Publication of Senate proceedings
As noted in Chapter 1, the Australian Parliament does not possess sovereign powers; it is subject to the Constitution, which only the people can change, so that sovereignty is in fact as well as technically vested in the people.
It is in accordance with this constitutional relationship that the procedures of the Senate are designed to ensure that its operations are communicated to the public to the maximum extent possible. Also, many activities of the Senate, such as committee hearings, are designed to inform the public as much as the Senate, and have their influence through their impact on public opinion as well as on the decisions of the legislators.
Since the establishment of the Senate all of its proceedings have been conducted in public. The standing orders contemplate that the Senate may meet in private session, but this could occur only by a deliberate decision of the Senate.
Documents laid before the Senate are automatically published.
Provision is made in the Senate chamber for public galleries, for a press gallery and for facilities for radio and television broadcasting.
Any person may attend in the public galleries and observe the proceedings. Visitors in the galleries are required to refrain from any interruption to proceedings or discourtesy to the Senate, particularly any interjection or demonstration of support or dissent in relation to the proceedings. A person who wilfully disturbs a meeting of the Senate may be guilty of a contempt. The chair may order disorderly persons to withdraw from the galleries. The Usher of the Black Rod, subject to any direction by the Senate or the President, may take into custody any person who causes a disturbance in or near the chamber.
Only senators and officers attending on the Senate may be present on the floor of the chamber when the Senate is meeting. An exception is made for infants being breastfed by a senator. At the discretion of the President, a senator may care briefly for an infant in the chamber, provided the business of the Senate is not disrupted. The President may, by leave of the Senate, invite distinguished visitors to take a seat in the chamber. This procedure is used for visiting presiding officers of foreign or state parliaments. The practice is for the President to inform the Senate of the presence of the visitor and announce that, with the concurrence of the Senate, the President proposes to invite the visitor to take a seat in the chamber. In 1928, Captain Herbert Hinkler, AFC, became the only private citizen to be invited to take a seat in the chamber, following his record-breaking flight from England to Australia.
Journalists who are members of the Parliamentary Press Gallery are provided with a gallery behind and above the President's chair and a soundproofed media workroom above that gallery. Membership of the Press Gallery, granted by the Presiding Officers, entitles a member to admission to the gallery and, subject to arrangements agreed upon by the Presiding Officers and the Gallery Committee, to press office facilities.
Members of the Gallery must abide by conditions which cover such matters as behaviour within the parliamentary precincts, and non-compliance with the conditions by members of the Gallery may result in restrictions on an individual's or organisation's rights of access to Parliament House. A press gallery pass may be withdrawn by the Presiding Officers for breaches of the conditions applying to membership of the Press Gallery. The Usher of the Black Rod administers these and related rules as the President's delegate.
Places are reserved for advisers to the government and senators in the chamber. Advisers attending on senators are required to behave with decorum and not disturb proceedings. Subject to that requirement, senators are entitled to have whomever they choose as their advisers in their advisers' benches.
Reporting of proceedings
The Journals of the Senate, signed by the Clerk and published, are the official record of the proceedings of the Senate. The debates of the Senate are recorded by the Parliamentary Reporting Staff and are published in the transcript of debate known as Hansard. These documents are further described below.
Proceedings may also be reported by the media. Fair and accurate reports of proceedings are immune from suit for defamation.
Broadcasting of proceedings
Proceedings of the Senate and its committees are widely broadcast through electronic media.
Proceedings of the Senate, and proceedings of its committees when they are televised, are available live in sound and visual images on the internet, in accordance with an authorising resolution.
Live radio and television broadcasts of proceedings occur through the Australian Broadcasting Corporation (ABC) radio broadcasts, the televising of question time, and the internal and subscription television service provided by the house monitoring system.
The proceedings of the two Houses of the Parliament have been broadcast on radio since 1946 by the ABC, as required by the Parliamentary Proceedings Broadcasting Act 1946. Question time in the Senate has been televised by the ABC since August 1990. These were originally all live telecasts, but since the House of Representatives approved the television coverage of question time in that House, some are re-broadcast. All proceedings in the Senate and in some of its committees are broadcast on radio and television within Parliament House and to external subscribers by the house monitoring system and on the internet.
Apart from these live broadcasts, radio and television stations are also permitted to use recorded excerpts of Senate proceedings. Resolutions of the Senate first passed on 13 December 1988 and 31 May 1990 (the latter amended on 18 October 1990 and 9 May 1991) set out rules for the use of excerpts, the principal rule being that excerpts are to be used only for the purposes of fair and accurate reports of proceedings.
A resolution of 23 August 1990 authorised Senate committees to permit the broadcasting of their public proceedings, subject to similar rules, and a resolution of 13 February 1991 permitted persons other than television stations to make use of video recordings of Senate proceedings. An order first passed on 14 October 1991 permitted the broadcasting of estimates committee hearings. All of the foregoing provisions were consolidated into a set of broadcasting orders first passed on 13 February 1997, and again on 11 December 2013, to incorporate the broadcasting of proceedings on the internet and use of archived audio visual material accessible through the Parliament of Australia website.
Proceedings of Senate committees conducting public hearings in Canberra are broadcast by radio and television on the house monitoring system and on the internet, and excerpts are used by the media, in accordance with the order relating to committees. All estimates hearings and most other hearings of Senate committees are televised within Parliament House, and excerpts may be used by broadcasters and other individuals. Committees may also permit other broadcasters to cover their proceedings when they meet outside Canberra. Any coverage must conform with any conditions set by the committees, which must not be inconsistent with the rules adopted by the Senate.
The televising of Senate proceedings was initiated by a motion moved by an Opposition senator. On 30 May 1990, Senator Vanstone gave notice that she would move to permit the televising of question time for a trial period. The Senate resolved the following day to proceed with the trial, but referred to the Procedure Committee the conditions relating to it. The Procedure Committee recommended that no changes should be made, but that the conditions should be tried and reviewed in the light of experience. Two modifications to the order were subsequently made. On 18 October 1990 reference to a trial period was omitted, and on 9 May 1991 the condition prohibiting the broadcasting of the adjournment debate was omitted.
Broadcasting and privilege
A publication of a record or report of the proceedings of the Senate or its committees, where the publication occurs by an order of the Senate or a committee, attracts absolute parliamentary privilege. As noted in this chapter, various publications are ordered by the Senate or by committees. Apart from the live publication of proceedings on the internet, however, broadcasts of proceedings do not occur by an order of the Senate or a committee, in that the relevant resolutions permit the use of excerpts selected by the media.
The Parliamentary Proceedings Broadcasting Act confers immunity from legal action on the radio broadcast of proceeding by the ABC, although the terms of the Act are not confined to that particular broadcast.
The Transport and Communications Legislation Amendment Bill 1991, introduced by the government, included provisions to amend the Parliamentary Proceedings Broadcasting Act to extend to the televising of the proceedings of the two Houses and their committees the absolute privilege provided by the Act to radio broadcasts of the proceedings of the Houses. In the proceedings on the bill in the Senate on 14 November 1991, the provisions in question were struck out of the bill with the agreement of all parties. It was pointed out that the absolute privilege given to radio broadcasts was enacted when the only broadcast of proceedings was the virtually continuous radio broadcast by the then Australian Broadcasting Commission. When television stations were authorised to televise extracts of proceedings of the Houses and their committees, the question of extending absolute privilege to those broadcasts involved different issues. It was also pointed out that section 10 of the Parliamentary Privileges Act provides privilege for all fair and accurate reports of parliamentary proceedings, and that this cover is probably as much as is appropriate for the televising of extracts. Edited television extracts could constitute highly unfair and inaccurate reports of proceedings and should not have absolute privilege. The same principles apply to the use of extracts on the internet.
Journals of the Senate
The Journals of the Senate are the official record of proceedings in the Senate. The Clerk records all proceedings in the Journals, which are signed by the Clerk. The publication of the Journals for public meetings of the Senate is authorised by standing order 43(1), and therefore attracts absolute privilege.
A Journal is published for every sitting day. It records, among other things, all notices of motion, resolutions, documents tabled, proceedings on bills including amendments moved to bills, petitions, messages received from the House of Representatives or the Governor-General, divisions and attendance of senators. The Journals are produced from the minutes kept by the Clerk and the sound and vision record of proceedings. A proof Journal of a day's proceedings is printed for distribution on the next day. A final Journal is produced after any necessary corrections are made. A limited number of bound sets of the final Journals is produced for the official record. Proof and final Journals (back to 1901) are also published on a database which provides a useful facility for research, and on the internet.
Material recorded in the Journals of the Senate and in the official record of debates (Hansard) may be considered in the interpretation of a provision of a statute to ascertain the meaning of the provision in case of ambiguity, under section 15AB of the Acts Interpretation Act 1901.
The Notice Paper, which is published for each sitting day, is the list of all business outstanding before the Senate, including bills not finally passed, motions to be moved, motions moved but not finally dealt with, questions on notice and inquiries before committees. The full Notice Paper appears on the internet and an abbreviated version is issued in printed form each sitting day, including the first sitting day of a new session not following a general election. The publication of the Notice Paper is authorised by standing order 43(2), and is therefore absolutely privileged.
Debates in the Senate are recorded and published in Parliamentary Debates, more commonly known as Hansard. A proof Daily Hansard is produced, in which errors of transcription may be corrected. Corrected Hansards are then incorporated into the official Hansard which is published electronically. Bound volumes are no longer produced as a matter of course.
The publication of Hansard is authorised by standing order 43(3), and is therefore absolutely privileged. The republication of extracts of Hansard, including by electronic link, is covered by qualified privilege. In 2013, the Procedure Committee considered a proposal to provide additional protection to the republication of Hansard extracts. The committee concluded that this would involve a significant change to the law which should not be undertaken without further analysis.
Soon after they deliver a speech, senators receive a draft of the transcript from Hansard. Senators may make necessary corrections to the transcript, but changes altering the sense or introducing new matters are not admissible. The President has control over requests for alterations to Hansard, although ultimate authority resides in the Senate. Following an incident in 1989 in which a minister was censured by the Senate for deleting words appearing in the Daily Hansard, the Senate resolved that the President should “enforce strictly the rule that senators' corrections to Hansard must not have the effect of deleting from the record words actually spoken in debate so as to alter the sense of words spoken”. In a subsequent statement, the President informed the Senate of the procedures for dealing with requests for alterations to the transcript or to the Daily Hansard. The President had asked that “where there is any doubt as to whether the request comes within the established rules”, the matter be referred to him.
Although Hansard is a record of debate, to save time or to illustrate a point senators often ask to incorporate material in Hansard. This material may include quotations, documents, tables or graphs. As there is no provision in the standing orders for the incorporation of material in Hansard, this is done by leave of the Senate, that is, unanimous consent of senators present. Senators will generally ascertain of senators from other parties whether there is likely to be objection before seeking leave for incorporation.
Most Senate committees are authorised to meet in public or in private session; the only exceptions are standing committees examining estimates, which must hear all their evidence in public and publish all documents received by them.
Committees usually hear evidence in public and publish all documents laid before them, but occasionally evidence is taken in private session and documents withheld from publication, usually for the protection of witnesses. Committees deliberate in private session.
The hearing of witnesses before Senate committees must be recorded in a transcript of evidence. Transcripts of public hearings are published, and committees may order the publication of transcripts of in camera hearings. In either case the publication is absolutely privileged.
Provision is made in standing order 25(16) for the publication of a Daily Hansard of the public hearings of the legislative and general purpose standing committees. Provision is also made in relation to committees examining estimates for a Hansard report to be circulated as soon as practicable after each day's proceedings. Resolutions appointing other committees usually authorise the publication of their Hansards.
The transcript or other record of a committee hearing, including a sound recording, belongs to the committee. The question of senators' access to the sound recordings of committee proceedings arose on 29 November 1990, when a senator asked the President about access to tape recordings of a joint parliamentary committee. The President's response setting out the procedures relating to access was as follows:
The responsibility for the transcription of the proceedings of parliamentary committees rests with Hansard. When a transcript is completed, Hansard forwards that transcript in electronic and hard copy form to the committee, which undertakes the printing and distribution of that transcript. The committee subsequently advises Hansard of any suggested corrections to the transcript. Any request to Hansard for access to a tape-recording of the proceedings of a committee or an unproofed version of the transcript is referred by Hansard to the committee for decision. Usually that decision is advised to Hansard by the committee secretary after consultation with the committee chairman. This is what occurred in relation to the matter raised by Senator Vanstone. The principle is that transcripts, both proofed and unproofed, are the property of the committee and it is a matter for each committee to determine access to that material and advise Hansard accordingly.
The Senate, however, may make orders in relation to records of committee proceedings. On 6 December 1990 a senator moved that the Principal Parliamentary Reporter be directed to make available to members of the Parliamentary Joint Committee on the National Crime Authority the Hansard sound recording of the public hearing of that committee held on 21 November 1990, in the absence of a transcript of those sound recordings. That question was passed without debate. The need for such orders has been virtually superseded by the availability of audio or audiovisual records of all committee hearings.
Other publications report proceedings in the Senate and inform senators and others of particular matters dealt with during proceedings. They include:
Order of Business (colloquially known as the Senate “Red” after a red flash on the front page), issued each sitting day; sets out the business expected to be considered on that day
Dynamic Red, an online version of the “Red”, produced each sitting day and constantly updated to record business transacted by the Senate as it occurs, with links to relevant documents
Senate Daily Summary, produced after each sitting day and recording all significant transactions in the Senate, including committee reports tabled
Business of the Senate, published twice a year and cumulated annually; contains statistical and other data summarising the work of the Senate
Work of Committees, a twice-yearly and cumulative account of the activities of Senate committees, with statistical data
Bills List, published fortnightly after sitting periods; lists all bills currently before the Parliament and summarises the purpose of the bills, the numbers and outcomes of amendments proposed to the bills, the stage reached in their consideration, assent dates and statute numbers
Index of instruments and the Disallowance Alert, provide information on disallowance actions in the Senate and matters raised by the Regulations and Ordinances Committee in its Delegated Legislation Monitor (see Chapter 15, Delegated Legislation and Disallowance)
Questions on Notice Summary, tabled at the beginning of the autumn and spring sitting periods; lists questions which are asked (by number only), the dates they were asked and answered and relevant references in Hansard
Scrutiny News, highlights key aspects of the Scrutiny of Bills Committee's work in response to its Alerts Digests and reports, with particular focus on information that may be useful when bills are debated and to raise awareness about the scrutiny principles in standing order 24
Senate Discovery, a short audiovisual program summarising the major events, published on the internet after each sitting period.
In addition to the web streaming of Senate and committee proceedings (including access to archival proceedings), all of the documents mentioned in this chapter are available on the internet at http://www.aph.gov.au/About_Parliament/Senate.