Recently, at Lindsay’s Lobes, the distinguished Mr. Byrnes, noted poet laureate, expressed a profound distaste for alterations in the Hansard record of the Australian Parliament.
While I do not disagree
with such an assessment per se, to my
understanding the precedents from which this practice derives draws my eye to a
more elusive target; the extent to which the exception is construed, whether
broadly or narrowly.
The following
disclaimers are in order:
While much of the
analysis here deals with the laws of the United States, the English common law
governs their construction; hence there is little difference from other nations
of the Anglosphere. The valid points of
departure lie in the structural features.
In the Parliamentary system the judiciary is subordinate to the
executive, which in turn is subordinate to the legislature; while in the
Constitutional system, the three branches of government are co-equal in theory,
though delegations of authority and the evolution of the office of the
Presidency have effectively altered this somewhat. This structural feature was introduced in the
American system as a means of observing low conformity costs among the States,
a necessity to secure ratification; while the Parliamentary system exhibits
much lower transaction costs, and is geared more toward the legislature
actually accomplishing its ends.
These structural
features play no role in unraveling the precedents in the English common law in
the matter of present inquiry.
Now, there are a number
of different types of statements which can be given, and the applicable body of
law is that of deposition testimony; it is separate from a hearing, but may be
introduced at hearing. There is an
exception which is recognized in most jurisdictions that a deponent may review
any statements made for correctness before execution of the testimony. Effectively, the deponent retains sole
possession of the statements given until this review is completed. Any alterations to be had are typically made
via errata sheet.
Still, some
jurisdictions do not recognize this exception.
The rules for invoking
the exception differ from one jurisdiction to the next: some require invoking
the exception prior to answering any question, while others permit the
exception to be invoked at any time during the deposition. Still others permit invoking the exception
for a length of time following the conclusion of testimony.
There is some utility
in this. I have seen a transcript where
the court reporter transcribed the words, “Mister Peacock,” in a place where it
was utterly nonsensical; nonetheless, “Mister Peacock,” were the words which
the reporter had heard. Such
discrepancies are properly cured by errata.
That said, there are
some jurisdictions in which the exception is construed so broadly as to permit
answers of, “No,” to be changed to, “Yes,” and vice versa. In these jurisdictions, the final deposition
may be markedly different from that given.
(One particular case involving a pharmaceutical manufacturer comes
immediately to mind.) In such cases, the
utility of the deposition itself is diminished.
Additionally, preparing for a deposition under such circumstances is
practically impossible.
If it is not apparent
at this point, the location where a deposition is given can be of primary importance.
And so, I find it fully
appropriate that the Hansard be reviewed prior to publication to ensure proper
spelling of names, corrections of dates (provided no material alterations
result), exclusion of vocal artifacts, speech impediments, and the like, etc.
That said, it is also
fully proper that appropriate counter-measures be observed when such
alterations occur; i.e., that, in invoking the exception, implicit consent of
review is given. Any errata noted should
be declared and subject to the objection of other members.
Additionally, measures
to ensure access to the recorded records of the original proceedings should be
easily available for review by the press and interested citizens.
Provided the exception
is narrowly construed, and proper declaration is made with opportunity for
objection, while recordings of the original proceedings are easily available, I
hold such alterations are not improper, but rather prudent.
That said, legislative
immunity is of a much greater scope in the Parliamentary system. Unfortunately, I believe that immunity would
apply in this case.
And that, I respectfully submit, is the
issue of true concern; that the legislative immunity of the members may need to
be pared back.
At any rate, the
current scandal gives the opportunity to review the procedures in invoking the
exception, which, by all rights, appears to be in order.
