I support the Committee’s recommendation that the Bill not be passed.
I have a material concern in relation to the application of parliamentary privilege at the Royal Commission. In my view, parliamentary privilege is being applied (and asserted by the Commonwealth) in a manner inconsistent with the intention of Parliament at the time of passing the Parliamentary Privileges Act. This is a serious matter.
In discharging its role, the Royal Commission necessarily needs to consider previous reviews and what action the Government took to implement recommendations. Some of these reviews fall within the definition of 'proceedings in Parliament' under section 16 of the Parliamentary Privileges Act. Obviously, the recommendations made in those proceedings and the resultant action (or inaction) of Government need to be considered by the Royal Commission. How is the Royal Commission meant to discharge that function if it cannot receive the actual recommendations into evidence?
Hence, the question is whether or not section 16 operates to deny the Royal Commission the opportunity of discharging its role (albeit that it may endeavour to use so called work arounds which are far from satisfactory). What use is the Royal Commission entitled to make of reports which fall within the definition of 'proceedings in Parliament'?
In my view, the letter from the Presiding Officers of Parliament to Mr Nick Kaldas APM dated 10 August 2022 (by the President of the Senate) and 11 August 2022 (by the Speaker of the House) provides the definitive guidance (the 'Presiding Officers Letter'). It should be noted that this letter should be seen as representing the view of Parliament as an institution.
Both the Speaker of the House of Representatives and the President of the Senate are longstanding and highly respected Federal Parliamentarians well versed in the privileges attaching to Parliament. They have a key role in protecting the institution of Parliament and perform this role with great diligence. Their elevation to their respective positions is a reflection of their standing in Parliament. Each of the Presiding Officers is held in high esteem across the respective chambers. Their views with respect to how parliamentary privilege should work in practice need to be given great weight. The corollary is that any contrary view should be subject to deep interrogation.
Moreover, in preparing the Presiding Officers Letter, both the Speaker and the President had the benefit of advice from the Clerks of the Parliament. The Clerks of the Parliament are pre-eminent experts in procedural matters relating to the Australian Parliament. In many respects, they are trustees of the institution of Parliament, including matters relating to privilege. In my experience (albeit just over three years), the advice of the Clerk of the Senate is accepted as definitive by all Senators—such is the regard in which the Clerk is held.
The Presiding Officers Letter states:
Going to the examples in your letter, there is nothing to prevent the Commission drawing on the findings and recommendations of parliamentary committee 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).
In my view, this is a correct articulation of the operation of parliamentary privilege in this context. I will say more about my reasons for this subsequent in these Additional Comments.
With respect to the application of parliamentary privilege to the work of the Royal Commission, on the basis of the submission made by the Royal Commission, there is a material disconnect between the views enunciated in the Presiding Officers Letter (on the one hand) and the Royal Commission (and the Commonwealth in its submissions to the Royal Commission) on the other. This deeply troubles me for a number of reasons:
(a)
The consequence of the Royal Commission (and the Commonwealth in its submissions to the Royal Commission) taking an approach contrary to the Presiding Officers Letter is causing considerable practical issues for the work of the Royal Commission.
(b)
How can it be that the Royal Commission (and the Commonwealth in its submissions to the Royal Commission) adopt a view so contrary to that of Parliament as expressed in the Presiding Officers Letter?
(c)
Has there been an evolution of legal practice over time (for whatever reason) that has led to the distortion of the application of parliamentary privilege contrary to the intention of Parliament?
(d)
Is the result of this that important work of the Senate is not being entered into as evidence (almost treated as a nullity) through assertions of parliamentary privilege, in circumstances not intended by the Senate, and (perhaps just as concerning) by parties other that the Senate? If that is the case, that should be of grave concern to the Senate.
In its submission, the Royal Commission provides examples at paragraphs 20 to 34 of its submissions with respect to three reports which cannot be used. This includes the Senate Foreign Affairs, Defence and Trade References Committee’s report: The Constant Battle: Suicide by Veterans (2017). In the case of that report, the Royal Commission noted that:
It contains recommendations that the Royal Commission might wish to compare to what the Government did in response to them.
The Royal Commission then summarises how it is attempting to work around the issue. It is noted that the Commonwealth objected to the tender of the Government response to the Constant Battle:
...unless it were redacted to remove quotations from the parliamentary committee’s report, contending that event that tender would involve a breach of parliamentary privilege.
Whilst the Commonwealth has not made a submission to this inquiry in response to the Royal Commission’s submission, on the face of it and based upon the submissions made to this inquiry, one can understand the reason for the Royal Commission’s comment in paragraph 27:
To the extent that in other forums the Commonwealth and its officers have suggested that royal commissions are not impeded by parliamentary privilege, and that therefore reform is not needed, the suggestion is contradicted by the Commonwealth’s official position in the Royal Commission that such evidence cannot be received by a royal commission lest parliamentary privilege be breached.
This comment is reflected in the submission made by Mr Gregory Isolani of KCI Lawyers dated 11 November 2022. Mr Isolani is a lawyer of great experience in the area of veterans compensation and has participated in numerous government and department inquiries. In his submission, he provides examples of coronial inquests not being able to have regard to previous inquiries.
In paragraph 5.5, he provides an example at a coronial enquiry where the question arose as to whether or not the Constant Battle Report could be referred to. The submission states:
The Commonwealth highlighted that the Coroner could not due to [parliamentary privilege] and there was not time available to make an application via the complex procedure to ask Parliament to essentially waive privilege.
Does this approach actually reflect the intention of parliament at the time of introduction of the Parliamentary Privileges Act 1987?
Reviewing the second reading speech of then-President McClelland, the explanatory statement and the report of the Joint Senate Select Committee on Parliamentary Privilege, I cannot find any support for the proposition that such an expansive interpretation of section 16 that would preclude reference to the relevant reports for the purpose of evidencing the recommendations was intended by the Senate. The publication of the relevant reports and the recommendations contained in them are a matter of fact best evidenced by the reports themselves. How can the mere entry of the reports into evidence by the Royal Commission and reference to the recommendations as a matter of fact fall within section 16(3) of the Parliamentary Privileges Act?
Consider the words in the explanatory statement in relation to the section 16(3):
Clause 16: Parliamentary privilege in court proceedings
The purpose of this clause is to avoid the consequences of the interpretation of article 9 of the Bill of Rights 1688 by the judgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales.
Article 9, which applies to the Australian Parliament by virtue of section 49 of the Constitution, 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.”
In the past the courts have held that the article prevents parliamentary proceedings from being examined or questioned in a wide sense or used to support a cause of action (Church of Scientology of California v Johnson-Smith (1972) 1 QB 522, R. v Secretary of State for Trade and others, ex parte Anderson Strathclyde plc, (1983) 2 All ER 233, Comalco Ltd v Australian Broadcastinq Corporation (1983) 50 ACTR l; these judgments were based on authorities stretching back to 1688).
In each trial of R. v Murphy, in the Supreme Court of New South Wales, counsel instructed by the President of the Senate submitted that article 9 prevents the cross-examination of witnesses or the accused on evidence which they gave before parliamentary committees for the purpose of impeaching the evidence of witnesses or the accused.
On 5 June 1985 Mr Justice Cantor, before the first trial, gave a judgment to the effect that article 9 does not prevent the cross-examination of persons in court proceedings on their parliamentary evidence, that the test of a violation of article 9 is whether there is any adverse effect on parliamentary proceedings, and that the protection of parliamentary proceedings must be “balanced” against the requirements of court proceedings.
Subsequently in the course of the trial a witness was extensively cross-examined on evidence given before a Senate committee, including evidence given in camera, and the truthfulness of that evidence was questioned. The accused was cross-examined on a written statement which he had submitted to a Senate committee and which had been treated as in camera evidence, and the prosecution made submissions to the jury questioning the truthfulness of the accused on the basis of that evidence, despite objections by the defence.
In R. v Foord, Mr Justice Cantor's judgment was followed and witnesses in that trial were extensively cross-examined on the truthfulness of their evidence before Senate committees and their motives in giving that evidence.
On 8 April 1986 Mr Justice Hunt, before the second trial in R. v Murphy, gave a judgment which expressly repudiated the law expounded in the cases cited, and which held that article 9 prevented only parliamentary proceedings being the actual subject of criminal and civil action, but allowed the use of parliamentary proceedings as evidence of an offence, to impeach the evidence of witnesses or the accused or to support a cause of action.
The clause would prevent such use of proceedings in Parliament and restore the interpretation of article 9 contained in the earlier judgments.
The clause declares that article 9 applies in respect of the Australian Parliament and that it has the effect indicated by the provisions of the clause. The clause has been drafted in this way largely to avoid the difficulty which may be created for other jurisdictions if the Australian Parliament were to legislatively accept that article 9 as such has the restricted meaning given to it by the recent judgments and requires legislative supplementation to be given its broad interpretation.
Article 9 is part of the law in many jurisdictions around the world, including the Australian States, and it has been indicated that Parliaments in those jurisdictions would not wish the Australian Parliament to be in any way accepting that article 9 may be read narrowly and that it requires such legislative supplementation.
Sub-clause (1): This sub-clause declares that article 9 applies in relation to the Australian Parliament and is to be construed in accordance with the provisions of the clause.
Sub-clause (2): It is necessary to define the phrase “proceedings in Parliament”, which sets the scope of the immunity contained in article 9. The phrase is defined to include all words spoken and acts done in transacting the business of the Houses or their committees, including the preparation and submission of documents.
Sub-clause (3): This sub-clause prevents the use of parliamentary proceedings in court or tribunal proceedings -
(a) in a manner involving questioning or relying on the truth, motive, good faith or intention of words spoken or acts done in the parliamentary proceedings;
(b) to attack or support the evidence or credibility of persons giving evidence in court or tribunal proceedings; and
(c) to draw inferences or conclusions for the purposes of the court or tribunal proceedings.
The extract from the Explanatory Memorandum provides the context of the passage of the Parliamentary Privileges Act 1987. This context is important. In my view, the above clearly demonstrates that the Act was never intended to prevent the tendering of a parliamentary report to simply evidence the fact that the parliamentary report was made and contained the recommendations contained within it. If witnesses who provided evidence were cross examined and their credibility challenged in a Royal Commission with respect to the evidence which they gave for the purposes of the parliamentary report, then that is another question.
It is further noted that the Explanatory Statement being 11633/87 Cat. No. 87 4167 9 containing amendments made by the Senate contains examples of the meaning of each of the clauses in section 16(3). It states:
The following is a further exposition of those paragraphs:
(a)
Calling into question parliamentary proceedings
This is the most obvious and clear prohibition contained in article 9 [of the Bill of Rights]. It prevents, for example, a statement in debate by a Member of Parliament or the evidence of a parliamentary witness being directly attacked for the purpose of court proceedings, or the motives of the member or the witness in speaking in Parliament or giving evidence being attacked. Thus, it cannot be submitted that a member’s statements in Parliament were not true, or reckless, to support a submission that the member is an untruthful, or reckless, person.
(b)
Attacking the credibility, motives etc. of a person on the basis of proceedings in Parliament.
This would prevent, for example, a member’s speech in debate or a parliamentary witness’s evidence being used to establish their motives or intention for the purpose of supporting a criminal or civil action against them, or against another person. Thus a member’s statements outside Parliament cannot be shown to be motivated by malice by reference to alleged malice in the member’s statement in Parliament.
(c)
Drawing inferences or conclusion to support a criminal or civil action
This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of parliament for from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member’s speech in Parliament cannot be used to support an inference that the member’s conduct outside Parliament was part of some illegal activity.
This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes the fact...
These prohibitions express the limitations on the use of Parliamentary Proceedings which were held to flow from article 9 in the earlier court proceedings. Basically, what they prevent is proceedings in Parliament being “used against” a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.
With all due respect to the Royal Commission (and the Commonwealth in its submission to the Royal Commission), the above is entirely consistent with the analysis contained in the Presiding Officers Letter. It appears to me that parliamentary privilege is being asserted and recognised in a way never contemplated by the Parliament and far removed from the original articulation of Article 9 of the Bill of Rights; namely, that the freedom of speech and debates or proceedings of Parliament should not be 'impeached or questioned'. How does admitting a report of a Senate committee for the purposes of evidencing the recommendations made in that report involve an impeachment or questioning of proceedings of Parliament? It does not.
On the basis of the above, I am of the firm view that the claims of parliamentary privilege being asserted in the context of the Royal Commission (and for that matter other inquiries) need to be further considered by the Senate as a whole. It deeply concerns me that the outcome of the work of the Senate is not being given due regard to in circumstances where: (a) it is necessary for the important work of the Royal Commission; and (b) parliamentary privilege is being asserted in a way totally inconsistent with the intention of the Australian Parliament. The reports of Senate committees reflect the joint efforts of Senators both past and present. The treatment of these reports (and claims of parliamentary privilege with respect to them) should be of great concern to the Senate.
In my view, the Senate should carefully consider what options are open to it to respond to the submissions made to the Royal Commission with respect to claims of parliamentary privilege in relation to the reports of the Senate.
Senator Paul Scarr
Deputy Chair
Liberal Senator for Queensland