Of Alterations in the Hansard

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.