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Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Subpoenas, search
warrants and members
Members have no
explicit immunity as such against subpoenas or orders for discovery of
documents issued by courts or tribunals or search warrants, which may be used
to obtain access to documents held by members (for the service of subpoenas in
the precincts, see under Matters constituting contempts, below; for the
execution of search warrants in the precincts, see under Police powers in the
precincts, below). The use before a court or tribunal of material obtained by
subpoena, discovery or search warrant is of course restricted by the law of
parliamentary privilege as has been indicated above.
There may be, however, an effective immunity from such processes for
compulsory production of documents where the documents are so closely connected
with proceedings in Parliament that their compulsory disclosure would involve
impermissible inquiry into those proceedings.
In O’Chee v Rowley, Queensland Court of
Appeal, 1997 150 ALR 199, the court, influenced by an American precedent, Brown
and Williamson Tobacco Corp v Williams 1995 62 F 3d 408,
in effect held that documents created for purposes of or incidental to
parliamentary proceedings could be immune from orders for discovery of documents,
although there was some uncertainty about whether this extended to documents
created by persons other than the senator concerned. This case was referred to
in the 75th Report of the Committee of Privileges, PP 52/1999.
In NTEIU v the Commonwealth
(19/4/2001, not reported) the Federal Court accepted submissions on behalf of
the Senate and by the Australian Government Solicitor to the effect that
certain documents were immune from production because they were matters done
for purposes of and incidental to parliamentary proceedings. Similarly, in Australian
Communications Authority v Bedford, the Federal Magistrates Court held that
briefs prepared for Senate estimates hearings are immune from production in a
criminal matter (28/3/2006, not reported). In CPSU v the Commonwealth a claim by the Commonwealth that a
document prepared for Senate estimates hearings should not have been admitted
into evidence in the Federal Court was not contested, and orders were made by
consent to strike out references to the document in the evidence (11/7/2007,
not reported). In Niyonsaba v the Commonwealth the Commonwealth claimed immunity from
production in the Federal Court for briefing notes for Senate question time and
estimates hearings, and this claim was not
contested (2007, not reported).
For a claim by
the Auditor-General, uncontested, that draft Audit Office reports, prepared for the purpose of presentation
to Parliament, are immune from discovery because of parliamentary privilege,
see tabled letters from the Audit Office and the Clerk of the Senate,
12/11/2002, J.1026; 14/6/2005, J.656.
In Crane v Gething 2000
169 ALR 727, a case involving
the seizure of documents under search warrant in the offices of a senator, a
judge of the Federal Court found that the court did not have jurisdiction to
determine whether parliamentary privilege prevented such a seizure, as the
issue of search warrants is an executive act and not a judicial proceeding, and
that only the House concerned and the executive may resolve such an issue. This
finding was contrary to a submission made by the Senate, to the effect that
parliamentary privilege protected from seizure only documents closely connected
with proceedings in the Senate, and that the court could determine whether
particular documents were so protected (the submission was tabled in the
Senate: 13/3/2000, J.2423-4). This aspect of the judgment was not appealed and
is unlikely to be regarded as authoritative. The documents in
question were forwarded to the Clerk of the Senate in accordance with the order
of the court (3/10/2000, J.3267). The Senate appointed a person to examine the documents to
determine whether any were protected from seizure by parliamentary privilege,
to return any so protected to the senator, and to provide the remainder to the
police (5/12/2000, J.3726-7; 8/8/2001,
J.4617; 27/8/2001, J.4761).
In 2002 the
Privileges Committee reported on the execution of a search warrant by state
police in the state office of a senator. The committee found that the police
had taken appropriate steps to allow the senator to claim that any of the
material seized was immune from seizure by virtue of parliamentary privilege
(105th report of the committee, PP 310/2002). The committee
subsequently reported that, following continuing disagreement between the
senator and the police about the treatment of documents for which privilege was
claimed, the same arrangement had been made to settle the matter as in the 2000
case (5/2/2003, J.1457; SD, pp 8573-4). The result of the examination of
the documents was that they were all returned to the senator, as none were
found to be within the scope of the search warrant (114th report of
the committee, 20/8/2003, PP 175/2003).
A memorandum of understanding and Australian Federal Police Guidelines
agreed to by the President, the Speaker, the Attorney-General and the Minister
for Justice and Customs, governing the execution of search warrants in the
premises of senators and members, were tabled and debated in March 2005. The
documents provide that any executions of search warrants in the premises of
senators and members are to be carried out in such a way as to allow claims to
be made that documents are immune from seizure by virtue of parliamentary
privilege and to allow such claims to be determined by the House concerned. The
agreement underlying these documents was the result of several years of effort
by the Senate, successive Presidents and the Privileges Committee, arising from
the committee’s consideration of the cases referred to above. (9/3/2005, J.451, SD,
pp 91-2.) An agreement of the same kind was entered into with the
Tasmanian government in 2006 (15/8/2006, J.2496). (See Supplement)
The US Court of Appeals ordered a similar arrangement for resolving
claims of legislative immunity in a case involving documents seized in the
office of a member of the House of Representatives under search warrant. In a
subsequent judgment the court held that the search and seizure violated the
legislative immunity, that the congressman should have been allowed to claim
immunity for particular documents before they were seized, and that that claim
should have been determined by the court so that immune documents would not
fall into the hands of the law enforcement agencies. The court thereby came to
a position identical to that argued by the Australian Senate in its submissions
to the Australian Federal Court in 2000. (US v Rayburn House Office Building, Room 2113 [Jefferson case], 28/7/2006, 3/8/2007, not reported; the Supreme Court
declined to review this judgment on 1 April 2008).
Documents would
not have to be in the possession of a senator to attract the immunity. For
example, documents such as briefing notes provided by an adviser to a senator
for the purposes of proceedings in the Senate or a committee and in the
possession of the adviser would be immune from seizure from the adviser.
The “dominant
purpose” test applied by the courts in respect of legal professional privilege
(Esso Australia Resources Ltd v Commissioner of Taxation 1999 168 ALR 123) would probably also be
applied to documents to determine their immunity under parliamentary privilege.
Not only may members
of Congress not be compelled to produce documents within the sphere of their
legislative activities, or to undertake searches of their files containing
protected material, but even when it is known or conceded that an order will
turn up non-protected documents, members may not be required to search their
files simply on that basis (Adams & Others v Federal Election Commission, US District Court, 9/10/2002,
not reported). In US v Arthur
Andersen, US District Court 2002 (not reported),
a subpoena directed by the defence in a criminal case to a House of
Representatives committee was quashed on the same basis.
The New South
Wales Legislative Council has asserted the immunity (Standing Committee on
Parliamentary Privilege and Ethics, Report No. 28, 2004; Minutes of
Proceedings, 4/12/2003, pp 493-5, 501; 24/2/2004, pp 520-1).
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