Hanson and Arena: Should there be limits imposed on parliamentarians' freedom of speech?
Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
What they said ...
`I asked questions which I felt it was important for me to ask after I was contacted by several people ... As a member of parliament I have a duty to my constituents. Throughout this whole affair I have acted according to my conscience'
New South Wales Labor backbencher, Mrs Franca Arena
`It will happen again as long as politicians aren't held accountable ... for who they malign, or how, under parliamentary privilege'
Mrs Barbara Campbell
The question of parliamentary freedom of speech has attracted significant attention over the last year, especially since September, 1996.
In September, Independent MP, Ms Pauline Hanson, during her maiden speech, challenged Aboriginal funding and Asian immigration, thus raising questions about what sentiments it is appropriate to express in federal parliament.
In November, Labor backbencher in the New South Wales Parliament, Mrs Franca Arena, referred by name to a former NSW Supreme Court judge as having received preferential treatment in an investigation into paedophilia. The judge's subsequent suicide has encouraged serious consideration of restrictions being placed on parliamentary privilege.
Background
Broadly, there are two types of speech within parliament that may be of concern.
Firstly, there are the sorts of utterance, such as those made by Ms Pauline Hanson, that are considered by some to be damaging because they potentially create ill-will within the community and have the capacity to foment violence, in this instance racially motivated violence.
Secondly, there are comments made within parliament about individuals that are potentially defamatory, having the capacity to seriously damage the good name of the people referred to.
If utterances of this second sort were made outside parliament the people affected would be able to sue for defamation and be given compensation and/or a retraction.
This is not possible when the remarks are made within parliament. Parliamentary debate is protected by parliamentary privilege, which means that members of parliament cannot be sued for any remarks they make within the parliament.
The only limitation placed on what parliamentarians may say is that they cannot deliberately misled parliament.
There are parliamentary privileges committees to which a member can complain if his or her capacity to operate as a member of parliament has been in any way restricted. These committees can impose penalties, including imprisonment. However, there is no equivalent body to which citizens can complain if they believe they have been damaged by parliamentarians improperly using their parliamentary privilege.
However, in 1988, the Australian Senate became the first legislature in the world to give citizens aggrieved by parliamentary privilege the right to have their written reply to accusations incorporated into the parliamentary record.
Arguments in favour of restricting parliamentarians' freedom of speech.
Ms Hanson's maiden speech has been subject to censure on a variety of grounds.
Firstly, Ms Hanson's speech broke the parliamentary convention that maiden speeches should be uncontroversial.
Maiden speeches are intended to allow new members of parliament to introduce themselves to the house they are addressing.
Such speeches are not intended to be the subject of debate and are to be listened to in silence and without response from the parliament, beyond perhaps polite encouragement. As such, they are a privilege or courtesy extended to the new member of parliament.
The Age, in its editorial of September 16 noted, `It is parliamentary custom that a maiden speech should be uncontroversial, and is generally heard in gracious silence.'
The only response which most members of parliament seem to have felt able to make was to leave the chamber. The Age editorial of September 16 also noted, `Mrs Hanson's speech was ignored by her fellow parliamentarians to the extent that not one Labor parliamentarian and very few Liberals stayed to listen.'
Even the Prime Minister, Mr Howard, when reassuring the Parliament a month later that Australia was committed to racial tolerance, noted that he did `not believe it appropriate ... to define the policies of the government or the party by reference to a maiden speech of an Independent member of Parliament.'
The end result is that where the convention is flouted and controversial material is introduced there is generally not a countering view presented and the maiden speech and the views expressed within in it may gain more prominence than they deserve.
Thus it has been argued that sanctions should be imposed so that new members of parliament do not continue to ignore conventions in the name of promoting their own views.
Ms Hanson's speech presents further problems in that as the speech of an Independent it was not subject to the moderating influence of the party room.
Major political parties generally have well considered and usually responsible positions on significant policy areas. These positions are then meant to be adhered to by all parliamentary members of the party and a failure to support party policy usually leads to expulsion from the party.
Ms Hanson originally ran as a Liberal candidate for the Queensland seat of Oxley. Her anti-Aboriginal views led to her losing endorsement as a Liberal candidate.
Once Ms Hanson won the seat as an Independent she was then regarded by some as a `loose cannon' in that there was no longer any party machine to attempt to check her freedom of expression.
Thus, it is argued by some, Independents may represent special cases where there is need for restrictions on freedom of expression within parliament.
The final criticism levelled at Ms Hanson's maiden speech deals with the issues she chose as her subject matter.
The Age, in its editorial of September 16, claimed that Ms Hanson `degraded another, more important, tradition [than that governing maiden speeches] ... the tradition of tolerance.' The editorial is critical of Ms Hanson's comments on both Aboriginal funding and Asian immigration which it claims are racially based.
According to this line of argument there are certain sentiments that are likely to create ill-feeling in the community. Such comments may either give serious offence to particular groups or promote prejudiced and possibly violent behaviour. Racially bigoted comments are placed in this category.
Those who fear the results of such comments argue that they should not be made in Parliament as they sanction prejudice in the populace at large.
Thus the Age editorial claims, `[No] major party can afford to identify with the selfish, fearful emotions that underpin [Ms Hanson's] unashamed bigotry.'
Greg Sheridan, a columnist in The Australian, has commented on `the atmosphere of paranoia that Hanson's speech generated.' Mr Sheridan went on to claim, `There is a lot of free-floating anxiety in Australia that could easily and destructively fix on scapegoats, be they Aborigines, Asians, Jews, Catholics or any other nominated minority.'
An extension of this argument is that parliamentarians have an obligation to prompt peace and civil harmony. This obligation is said to extend beyond the need to reflect the popular will. Thus if racially prejudiced attitudes are present within the community, it is claimed that it does not follow that politicians must represent such points of view.
Rather, some claim, politicians should attempt to educate the majority of the electorate because they are elected to govern for all people, not merely the principal ethnic and cultural group within the community.
Columnist, Greg Sheridan, has stressed that political leaders have a responsibility to promote `justice, fairness, civility and decency for Australians regardless of their ethnic background.'
On the question of damaging remarks made within Parliament about individuals rather than groups, it has been claimed that there should be penalties imposed on those who exercise parliamentary privilege recklessly and/or that aggrieved parties be given a right of reply to be incorporated in the written record of the relevant house of parliament.
Mrs Arena's comments have been criticised on a variety of grounds.
The major criticism made of parliamentary privilege is that it is able to be used irresponsibly. Those who make comments under parliamentary privilege can do so with no penalty attached and no means of being held accountable for the accuracy of their comments or the damage they might do.
Mrs Barbara Campbell (whose daughter, Penny Easton, committed suicide after a petition tabled in the Western Australian Parliament falsely alleged she had committed perjury) has claimed, `It will happen again as long as politicians aren't held accountable ... for who they malign, or how, under parliamentary privilege.'
Peter Yeldham, the brother of retired judge, David Yeldham, has claimed, `He [Justice David Yeldham] had no idea how to rebut what was said in parliament. I think he was just too shattered by the whole thing to deal with it.'
This is in part a reference to the fact that as Mrs Arena's remarks had been made within parliament, Justice David Yeldham was unable to bring defamation charges against her.
Peter Yeldham has also stated, `I think it is an absolute disgrace to smear people's names by innuendo and it is quite wrong anyone can hide behind that [parliamentary privilege] and say anything they like.'
Former Labor federal attorney-general, Michael Lavarch, has claimed, `There are little limits upon what an individual politician may say in Parliament and no legal remedy for a person on the receiving end of an unjustified and unfair attack.'
Secondly, Mrs Arena has been criticised for commenting on matters being investigated by a royal commission. The New South Wales premier, Mr Carr, has stated that to interfere in the course of a royal commission was `wrong and reckless.'
According to this line of argument, such comments are premature as they have been made before the royal commission has completed its work and may also make it more difficult for the royal commission to proceed effectively.
Thirdly, Mrs Arena's comments have been criticised as unsubstantiated and potentially false. Justice Wood has criticised the `uninformed and those who either have no evidence or are not prepared to test the truth of the information that they have.'
Fourthly, Mrs Arena has been criticised for making as yet unsubstantiated comments that were very damaging to the individual involved.
Greg Craven, a reader in law at Melbourne University, has stated, `Most important of all, the graver the allegation, the more certain ... [parliamentarians] must be of its truth before raising it in parliament. It is no defence to the charge of having shattered a life to say it seemed like a good idea at the time.'
Critics of Mrs Arena's comments have further noted that where serious allegations are made about an individual under parliamentary privilege, the parliamentarian making the allegations must at the same time present the evidence upon which the allegations are based.
There have been a number of proposals for the limitation of parliamentary privilege. One is to offer aggrieved people a formal right of reply in the relevant house of Parliament. (This proposal is currently under review by the New South Wales parliament.) Another is the automatic expulsion from parliament of those who misuse parliamentary privilege. A third is that parliamentarians who have misused parliamentary privilege should be expelled from their political parties.
Arguments against restricting parliamentarians' freedom of speech.
The fundamental argument offered against restricting parliamentarians' freedom of speech is that this freedom is vital to the proper functioning of a democracy.
According to this line of argument, even if a politician makes statements that may excite racial hatred, or makes comments that may damage the good name of another individual, the fundamental issue is that debate within parliament should not be restricted.
Looking first at the arguments put by Ms Pauline Hanson, it has been argued that though some of her sentiments may be regrettable there should be no attempt made to restrict her right to comment as she wishes.
Mr Howard has been critical of what is referred to as political correctness. Political correctness refers to what is currently regarded as correct or appropriate forms of behaviour and styles of speech.
Its critics claim that one of the consequences of political correctness is that those who fall outside its requirements are ridiculed and in some cases attempts are made to restrict their freedom of speech or behaviour.
Mr Howard put this point of view when he stated, `[If] someone disagrees with the prevailing orthodoxy of the day, that person should not be denigrated as a narrow-minded bigot. That is basically what has been happening in this country over a very long time.'
Mr Howard has argued that for as long as issues such as Australia's level of immigration have been avoided in the name of not potentially giving offence to particular minorities, then Australia's immigration policy has not been rigorously enough examined.
Mr Howard has stated, `In my view there should be robust debate in this country about the size of our immigration policy. People are entitled to attack the present immigration levels without being branded as bigots or racists.'
Mr Howard has argued that where certain issues are declared off limits, parliament is restricted in its ability to respond appropriately to national developments.
Mr Howard has attempted to illustrate this point with what he claims was the unfair reception received by his efforts in 1992 to restrict immigration to Australia.
`I can remember early in 1992 when unemployment went to a very high level ... The former Opposition leader, John Hewson, and I both called for a reduction in the overall level of immigration because of its link with the level of unemployment. For our pains we were bucketed by the former prime minister as racist. He actually used that expression. That is the kind of behaviour that I regard as absolutely unacceptable.'
Mr Howard has argued that though `people who exercise free speech have an obligation to do so in a sensitive and caring fashion' this should not preclude debate of controversial issues, nor allow policy to be dictated by minority interest groups.
Referring specifically to Australia's immigration policy, Mr Howard has stated, `It was the view of the Liberal and National parties that for too long under the former government immigration policy was not driven by the national interest but driven by the desire of sections of the former government to unduly placate vociferous sections of the Australian community.'
Mr Howard appears to be arguing that there is a danger that certain topics will be declared off-limits because they offend vocal special interest groups, here, by implication, lobby groups representing particular racial minorities. Mr Howard's implication appears to be that where this occurs the good of the country overall is not advanced because of excessive concern about the rights and interests of minorities.
Mr Howard has argued that it should be possible to have a commitment to `racial equality and racial tolerance' and to respect every Australian `irrespective of that person's background' while at the same time being able to discuss issues of national importance.
On the question of Ms Hanson's status as an Independent giving views in a maiden speech, Mr Howard appears wary of over-reaction. He seems to be suggesting that comments made by a parliamentarian in a maiden speech without the backing of a party are of relatively little significance.
Mr Howard began his remarks on racial tolerance made in parliament on October 8 with the following qualification, `Let me say at the outset that I do not believe it is appropriate for the Prime Minister of this country or senior political figures in leadership positions on either side to define the policies of the Government or the party by reference to a maiden speech of an Independent member of Parliament.'
According to this line of argument comments such as those of Ms Hanson's are of relatively little political weight because they are the product of political inexperience and are not supported by a political party.
An extension of this argument would appear to be that utterances made in these circumstances do not warrant restrictions being imposed upon them.
It has also been claimed that the current interest in the immigration debate indicates the strength of Australia's cultural tolerance.
Mr Tony Bonnici, who migrated to Australia from Malta as a child, and who is now a lawyer who was a member of the 1988 Fitzgerald inquiry into immigration issues, has stated, `To me it (the debate) shows we are a resilient country'.
Mr Bonnici has also argued that migrants to Australia are unlikely to be offended by such a debate.
`[The] migrant is a resilient person. If he wasn't resilient he wouldn't migrate,' Mr Bonnici has claimed.
On the question of attempts to protect the privacy of individual's by restricting parliamentary privilege, it has similarly been argued that such efforts would damage our democratic system and thus are likely to cause greater harm than they prevent.
The basic position is that if politicians could be sued for remarks made in parliament this would place a harmful limitation on debate and issues that should be discussed might be avoided.
Mrs Arena has defended her comments by saying, `I asked questions which I felt it was important for me to ask after I was contacted by several people.'
Mrs Arena also maintains, `As a member of parliament I have a duty to my constituents. Throughout this whole affair I have acted according to my conscience.'
The ultimate sanction suggested for someone found to have misused parliamentary privilege is that that person could be expelled from the Parliament.
There have been two major concerns expressed about this proposal.
The first is that in a democracy all parliamentarians are supposed to be accountable to their electorates. Thus a parliamentarian should be judged not by his or her fellow parliamentarians, but be the electors. This argument suggests that if, for example, Mrs Arena is considered to have acted inappropriately, it should be her electorate which removes her.
This position has been put by former Labor federal attorney-general, Michael Lavarch, who has argued, `Ultimately a parliament may purport to expel a member from its ranks. However, such an action is contrary to the basic premise of members representing their electors and being answerable for their actions to those electors.'
It has also been suggested that if parliamentarians could be expelled from parliament by their peers, such a system would be open to political abuse. According to this line of argument, one party could seek to gain a political advantage by censuring and attempting to expel a member of the opposing party for supposed misuse of parliamentary privilege.
Mr Lavarch has presented this possibility as `Any attempt to superimpose a judgement by fellow members of Parliament is fraught with danger. There always is the risk party politics would reduce peer review to point scoring.'
On the question of whether those such as Mrs Arena should be expelled from their party, it has been argued that, to date, her major error was in commenting on matters being investigated by a royal commission and though this was a significant breach of proper procedure, as Mrs Arena is neither a minister nor a party office bearer it does not seem appropriate to expel her.
It has also been disputed as to whether Mrs Arena should reveal her sources of information. The basic concern appears to be that if this were done people who currently give confidential information to parliamentarians would cease to do so and informed debate on issues would be stifled.
Mrs Arena has stated, `The people who have given me the information will decide when to come forward. It is their decision.'
Further implications
It seems unlikely that there is any acceptable mechanism whereby limitations can be placed on utterances such as those of Ms Pauline Hanson.
Where the individual concerned is a party member they would be expected to adhere to party policy on controversial issues. Where, as with Ms Hanson, the individual concerned is an Independent, he or she cannot be censured by the party. (Ms Hanson has already had her endorsement as a candidate for the Liberal Party withdrawn.)
In Ms Hanson's case it is interesting to note that though she is attached to no political party and so is outside the reach of party discipline, the Liberal and Labor parties are planning to direct preferences to each other in her seat of Oxley during the next federal election in an attempt to have her unseated.
Any attempt to censure parliamentarians within Parliament itself is likely to be seen as too restricting on debate.
Regarding the question of parliamentary privilege, it is likely that the New South Wales Parliament will decide to give members of the public aggrieved by comments made about them under parliamentary privilege a right of reply within parliament. Currently the Senate is the only house of parliament, state or federal, to allow a right of reply under these circumstances.
If the New South Wales parliament grants citizens a right of reply it is also likely that this practice will ultimately extend to all or most parliaments in Australia.
It is also possible that parliamentary privileges committees will have their role expanded so that they become responsible for reviewing whether parliamentary privilege has been used appropriately. However, the difficulty of what can be done if parliamentary privilege is found to have been misused remains. To date the most that seems likely to occur is that the parliamentarian found to have misused parliamentary privilege will be required to withdraw and apologise for his or her remarks.
Sources
The Age
16/10/96 page 10 editorial, `The battle for tolerance'
21/10/96 page 15 comment by Martin Flanagan, `The issue we can't afford to ignore'
6/11/96 page 1 news item by David Humphries, `Subpoena linked to judge's death'
6/11/96 page 3 news item by David Humphries, `Warning to MPs on privilege'
6/11/96 page 3 news item by Tony Stephens, `Stark combination of events led to tragedy'
The Australian
9/10/96 page 11 comment by Greg Sheridan, `Hanson debate has damaged us at home and abroad'
10/10/96 page 11 comment by Frank Devine, `PC: the pressure cooker of our times'
21/10/96 page 1 news item by Michael Gordon, `Parties vow to gang up on Hanson'
6/11/96 pages 1 and 6 news item by Janet Fife-Yeomans, Trudy Harris and Jonathan Este, `Judge's suicide raises questions of privilege'
6/11/96 page 6 comment by Michael Lavarch, `Parliamentarians' privilege poses a conflict of principle'
6/11/96 page 6 news item by Jonathan Este, `Arena defiant in face of expulsion calls'
6/11/96 page 6 news item by Trudy Harris, `Mourning family holds no grudges'
6/11/96 page 11 analysis by Janet Fife-Yeomans, `The law loses control'
6/11/96 page 6 news item by Stephen Lunn, `Evans urges exercise of caution'
7/11/96 page 3 news item by Janet Fife-Yeomans, Trudy Harris and Kate Glascott, `Yeldham family urges Wood to clear the air'
The Herald Sun
5/10/96 page 20 comment by Tony Parkinson, `Ridicule the racists'
23/10/96 page 14 news item by John Masanauskas, `Debate is nation letting off steam'
6/11/96 page 3 news item by Gail Barnsley and Nigel Vincent, `Probe order link in judge suicide'
6/11/96 page 3 news item by Michelle Coffey and Matthew Pinkney, `Expel call on MPs abuse'
6/11/96 page 18 editorial, `Morality and free speech'
6/11/96 page 19 comment by Greg Craven, `A dangerous privilege'