Author comment:

Andrew Bartlett raises an important point, and it is true that the principle should not be pushed too far. I think we would all recoil at the prospect of speeches with the sort of content he describes.

However for several hundred years, this privilege in parliament has relied on parliamentarians using their privilege wisely. I cannot think of any politicians of any political stripe who would abuse parliamentary privilege to make such truly reprehensible speeches. So perhaps in this instance, self-regulation might be the best form of regulation?

If not, the way to set limits around these sorts of debates might be for a House, in its standing orders, to forbid speeches containing certain truly objectionable material. This would give the presiding officer the power to shut the speech down *immediately*, before the words were spoken and the damage was done. In this way, the rules would be clear and could be applied and understood by parliamentarians.

That would an entirely different matter to the Kanck situation, where a retrospective decision was made by the House, according with no standing orders or rules at all.

If the words are said, though, I still think they should make it to the Hansard transcript. Hansard should be warts-and-all.

Thanks to everyone who has participated in this discussion. I am much obliged to you for taking the time to read my piece.

AM

My understanding is that suicide is not against the law, although it is illegal to help a person kill themsleves. If correct, this means that Sandra's speech (which I haven't read) did not encourage anyone to break the law, so why remove her speech from Hansard just because it deals with a tough issue. In contrast, the issues listed by Andrew Bartlett's post mostly relate to illegal activities (selling and possessing heroin, pedophaelia, etc) so the argument is much stronger for not allowing an MP's comments on these matters to remain in Hansard.
A further consideration is that polls over recent years have consistently shown than 80% or more of Australians support euthanasia as it applies to a person taking their own life when they are suffering from a terminal disease, etc. The Christian churches have bitterly opposed any new laws designed to allow this popular view to be protected by legislation, for example, to give legal sanction to doctors who wish to help people die with dignity. Assuming that Sandra's speech did not tell people how to help others to commit suicide, then I can see no reason for the parliament to use censorship against her.

Senator Bartlett's examples:

- search mechanisms or website addresses for child pornography;
- phone numbers for heroin dealers;
- ways to contact hitmen for contract killings;
- seduction techniques for pedophiles;
- techniquies for mixing easily available medicines/drugs in a way which could be used to kill somebody else in a hard to detect way through (for example) drink spiking;
- easy entry points into Parliament House for terrorists or disgruntled citizens keen on killing politicians to prove their point.

are silly. There are remedies against any politician so lunatic as to do any of the things Andrew suggests. A motion that "so & so be no longer heard" can silence a pollie in mid-sentence. A pollie who used Parlt to promote seduction techniques for pedophiles would not be a pollie for long. It would, for instance, be open to a House to expel such a member, who wd then have to persuade his/her constiuents that he/she shd be re-elected.

It is indeed also open to a House to meet in closed session. This was done extensively in the UK during WW II so that Churchill cd keep MPs properly informed. There was no doctoring of Hansard: there was simply no Hansard at all, unlike the idiot position we have now, where there are disparate versions.

Wow, some impressive company on this topic - at least two elected public officials.
My concern is that while I don't disagree with the author's principles I feel he and many here have missed the real essence of parliamentary privilege. It is not, as many may think, based on the need to freely disseminate information but rather on the principle that proceedings in parliament shall not be questioned in other fora.
This is based solely on the notion of the primacy of parliament as the ultimate authority of the people. This viewpoint is echoed in the rare but not unknown examples of parliament sitting as a court and excersising its powers of imprisonment.
When one follows this approach it is consistent with parliament determining its own processes and reporting of its proceedings

I'm probably talking to myself, writing this months after the original posting was made, but I was revisiting the piece and Mill's point interests me. It's a very thoughtful point, but I think it puts the cart before the horse.

In my view, statements in parliament cannot be questioned in other fora because speech in parliament is free. In other words, the privilege in other fora is an incident of the more general freedom.

But it's still a good point worth thinking about.

AM

Are we seeing, in this retrospective censorship of Hansard, the outworking of a confusion as to the reason for the coming into being of the institution of Parliamentary privilege in the first case?

It did not come into being as an expression of the notion that parliament represented any ultimate authority of the people. It came into being as a necessary safeguard against the exercise of arbitrary executive authority. Executive power vests in the Crown. It was the arbitrary exercise of that power, including, among other things, the pretended power of the Crown to dispense with laws, that led to the civil war and subsequently to the final settlement and clarification of the role and privileges of Parliament in the 1689 Bill of Rights.

In retrospectively removing the record of a member's speech, one delivered at the time in compliance with the Standing Orders and without any motion that the member be no longer heard, Government members of the SA Legislative Council would appear to have seen themselves as agents of executive authority, and of Commonwealth authority at that!

The matter of suicide is within State jurisdiction. That the giving of credit to a Commonwealth law should constitute an excuse for the censoring of the record of debate in the State parliament on just such a matter is a betrayal of trust and, quite possibly, a breach of the oath under which those applying the censorship took their seats. If the provisions of the Commonwealth act purport to have the effect of suppressing Hansard in a State parliament, then the constitutionality of that Commonwealth legislation, to the extent that it would invade the privilege of the State parliament, must surely come into question.

With regard to Parliament sitting as a Court, it may do so only whilst not prorogued or dissolved. The 1999 referenda confirmed the federation as a constitutional monarchy. The issue of some members seeking to evade that fact and its institutional implications will shortly need to be settled. It would seem some members of the SA Parliament effectively see themselves 'in loco regis' these days.