To tweet about Mr Speaker, or not to tweet?

Jeremy Travers, Thursday 10 November, 2011. Yesterday in the Victorian Legislative Assembly, we saw a bit of controversy as Speaker Ken Smith demanded an apology from a Labor MP over a tweet that reflected on his position as Speaker the previous day. Martin Foley, the member for Albert Park, tweeted:
speaker smith new low in abandoning any parliamentary standards in #springst by allowing sneaky Libs/Nats avoid scrunity on #RyanTilleygate

The first six pages of yesterdays proof Hansard feature the Speaker demanding an apology for the tweet and points of order, claiming that this would be a dangerous precedent for Speakers to take, as the tweet was not made inside the chamber. Respectfully, I must disagree that the precedent would be dangerous. In the parliamentary context, there are two issues that must be considered: firstly, did this tweet constitute a reflection on the Speakers performance? And secondly, what is the appropriate penalty for such a reflection? I believe that the tweet itself constituted a reflection on the Chair. There is some debate as to whether or not parliamentary sanctions can be applied for this tweet. In my view, there is no difference between this tweet and comments that members of Parliament make in the press that are equally critical of the Speakers performance. A publication by the New South Wales Legislative Assembly, entitled Decisions from the Chair, provide rulings by Speakers about reflections on the Chair in the press. Mr Speaker Clyne and Mr Speaker Kelly both ruled in 1943 and 1984 respectfully that maligning the Speaker through the press was unchivalrous and a violation of the traditions of parliamentary procedure. From a federal perspective, House of Representatives Practice provides the reader with examples of the Speakers actions being criticised by members in the press and the Speakers (and in some cases, the Houses) reactions to each of those reflections. I will provide three more recent examples of these cases. This information is taken from pages 196-197 of the Practice. In February 1987, Madam Speaker Child informed the House that she had become aware of reported remarks critical of her by Wilson Tuckey following his suspension from Parliament the previous day. Although Mr Tuckey offered an apology in writing, the Speaker gave precedence to the matter under the standing order relating to privilege. The Leader of the House then moved a motion in the following words:
That this House finds that remarks made by the honourable member for O'Connor yesterday are a serious reflection on the character of the Speaker; contain an accusation of partiality in

the discharge of her duty, and therefore constitute a contempt of the House; and suspends the honourable member for O'Connor from the service of the House for seven sitting days, including today.

After debate, the motion was agreed to with the House dividing: 77 ayes to 60 noes. [Hansard, 24.2.1987, p. 580-7] In August 1986, Madam Speaker Child informed the House that she was made aware of reported remarks made by Ian Sinclair, then Leader of the National Party, in connection with the custody of documents in possession of the Parliamentary Commission of Inquiry which were to be placed in the custody of the Speaker and the President of the Senate. Upon request from the Speaker, Mr Sinclair apologised. He further explained that the remarks were not meant to be about the Speaker but about Parliament itself and his view that Parliament was an unsuitable repository for documents containing unresolved allegations. On 16 September, the Speaker again referred to the matter. She had examined the transcript of Mr Sinclairs remarks and the statement he made to the House on 22 August and was convinced that Mr Sinclairs remarks constituted a breach of the privileges of the House and that the subsequent apology constituted a contempt. After Mr Sinclair addressed the House, the Deputy Speaker moved a censure motion in Mr Sinclair. The motion was withdrawn by leave of the House after Mr Sinclair acknowledged his remarks, withdrew them and apologised again. And lastly, in October 1990, Mr Speaker McLeay made a statement in relation to remarks reportedly made by an MP outside the House which amounted to a reflection on the Chair. The concerned member withdrew the reflection and apologised to the Speaker. So, it is well known that in Westminster parliaments, Speakers take reflections on their performance and conduct seriously, whether the remarks were made in Parliament or outside Parliament. Yesterday, Mr Speaker Smith drew the attention of the Legislative Assembly to the tweet and asked for an apology. He did not mention the specific tweet, stating that he did not wish to have it recorded in Hansard. The Speaker was within his rights to ask for an apology; given the fact that he concluded that it was offensive to him and his position as Speaker. In other words, it was a reflection on him as Speaker. I found out about the incident, ironically, via Twitter. The ABCs Josie Taylor posed an interesting question by asking:
Does this mean the media can't scrutinise/criticise speaker ken smiths behaviour on twitter? Or js mps? #springst

I replied:

@josietaylor Not sure about journalists, but the Speaker's actions can't be criticised apart from a dissent motion or no-confidence motion.

There is a precedent in House of Representatives Practice (on page 196) where on 15 May 1964, a radio journalist during a broadcast accused Mr Speaker McLeay (different from the Mr Speaker McLeay in the 1990 example above) of partiality in his duties and suggested that he analyse the word impartiality before the next sittings. The Speaker found that the remarks were a grave reflection on his character. It was determined that, as the winter break was approaching at the end of that day, a reference to the Committee on Privileges would be unsatisfactory. It was decided that more immediate action should be takenunless a complete and full apology and retraction were made over the same broadcasting stations, the journalists press pass should be withdrawn and, with the concurrence of the President of the Senate, the journalist should be denied admittance. The Speaker summoned the journalist to his office and the journalist admitted his mistake and the seriousness of his offence. The journalist was informed that a breach of privilege could have been committed by the broadcasting stations and he requested the Speaker not to press the matter in relation to the stations and that the journalist himself was to blame. The journalist agreed to broadcast a retraction and apology that night and to be repeated the following morning, following the clearance of the script with the Speaker. As that was in 1964, I am not sure how Speakers would deal with such statements if they were made on television, radio and social media today. Some might argue that the Speaker should take appropriate action as to protect his office while others might argue that any interference from the Speaker might constitute censorship. My own personal view is that this matter should be examined on a case by case basis. But it is unclear what action, if any, could be taken against a journalist who is not part of the parliamentary press gallery. In my response to Ms Taylor (on Twitter, as quoted above), I stated that the Speakers actions cant be criticised apart from a dissent motion or a motion of no-confidence. The shadow parliamentary secretary to the Leader of the Opposition, Colin Brooks MP, tweeted the following in response to my tweet:
@JeremyTravers @josietaylor that's right for MPs in the chamber but what about comments made outside parliament?

In my response, consisting of two tweets due to the 140 character limit, I said that I was not sure of the Victorian practice but there was a case (in the 1980s) that I remember in the New South Wales Legislative Assembly where the Speaker demanded the withdrawal of remarks that a member had made about the Speakers conduct via the press. In terms of the second question I posed earlier, as to what the appropriate penalty could be for reflecting on the Chair, I am of the view that the penalty should reflect the nature of the

offence. Most of the time, the Speaker would call for the reflection to be withdrawn and an apology to be made. That is reasonable in majority of cases where the Speaker has been reflected on. If the member refuses to apologise and withdraw, the Speaker is entitled to have that member removed from the Chamber for a period of time defined by the standing orders or name the member for refusing to obey an instruction by the Speaker. Naming a member has the effect of suspending that member for 24 hours. As I wrote earlier, I am of the view that there is no difference between a remark made by a member on Twitter that is critical of the Speaker and a statement by a member in the press that is equally critical. At the same time, I believe that the Standing Orders Committee needs to examine the use of Twitter by members of Parliament inside the Chamber. Having examined the first six pages of the Hansard proof, there seems to be a suggestion that it was more appropriate to raise this matter in private as opposed to it being raised in Parliament. I believe that the Speaker was quite right to raise the matter in Parliament for two reasons: firstly, because under the Westminster system, the Speaker cannot defend himself anywhere else but the House itself; and secondly, it establishes a precedent on the use of social media by members to criticise the Speaker. At the end of the day, the tweet by Mr Foley constituted a reflection on the Chair and an apology should have been given. There are parliamentary ways of dealing with the Speakers performance and conductsuch as a dissent motion, a censure motion and a no-confidence motion. While these motions are likely to be defeated on party lines, these motions at least provide an opportunity to be debated. I look forward to the recommendations of the Standing Orders Committee on this matter.