Referral and conduct of the inquiry
1.1
On 28 September 2022, the Senate referred the Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 17 November 2022.
1.2
The Senate referred the bill to the committee following a recommendation of the Selection of Bills Committee. The report of the Selection of Bills Committee presented a range of principal issues for consideration, including:
review of recommendation 7 of the Royal Commission into Defence and Veteran Suicide (the Royal Commission);
consideration of the impact of parliamentary privilege on the Royal Commission's work to date; and
consideration of the impact of parliamentary privilege on previous royal commissions.
1.3
Details of the inquiry were advertised on the committee's web page and the committee wrote to a number of organisations and individuals inviting them to make a submission to the inquiry. The committee invited submissions by 17 October 2022, and accepted and published three submissions, which are listed at Appendix 1.
1.4
Due to the well-established positions established by the Presiding Officers (the President of the Senate and the Speaker of the House of Representatives) and the Royal Commission, as well as the limited number of submissions made to this inquiry, the committee did not hold a public hearing and agreed to report on the papers.
Structure of the report
1.5
This report consists of two chapters:
this chapter provides background to parliamentary privilege as it relates to the bill, discusses the key provisions of the bill, and outlines its consideration by other parliamentary committees; and
Chapter 2 outlines the circumstances that led to the Royal Commission into Defence and Veteran Suicide making Recommendation 7, views from submitters on the bill, and the committee's views on the bill.
Background to the inquiry
Parliamentary privilege and its origins
1.6
The term 'parliamentary privilege' describes the legal rights, powers, and immunities that apply to the Houses of Parliament, its committees (including witnesses giving evidence before them), and its members. These rights, powers, and immunities are considered necessary to enable free debate in Parliament without outside interference. The key immunity, and the aspect of parliamentary privilege that is relevant to this inquiry, is generally referred to as 'freedom of speech and debate' in parliament.
1.7
Recognition of parliamentary privilege in statute is generally held to have originated with the Bill of Rights 1689 (UK)(the Bill of Rights), Article 9 of which provides:
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
1.8
Parliamentary privilege applies as law in Australia through Section 49 of the Australian Constitution. Additionally, Section 50(i) of the Constitution provides that the Houses of Parliament may set their own rules and orders with respect to exercising their powers, privileges, and immunities.
Parliamentary privileges Act 1987
1.9
The Parliamentary Privileges Act 1987 (the 1987 Act) affirms, clarifies, and gives expression to aspects of parliamentary privilege within Commonwealth law.
1.10
Relevantly, this includes clarifying the application of parliamentary privilege before courts and tribunals, including specifying what is considered to constitute 'proceedings in parliament' (Section 16).
1.11
The 1987 Act may be seen to partially respond to perceived uncertainties within Article 9 of the Bill of Rights, particularly in relation to what properly constitutes a 'proceeding of parliament' that would thereby attract parliamentary privilege.
1.12
The 1987 Act may also be seen as a response to two decisions by the Supreme Court of New South Wales in 1985 and 1986 over the scope and application of parliamentary privilege. Both judgements related to whether witnesses who had given evidence before parliamentary committees could subsequently be examined on that evidence during a criminal trial. The decisions of the state's Supreme Court indicated that witnesses could be examined on their evidence given before the Parliament—a position that was considered 'unacceptable' to the Parliament. Odgers' Australian Senate Practice (Odgers') provides the following view in relation to the two judgements, as expressed by the Senate at the time:
Evidence as to what the witnesses or the accused said before the Senate committees could be admitted for the purpose of establishing some material fact, such as the fact that a person gave evidence before a committee at a particular time, if that fact were relevant in the trials. The evidence put before the committees could not be used in the trials for the purpose of supporting the prosecution or the defence, nor particularly for attacking the evidence of the witnesses or the accused whether given before the committees or before the court.
1.13
Also of relevance to this inquiry, Section 16(2) of the 1987 Act elaborates the concept of the 'proceedings of parliament' to include:
(a)
the giving of evidence before a House or a committee, and evidence so given;
(b)
the presentation or submission of a document to a House or a committee;
(c)
the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)
the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
1.14
Section 16(3) of the 1987 Act specifically prohibits a court or tribunal from making use of the proceedings of parliament for the purpose of:
(a)
questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b)
otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c)
drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
1.15
Section 16(4) of the 1987 Act provides that a court or tribunal shall not:
(a)
require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or
(b)
admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence;
unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.
Statutory exemptions
1.16
The Special Commissions of Inquiry Amendment Act 1997 (NSW) was passed in the wake of allegations of misconduct made in the New South Wales Legislative Council against the state Premier. The Act expressly permitted special commissions to make use of material that attracted parliamentary privilege (a 'waiver'), subject to an authorising resolution passed by two-thirds of the members of the House of Parliament in which the proceedings in question had taken place. The Act is no longer in operation as it expired six months after commencement.
1.17
On this matter, the committee notes the overwhelming evidence that neither a House nor its members may waive privilege. At the federal level, Odgers', for example, states:
…suggestions [that a House or its members may waive privilege] are misconceived. It is not possible for either a House or member to waive, in whole or in part, any parliamentary immunity. The immunities of the Houses are established by law, and a House or member cannot change that law any more than they can change other law.
1.18
The House of Representative Practice similarly concludes that a waiver of privilege by a House is not possible:
The immunity conferred on participants in proceedings in Parliament, and the laws on the use of or reference to records of, or documents concerning, parliamentary proceedings are part of the law of the Commonwealth and, as such, cannot be waived or suspended by either House acting on its own. The Committee of Privileges of the House has expressed the view that ‘as a matter of law there is no such thing as a waiver of Parliamentary Privilege’.
Parliamentary privilege and royal commissions
Royal Commission into Defence and Veteran Suicide
1.19
On 11 August 2022, the Royal Commission released its interim report. The report made 13 recommendations, one of which (Recommendation 7) called for material that is directly relevant to the terms of reference of a royal commission to be exempt from parliamentary privilege:
Where their terms of reference require an examination of government, Royal Commissions should be made exempt from section 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth).
1.20
On 26 September 2022, the government tabled its response to the Royal Commission's interim report. The government response noted Recommendation 7, but concluded that 'Royal Commissions can carry out their functions without infringing section 16(3)(c) [of the Parliamentary Privileges Act 1987]'.
1.21
These positions, as well as that of the Parliament, are elaborated in Chapter 2.
Royal Commission on Security and Intelligence Agencies
1.22
In 1983, the Royal Commission on Australia's Security and Intelligence Agencies (Security and Intelligence Royal Commission) was established to inquire into the performance and activities of the relevant agencies, and the actions of Government. The Security and Intelligence Royal Commission sought and was granted a waiver of parliamentary privilege by the Presiding Officers (the Speaker of the House of Representatives and the President of the Senate) to enable extracts from Hansard to be considered in its evidence. The waiver limited consideration of the extracts to establishing the facts of what was said, by whom, and on what date, in accordance with Article 9.
1.23
Counsel assisting the Commission made the following observation on the matter:
It may seem curious that a Royal Commissioner commanded to inquire into the 'actions of the Government' in a certain respect, is precluded by the doctrine of parliamentary privilege from examining what is said or done in that respect in one or other House by members of the Government. However, it must be remembered that the privilege is that of the Parliament as a whole and not that of individual members or of the collection of members who for the time being constitute 'the Government' however defined.
Royal Commission into Commercial Activities of Government and Other Matters
1.24
In 1991, the Royal Commission into Commercial Activities of Government and Other Matters (WA Royal Commission) was established pursuant to the Royal Commission into Commercial Activities of Government Act 1992 (WA). The WA Royal Commission was tasked with inquiring into corruption and illegal or improper conduct connected to the Government of Western Australia (WA).
1.25
To assist the inquiry, commissioners sought the leave of both Houses of the Parliament of WA for the WA Royal Commission's use of the records of parliamentary proceedings. Despite the statutory assent granted for the establishment of the commission by the state Parliament itself, neither House considered that the enactment of the Act establishing the WA Royal Commission constituted a derogation of its privileges under Article 9. The Parliament consequently refused the request to waive privilege, claiming that it had no power to do so.
1.26
The report of the WA Royal Commission noted what it considered to be the contradiction of a body directed by Parliament to inquire into a matter also being denied by that same body access to some of the material that it perceived was required to deliver on its terms of reference.
Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry
1.27
In 2017, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was established. Commissioner the Hon Kenneth Hayne AC KC observed that there had been two Senate inquiries into issues related to the Commission's inquiry, but noted that '[p]arliamentary privilege precludes me from canvassing what was said to, or decided by, either'.
Royal Commission into Aged Care Quality and Safety
1.28
In 2018, the Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission) was established. Commissioners corresponded with the Presiding Officers to seek their views on the ability of the Aged Care Royal Commission to make use of previous reviews and inquiries conducted by Parliamentary committees. Drawing on this advice, the Aged Care Royal Commission determined that the findings and recommendations of inquiries conducted by Parliamentary committees could be used as background information.
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
1.29
The committee invited the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to submit to this inquiry. The Chair, Mr Ronald Sackville AO KC, declined to do so. In his letter to the committee, Mr Sackville noted that the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability had considered the impact of Section 16(3) of the 1987 Act on its work in the context of referring to its own publications and evidence provided to Parliamentary committees and the recommendations made by those committees.
1.30
The letter further stated:
While the scope of s 16(3) of the [Parliamentary Privileges Act 1987] is not entirely clear, the legislation has not proved to be a substantial impediment to the work of this Royal Commission. Other Royal Commissions may be in a different position.
Purpose of the bill
1.31
The bill was introduced on 7 September 2022 by Senator Jackie Lambie and on behalf of Senator Tammy Tyrrell. In her second reading speech, Senator Lambie described obstacles to accessing evidence reported by the Royal Commission and stated '[t]his bill addresses one of the biggest barriers stopping the Royal Commission from doing its job: parliamentary privilege'. Senator Lambie further stated that:
It [parliamentary privilege] gets in the way when those Royal Commissions need to examine the actions of government. Instead of protecting people with no power, it's shielding people in power from scrutiny.
1.32
The purpose of the bill is to enact Recommendation 7 of the Royal Commission's report (see above).
Outline of the bill
1.33
The bill contains 1 schedule that amends the Parliamentary Privileges Act 1987 by inserting after subsection 16(6) of the 1987 Act the following:
If a Royal Commission's terms of reference require an examination of government then, despite paragraph (3)(c), neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence before a Royal Commission for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of proceedings in Parliament.
1.34
The bill seeks to address the issue raised by the Royal Commission (discussed above) by exempting from the provisions of Section 16(3)(c) of the 1987 Act all royal commissions with terms of reference that require an examination of the actions (or inactions) of government. Specifically, this would permit exempted royal commissions to analyse and draw conclusions from evidence that may be subject to parliamentary privilege.
Financial impact
1.35
The Explanatory Memorandum notes no financial impact related to this bill.
Consideration by other parliamentary committees
1.36
When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.37
The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties, and obligations, the rule of law, and on parliamentary scrutiny. The Scrutiny of Bills Committee considered this bill and noted that the bill may raise concerns 'in relation to the abrogation of parliamentary privilege'.
1.38
The Human Rights Committee examines bills and legislative instruments for compatibility with human rights, and reports its findings to both Houses of Parliament. The committee notes the statement in the bill's Explanatory Memorandum that the bill is compatible with the human rights instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. However, at the time of writing this report, the Parliamentary Joint Committee on Human Rights had not considered this bill.
Acknowledgements
1.39
The committee thanks all submitters for the evidence they provided to this inquiry.