Shaking the foundations of parliamentary privilege

In the South Australian Legislative Council in Wednesday, August 30, Democrats MLC Sandra Kanck made a speech on euthanasia in which she canvassed a number of means whereby those wishing to end their lives could do so.

Kanck made her speech specifically in order to utilise the privileges extended to parliamentarians, whereby they are immune from legal action with respect to their speeches in the chamber. Kanck's comments, had they been disseminated through a telecommunications carrier, would have contravened various sections of the Commonwealth Criminal Code as amended by the Criminal Code Amendment (Suicide Related Materials Offences) Act 2005. Kanck said that in her speech:

I will be placing on record some of the dreadful ways that people use to end their lives and what might be more acceptable alternatives for those who are denied the opportunity to access legal voluntary euthanasia (or, for that matter, illegal voluntary euthanasia); and I will be challenging federal law.

The following day, the Legislative Council took the unique step of having Kanck's speech removed from the online version of Hansard. Government members initially went even further and tried to have the hard copy of her speech limited to distribution via the Parliamentary Librarian, who would have retained a discretion not to supply the information "where there are reasonable grounds to suspect that acceding to the request would create an unacceptable risk of harm to any person" (Hon P. Holloway, Legislative Council Hansard, August 31). Thankfully, this aspect of the motion was amended.

What are the implications of this unprecedented action for democracy in South Australia and, indeed, democracy in Australia as a whole?

To answer, one must set aside for a moment the fact that Kanck's speech was on one of the most emotionally-charged topics there is. One must set aside the various deeply-held views on euthanasia and suicide, and consider these events simply from the perspective of what they mean for parliamentary democracy.

The first and most basic relevant principle is that a member of parliament ought to be able to discuss whatever topics they wish in the parliament. From the greatest topics to the least significant; from the genteel to the downright disgusting, all topics which might become matters of interest to the public should be capable of discussion in parliament, and there should be no limitations (beyond the standing orders) as to how members express themselves.

As long ago as 1610 in the House of Commons, the view was expressed that freedom of speech "could not well be taken from us without shaking the foundations of the liberties of Parliament". (Erskine May's, 21st edition, p.72). This right was enshrined in the Bill of Rights 1689.

In the South Australian debate, even the government drew back from this particular precipice, with Police Minister Paul Holloway stating in his speech that "no one here is saying that anyone should be censored in relation to what they can say within the parliament."

But is this protection enough? Simply allowing any member to express themselves freely in the parliament is of limited utility if their words are only ever heard by those few people able to attend the parliamentary sittings.

For many years, the debates of parliament were in fact held in private. Yet for 200 years in the United Kingdom, debates have been recorded and reported by Hansard. The South Australian Parliament has Hansard records going back to its very first sittings. The importance of Hansard is that it takes the debates of parliament to those who would, in the ordinary course of events, be unable to hear what their elected representatives are saying.

In 1950 William Law, in somewhat breathy tones, described Hansard as a "Bulwark of the (British) Constitution" and stated: "Each voter has the right to know without delay, if he [or she] wishes to, what his [or her] Member is saying in his [or her] name. This is the basic principle that requires Parliamentary proceedings to be given the fullest publicity." (Law, "Our Hansard" pp. 6-7)

Without a full Hansard record of its debates, the parliament is little more than an exclusive legislative club, available only to those who have the location and the leisure to attend. However Hansard itself occupies a special place in our form of government because it is trustworthy. Debates are occasionally edited for sense, to turn the spoken English of debate into comprehensible written English but beyond that, readers can be confident that the contents of Hansard are a true reflection of the course of debate. They cannot have this confidence about any other form of parliamentary reporting, whether it be from the media or from the parliamentarians themselves.

The internet, of course, has multiplied the reach and importance of Hansard many times over. Hansards are now available online, often within 24 hours of the debates, in their full searchable glory. Any citizen with access to the web can find out whether a particular issue has been discussed in the parliament, and if so on what terms.

Except, of course, if they happen to be a South Australian interested in debate on euthanasia.

The Legislative Council Hansard of August 30, 2006 is not a full reflection of debate held in the chamber that day; and to make matters worse, there are two different versions available - the more comprehensive hard copy and the excised version available online.

The counter argument, of course, is that parliamentarians should use their privileges cautiously. In particular, there is the argument that Kanck's speech could facilitate or even encourage suicide by those who are mentally ill. To an extent, the validity of these arguments goes without saying.

Most parliamentary chambers, including the South Australian Legislative Council, allow for members to object to a range of language and subjects. For instance, members cannot be repetitive or prolix (Leg. Council SO 186), and cannot reflect on the Queen (Leg. Council SO 191), or on votes which have already been held (Leg. Council SO 192). But a fundamental principle of the operation of standing orders in such proceedings is that objection must be taken immediately and ruled on by the presiding officer immediately (Leg. Council SO 207).

No member moved any form of objection to Kanck's speech while she was speaking - but you will have to take my word for that because you are not permitted to read it in Hansard online. And had they made such an objection, it does not appear that Kanck's speech actually transgressed any of the standing orders - so the presiding officer would have been bound to hold that she could continue. Finally, her speech contains long tracts which could not conceivably encourage or facilitate euthanasia or suicide. Why were these words excised too?

To make matters worse, the abrogation of parliamentary privilege which arose from censoring Kanck's speech actually did nothing to prevent the speech's publication. Within a short period of time it had been republished anyway, by organisations including Exit International. All the government members' actions did was give the Kanck speech a level of publicity it would otherwise never have merited.

This precedent having been set, the implications for South Australian parliamentary democracy are frightening. What subject will be blacklisted for debate next? What is to stop a dominant government from excising speeches which are contrary to its political interests?

The good news is that it is not too late to fix the situation. By another ancient principle, anything the parliament can do, it can undo. For the sake of parliamentary privilege and free speech everywhere, the Legislative Council should undo its resolution of August 31, 2006, and print Kanck's speech in full, restoring Hansard to its place as a true record of the proceedings of the council.