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Phelan, Liam --- "Asia-Pacific: Manners v human rights" [2004] AltLawJl 11; (2004) 29(1) Alternative Law Journal 50

Insights from the region

Welcome to the first edition of Asia-Pacific.

This launch follows the strong interest shown in our recent increase in regional coverage. The second half of 2003 saw the publication of briefs by:

• Nehal Bhuta on 'East Timor: justice delayed' June)

• Miranda Forsyth on 'Vanuatu: Determining chiefly title: from courts to custom and back again' (August)

• Francis Regan on 'China; Falling in love with litigation’ (October)

• Simon Butt on 'Indonesia: Draft Criminal Code: can legal diversity exist within a single national law?' (December)

now followed by 'A tale of two Houses, two Presidents, two Senators and two Tibetans' by Liam Phelan.

Asia-Pacific is a timely addition to the Alternative Law journal, expanding our regular contributions beyond domestic boundaries. It aims to provide a forum for regional social justice commentary and legal critique, educating readers about the law in action that extends beyond mainstream debate without trivialising diversityand difference. It will be responsive to current regional developments.

Do you seek to further discourse about a region characterised by rapid growth and social change? We publish multidisciplinary comment from academics, government and the judiciary. representatives of local non-government organisations, community groups and international agencies. Please contact me if you are interested in receiving further information.

ELIZA BERGIN is Editor, Asia-Pacific

A tale of two Houses, two Presidents, two Senators and two Tibetans

On Friday. 24 October 2003, Chinese President Hu Jintao addressed a joint meeting of the Federal Senate and House of Representatives. Two Australian Greens senators were excluded from proceedings after extreme pressure was reportedly successfully brought to bear by the Chinese leadership on the Presiding Officers in the Federal Parliament -an unprecedented occurrence. The Senators' Tibetan guests were excluded from the public gallery. along with the Chinese pro-democracy activist guest of Michael Organ (Australian Greens Member of the House of Representatives).The Senate Privileges Committee has since established an inquiry into these events and is expected to report in early 2004.

Not welcome in your own House?

On Thursday 23 October 2003, Senators crowded in with Members in the House of Representatives to hear President Bush of the United States of America give an address. The next morning, most Senators again made the trip over to the Lower House, this time to hear Chinese President Hu. Two Senators, Bob Brown and Kerry Nettle of the Australian Greens, were excluded from proceedings after pressure from President Hu's entourage. Meanwhile, up in the public gallery two Tibetans from the Tibetan community in Canberra-the Greens Senators' guests -were missing. They were forced into another part of the building, behind a glass wall and without the benefit of translation. A Chinese pro-democracy activist -also invited - suffered the same treatment.

Pressure by a foreign government?

This episode raises two critical issues. First and foremost is the ability of a foreign government to influence federal parliamentary procedural decisions. Senator Bob Brown noted that 'It is quite clear that very great pressure was placed on the Speaker and the President and it is clear...that pressure was effective in achieving a resutt.' [1]

The exclusion of the Senators' Tibetan guests from the gallery was a clear interference in the Greens Senators' independence. For the joint meeting of the Houses, Senators and Members were allocated one invitation each to give to whomever they wished. In the event, the Greens Senators' guests were identified by an agent of the Chinese government and prevented by parliamentary staff from entering the gallery.

The presence of two Tibetans 'bearing witness' to President Hu's address is an entirely appropriate way to highlight China's ongoing occupation of Tibet. China invaded Tibet in 1949 and has occupied Tibetan territory since then. More than one million Tibetans are estimated to have lost their lives as a direct result of the invasion and subsequent occupation. President Hu was in fact previously Communist Party Secretary in Tibet, from 1985 to 1992, and oversaw the imposition of martial law in 1989 1n response to a Tibetan uprising. Given the fact of China's continued occupation of Tibet and the well­ documented human rights abuses still occurring there, it 1s no surprise that Tibetans in the Australian community continue to choose to protest against the Chinese leadership.

It is of grave concern that the Australian Parliament would become a venue for the exclusion of Tibetan guests. The exclusion represents an extension onto Australian soil of the denial of rights that Tibetans suffer in their own land.

Pressure also forced an assurance by Michael Organ, the Australian Greens Member for Cunningham, that he would not wear a Tibetan flag pin on his lapel nor a black armband during President Hu's address to the joint sitting.

Incredibly, Senator Robert Hill, a member of Cabinet, asserted under parliamentary privilege that there was no involvement at all from the Ch1nese in the decisions to exclude Senators or their guests, or to police the Member for Cunningham over his attire.

The Senate Privileges Committee is currently inquiring into 'Matters arising from the joint meetings of the Senate and the House of Representatives on 23 and 24 October 2003' and is expected to report in early 2004.

The Privileges Committee has not yet called for submissions from the public. Nevertheless, the Australia Tibet Council and Australian Tibetan communities have made submissions. It is hoped that these submissions will be accepted and duly considered. It is hoped that the two excluded Tibetans will be invited to give testimony.

The terms of reference for the inquiry include:

In relation to the joint meeting of the Senate and the House of Representatives to receive an address by the President of the People's Republic of China on 24 October 2003:
(a) whether there was any inappropriate presence or activity by agents of the Chinese Government;
(b) whether agents of the Chinese Government exercised or attempted to exerc1se any inappropriate influence over any part of the proceedings, including:
(i) any suggested cancellation of. or any delay in, the proceedings,
(ii) the removal or redirection of senators' or members' guests from the public gallery,
(iii) the exclusion of Senator Brown and Senator Nettle from the proceedings and the method by which that exclusion was achieved, and
(iv) any message or instruct1on to persons attending the proceedings in relation to any dress, display of Insignia or symbolism;
(c) whether senators were appropriately informed of any of these matters or of any other matters relating to the proceedings; and ·
(d) whether there are any Implications for the powers, privileges and immun1ties of the Senate arising from these matter$, and whether the Senate should take or recommend any action in consequence.[2]

No rules for joint meetings?

The second question raised by the events at federal parliament on 23 and 24 October 2003 is the basis for addresses by foreign leaders to parliament, and the rules for joint meetings of both Houses. Before October 2003, there had only been two previous addresses of this kind -Presidents Bush and Clinton of the United States of America. The tally now stands at four, yet there are no clear rules governing the conduct of such occasions.

The joint meeting is not a 'sitting', called for example to resolve a deadlock over passage of legislation.

Given the response to interjections by Senators Brown and Nettle during President Bush's address on the Thursday, it appears there is an assumption that there are certain times at which the parliamentary debating chambers are not to be used for debating. Rather. they are used in the way that the Great Hall, the National Press Club and other similar fora are used -one person on a stage or at a podium speaking and an audience listening. Questions arise also in relation to the rules by which Senators are bound when in the lower house. For example, the President of the Senate was not presiding over proceedings in the lower house on either the Thursday or the Friday. In addition, the rules of the House of Representatives don't apply to Senators at any time-the Speaker of the Lower House has no authority over Senators.


Excluding Senators from proceedings in parliament and their guests from the public gallery at the behest of a foreign power and without a basis in parliament's standing orders represents simultaneously a serious attack on our democratic processes and a denial of individual human rights. It will be interesting to see exactly what conclusions the Senate's Privileges Committee comes to through the course of its inquiry. The events of 23 and 24 October 2003 highlight the absence of any formal basis on which such joint meetings of the upper and lower houses are held. The lack of a clear framework g1ves the government of the day the opportunity to misuse the parliament as a theatrical stage and so grandstand for its own political ends.

LIAM PHELAN is Campaigner with the Australia Tibet Council.

[1] Commonwealth, Parliamentary Debates, Senate, 29 October 2003, 17171 (Bob Brown, Senator)

[2] The terms of reference for the Senate Privileges Committee's inquiry into 'Matters ans1ng from the joint meetings of the Senate and the House of Representatives on 23 and 24 October 2003' and the Senate Procedures Committee Inquiry into can be found in full at the Federal Parliament website <http.//www.aph.govau/senate/


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