Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I, too, rise today to speak to the Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022. This bill before us today raises issues fundamental to our parliamentary democracy. In the first instance, can I recognise the passion shown by Senator Lambie and her commitment to veterans throughout Australia.

The amendment arises from the recommendations of the Royal Commission into Defence and Veteran Suicide interim report. You will recall that the royal commission was set up by the former coalition government in 2021. Its clear intent was to reduce deaths by suicide within our veterans community. I think, without a doubt, we'd all agree the death of any ADF member or veteran is tragic and is deeply felt by the entire community.

In the 2021-22 budget the former coalition government provided $174 million to fund the royal commission and examine the systemic issues surrounding death by suicide of veterans. There is no doubt the royal commission provided very clear acknowledgement of the issues involved. I think it was an extremely important process for the families of our defence veterans and, indeed, part of the healing process for some families. That process, to share their stories and experiences, while extremely distressing, will be of enormous value to all future members of our defence forces. I pay tribute to those who were involved in this way. We know this is a highly sensitive and complex issue, and that there are deep emotional scars that relate to these issues.

The interim royal commission report was tough reading but the coalition was prepared for this. Our commitment to serving Australian Defence Force members and veterans was sacrosanct and required no stone left unturned to address defence and veteran suicide. Our support for Australian veterans and their families was in recognition of the service and sacrifice they have made to keep our nation safe and secure.

The bill before us deals with the issue of parliamentary privilege, arising from one of the recommendations in the royal commission interim report. As we know, in this place parliamentary privilege refers to special legal rights and immunities which apply to each house of parliament, its committees and members, and is a fundamental part and process of what we do here. We are given a special legal status because it is recognised there are tasks performed here that require additional powers and protections. Special rights and immunities are necessary because of the functions in this place. For example, we need to be able to debate matters of importance freely, to discuss grievances and to conduct investigations effectively without interference.

Section 49 of the Commonwealth Constitution provides that, until declared by the parliament, the powers, privileges and immunities of the Senate and the House of Representatives, and the members and committees of each house, shall be those of the British House of Commons at the time of Federation—being 1901. It was not until 1987, following a thorough review of the whole subject by a joint select committee, that the Commonwealth parliament passed comprehensive legislation in this area. The Parliamentary Privileges Act described the proceedings in parliament to which privilege will apply as:

… all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee …

It includes but is not limited to:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

The act prevents this royal commission from receiving or tendering evidence of the nature that I have just described for the purpose of: (a) questioning or relying on the truth, motive intention or good faith of anything forming part of those proceedings in parliament; (b) questioning or establishing the credibility, motive, intention or good faith of any person; (c) drawing, or inviting the drawing of, interferences or conclusions wholly or partly from anything forming part of those proceedings in parliament; or (d) going beyond providing an occurrence of events in parliament, including what was said in the course of parliamentary proceedings.

The privilege of freedom of speech is often described as the most important of all privileges. Its origins date from the British Bill of Rights of 1689. Article 9 of the bill of rights provides:

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.

As this was one of the privileges of the House of Commons in 1901 it was inherited by the House and the Senate under the terms of the Commonwealth Constitution.

Section 16 of the Parliamentary Privileges Act preserves the application of the traditional expression of this privilege but spells out in some detail just what may be covered by the term 'proceedings in parliament'. The practical effect of this is that those taking part in proceedings in parliament enjoy absolute privilege. It is well known that members may not be sued if they make defamatory statements when taking part in debates in a house. But the privilege is wider than that and, for instance, protects members from being prosecuted if, in a debate, they make a statement that would otherwise be a criminal offence. The privilege of freedom of speech has been described as a privilege of necessity. It enables members and senators to raise matters they would not otherwise be able to bring forward, at least not without fear of the legal consequences. The privilege is thus a very, very great one, and it is recognised that it carries with it a corresponding obligation that it should always be used responsibly.

The privilege of freedom of speech is not limited to members and senators in the parliament. It also applies to others taking part in proceedings in parliament. The most obvious examples of others who may enjoy absolute privilege are witnesses who give evidence to committees.

Parliamentary privilege provides parliamentarians in both houses of parliament with freedom of speech in debates or proceedings in parliament. It does so by preventing courts and tribunals from interfering in these matters. As such, it upholds the separation of powers doctrine within the Australian Constitution.

Parliamentary privilege extends to royal commissions because they are included in the definition of tribunals. The proposed amendment to the Parliamentary Privileges Act 1987 would mean royal commissions and other tribunals could have evidence tendered or received; ask questions of statements, submissionsor comments made concerning proceedings in parliament for the purpose of drawing, or inviting the drawing of inferences, or conclusions wholly or partly from anything forming part of those proceedings in the parliament. Royal commissions already have extraordinary powers which go far beyond the powers of a criminal court. The ancient rights of parliamentary privilege must be preserved so proceedings of the parliament can be carried out without hesitation.

Members of parliament, witnesses before committees and the reports of committees are subject to parliamentary privilege to ensure the parliament can access all information required for its deliberation and processes. This protection is important to ensure that those participating in parliamentary processes can engage without hesitation, and it ensures the primacy of the parliament in our democracy. On that basis, the coalition will not be supporting the bill.