Harry Jenkins (Speaker) Share this | Link to this | Hansard source

On 14 February the honourable member for Sturt drew to my attention concerns that had been expressed about whether parliamentary privilege would attach to the sittings of the House scheduled to be held on Fridays. On 18 February he drew to my attention the case Marquet v Attorney-General (WA) (Supreme Court of Western Australia and High Court), and copies of the judgements have been obtained. The honourable member referred to legal advice that had been mentioned by the Leader of the House. I can advise the honourable member for Sturt that I have not seen that legal advice but I have consulted the Clerk of the House, as I told him I would.

The amendments to the standing orders made last week provide that, if attention is drawn to the state of the House during a sitting on a Friday, the Speaker shall announce that he or she will count the House following the conclusion of grievance debate, if the member who has called the quorum then so desires.

The Clerk is not aware of any case concerning parliamentary privilege in respect of either house which has been decided on the basis of whether a quorum had been present when words were spoken or actions taken.

Standing order 54 requires that the Speaker cannot read prayers to commence a meeting of the House unless a quorum is present. This provision will apply on scheduled sittings on Fridays.

The provisions for the counting of the House during sittings on Fridays are set out in standing order 55, paragraph (c). These provisions reflect the concept embodied in standing order 55, paragraph (b), which has applied in respect of the counting of the House on Monday and Tuesday evenings. Certainly no relevant cases in which privilege has been an issue have arisen since those provisions have been operative.

Members will be aware that the House often conducts proceedings when a quorum is not present. Unless a division is required neither the votes and proceedings nor the Hansard record will show whether a quorum has been present when a decision has been made—for example, on the third reading of a bill. The Clerk is not aware of a case concerning either house when a decision made in such circumstances has been held to be invalid on the ground that a quorum was not present when the decision was made.

The Parliamentary Privileges Act 1987 provides for the continuation of the provisions of article 9 of the Bill of Rights, 1688. Subsection 16(2) of that act provides, in part:

For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to the transacting of the business of a House or of a committee ...

It is clear that words spoken and acts done in the course of proceedings of a house are protected, and it may be held that words spoken and actions taken from the commencement of a sitting until the adjournment of the House form part of ‘proceedings in parliament’. However, even if this view was not accepted as applicable in some circumstances—such as if a quorum was not found to be present when the House was counted—it is not easy to see that words spoken by members or actions taken by them during such proceedings would be found not to be covered by the phrase ‘for purposes of or incidental to the transacting of the business’ of the House.

Naturally, it would be my hope as Speaker that it would never be necessary to adjourn the House on a Friday because it was found that a quorum was not present when the House was counted following the conclusion of the grievance debate as required by the standing orders. If this hope is realised then members will not have cause for concern.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

With your indulgence, Mr Speaker, I thank you for the effort you have gone into in responding to my genuine request for information. I look forward to reading the statement in greater detail and I am sure you will understand if I might return to the subject later today, perhaps after question time.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

I hope that is not necessary.

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

On indulgence, I raised this matter in the debate and I used the words ‘more abundant caution’. I did so very deliberately because in my experience, when there is possible doubt, one ought to act in a way which will protect those who may be exposed. I have listened very carefully to the words chosen, which indicate to me that the Clerk cannot give definitive advice.

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

Mr Albanese interjecting

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

I say to the minister: the words may, when you are addressing the question of whether coverage would be there, were the words I heard. I would like to think that some further consideration might be given to the protection of members. While I note the Speaker’s desire that nobody would seek to draw attention to a lack of quorum at the end of the sittings after the grievance debate, that seems to me to be an aspiration, a hope, that that point might not be taken. I think there are distinct possibilities that such points could be taken and I think it is a matter on which there should be further reflection in order to protect members.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

I think that on careful reflection the member for Berowra might have adopted a different construct of the words that I used. I think I indicated that I hoped it would not be necessary. The standing orders allow for certain actions. I call the Leader of the House on indulgence.

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

Mr Speaker, I thank you for your diligence in getting back to the House in response to the questions that have been raised. In response to those questions: it was never the intention of the government to question the fact that quorums needed to be formed in order for the parliamentary session to begin. We accept that it is the government’s responsibility to do that; however, I note that there was considerable discussion in December and January—prior to any objections to the proposed Friday sittings being raised by members of the opposition—that the opposition would also play a cooperative role in forming a quorum at the beginning of the Friday sessions.

I note also that that would be consistent with the fact that there has been a generally cooperative relationship, since Federation, from both sides of the chamber when it comes to dealing with private members’ business; that on Mondays, since I have been here, there have not been quorums called; that in the Main Committee, since I have been here, there have not been quorums called; that in both those chambers—

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Why are we debating the issue?

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

You raised it.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Now we are debating the issue—

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

You had two speakers—

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I’m going to get a piece of paper and move a suspension of standing orders.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! The member for Sturt! I call the Leader of the House on indulgence, briefly.

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

It is just as, from 6.30 to eight o’clock, without exceptions, based upon the standing orders moved by the then government, supported by the then opposition, there have been no quorums called and no divisions called. That is the situation.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

Mr Speaker, I rise on a point of order. The point of order is this: the Leader of the House is claiming indulgence and he is now clearly debating the issue—going over old ground and debating the issue.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

This just goes to show that there is a bit of a grey area about indulgence; that is all it proves. I have tried to be generous to both sides. I will allow the Leader of the House to complete his statement. I ask him to do so quickly.

Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

In conclusion: I am happy to be the only speaker on our side in response to the two speakers on that side of the House on this matter.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

I call the Clerk.

The Clerk:

Government—

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Mr Speaker, I move that so much of standing orders be suspended as would prevent the member for Sturt from moving the following motion—

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! The member for Sturt will resume his seat. I simply say to him that I had called on the order of the day and the Clerk has the order of the day.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Mr Pyne interjecting

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

I will just do a little bit of a tutorial. The calling on of the order of the day means that there is business before me.