THE PRESS WEDNESDAY, JULY 27, 1988. Parliament and the courts

Press, 27 July 1988, Page 16

THE PRESS WEDNESDAY, JULY 27, 1988. Parliament and the courts

The deliberate naming of people in Parliament after their names have been suppressed by judges in the courts, as was done by the Leader of the Opposition, Mr Bolger, and the member of Parliament for •Fendalton, Mr Burdon, recently, raises some profound Constitutional questions. These concern the separation of powers, justice itself, and the checks and balances within the system of government. If a court decides to suppress the name of someone who appears on a charge before it, all are required to observe the judge’s ruling in every circumstance except Parliamentarians within Parliament. Any failure to do so would be a breach of the Criminal Justice Act. However, the principle that what happens in Parliament cannot be questioned by an authority outside Parliament makes it possible for Parliamentarians to name anyone they wish and to override other orders made by the courts.

The principle has been of long standing and it would be practically unthinkable if the law were changed in any way to stop Parliamentarians using Parliament as a privileged place where they can speak without fear of prosecution. In this way Parliament can be a check on the courts. In some extraordinary circumstance a court might be deemed by Parliament to have acted improperly; Parliament could override the rulings. On the whole the courts should be left to do the job they have been appointed to do and political interference must be avoided.

The suppression of someone’s name by Court order is an action which needs to be obeyed scrupulously. The judge may be the only person who knows the reason for the

suppression of the name and, apart from any statutory contempt of the Court, a breach of the order may lead to thoroughly undesirable consequences, not just for the accused person but for other people as well. The use of Parliament to avoid the orders of the courts over the suppression of names is an awesome privilege and demands enormous responsibility on the part of Parliamentarians. Mr Bolger and Mr Burdon failed utterly in exercising that responsibility when they named people in connection with allegations of corporate fraud. They failed because the points they wished to make could have been made adequately without disclosing the names. Further, these were not instances of Parliament’s coming to considered conclusions; they were actions by individual Parliamentarians.

Apart from the incidents themselves and any wrong which may have been done, abuse of a privilege, or the stretching of it, is bound to bring about the suggestion — as it did in this instance —' that the law should be revised or clarified. The principles of justice and democracy and the relationship between the courts and Parliament and the Crown, from which the courts derive their authority, are too critical for an attempt to alter the law in a way that diminishes Parliament’s power and privilege. What needs to be stopped is any frivolous use, or other abuse, of the privilege. Mr Palmer, the'Attorney-General, has put forward the idea that the Standing Orders of the House should be examined to see if there are ways of preventing a recurrence. That is an acceptable approach; changing the law is not. No move should have been necessary at all. But if it is, it should be done within Parliament’s own rules.