Workshop Session 4A: Operation of Privileges Committees

Workshop Session 4A:Operation of Privileges Committees Referral of matters of privilege for inquiry

Claressa Surtees, Australian House of Representatives • Bridget Noonan, Legislative Assembly of Victoria • Robert McDonald, Legislative Council of Victoria

Select survey of legislatures

Sudden matters • Most jurisdictions provide for a member to speak on a matter of privilege suddenly arising • Few precedents; probably an emergency situation • Modern practice: to suspend sitting and deal with the issue outside Chamber?

Forum for raising complaint • Two main ways for MP to raise matters • 1. In the House, by the member making the complaint (eg, NSW LA) for determination in public • 2. By writing to the Presiding Officer (eg, Vic LA) for confidential determination • Advantages/disadvantages?

Matter raised by others • Speaker • Serjeant at Arms • Committee report • Independent body (anti-corruption commission etc)

UK House of Commons • Member writes to Speaker • Confidential • If prima facie case made, matter has precedence in the House • If not, no further action (other than general caution) • House can refer to committee

UK House of Commons cont • Raised by Speaker • Raised by Serjeant-at-Arms • Reported to House in a committee report

New Zealand • Member raises with Speaker at earliest opportunity • Speaker makes an assessment • If Speaker determines there is a case, announced in House and referred to committee

NSW Assembly • Member raises in House, sets out prima facie case • If Speaker agrees, member gives notice of motion which takes precedence • House then determines action (eg refer to committee)

NSW Council • Member informs President in writing • President determines whether motion should have precedence in House • Referral debate follows • If no precedence granted, member may still move to refer matter (see also Qld)

Queensland • Member writes to Speaker • Speaker makes determination • Speaker refers matter to committee • if not referred to committee, Speaker still informs House • Member can move that matter be referred, regardless of Speaker’s view

Queensland cont • Speaker can identify issue in House and refer • Referrals can come from committee report • Does this method give the Speaker too much responsibility? Or does reporting decisions to the House provide balance?

WA Assembly • Raised in House • If Speaker considers matter has substance, priority given to motion without notice for referral to committee • Comment on recent cases?

WA Council • Raised with President in writing • President advises Member in writing • Precedence in House

Other jurisdictions • Anything to raise?

Discussion points • Rights of person (member or non-member) subject of a complaint? • Should there be a set timeframe for the Presiding Officer to make a decision? • Should the Presiding Officer report to the House on complaints rejected, with reasons? • What if the Presiding Officer is the subject of a complaint?

Composition of committee • Is a group of MPs the right forum for making determinations about another MP? • How to safeguard against perceptions of bias? • Note the composition of the UK Commons Committee on Standards and Privilege

Members are politicians … • Complaints against non-members • Complaints against members: party politics may affect likelihood of referral • Recent examples of complaints against government member being referred?

Discussion points • What is fairer/clearer to all those involved: raising matter confidentially in writing to Presiding Officer, or raising in the House? • Does prior discussion in the House compromise a later committee investigation? • How confidential is a complaint? Victorian case study.

Three Australian case studies • Legislative Council of Victoria • Legislative Assembly of Victoria • House of Representatives

Legislative Council of Victoria • Standing order 22.01 • No successful referral to committee in 150 years

Legislative Assembly of Victoria • Procedure changed in 1978 • Member writes to Speaker • If prima facie case made, precedence given in House

Legislative Assembly of Victoria • Member moves motion for action (ie, referral to committee) • Arguments for/against procedure (precedents)

House of Representatives • Committee of Privileges and Members’ Interests • Standing orders 51, 52, 53 and 216

Three avenues of referral • Allegation when the House is sitting • so 51 • Allegation when the House is not sitting • so 52 • Any other related matter – so 216

Role of Speaker • Significant • Discretion/opinion • Access to sufficient information

House is sitting – so 51 Member – • may raise complaint in the House • must be ‘prepared to move’ motion • House refers

Conditions – so 51 • prima facie case – opinion of Speaker • raised at the earliest opportunity • presentation of publication

Matter raised in the House • Member for Hume • Speaker’s response later

Matter raised in the House • Chief Government Whip • Speaker’s response immediately

House not sitting – so 52 Member – • may raise complaint with Speaker • must propose referral to committee • Speaker refers

Conditions – so 52 • matter arose since last sitting • House not sitting for two weeks • matter requires urgent attention • prima facie case – opinion of Speaker

Referral of other related matters • Right of reply applications • Other matters - use of House records in the courts - public interest immunity - release of archived records of the committee - legal status of Members’ records and correspondence

Referral of other related matters 17 June 2008 – the issue of the exchange between the Member for Robertson and the Member for Indi on 28 May 2008 and the subsequent withdrawal and apology by the Member for Robertson on 29 May 2008

Motion by Member • Member for Mackellar

Workshop Session 4A: Operation of Privileges Committees