Footnotes
Chapter 2 - Background to the inquiry
[1] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p.
468. The terms 'public interest immunity' and 'privilege' were used
interchangeably by witnesses, and accordingly both are used throughout this
report. Similarly, the terms 'arbitrator' and 'arbiter' are both used in the
report as they were also used interchangeably by witnesses.
[2] Mr Evans
was the Clerk of the Senate at the time he made a submission to the inquiry (Submission
4) on 26 November 2009, but had retired when he appeared before the
committee on 7 December 2009. In the interests of simplicity, Mr Evans will be
referred to as the 'former Clerk of the Senate' throughout this report.
[3]
Mr Harry Evans, Clerk of the Senate, Submission 4, appendix 1.
[4] See for
example: reference in Odgers' to a paper circulated by the Employment
Workplace Relations and Education Committee during the May 2005 Budget Estimates,
Odgers' Australian Senate Practice, 12th edition, p. 469; and Government guidelines for official witnesses before
Parliamentary committees and related matters - November 1989, para. 2.32,
www.dpmc.gov.au/guidelines/docs/official_witnesses.pdf (accessed 19 January 2010).
[5]
Department of the Prime Minister and Cabinet, Government guidelines for official witnesses before Parliamentary
committees and related matters - November 1989, para. 2.32, p. 9.
[6] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p. 469.
[7] Advice from
the Clerk of the Senate, Grounds for Public Interest Immunity Claims, tabled
during Senate Employment, Workplace Relations and Education Legislation
Commission Budget Estimates hearing, 30 May 2005.
[8] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p.
469.
[9] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, pp
469–70.
[10]
Mr Harry Evans, Clerk of the Senate, 'Public Interest Immunity Claims in
the Senate', (2002) 13 Public Law Review 3, at p. 3.
[11]
It should be noted that all public interest immunity claims should only be
made by a minister, see Department of Prime Minister and Cabinet, Government
Guidelines for Official Witnesses before Parliamentary Committees and Related
Matters, November 1989, para 2.28, p. 8, www.dpmc.gov.au/guidelines/docs/official_witnesses.pdf
(accessed 19 January 2010).
[12] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, pp
445–6.
[13] Procedural
Information Bulletin, No. 237, for the sitting period 16 November to 2
December 2009, 3 December 2009, pp 4–5.
[14] Response
from the Hon Nicola Roxon MP, Minister for Health and Ageing, to the Order of
the Senate relating to legal advice on the Health Insurance Amendment (Revival
of Table Items) Bill 2009, tabled 18 November 2009; Response from the Hon
Justine Elliot MP, Minister for Ageing, in relation to the Order of the Senate
of 17 November 2009, tabled 18 November 2009; Response from the Hon Stephen
Conroy MP, Minister for Broadband, Communications and the Digital Economy, to
the Order of the Senate on 13 May 2009 relating to the National Broadband
Network documents, tabled 26 October 2009.
[15] Report of
the Royal Commission on Australian Government Administration, 1976,
Parliamentary Paper 185/1976, p. 115.
[16] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p. 72.
[17]
Harry Evans ed., Odgers' Australian Senate Practice, 12th edition,
p. 446.
[18] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p. 488.
[19] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p.
469.
[20]
Mr Harry Evans, Clerk of the Senate, Submission 4, p. 2.
[21] Senate
Procedure Committee, Third Report of 2009, August 2009, p. 2.
[22] Senate
Procedure Committee, Third Report of 2009, August 2009, p. 2.
[23] Senate
Procedure Committee, Third Report of 2009, August 2009, p. 2.
[24] Senate
Procedure Committee, Third Report of 2009, August 2009, p. 3.
[25] Senate
Procedure Committee, Fourth report of 2009, November 2009, p. 2.
[26] Senate
Procedure Committee, Fourth report of 2009, November 2009, p. 2.
[27] Senate
Procedure Committee, Fourth Report of 2009, November 2009, p. 3.
[28] Department
of Prime Minister and Cabinet, Government Guidelines for Official Witnesses
before Parliamentary Committees and Related Matters, November 1989, p. 9, www.dpmc.gov.au/guidelines/docs/official_witnesses.pdf
(accessed 19 January 2010).
[29]
Mr Harry Evans, Clerk of the Senate, Submission 4, p. 2. The
respective Senate Committee reports mentioned were: Senate Privileges
Committee, Parliamentary Privileges Amendment (Enforcement of Lawful Orders)
Bill 1994: Casselden Place Reference, March 1995; Senate Finance and Public
Administration References Committee, Contracting Out of Government Services:
Second Report, May 1998, Chapter 5.
[30] Mr Harry
Evans, Clerk of the Senate, Submission 4, p. 2.
[31] Senator Gareth
Evans, Senate Hansard, 23 September 1982, p. 104.
[32] Senate
Journals, 23 September 1982, J.1105–7; Senate Journals, 14 October
1982, J.1125; Senate Journals, 25 November 1982, J.1258–9.
[33] Senator
Gareth Evans, Senate Hansard, 23 September 1982, p. 1238.
[34] Senate
Hansard, 15 December 1982, p. 3581.
[35] Joint Select
Committee on Parliamentary Privilege, Final Reports, October 1984,
Parliamentary Paper 219/1984, p. 153.
[36] Joint Select
Committee on Parliamentary Privilege, Final Reports, October 1984,
Parliamentary Paper 219/1984, p. 154.
[37] Joint Select
Committee on Parliamentary Privilege, Final Reports, October 1984,
Parliamentary Paper 219/1984, p. 154.
[38] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p.
480.
[39] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p.
480, quoting a letter from the Clerk to the Senate Select Committee on Certain
Aspects of Foreign Ownership Decisions in Relation to the Print Media.
[40] Senate Committee
on Privileges, Parliamentary Privileges Amendment (Enforcement of Lawful
Orders) Bill 1994, 49th Report, September 1994, p. 8.
[41] Senate
Committee on Privileges, Parliamentary Privileges Amendment (Enforcement of
Lawful Orders) Bill 1994, 49th Report, September 1994, p. 10.
[42] Senate
Committee on Privileges, Parliamentary Privileges Amendment (Enforcement of
Lawful Orders) Bill 1994, 49th Report, September 1994, p. 10.
[43] Senator the
Hon Gareth Evans, Leader of the Government in the Senate, Senate Committee
on Privileges Hansard, 18 August 1994, p. 13.
[44] Mr Harry
Evans, Clerk of the Senate, Senate Committee on Privileges Hansard,
18 August 1994, p. 32; Mr Anthony Morris QC, Barrister, Senate
Committee on Privileges Hansard, 18 August 1994, p. 85.
[45] Senate
Committee on Privileges, Parliamentary Privileges Amendment (Enforcement of
Lawful Orders) Bill 1994 – Casselden Place Reference, 52nd
Report, March 1995, p. 5.
[46] Senate
Finance and Public Administration References Committee, Contracting Out of
Government Services Second Report, May 1998, p. 71.
[47] Senate
Journals, 20 June 2001, pp 4358–9.
[48] Senate Order
of Continuing Effect of 20 June 2001 as amended, paragraph (5).
[49] Mr Ian
McPhee, Auditor-General, Committee Hansard, 7 December 2009, p. 55.
[50] This section
is largely drawn from the submission of Ms Lynn Lovelock, Clerk of the
Parliaments, NSW, Submission 6, p. 2.
[51] As at time
of research for: Lynn Lovelock, 'The Power of the New South Wales Legislative
Council to Order the Production of State Papers: Revisiting the Egan
Decisions Ten Years On, Australian Parliamentary Review, Spring 2009,
Vol 24(2), p. 202.
[52] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 22.
[53] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 15.
[54] (1998) 195
CLR 424.
[55] (1999) 46
NSWLR 563.
[56] Lynn
Lovelock, 'The Power of the New South Wales Legislative Council to Order the
Production of State Papers: Revisiting the Egan Decisions Ten Years On, Australian
Parliamentary Review, Spring 2009, Vol 24(2), p. 199.
[57] Egan v
Willis (1998) 195 CLR 424, per Gaudron, Gummow and Hayne JJ.
[58] NSW
Legislative Council, Standing Order 52 (6); Victorian Legislative Council,
Sessional Order 19 (7).
[59] Legislative
Council of Victoria, Submission 5, p. 2.
[60] Legislative
Council of Victoria, Submission 5, Attachment 3.
[61] Mr Wayne
Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee Hansard,
7 December 2009, p. 3.
[62] Mr Wayne
Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee Hansard,
7 December 2009, p. 3.
[63] Mr Wayne
Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee Hansard,
7 December 2009, p. 7.
[64] Mr Wayne
Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee Hansard,
7 December 2009, p. 13.
[65] Mr Shane
Rattenbury, ACT Legislative Assembly Hansard, 7 May 2009, p. 2042.
[66] Mr Shane
Rattenbury, ACT Legislative Assembly Hansard, 7 May 2009, p. 2043.
[67] Associate
Professor Anne Twomey, private capacity, Committee Hansard, 7 December
2009, pp 33–34.
[68]
Associate Professor Anne Twomey, private capacity, Submission 2, pp
1–3.
[69] John Evans, Parliamentary
Privilege Order for papers and executive privilege; committee inquiries and
statutory secrecy provisions, paper presented to the Australasian Study of
Parliament Group, Victorian Chapter, 2002, Annual Conference, 12 October 2002,
p. 3.
[70] Legislative
Council of Victoria, Submission 5, p. 2.
[71]
Harry Evans, 'Public Interest Immunity Claims in the Senate', (2002) 13 Public
Law Review 3, at p. 4.
[72]
Mr Wayne Tunnecliffe, Clerk of the Legislative Council, Victoria, Submission
5, Attachment 1.
[73] Sir Laurence
Street, Committee Hansard, 7 December 2009, p. 64.
[74] Sir Laurence
Street, Committee Hansard, 7 December 2009, p. 64.
[75] Sir Laurence
Street, Committee Hansard, 7 December 2009, p. 70.
[76] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p.
469.
[77] Harry Evans
ed., Odgers' Australian Senate Practice, 12th edition, p.
469.
[78] Senate
Committee on Privileges, Parliamentary Privileges Amendment (Enforcement of
Lawful Orders) Bill 1994, 49th Report, September 1994, p. 8.
[79] Senate
Committee on Privileges, Parliamentary Privileges Amendment (Enforcement of
Lawful Orders) Bill 1994, 49th Report, September 1994, p. 9.
[80] Associate
Professor Anne Twomey, private capacity, Committee Hansard, 7 December
2009, pp 33–34.
Chapter 3 - Independent arbitration processes—benefits, costs and potential for misuse
[1] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 28.
[2] Sir
Laurence Street, Committee Hansard, 7 December 2009, p. 70.
[3] Associate
Professor Anne Twomey, private capacity, Committee Hansard,
7 December 2009, p. 43.
[4] Mr Harry
Evans, Clerk of the Senate, Submission 4, p. 2.
[5] Mr Harry
Evans, Clerk of the Senate, Submission 4, p. 2.
[6] Associate
Professor Anne Twomey, private capacity, Committee Hansard,
7 December 2009, p. 43.
[7] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 20.
[8] Associate
Professor Anne Twomey, Submission 2, p. 16.
[9] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 51.
[10] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 51.
[11] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 51.
[12] Sir Laurence
Street, private capacity, Committee Hansard, 7 December 2009, p. 64.
[13] Mr Harry Evans,
former Clerk of the Senate, Committee Hansard, 7 December 2009, p. 51.
[14] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 20.
[15] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 19.
[16] Associate Professor
Anne Twomey, private capacity, Committee Hansard,
7 December 2009, pp 40–41.
[17] Associate
Professor Anne Twomey, private capacity, Committee Hansard,
7 December 2009, p. 40.
[18] Associate
Professor Anne Twomey, private capacity, Committee Hansard,
7 December 2009, p. 40.
[19] Associate
Professor Anne Twomey, private capacity, Committee Hansard,
7 December 2009, p. 40.
[20] Mr Wayne
Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee Hansard, 7 December
2009, p. 8.
[21] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 18.
[22] Mr Wayne
Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee Hansard, 7 December
2009, p. 6.
[23] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 26.
[24] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 17.
[25] Associate
Professor Anne Twomey, private capacity, Committee Hansard, 7 December
2009, p. 45.
[26] Associate
Professor Anne Twomey, private capacity, Committee Hansard, 7 December
2009, p. 45.
[27] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 17.
[28] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 19.
[29] NSW
Legislative Council, Answers to Questions on Notice, 7 December 2009,
received 22 December 2009.
[30] Associate
Professor Anne Twomey, Private Capacity, Committee Hansard,
7 December 2009, p. 34.
[31] Associate
Professor Anne Twomey, private capacity, Committee Hansard,
7 December 2009, p. 39.
[32] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
pp 50–51.
[33]
Mr Wayne Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee
Hansard, 7 December 2009, p. 3.
Chapter 4 - The proposed Senate resolution
[1] Mr Harry
Evans, Clerk of the Senate, Submission 4, p. 1.
[2] Associate
Professor Anne Twomey, Submission 2, Attachment 1, p. 9, references
omitted.
[3] Associate
Professor Anne Twomey, Submission 2, Attachment 1, p. 8.
[4] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 23.
[5] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 21.
[6] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 50.
[7] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 47.
[8] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 50.
[9] Associate
Professor Anne Twomey, Submission 2, Attachment 1, p. 11.
[10] Associate
Professor Anne Twomey, Submission 2, Attachment 1, p. 11.
[11] Egan v
Chadwick (1999) 46 NSWLR 563, per Spigelman CJ at [52] – [53].
[12] Associate
Professor Anne Twomey, Submission 2, Attachment 1, p. 12.
[13] Report of
Sir Laurence Street, Papers on Data Electricity, 14 October 1999, p. 3, quoted
in Associate Professor Anne Twomey, Submission 2, Attachment 1, p. 12.
[14] Associate
Professor Anne Twomey, private capacity, Committee Hansard,
7 December 2009, p. 21.
[15] Sir Laurence
Street, Committee Hansard, 7 December 2009, p. 66.
[16] Sir Laurence
Street, Committee Hansard, 7 December 2009, p. 66.
[17] Mr Harry
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 50.
[18] See
paragraph (2) of the proposed resolution.
[19] Including
Associate Professor Anne Twomey, private capacity, Committee Hansard, p.
38; and the Hon Tim Smith QC, Chairman of the Accountability Round Table, Submission
11, p. 2.
[20] Ms Lynn
Lovelock, NSW Legislative Council, Submission 6, p. 5.
[21] Mr David
MacGill, Assistant Secretary, Department of Prime Minister and Cabinet, Committee
Hansard, 7 December 2009, p. 62.
[22] Ms Lynn
Lovelock, Clerk of the Parliaments, NSW, Committee Hansard, 7 December
2009, p. 17.
[23] Legislative
Council of Victoria, Submission 5, p. 4.
[24] Mr Harry
Evans, Former Clerk of the Senate, Committee Hansard, 7 December 2009,
p. 48.
[25] The Hon Tim Smith
QC, Chairman of the Accountability Round Table, Submission 11, p. 2.
[26] The Hon Tim
Smith QC, Chairman of the Accountability Round Table, Submission 11, p.
2.
[27]
Mr Ian McPhee, Auditor-General, Australian National Audit Office, Committee
Hansard, 7 December 2009, p. 54.
[28]
Mr Harry Evans, Clerk of the Senate, Submission 4, p. 2.
[29]
Mr Harry Evans, Clerk of the Senate, Submission 4, p. 2.
[30]
Mr Harry Evans, former Clerk of the Senate, Committee Hansard, 7
December 2009, p. 49.
[31]
Mr Ian McPhee, Auditor-General, Submission 8, p, 2.
[32]
Mr Ian McPhee, Auditor-General, Committee Hansard, 7 December 2009,
p. 58.
[33]
Legislative Council of Victoria, Submission 5, p. 4.
[34]
Legislative Council of Victoria, Submission 5, p. 4.
[35]
Legislative Council of Victoria, Submission 5, p. 4.
[36] Commonwealth
Ombudsman, Submission 9, p. 5.
[37]
Commonwealth Ombudsman, Submission 9, p. 5.
[38]
Commonwealth Ombudsman, Submission 9, p. 6.
[39]
Ms Lynn Lovelock, New South Wales Legislative Council, Submission 6,
p. 5.
Australian Greens and Senator Xenophon's Dissenting Report
[1] Senate
Finance and Public Administration References Committee, Inquiry into
Independent Arbitration of Public Interest Immunity Claims, p. 21.
[2] Senator
Ludlam and Associate Professor Twomey, private capacity, Committee Hansard,
7 December 2009, p. 43.
[3] See Mr
Evans, former Clerk of the Senate, Committee Hansard, 7 December 2009,
pp 47–8; Mr Tunnecliffe, Clerk of the Legislative Council, Victoria, Committee
Hansard, 7 December 2009, p. 13; Ms Lovelock, Clerk of the Parliaments,
NSW, Committee Hansard, 7 December 2009, p. 28.
[4] Mr Evans,
former Clerk of the Senate, Committee Hansard, 7 December 2009, p. 47.
[5] Associate
Professor Twomey, private capacity, Committee Hansard, 7 December 2009,
p. 39.
[6] Mr Evans,
former Clerk of the Senate, Committee Hansard, 7 December 2009, pp 50-51.
[7] Senate
Finance and Public Administration References Committee, Inquiry into
Independent Arbitration of Public Interest Immunity Claims, p. 20.
[8] Senate
Committee on Privileges, Parliamentary Privileges Amendment (Enforcement of
Lawful Orders) Bill 1994, 49th Report, September 1994, p. 8.
[9] Legislative
Council of Victoria, Submission 5, p. 2.
[10] Mr Evans,
former Clerk of the Senate, Committee Hansard, 7 December 2009, p. 50.
[11] ANAO, Audit
Report No.38 2000-01, The Use of Confidentiality Provisions in Commonwealth
Contracts, May 2001, p. 47.
[12] ANAO, Audit
Report No.6 2009–10, Confidentiality in Government Contracts - Senate Order for
Departmental and Agency Contracts (Calendar Year 2008 Compliance),
September 2009, p. 15.
[13]
ANAO, Audit Report No.6 2009–10, Confidentiality in Government
Contracts - Senate Order for Departmental and Agency Contracts (Calendar Year
2008 Compliance), September 2009, p. 15.
[14]
ANAO, Audit Report No.6 2009–10, Confidentiality in Government Contracts
- Senate Order for Departmental and Agency Contracts (Calendar Year 2008
Compliance), September 2009, p. 36.
[15] Associate
Professor Twomey, private capacity, Committee Hansard, 7 December 2009,
p. 41.
[16] Mr Evans,
former Clerk of the Senate, Committee Hansard, 7 December 2009, p. 47.