Legal doubts over banning Greens

Senate staff were ordered to defy an official demand to use force against Greens senators Bob Brown and Kerry Nettle to prevent them from attending last month's parliamentary address by Chinese President Hu Jintao.

Harry Evans, the veteran Clerk of the Senate, told an estimates committee yesterday that there was no constitutional basis for the conduct of joint sittings of parliament to hear speeches by foreign leaders.

According to Mr Evans, a security directive jointly signed by Speaker Neil Andrew and Senate President Paul Calvert to apprehend senators Brown and Nettle was possibly unlawful. Both Greens senators were banned from parliament for 24 hours after standing to heckle US President George W. Bush and refusing to accede to the chair.

The next morning, before Mr Hu's speech, Mr Andrew and Senator Calvert issued a directive to senior parliamentary staff saying: 'We hereby authorise you ... to take appropriate measures, including in the event that it is necessary, preventative force, to enforce the suspension.'

But Mr Evans said he had instructed Senate attendants under his control to defy the directive. 'It would be highly undesirable to have Senate officers assaulting senators,' Mr Evans told the estimates committee.

He said it was 'extremely dubious' whether the presiding officers had the authority to ban the senators from Mr Hu's address. Asked if the presiding officers' directive was lawful, Mr Evans said this was 'a very moot question'.

I am still hunting through the chaos of the parliamentary website to see if I can find a transcript.

Update

The Estimates Committee hansard (PDF) has Evans testimony on the dubious legality of both the suspensions and the steps taken by the Speaker and the President of the Senate to enforce them.

Senator FAULKNER�Do you as Senate Clerk have a view as to whether it is competent for senators to be named and excluded?

Mr Evans�The resolution of the House of Representatives agreed to by the Senate says that the rules of the House of Representatives shall apply so far as they are applicable. That is one of those phrases that drafters of things put in when they are not sure what the situation is, what the interpretation should be and how the rules are going to apply. They put that in and keep their fingers crossed that they do not have to interpret it. You can argue a great deal about what that expression means and how far the rules were applicable. There is a great difficulty with having, simultaneously, a meeting of the Senate�which this is�and a meeting of the House of Representatives in the House of Representatives chamber and saying that someone else�the Speaker and members of the House of Representatives voting on the question�can decide whether a senator is permitted to attend a meeting of the Senate. You can say that that is a question so significant to the Senate and so exclusively for the Senate to determine that that adoption of House of Representatives rules cannot possibly extend to that question. If it were a legal question before the High Court, a great many QCs would receive a great deal of money for arguing it. But it is very dubious that that sort of expression in that resolution covers that sort of situation.

Senator FAULKNER�Has the Department of the Senate given any consideration�again, in the broad� to the actual constitutionality of such a joint meeting?

Mr Evans�Not again. These questions were raised when this procedure was first adopted. They have not been revisited in any systematic fashion. But there are great potential difficulties with the two houses having simultaneous meetings and then providing that someone else will preside over what is in effect a meeting of the Senate and that members of the House of Representatives will be voting about what goes on in a meeting of the Senate. There is a great difficulty with that situation. All this was raised back in 1991. I raised it with everybody who was willing to listen to me, and a good many were not. Some were and some were not. There has been no systematic revisit of it.

CHAIR�Senator Brandis, I think you had a few questions.

Senator BRANDIS�Do you mind if I pursue this same issue, Senator Faulkner?

Senator FAULKNER�Not at all, Senator Brandis.

Senator BRANDIS�Mr Evans, what do you say was the constitutional character of the proceedings in the House of Representatives chamber for President Bush and President Hu? Mr Evans�On one view it had no constitutional character because it is not provided for in the Constitution but, theoretically, it was a meeting of the Senate which happened to be taking place in the House of Representatives chamber at the same time as a meeting of the House of Representatives was occurring there. This is the way in which it was framed in the resolutions. The Senate, in its resolution, agrees to meet for that purpose�for the purpose of receiving the address�and it agrees to meet simultaneously with the House of Representatives in the House chamber.

Senator BRANDIS�So it was not a joint sitting?

Mr Evans�No. I have been very careful and I have tried to persuade other people to be careful about calling it a joint meeting rather than a joint sitting to distinguish it from the joint sitting, which is a particular arrangement occurring under the Constitution.

Senator FAULKNER�I think the Hansard record of these particular hearings will show that I am one at least who is convinced on that point.

Mr Evans�Section 57 of the Constitution refers to a joint sitting where the members of the two houses will meet and vote together, so it is a different body constituted under that provision of the Constitution. It is not a meeting of the Senate, it is not a meeting of the House of Representatives; it is an entirely different body consisting of the members of the two houses meeting and voting together. As a purist I take the view that it is not open to the two houses to authorise that sort of different body to meet for any purpose other than under section 57 of the Constitution.

Senator BRANDIS�Is that because the joint sitting contemplated by section 57 operates under the circumstances provided for by section 57�that is, after a double dissolution election and not otherwise?

Mr Evans�Precisely.

Senator BRANDIS�There is nowhere else in the Constitution is there which provides for a joint sitting?

Mr Evans�No. There is a provision in the Constitution, section 50, which says the two houses can provide rules for their proceedings either separately or jointly with the other house, or some words to that effect. Some people take the view that that authorises the houses to hold joint meetings on all manner of things if they want to; other people take the view that that refers specifically to the joint sitting under section 57 and nothing else, which is the only constitutionally authorised joint proceedings.

I am not sure embarrassment is a good enough reason to override the constitution. The whole mess has now been referred to the Senate Privileges Committee.