It is easy to sympathise with the passion for justice of Senator Nick Xenophon. And it is understandable that those who seek redress for victims of sexual abuse and assault find ourselves wanting to cheer his action in naming the Roman Catholic priest whom John Hepworth alleges was responsible for rape against him.
But the recent history of the misuse of parliamentary privilege in Australia provides too many reasons not to start clapping Senator Xenophon’s action.
In the Senate on 12 September, Xenophon called for "a serious, detailed and formal inquiry" into the allegations made by Hepworth. Xenophon claimed that Monsignor David Cappo had "failed to act in a timely and decisive manner" on the issue, and he questioned on that basis the appointment of Monsignor Cappo as chair of the Government’s new Mental Health Commission.
Xenophon threatened to name the alleged rapist of Hepworth unless immediate action was taken to remove the man from his position, an action made urgent because as a parish priest, he held the trust of parents and children in the parish. On 13 September, Xenophon named the priest, after being cautioned by the President of the Senate in regard to its Resolutions on parliamentary privilege.
As Xenophon himself later noted in explaining and justifying his action, parliamentary privilege is central to the arrangements by which it conducts its business. Xenophon argued:
"Parliamentary privilege was established in England in the 16th century to allow politicians to speak out in the public interest, without fear of retribution from the powerful. At the time, they were worried about the King. In modern times parliamentary privilege is used almost every sitting day by politicians who want to be free to accuse each other of being liars, or fools, or in some cases criminals. I actually think this is the real abuse of parliamentary privilege."
There is no doubt that the language of members of parliament is often unrestrained, even though few of its exercises reach the level of vitriol that Gough Whitlam claimed to have leveled against Sir Winton Turnbull when Turnbull reminded the House that he was "a Country member".
It is nevertheless quite unfair for Xenophon to claim that those who criticise his action are more concerned with his (possible) abuse of parliamentary privilege than they are with "actual allegations of sexual abuse". Xenophon’s statement misconstrues the character and limits of parliamentary privilege.
Although "parliamentary privilege" is much wider than being able to speak freely in parliament, the immunity to liability for what is done or said in parliamentary proceedings is certainly the aspect of privilege that is most widely known, and most controversial. The privilege of speaking freely was given statutory force in Article 9 of the 1689 UK Bill of Rights: "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
Article 9 applies to Australian parliaments as well as to the UK parliament.
However, as Enid Campbell’s classic work on the topic emphasises, parliamentary privilege has less to do with providing permission for individual MPs to vent, and more to do with the authority of parliaments to regulate their internal collective proceedings, in particular against executive power. It is noteworthy that the adoption of Article 9 in 1689 took place against a background of parliamentary concerns about its liability to charges of sedition instigated by the King. As the 1999 joint report of the Commons and Lords on parliamentary privilege in the UK noted: "freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it".
It is the very privilege of parliament in regard to its own proceedings that confers on it the authority of regulating those proceedings, and hence paradoxically, the possibility of placing limits on them.
In Australia, that authority is enshrined in section 50 of the Constitution, enabling both houses of parliament to make "rules and orders" in relation to "the mode in which its powers, privileges, and immunities may be exercised and upheld", and "the order and conduct of its business and proceedings". The 1987 Parliamentary Privileges Act also clarifies the statutory force of Article 9 in regard to the commonwealth parliament, but without resolving this tension.
Parliament is constrained from adopting some forms of regulation of its own collective affairs by the collective parliamentary privilege of speaking freely. (The implied freedom of political communication is also understood as placing constraints on the power of parliamentary speech.)
Against this background of an unresolvable tension, the most controversial aspects of the recent history of parliamentary privilege have not concerned parliamentarians attacking one other. Rather, the most notorious claims of misuse of privilege have concerned members of parliament making statements that are at least potentially offensive, defamatory or injurious to individuals outside of parliament, where the individuals have only limited opportunities to respond effectively, such as through right of reply provisions.
Even before the infamous 2002 case of Senator Bill Heffernan’s claims against Justice Michael Kirby, concerns about the possible misuse of parliamentary privilege had led to the Senate’s adoption in 1988 of a series of resolutions on privilege. Senator Heffernan had violated the standing rule against offensive words about individual judges, through his baseless claims of unethical and possibly criminal actions by Justice Kirby. (Senator Heffernan was censured by the Senate, as was the Prime Minister of that unhappy time.)
Before he spoke on 13 September, Senator Xenophon was cautioned by the Senate President in accordance with Resolution 9, which counsels MPs to be mindful of the need for responsible exercise of the right of freedom of speech, the possible damage done to those who have only limited opportunities to respond, and the need for statements to be "soundly based".
One important concern in regard to the exercise of parliamentary speech, and lying in the background of the adoption of the 1988 Resolutions, is the care not to prejudice the trial of matters in pending legal cases, through the presentation of those matters in parliament. A reason for this particular concern is to ensure that such matters are dealt with in accordance with procedures that guarantee a fair trial of the accused, including the presumption of innocence and adherence to proper rules of evidence.
John Hepworth has indicated that, at least at present, he does not want to press criminal charges against the man he has accused of rape. However, his complaint alleges matters that are in fact most appropriately dealt with in accordance with the procedures and protections of law.
Senator Xenophon’s concerns for justice are legitimate, particularly as to the record of the Roman Catholic Church in regard to claims of abuse, which in this respect has come to look more like a criminal conspiracy than a communion. The proper place for that record to be assessed is in a court of civil law. I sympathise with those who lose patience with law, because it can take so long and because it not infrequently fails to deliver on the promise of justice. But without fair procedures, the result is compromised, and justice is not done.
Senator Xenophon justified his actions by reference to the urgency of "the interests of parents and children in the parish first and foremost". However, it is possible to err through conscientious conviction as much as through malice.
Parliamentary privilege is not the appropriate forum in which to adjudicate the truth of Hepworth’s claims, given the irreparable consequences of its potential fallibility in doing so.
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