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)