Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

These amendments seek to change the existing penalties in the Parliamentary Privileges Act. Essentially, these amendments would replace the existing penalty units and penalties, roughly triple the existing $5,000 penalty for individuals and quadruple the existing $20,000 penalty for bodies corporate. Amendment (2) also says that any such penalty cannot be paid out of consolidated revenue.

The potential second-order effects of that change are not clear to us. It is not immediately apparent which other acts would interact with this particular amendment, and the circumstances in which those interactions may or may not occur—for instance, how would this particular amendment interact with a fine paid by a person who receives an allowance or a subsidy from the government?

In terms of changes to the Parliamentary Privileges Act, these are things that I'd say all parties in the Australian Senate obviously take very, very seriously. The reason is that it is an act which entrenches parliamentary sovereignty and regulates the relationship between the branches of government. It is the reason, as we all know, that we're all able to stand in this place and say whatever we need to say in support of our constituents, the reason that the witnesses before our committees are able to speak freely, without fear of being called before the police or the courts, and it is also fundamental to our democracy. So, when changes to the Parliamentary Privileges Act are being put forward, we do need to very seriously consider them. We need to very seriously consider the implications of them but also what the interactions with other pieces of legislation will be. And we can't make any apologies for being cautious in this regard.

On this particular issue, the decision to have a specific listed penalty instead of penalty units wasn't actually a drafting error; it was deliberate. The penalties were set in 1987. Just five years later, in 1992, we changed the Crimes Act to introduce the penalty unit regime, including a mechanism to convert fixed penalties into penalty units. But, at that time, we specifically excluded penalties that were not handed down by the courts—for those who are interested, that is subsection 4AB(2) of the Crimes Act. That was debated at the time. It was considered by the parliament. It is quite clear that it was a deliberate decision to treat penalties handed down by the parliament differently.

It might also be unsurprising that we would treat penalties under the Parliamentary Privileges Act differently because they are the result of what is a fundamentally different process. A person receiving such a penalty has not been convicted by a court. They don't have all the usual protections that apply in judicial proceedings, such as the presumption of innocence, rights around procedural fairness and the ability to appeal or ask for a review of a decision. Penalties handed down under the Parliamentary Privileges Act, which senators would be aware does include penalties of imprisonment, are decided by the houses of the parliament themselves, according to procedures they determine, and are fundamentally unreviewable by any other body.

So, when it comes to a proposal—in this case, it is amendments to a piece of legislation that is now in committee stage before the Australian Senate—to lift the penalties that can be imposed by this place, we do need to proceed with caution. As I said, in this regard, we have not had the time yet to actually properly analyse what could be the flow-on effects from these amendments. On that basis, the opposition won't be supporting them.