2.1
This chapter outlines key issues raised in evidence provided to the committee. These issues include:
the circumstances that led to the Royal Commission into Defence and Veteran Suicide making Recommendation 7;
the committee's views on these matters.
The circumstances leading to Recommendation 7
2.2
On 8 July 2021, the Royal Commission into Defence and Veteran Suicide (the Royal Commission) was established to inquire into systemic issues and common themes related to deaths by suicide of members and veterans of the Australian Defence Force. Three Royal Commissioners were appointed with Commissioner Mr Nick Kaldas APM appointed as Chair.
Initial concerns made public
2.3
On 21 March 2022, Commissioner Kaldas raised concerns in a media release regarding the impact of parliamentary privilege on the Commission's ability to consider certain documents that had been tabled in Parliament. Commissioner Kaldas stated:
[The constraint of parliamentary privilege] diminishes our capacity to meet our terms of reference and deliver the outcomes the community should rightly expect…We will be writing to the Parliamentary Officers [Presiding Officers] and to the Government, asking them to take action.
Letter to the Presiding Officers
2.4
On 26 July 2022, Commissioner Kaldas wrote to the former President of the Senate and the former Speaker of the House of Representatives (the Presiding Officers) to seek their support to amend the Parliamentary Privileges Act 1987 (the 1987 Act). The proposed amendment would provide a limited exemption from Section 16(3)(c) of the 1987 Act for Royal Commissions in cases in which evidence that attracts parliamentary privilege is relevant to its terms of reference, would not be used to draw an adverse inference about Parliament, and would not be used to impugn a person providing evidence to the Parliament or to impugn the evidence itself.
2.5
The letter argued that, whilst many reports, findings, and recommendations of parliamentary committees as well as reports prepared for Parliament are relevant to the terms of reference (Letters Patent) of the Royal Commission, the 1987 Act prevents the Commission from using this material (including the findings, recommendations, or other content of reports published by the Parliament or its committees) to draw any inferences. In particular, the Royal Commission noted, 'we are precluded from drawing any inferences about whether or not the executive government has acted in response to a parliamentary recommendation made to it'.
2.6
Commissioner Kaldas further stated:
[O]ne consequence of privilege is that we cannot have useful regard to valuable previous work relevant to our terms of reference, even where our inquiry will not impinge upon or curtail the work of Parliament and/or its members.
Advice from the Presiding Officers
2.7
On 11 August 2022, the (current) Presiding Officers responded to the Royal Commission's letter of 26 July 2022. They advised that the aim of the Royal Commission to draw on parliamentary material could 'largely be met without disturbing privilege'. The Presiding Officers also stated:
[T]he immunity attaching to proceedings in Parliament is reasonably narrow. In a practical sense, the only significant prohibition is that witnesses cannot be examined directly on their parliamentary evidence.
2.8
More specifically, the letter made the following two points in response to the Royal Commission's letter:
parliamentary privilege applies to the direct use rather than the derivative use of evidence, meaning royal commissions may pursue their own lines of inquiry based on evidence from parliamentary proceedings; and
witnesses may provide evidence to a royal commission that is substantially the same as that provided during parliamentary proceedings (including documents provided to a committee that were not prepared for that purpose as well as giving anew evidence that had been received in camera by a parliamentary committee).
2.9
The Presiding Officers further stated:
[T]here is nothing to prevent the Commission drawing on the findings and recommendations of parliamentary committees reports as background information, or to establish matters of fact. This would seem to include the use of such materials to establish that a particular recommendation was made, or identify when information was published. Further, parliamentary privilege does not extend to activities that occur in response to the Parliament's work but which do not themselves form part of parliamentary proceedings. It would not prevent the Commission investigating whether the executive government has taken any action in response to published findings or recommendations (and, if so, what).
2.10
The letter suggested that parliamentary privilege would enable royal commissions to use parliamentary material, provided it was not used to draw adverse inferences about the Parliament (including its Houses, committees, members, work, or proceedings), or to impugn any person providing evidence or to impugn their evidence.
2.11
With respect to the Royal Commission's proposal to amend the 1987 Act, the Presiding Officers concluded that 'the law of parliamentary privilege, as it currently stands, would already seem to permit the Commission to use published parliamentary material, provided it was not used [in the ways outlined above and prohibited by Article 9 of the Bill of Rights]'.
Interim report
2.12
Also 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).
2.13
The Royal Commission provided the following reasoning behind Recommendation 7:
Despite our clear mandate, parliamentary privilege and public interest immunity claims have seriously, adversely constrained our ability to inquire into and receive the necessary evidence from prior inquiries conducted by and for parliament and to examine government decision-making.
2.14
The interim report observed that parliamentary privilege extends to a number of reports prepared for the Parliament that address matters that the Royal Commission considers to be directly relevant to its' terms of reference. The interim report also noted that parliamentary privilege limits the Royal Commission from 'draw[ing] any inferences or conclusions' from those reports and inquiries. The report further stated:
This leaves us unable to inquire into the work and outcomes of prior critical reports—it hampers our ability to learn from that which came before. This risks an unnecessary duplication of effort. It impedes transparency surrounding government decisions and acts as a shield for the executive from accountability for their commitments and actions taken to implement matters subject to privilege. It slows our work…
2.15
The Royal Commission concluded, 'parliamentary privilege is having an extremely adverse effect on our ability to examine the actions, and inactions, of the executive in response to directions from Parliament'.
Government response
2.16
On 26 September 2022, the government tabled its formal 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]'.
2.17
Concurrently, the Minister for Veteran's Affairs and the Minister for Defence Personnel, the Hon Matt Keogh MP, described the Royal Commission as 'an important opportunity' to address the mental health and welfare of Australian Defence Force personnel. Relevantly, Minister Keogh also made the following observations in relation to Recommendation 7:
Parliamentary privilege is a well-established concept that many Royal Commissions have engaged with in the past without coming into conflict with the Parliamentary Privileges Act.
There are alternative approaches available to the Royal Commission to engaging with materials to which Parliamentary Privilege might apply.
Budget Estimates
2.18
On 7 November 2022, the Clerk of the Senate (Clerk), Mr Richard Pye, gave evidence before another Senate committee during Budget Estimates that relates to this bill. When asked about Recommendation 7, the Clerk stated:
It is possible that the scope of the protection for parliamentary material in the Parliamentary Privileges Act could be changed… There is a lot of concern that there might be unintended consequences from doing that in relation to undermining the protection of material that's been before the parliament by people who come before the parliament—to support the work of its committees, in particular.
From my perspective, the last resort would be to seek to amend the Parliamentary Privileges Act, but it's clear that something needs to be done so that the royal commission is able to get from the government the evidence that it requires.
2.19
The Clerk conceded that the Department of the Senate had not undertaken any analysis of the likely impact that any such change would have on the functioning of the Parliament, but noted:
…we already know that people are often quite nervous and quite concerned about what will happen with their life story if they're putting their life story before a Senate committee. If people are coming forward as whistleblowers, in particular, they might feel quite safe in doing so in this environment where they know that their evidence can't be used for other purposes. But they may be less willing to come forward and less willing to provide evidence to important inquiries if that protection isn't there.
2.20
On 8 November 2022, in evidence to the committee during Budget Estimates, Acting Official Secretary of the Royal Commission into Defence and Veteran Suicide, Ms Tracey Bell, noted in respect of relevant reports presented to parliament:
We can recreate the evidence from those reports, but that is a very inefficient method…We are looking at workarounds, but it is a very difficult situation when material is there, some of it in the public domain. It is very difficult for us to do these workarounds; it takes a lot of extra time.
Views on the bill
2.21
The committee received three submissions in support of the bill and none against.
2.22
The submission from the Royal Commission into Defence and Veteran Suicide (Submission 1) rearticulated and elaborated the case for statutory reform that was made in its interim report. It argued that the work of the Royal Commission had been 'impeded' by the ‘extended scope’ of the 1987 Act. The submission also refuted as 'incorrect, in both its factual and legal aspects' the advice from the Presiding Officers that parliamentary privilege need not impede the commission's work.
2.23
The Royal Commission submitted:
[T]he expansive form of parliamentary privilege enacted by [section] 16 of the [1987 Act] operates in effect to protect the Executive Government from scrutiny and findings regarding its responses to parliamentary recommendations and thus impedes the legitimate work of royal commissions ostensibly set up and directed to inquire into those responses. This is a perverse outcome and merits reform.
2.24
The Royal Commission asserted that Section 16(3)(c) of the 1987 Act specifies that any evidence given to parliamentary committees and any work or report by officers of the Parliament attracts privilege. This, the Royal Commission submitted, prevents royal commissions from making use of evidence given to parliamentary committees, committee reports, and reports of the Auditor-General or the Commonwealth Ombudsman.
2.25
In response to the advice of the Presiding Officers regarding alternative approaches and the derivative use of parliamentary materials (detailed above), the Royal Commission submitted:
[T]hese limited uses of parliamentary proceedings are no answer to the impediment of not being able to receive evidence of parliamentary proceedings for the purpose of drawing inferences or reaching conclusions directly from them.
2.26
Submission 2 also expressed support for the bill, describing the operation of the 1987 Act as 'contrary to the public interest and deeply unfair'. The submission offered an alternative amendment to that proposed by the bill that would empower the Presiding Officers or the chair of a parliamentary committee to waive privilege over specific material. This case-by-case approach, the submitter asserted, would allow for a better balancing of the public interest between the Parliament and a royal commission.
2.27
Submission 3 was received after the committee had concluded its consideration of the bill and is therefore not reflected in the discussions that follow.
Committee view
2.28
The committee strongly supports the work of the Royal Commission into Defence and Veteran Suicide. As such, it does not take lightly the concerns raised by its commissioners or the recommendations made in its interim report. In particular, the committee is mindful of the warnings made by the Royal Commission of the potential for the 'perverse effect' of applying parliamentary privilege to materials relevant to a commission's terms of reference that may in effect shield the executive from scrutiny. The committee is also mindful of royal commissions adopting 'inelegant circumlocution' in their efforts to make use of parliamentary material, and notes that such workarounds may at times be either impractical or indeed impossible. The committee also notes the concerns related to parliamentary privilege raised by previous royal commissions outlined in Chapter 1.
2.29
However, the committee is alive to the potential harm to the work of the Parliament and the unintended consequences that may result from altering the 1987 Act. In particular, the committee is concerned that the amendments proposed by this bill would erode the concept of parliamentary privilege—a foundational and essential doctrine that underpins the effective functioning of the Parliament—as it has existed for more than three centuries. Indeed, the 1987 Act was passed specifically to reassert the powers, rights, and immunities of the Parliament and to address the very issue (among others) of privilege being challenged and eroded by the courts (see Chapter 1).
2.30
Moreover, the committee is concerned that the mere possibility of parliamentary material being exempted from privilege to enable its use by a future royal commission would have a chilling effect on the ability of the Parliament and its committees to receive evidence and engage in free debate.
2.31
Finally, the committee does not accept that the 1987 Act 'extended' the scope of parliamentary privilege. Rather, it is the committee's view—and that of the Parliament—that the 1987 Act merely clarified and elaborated how parliamentary privilege already operated by virtue of the Constitution and the Bill of Rights. Any amendments that lessen the scope or impact of the 1987 Act should be considered in light of their impact also on the broader constitutionally-enshrined powers, rights, and immunities of the Parliament.
2.32
The committee acknowledges the potential inefficiencies and obstacles that parliamentary privilege may, under certain circumstances, pose to the work of a royal commission—particularly one tasked with inquiring into the actions or inactions of government. The committee is also concerned that government entities not make overblown claims of privilege that obstruct the work of royal commissions; the committee considers there is an obligation on the Commonwealth government to ensure that royal commissions are provided with the evidence they require. However, the committee does not share the Royal Commission's overly-broad interpretation of Section 16 of the 1987 Act. Rather, it is the committee's view that royal commissions have far more latitude in their ability to make use of material that attracts privilege than the Royal Commission has suggested. For example, evidence given to parliamentary committees can be:
used to establish matters of fact (subject to limited constraints, including that neither the evidence nor those giving evidence are impugned, and that adverse inferences are not drawn about the Parliament):
received anew, even if previously given during the proceedings of parliament; and
to develop new lines of inquiry.
2.33
The committee therefore considers there to be a range of viable alternatives already available to royal commissions to make use of materials that attract parliamentary privilege. Given the risks to the proper functioning of parliament if this bill were to pass, the committee believes that further consideration of the amendments proposed in this bill would only be merited once all other avenues had been exhausted—a situation that the committee is not persuaded has yet arisen. As such, the committee does not support this bill. The committee does, however, consider that the Commonwealth government ought to assist the Royal Commission into Defence and Veteran Suicide to obtain the information it is seeking.
2.34
On the alternative amendment proposed in Submission 2, in which the Presiding Officers or the chair of a parliamentary committee would be empowered to waive privilege, the committee is concerned at the possible abuse of such a discretion by a parliamentary majority and notes the evidence outlined in Chapter 1 that neither a House nor its members may waive privilege.
2.35
The committee recommends that the bill not be passed.