Page 568 - Week 03 - Tuesday, 12 April 1994
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deliberately or recklessly misled the parliament - and you look at the terms of reference of the inquiry under the Inquiries Act, which go to the conduct of the Minister and any other relevant matters, it is clear that this is a case that falls within the first dot point; that is, specific facts in relation to the conduct of specific persons are being inquired into.
That is expanded on at page 494 of Browning under the heading "Matters before a royal commission". There could be a quibble that we are talking about an inquiry and not a royal commission. The debate surrounding the passage of the Inquiries Act and the Royal Commissions Act was a cognate debate. We in fact said from the Opposition that you should not have two Bills; you should simply have the one. The view of the Assembly at the time was that it would be better to have two Acts running parallel; that an inquiry was a slightly lower version of a royal commission but nonetheless a very serious matter. At the end of the day we went along with that. So it would be very much splitting hairs to say, "Well, that may be the practice in law in relation to a royal commission, but it does not apply to an inquiry". Mr Browning says at page 494:
In 1954, Speaker Cameron took the view that he would be failing in his duty if he allowed any discussion of matters which had been deliberately handed to a royal commission for investigation. The contemporary view is that a general prohibition of discussion of the proceedings of a royal commission is too broad and restricts the House unduly. It is necessary for the Chair to consider the nature of the inquiry. Where the proceedings are concerned with issues of fact or findings relating to the propriety of the actions of specific persons the House should be restrained in its references. Where, however, the proceedings before a royal commission are intended to produce advice as to future policy or legislation they assume a national interest and importance, and restraint of comment in the House cannot be justified.
He continues by saying:
The question as to whether the proceedings before a royal commission are sub judice is therefore treated with some flexibility to allow for variations in the subject matter, the varying degree of national interest and the degree to which proceedings might be or appear to be prejudiced.
So there is clearly an element of judgment that is required to be made by members here, and the element of judgment is essentially about on which side of the line this falls. Is it a matter that goes to facts and the conduct of specific individuals? We have heard the debates and the diatribe - "We say that Mr Berry did this. We say that Mr Berry's state of knowledge of the facts at a certain time was this, and therefore he misled". They must be seen as allegations of a factual nature, going to the conduct of a named individual, which parallel very closely the terms of reference that have been granted. It is significant in forming your decision that you look at the fairly open-ended nature of the terms of reference, which conclude at point (d), "any other relevant matters". So Professor Pearce has a fairly - - -
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