there should be one-third, but the parliament can change that number, and the parliament has acted to do so. But the Constitution does not conceive at all of a suspension of quorum requirements in their entirety. The danger is that, if the parliament sits in breach of section 39 of the Constitution, if one of the members of the House comes into this place and talks about a constituent, a business or an opponent of some kind or whatever and says something that would be actionable outside the parliament, it might not be protected by parliamentary privilege. This goes very much to the core of how members of parliament operate.

The father of the House, the member for Berowra, spoke on this issue yesterday and members should listen to what he says. There is in this area a need to proceed with an abundance of caution, but the Leader of the House is instead proceeding with reckless indifference to the way the House is managed and to our protection. So I guess I am acting like the shop steward of the parliament in trying to protect—the first time, I admit—the members of parliament from themselves in so many ways. I am sure the new member in Newcastle would appreciate that at least somebody in this House is looking after the interests of the parliament.

I go to the Speaker’s statement yesterday to the parliament, which of course was an excellent statement—and I congratulate the Speaker on the effort that he put into making sure that he is at least across the dangers. Unfortunately, in that statement there are a number of ambiguities left open for us. For example, the Speaker said:

The Clerk is not aware of any case concerning parliamentary privilege in respect of either house, which has been decided on the basis of whether a quorum had been present when words were spoken or actions taken.

Later on he said:

Certainly no relevant cases in which privilege has been an issue have arisen since those provisions have been operative.

That is, the provisions to do with quorum. So we are in uncharted waters. The Speaker himself has admitted it. There is no precedent for what the government has proposed and passed in this House. The danger is somebody will take a case to discover a precedent, and the government will be found wanting. Why would we proceed on the basis of an ambiguity? Why wouldn’t we want to have clear advice about the actions being taken? Why won’t the government release the legal advice? Surely, if it is watertight they would have absolutely no doubt in doing so. Every member of this House should want to see that legal advice so they can convince themselves that they will not be the subject of a defamation case for what they say in this place. The fact that you are proceeding as blind sheep—or lemmings, as some would say—is a danger to the parliament and to your electorates.

The Speaker also said:

... it may be held that words spoken and actions taken from the commencement of a sitting until the adjournment of the House form part of ‘proceedings in parliament’.

The statement says ‘it may be held’. I am sure the new member for Isaacs would know that the word ‘may’ means that there is a doubt. It may not be held. Why isn’t it ‘will be held’? It is not ‘will be held’ because the Speaker does not have the legal advice. He could not seek any legal advice. The government would not give him any legal advice, so he had to say ‘it may be held’, in which case there is a doubt. There are a number of lawyers in this place—it is true—and I am sure every one of those lawyers will be thinking to themselves right now: why doesn’t it say ‘will’? It does not say ‘will’, because there is an ambiguity, and the act to suspend standing orders today would put on the record that that side of the House was aware of the dangers in uncharted waters and that that side of the House acted with reckless indifference.

The Speaker went on to say:

... it is not easy to see that words spoken by members or actions taken by them during such proceedings would be found not to be covered ...

It is not easy to see—I am sure the Speaker meant the best when he put those words in his statement, but it creates an immediate ambiguity. What does it mean: ‘it is not easy to see’? I know it is an Australian colloquialism, but it does not give me any hope that the government knows what it is doing, and hope is no antidote to legal ambiguity. Section 39 of the Constitution makes this very clear.

I know that the Leader of the House wants to be the ‘Big Joe’ of parliament. The ‘Big Joe’ is actually over this side of the House. He follows in a long line of leaders of opposition business since 1996: the member for Hotham, the member for Fraser, the member for Lilley, the member for Werriwa, the member for Lalor and then the member for Grayndler—each one burnt on the pyre of this parliament. Unfortunately, the member for Grayndler was burnt on the pyre of this parliament over— (Time expired)

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