LSB February 2018_Web_LSSA

POLITICS AND THE LAW
Order No. 437 which was accepted by
the witness. The second referred to the
Chairperson’s refusal to see him “some
weeks ago because as he stated over the
telephone, he had ‘made up his mind on
the matter’ and that [he] would be better
advised to seek somebody else who had
not made this decision. [He went on
to request] … the reassurance of the
Committee that the hearing of evidence
tendered will be examined in a completely
impartial manner and not subject to bias in
any way, shape or form”.
The Chairperson gave the assurance
that the Committee would look at this
matter impartially. Further, the position
was explained in relation to charges made
against Members of the Committee, in
that “if any information comes before a
Committee that charges any Member of
the Council, the Committee shall only
direct that the Council be acquainted with
the matter of such information, without
proceeding further thereupon”.
Subsequently the witness wrote to the
Secretary of the Select Committee and
“formally” charged the Chairperson with
being unduly biased etc. The Committee
agreed upon a Special Report to the
Council on the matter “in order that the
Council may take such steps as it shall
think fit”. Other witnesses forwarded
correspondence to the Committee
indicating that they too were unable to
give evidence in support of Scientology
as they had been forced to the view that
the Chairperson was biased, but offering
to reconsider their positions if the
Chairperson should resign.
The Special Report drew attention to
the letter from the witness which was
addressed to the Clerk of the Legislative
Council and stated:
“that as such letter appears to reflect upon the
conduct of the Chairperson, the Committee
has agreed to report the same to the Council
in accordance with Standing Order No. 399
and that the letter and relevant Minutes of
Evidence be Tabled with this Special Report in
order that the Council may take such steps as it
shall think fit”.
After the Special Report was Tabled
(5 November, 1968), the Council resolved
to summon the Witness to appear at the
Bar of the Council on the next Tuesday
of sitting “to answer such questions as the
38 THE BULLETIN February 2018
Council may see fit to put to him regarding
his letter concerning the Chairperson of
the Select Committee on the Scientology
(Prohibition) Bill 1968”. On the next
sitting Tuesday (12 November, 1968), the
Clerk was required to read the Resolution
concerning the Special Report of the Select
Committee and Black Rod was required to
ascertain whether the witness was present.
Having so determined, the President
ordered that the witness be brought to the
Bar. He was questioned as to whether he
was the person mentioned in the Minutes
of Evidence and whether he signed the
letter attached to the Special Report. After
the witness confirmed that he was the
said person, he was asked to withdraw,
following which a motion was moved:
“That in the opinion of the House the
writing and sending of the letter was highly
improper conduct and the House, without
proceeding to the question whether that conduct
constitutes a contempt of the House, issues
a warning to …(the witness) to refrain from
a repetition of such conduct in the future
which could be attended with most serious
consequences”.
Considerable debate occurred with the
then four Labor Members opposing the
motion. The motion was carried on strict
party lines. The witness was then recalled
to the Bar and the President informed him
of the Resolution and added:
“To deliberately attribute to the Chairman of
a Select Committee a lack of impartiality is a
contempt of the Legislative Council, which, on
being duly established, can be severely punished.
Honourable members, when individually
engaged on official duties both inside and
outside the Chamber, are obliged to make up
their minds and speak out as they think fit, but
when sitting as members of a Select Committee
they are, whatever they may have said before,
under a strict duty to be impartial, and they
invariably discharge their duties. That concludes
the proceedings, and you (the witness) may
withdraw”.
This was the last time that such action
occurred. At the time, the summoning
before the Bar did not reflect well on the
Upper House and was treated so in the
local press. Subsequently, Committees and
Members have always been counselled
against proceeding thus in the public forum.
In 1987, a Member of the House of
Assembly made certain allegations in
Parliament. Those allegations implied that
a member of the public had sought and/
or received favoured treatment because of
close association with the former Labor
Government. Subsequently, a Newspaper
published a letter written by this member
of the public in which he disputed the
allegations saying that they were unfounded
and defamatory. The Member of
Parliament then issued proceedings against
this person and the Newspaper alleging
that the letter was defamatory.
The member of the public and the
Newspaper filed their defence to that
claim. The defence pleaded qualified
privilege, fair comment and justification
(i.e. truth). On the face of it, the defences
of fair comment and justification (at least
as pleaded) would require the Court to
determine whether the allegations made
by the Member in Parliament were true.
The Court would probably also be required
to inquire into the Member’s motives
in making the statement. The Member
of Parliament then applied to have the
defences struck out as being in breach of
Parliamentary privilege. He argued that
the privilege was absolute and that the
Court could not hear any evidence of what
occurred in Parliament.
The Judge accepted this argument and
struck out the relevant defences. This had
the effect that the member of the public
a defendant faced with an action by a Member of
Parliament for defamation has a right ... to crossexamine
the Member of Parliament as to the facts
of the statement which was made in the Parliament
and to which a citizen’s response may related, the
motives and even the sources of information.