Philip Ruddock (Berowra, Liberal Party) Share this | Hansard source

As a minister, very rarely. In relation to matters where some ministers might have to absent themselves, that is understood, but I suspect that what we are seeing here is the emergence of a double standard.

I want to pick up the comments that were made by the member for Wentworth as well as the Deputy Leader of the Opposition, because I have some concerns about the way in which issues relating to quorums are going to be addressed. The member for Wentworth raised the provision of the Constitution, section 39, which goes to the requirement of the parliament to have a quorum. It provides that the parliament might vary the quorum, and we have already done that, but I do not think such a provision envisages that there should be no quorum and I do not think it envisages that the parliament should essentially bring itself to the point where a provision of the Constitution is without any impact, without any effect. My concern is that I do not know what view a court might hold. I imagine you might be able to get a legal opinion. You might not want to show us the legal opinion, but I imagine any self-respecting legal opinion would be, ‘This is a matter in which I’ve formed a view as to what might happen but we won’t know until the matter is the subject of some determination.’ I have seen plenty of opinions like that, because people are usually fairly guarded, fairly cautious. They usually do not offer a black-and-white answer in relation to those matters because you cannot give one until you know there is a determination.

The real concern one has is that, if this were happening in relation to legislation, the matter might well be challenged. Somebody might be concerned about some legislation that this parliament has enacted and want to see it struck down. I could imagine if you were dealing with a situation where there was legislation whose passage was in doubt, you would be very concerned. I suppose some people are taking the view that, with private members’ matters, grievance debates and parliamentary committee reports, there are less likely to be issues that may be the subject of a challenge. But the Deputy Leader of the Opposition correctly raises the issue—in relation to grievance, for instance—that somebody may raise a matter that concerns an individual who thinks that it goes to his or her reputation and a challenge may go to the very question of whether or not the person was protected and was sitting in a parliament to which privilege attached.

The member for Grayndler pooh-poohs this idea. He says it would not arise. I can say quite truthfully that in my personal experience, if people feel very strongly about an issue, they might well seek to test that very question. If they are testing a variety of questions as to whether they have been defamed, why wouldn’t they want to see tested properly the lawfulness of a defence that says these comments were protected? It seems to me that you have to establish first that at the start of the meeting—I think it is standing order 54—there is a quorum, and that means that 30 members have to be present. The government are going to have to ensure that 30 members are present. They are going to look pretty silly if they cannot ensure 30 members are present on Friday to support the sitting.

Then we go on and we look at the particular provisions that will operate under paragraph 55, about when there might be a lack of a quorum. Under proposal (c) it says:

On Fridays, if any Member draws the attention of the Speaker to the state of the House, the Speaker shall announce that he or she will count the House following the conclusion of the grievance debate, if the Member then so desires.

What an extraordinary proposition. If somebody calls for a quorum, it cannot be counted immediately. It must be counted at the end of the day, at the very point in time when more people may have vacated the premises. You can imagine what those wanting to get back to Perth and some of the more outlying places, who have got their grievance up and have spoken on their private members’ business, will do. They will decamp. There is no requirement for them to be here. So we might get to the end of the day with the Leader of the House and a couple of his cronies keeping watch; they will do the count and say, ‘Oh, we have got a count of three.’ What does that tell you? It tells you that after the first test of this issue at the beginning of the day, at some point in time—particularly when attention was called to the state of the House—you could not establish that there was a quorum present.

If I were participating in those debates, with the potential for doubt as to whether or not privilege would pertain, it would constrain me very significantly in what I might be prepared to say. It could certainly have the import of ensuring that my effectiveness as a member of parliament was very significantly impaired. If some of my colleagues from Western Australia—I know they are enthusiastically following this debate—had some issues that they wanted to raise in relation to some of those matters that are being investigated by a state corruption body and they wanted to talk to some of those issues in the House where they felt that something was not being adequately addressed, they might be a little concerned.

When I was a young solicitor, my master solicitor used to say to me in relation to these issues when they arose that you should always look at these questions with ‘more abundant caution’. While I would not want to give a legal opinion on the lawfulness of these matters and the impact that it might have on parliamentary privilege, I would urge anyone who is examining these questions to exercise ‘more abundant caution’. In fact, I would encourage the Leader of the House to have those issues looked at. I think he should give an assurance that he will get legal advice for members so that they can be satisfied that they are going to be properly protected.

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