CHAPTER 4

PRIVILEGE 1988-1996 — AN ANALYSIS OF CONTEMPT MATTERS

Introduction

4.1 Since the passage of the Privileges Act and resolutions in 1987 and 1988, the workload of the committee has been considerable. From 1966 to 1987, it tabled ten reports; from then till the end of April 1996, it tabled a further 51 reports. As indicated in chapter 3, twenty-two of those reports, or 43 per cent of reports tabled from 1988, were right-of-reply matters. One report (no. 35) was a general report; the remaining 28 dealt with possible contempt matters, with individual reports occasionally covering more than one type of contempt.

4.2 The matters considered by the committee have ranged in complexity from what have turned out to be relatively trivial matters to matters of grave concern, going to the heart of possible obstruction of the Senate and senators in the performance of their duties. This chapter describes thematically reports relating to contempt from 1988 to the commencement of the 38th Parliament on 30 April 1996. A sequential resume of each Privileges Committee report from 1971 to 1996 is included at Appendix F.

Scope of privilege

4.3 The complex and unusual nature of privilege cases was exemplified by the first matter referred to the committee following the passage of the Parliamentary Privileges Act 1987 and the Senate privilege resolutions. What began in the Senate as a specific reference to the committee of the matter as a possible contempt metamorphosed during an extensive debate to a general question as to whether the circulation of a petition containing defamatory material is or ought to be privileged. The committee concluded that the circulation was not so covered, and that it should not be. It made the point that persons with specific grievances could themselves petition the Senate and, if in order, their petitions could be presented and thus would be covered by privilege. The committee considered it inappropriate that privilege, whether absolute or qualified, should extend to the malicious circulation of defamatory material purportedly to collect signatures for a petition.1

4.4 Two reports2 took up the theme of the committee's 1975 report on executive privilege. Each derived from an executive failure to comply with an order of the Senate to produce documents required by the Senate. As a result of one such failure, in March 1994 the Leader of the Australian Democrats, Senator Kernot, introduced into the Senate the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill,3 proposing that the Federal Court act as an independent arbitrator should the executive government refuse a Senate demand for material. As in 1975, it was accepted that public servants should not be punished because they obeyed ministerial orders not to comply with demands by the Senate or its committees. Thus, the sanctions proposed in the bill related solely to the minister, a refusal by whom to produce such information could result in a finding of contempt of court.

4.5 Having taken public evidence from a range of experts, the committee concluded that removing the responsibility to make such determinations from the Senate to the courts was inappropriate. The committee considered that ultimate power lay within the Senate and it was for the Senate to assert that power. It also suggested that it might be possible for an independent arbiter, such as a retired judge or a person such as the Auditor-General, to examine material on behalf of the Senate.

4.6 During the course of the committee's consideration of the bill, a further example of refusal to provide information, on commercial confidentiality grounds, was referred to the committee for examination in the context of the bill. The committee's report on this matter, which was made following a successful examination by the Commonwealth Auditor-General on behalf of the Senate of documents which had been the subject of commercial-in-confidence claims, noted that the arbitration process had occurred in this case, and very successfully.

4.7 The bill was not been proceeded with following the presentation of the committee's reports, but was restored to the Senate Notice Paper at the commencement of the 38th Parliament.

Improper obstruction of senators or committees

4.8 Another category of possible contempts is the improper obstruction of senators or committees in the exercise of their duties. In the two matters, involving three references, on which the committee has reported in recent years, the committee has continued the practice first established in 1904 of taking a robust view as to whether senators have been improperly obstructed.

4.9 The first case, involving an attempt by representatives of the pornography industry to influence members of the Opposition, and of a select committee, was dismissed by the Committee of Privileges, although it was critical of the representatives.4 In a second case, the Committee concluded that the efforts of a property developer vigorously to prosecute his own interests by threatening to sue a senator did not in the particular case have the effect or tendency of substantially obstructing the senator in the performance of his duties.5

Possible false or misleading evidence before committees

4.10 Eight of the committee's reports in the period 1988-1996 related in whole or in part to whether false or misleading evidence was given to a Senate committee. Given the likely scope for differing interpretations of the character of evidence, it is not surprising that the committee has been unable, to date, to find contempt on this ground.

4.11 Two of the cases involving possible misleading evidence are considered below in the context of the potentially more grave offence of possible improper interference with witnesses. The first case was involved in the National Crime Authority matter, discussed below at paragraphs 4.28-4.30; the second occurred as part of the committee's extensive inquiry into the Australian Customs Service, discussed at paragraphs 4.34-4.36.

4.12 In an earlier case, the committee considered another matter of possible false or misleading evidence, this time before an estimates committee. It involved an officer of the Department of Defence, whose evidence before the estimates committee about Project Parakeet was such that it had the effect of misleading senators interested in the subject. Again the Committee of Privileges found that no contempt had been committed, but it was critical of the officer concerned, taking the view that he should have been more forthcoming to the senators who had asked the questions.6 This report illustrates a recurring practice of the committee which, while not finding contempt, has been critical of unhelpful or disingenuous responses to responsibly-posed questions by senators.

4.13 A later case involving another officer of the same department had the opposite outcome. The committee found that, far from deliberately giving false or misleading information, the particular officer had been singularly assiduous in his attempts to provide a senator with responses to questions asked.7 The senator concerned had been involved in the previous matter, which might perhaps have given rise to mistrust when the answers, however well-intended and quickly provided, appeared to the senator to be incomplete.

4.14 Another variant on the misleading information theme was outlined in the Privileges Committee's 14th report. An estimates committee learnt that three witnesses had travelled to Canberra and given evidence to a select committee, although the relevant department maintained it had not committed funds for such a purpose. The Privileges Committee accepted that the visit had been primarily for another reason and that, on the evidence before it, false or misleading evidence had not been given and nor was there any attempt to manipulate the evidence before the select committee.8

4.15 A further case relating to information before an estimates committee involved the Minister for Customs, Senator the Hon. Chris Schacht, who was questioned about the diesel fuel rebate scheme. The minister provided an incorrect answer and was not corrected by any of the Customs officers assisting him in the hearing. This matter was referred to the committee while it was examining two other matters also involving the Customs Service and one of which involved possible misleading information (see paragraphs 4.34-4.36). The Privileges Committee concluded that Senator Schacht's misleading of the estimates committee was unintentional; it was suspicious of the silence of the Customs officers present but on balance concluded that they too may not have known the exact situation or may have believed that the minister had more recent knowledge. Although the Committee concluded that no contempt should be found in respect of any of the matters referred by the Senate, it was highly critical of the lack of knowledge by public servants of their obligations and responsibilities to the Parliament. In setting down briefly its view of such responsibilities, it drew specific attention to the Government Guidelines for Official Witnesses before Parliamentary Committees and related matters, and also expressed the hope that the recommendations of a review of the Australian Customs Service would be implemented.9

4.16 Many cases of false or misleading information are raised by senators. However, witnesses can also feel strongly that a committee is being misled by other witnesses. In its 61st report, the committee considered a claim by a former senior officer of a Tasmanian bank that false or misleading statements had been given to the Select Committee on Public Interest Whistleblowing on a number of matters, including the reasons for his no longer being employed by the bank. While the Privileges Committee determined that the offending statements were not as helpful as they might have been to the select committee, it found that they did not constitute false or misleading evidence.

4.17 Another matter categorised as coming under the heading of false or misleading information might more appropriately have been called a misinterpretation of terms of reference of a committee. The editor of a bulletin for shareholders and others who regarded themselves as having had unsatisfactory dealings with the Australian Securities Commission editorialised about an inquiry by the Legal and Constitutional Affairs Standing Committee into the way the Commission handled its inquiries. He implied that the standing committee inquiry was established for the purpose of criticising the Commission and suggested that the Legal and Constitutional Affairs Committee was 'on side' with complainants. While the Committee of Privileges found that there was indeed misrepresentation, it did not find that a contempt had been committed. It did, however, recommend that the Senate order that a report of the committee's concerns be placed in the relevant newsletter, and warned the person against further misrepresentation.10 The Senate's order was complied with.

Unauthorised disclosure of proceedings or documents of committees

4.18 In the period 1988 to the beginning of the 38th Parliament in 1996, five cases of unauthorised disclosure of committee proceedings, reports, evidence or documents were referred to the Privileges Committee. It must be said that the committee finds some difficulty in considering such questions. It follows the principle first established in 1984 that it should not make a finding of contempt against, and punish, the publisher of the improperly disclosed material without also making an attempt to find the person who disclosed the matter. As the 1984 case indicates, the committee treats members of other committees with the same severity as it does any known publisher. However, the process can sometimes be frustrating and ineffectual. Publishers, normally journalists, will not reveal their sources, on grounds of `journalistic ethics'. Similarly, it is unusual for a person who has deliberately disclosed material to admit to the offence.

4.19 The committee has, however, had some success in dealing with improper disclosure matters. For example, one case involved a senator who had given a premature briefing to the media on the content of a report, in the expectation that the report would be presented to the Senate on the day that the briefing was given. In the event, Senate delays meant that the report was not tabled until the next day but information contained in the report was widely and prematurely published. In this case, the committee did not seek information from the relevant newspapers or journalists, because the senator admitted to giving the premature briefing. The committee decided that in the circumstances a finding of contempt should not be made but recommended that the attention of all senators be drawn to their obligations in respect of committee reports or proceedings. It further recommended changes to the Senate's order of business to ensure that committee reports may be tabled early. It also suggested guidelines for Senate committees to follow in the investigation of possible unauthorised disclosures.11

4.20 Another case involved the unauthorised release of a submission to the Health Legislation and Heath Insurance Select Committee. In reaching a conclusion that in the light of the particular circumstances no finding of contempt should be made, the Privileges Committee nonetheless took the view that submissions must remain in the control of a committee, however innocuous those submissions might appear to be to persons making or receiving them, until the committee authorises their release. The committee recommended that all committees should introduce mechanisms to reduce the likelihood of the inadvertent release of documents.12

4.21 A more classic 'leak' inquiry was the committee's investigation of the publication in a major newspaper of information relating to the proceedings of the Joint Standing Committee on Migration. The Privileges Committee was unable to establish the source of the information, and was unable to make a finding that there was an improper disclosure of committee documents or proceedings. In making its report, the committee advised the Senate it was hampered in its investigation of the matter by the unwillingness of journalists to assist it. It reported also that it regarded premature publication of information, or speculation possibly based on inside information with the intentional effect of influencing the outcome of a committee's deliberations, as being of considerable concern. It went on to recommend that the issue of journalistic ethics arising from the case be referred to the Senate Standing Committee on Legal and Constitutional Affairs for consideration as part of that committee's media reference.13 That committee is still considering the matter.

4.22 The matter of the unauthorised disclosure of an in camera submission from a police officer to the Joint Committee on the National Crime Authority was regarded by the committee as the most serious example of an improper act tending substantially to obstruct a committee in the performance of its functions which it had encountered since the passage of the Parliamentary Privileges Act 1987 and the Senate privilege resolutions of 1988. The submission, which at no stage was authorised for publication by the committee, was tabled in a state parliament.

4.23 The committee was unable to establish the source of the improper disclosure, owing particularly to the constraints on its capacity to examine members of the legislature responsible for publishing and referring to the privileged documents. However, in view of the serious nature of the improper disclosure, the committee found that it constituted a serious contempt and recommended that, if the source of the improper disclosure was subsequent revealed, the matter should be referred to it again with a view to a possible prosecution for an offence under section 13 of the Parliamentary Privileges Act 1987 — the first time that the committee has made such a recommendation.14

4.24 The most recent possible improper disclosure matter referred to the committee concerned the proceedings of the Select Committee on the Dangers of Radioactive Waste. A press release was issued by the then Minister for Justice, which was clearly based on private proceedings of the select committee. In raising the matter of privilege, the chairman of the select committee made it clear that he was not raising any question relating to the conduct of the minister concerned, but rather was concerned with the unauthorised disclosure of material on which the minister's press release was based. As the Privileges Committee was advised that the select committee had not been obstructed in its operations and had itself been unable to determine the source of the disclosure, the Committee of Privileges concluded that no question of contempt was involved. However, in considering the matter, the committee decided to recommend that the procedures previously recommended in its report relating to the possible unauthorised disclosure of a report before a committee be formalised as a resolution of the Senate.15 This matter had not been resolved at the time of preparation of this report.

Possible improper interference with witnesses

4.25 The committee continues to regard the protection of witnesses before Senate committees as the single most important duty of the Senate, and therefore of the committee as its delegate, in determining possible contempts. As a result all 12 cases of possible intimidation reported on to date have been considered with the utmost care and have resulted in the most comprehensive inquiries which the committee has undertaken. In five cases,16 the committee determined it was necessary to take evidence in public session, and in three cases17 made a finding that a contempt had been committed.

4.26 Two of the early matters involved the then Aboriginal Development Commission (ADC). One involved suggestions that reprisals had been taken against the Chairman and the General Manager of the ADC as a result of their having given evidence to the Senate Select Committee on the Administration of Aboriginal Affairs.18 In the following year, a further matter involving a former senior officer of the Commission was referred to the committee, alleging that he had been adversely treated as a result of his giving evidence to the same committee.19 After an extensive inquiry into the first matter, the Committee reported that, because of the particular circumstances, no contempt was committed or should be found. However, the Committee made clear its view of the responsibilities of members and officers of statutory authorities, although no formal recommendation was made. In the second case, the committee found that a contempt was committed, although it did not regard the contempt as serious, and recommended that in the light of the apologies made no further action should be taken.

4.27 Two matters of possible interference with witnesses arose from the inquiry into drug use in sport by the Senate Environment, Recreation and the Arts Committee. In the first case, following one athlete's evidence, she was immediately evicted from a shared house by the owner. The Committee of Privileges found that, because the requisite intention to punish the witness specifically as a result of her evidence before the committee had not been established, no contempt had been committed.20 The second matter involved a proposal to publish a document claiming that false evidence had been given to a Senate committee, with the intention of influencing the outcome of an election for a sporting association position. Again the committee concluded that no contempt of the Senate had been committed.21

4.28 One of the more time-consuming matters dealt with by the Privileges Committee involved the Chairman and members of the National Crime Authority (NCA), all of whom were senior lawyers, and their attempts to prevent another member giving information to the joint parliamentary committee established under the National Crime Authority Act to supervise the NCA's activities. One of the NCA members was further accused of giving misleading evidence to the supervisory committee. After several attempts to receive submissions from the various persons involved, the committee held two public hearings to examine the matter. All but one witness, and the committee, were represented by counsel. One witness, the then former chairman of the NCA, threatened to take the Committee of Privileges to the High Court to challenge the committee's ruling that he was required to answer questions. The committee adjourned the hearings to enable him to do so, but he did not pursue the action.

4.29 Several features of this inquiry were unusual. In the first place, all the persons concerned in the matter were senior lawyers working at the highest levels of a statutory authority which had a direct relationship with a parliamentary committee. Secondly, the basis of the attempts by such members of the NCA to prevent another of their members from giving evidence to the NCA Committee was their belief that the secrecy provisions of the National Crime Authority Act overrode the protections and requirements of parliamentary privilege.

4.30 The committee found that restrictions had been placed on the member by other members of the NCA and that, when challenged, one member's denial that this had occurred had the effect of misleading the NCA Committee. However, the Privileges Committee determined that it should not find that a contempt had been committed. It was nonetheless concerned about the failure of such highly qualified persons at such senior levels to understand their responsibilities and obligations to the Parliament and its committees, particularly given their organisation's direct relationship with a parliamentary committee. The Privileges Committee pointed out that all witnesses before parliamentary committees, particularly persons representing statutory authorities with a close association with a monitoring committee, are under an obligation to take their responsibilities to such committees seriously. In summary, the committee was highly critical of the behaviour of the NCA members who had, despite the question of privilege having been brought specifically to their attention, ignored the implications of their actions.22

4.31 The committee was similarly concerned when it received a reference of a second matter of intimidation also involving officers at senior levels of a statutory authority, this time the Australian Securities Commission (ASC), an organisation also in a special relationship with the Parliament through the Joint Statutory Committee on Corporations and Securities, which had been established to scrutinise its activities. ASC officers imposed a penalty on a junior officer by, inter alia, charging him under the Public Service Act for improper conduct, as a result of his having given evidence in a private capacity to the Corporations and Securities Committee. In this case, the Committee of Privileges found that a contempt had been committed. Although it concluded that the committee's inquiry process was sufficient penalty as not to warrant the Senate's taking any action other than to endorse its finding of contempt, the Committee was uncomplimentary about the officers and the organisation. Furthermore, in the light of its previous experience with the NCA, it expressed its grave concern at the 'astonishing ignorance within both organisations of officers' rights and obligations in respect of Parliament generally and their own parliamentary committees in particular'. The committee also noted that the ASC officers acted on the advice of the Australian Government Solicitor's Office but went on to point out that this did not absolve them from the responsibility to ensure that their actions accorded with well-established rules governing relations with the Parliament. The committee emphasised that 'in this case, as in the case of the National Crime Authority, it was dealing with senior officers of a regulatory agency with a direct relationship with a parliamentary committee who, it is not unreasonable to suppose, would not be prepared to accept ignorance of the law as an excuse for offences against the complex legislation which they administer'.23

4.32 As a result of these concerns, it recommended that the Senate pass the following resolution:

That the Senate is of the opinion that all heads of departments and other agencies, statutory office holders and Senior Executive Service officers should be required, as part of their duties, to undertake study of the principles governing the operation of Parliament, and the accountability of their departments, agencies and authorities to the Houses of Parliament and their committees, with particular reference to the rights and responsibilities of, and protection afforded to, witnesses before parliamentary committees.24

The Senate agreed to the recommendation on 20 October 1993.25

4.33 While the committee has noted that several seminars have been conducted by the Department of the Senate, and has been advised that the Public Service and Merit Protection Commission now regularly invites officers of the Senate to address public servants at the introductory SES seminars, it is concerned that, with the exception of the ASC itself, which arranged seminars for all staff, no action appears to have been taken at the most senior levels of the public service and statutory authorities to comply with the resolution.

4.34 Another contentious reference of possible interference with a witness also involved a senior statutory office holder, the Comptroller-General of Customs. It was alleged that the Comptroller-General and other officers of the Australian Customs Service (ACS) had penalised a witness before another joint statutory committee, the Joint Committee of Public Accounts, on account of evidence he had given before that committee in relation to the Midford-Paramount matter. The same person further alleged that the Comptroller-General and officers had given, or had caused ministers to give in the Senate and its committees, false or misleading information in respect of a number of matters.

4.35 The complexity of the issues perhaps made this inquiry the most difficult of all that the committee has considered, involving a comparative examination of some 25 000 pages of documentation. The committee was further hampered in its investigations by the time which had elapsed between the alleged intimidation and the alleged misleading information and the reference of the matter to the Committee of Privileges. Having analysed the issues involved, the committee concluded that the witness had been threatened and that the threat constituted a serious contempt. It was, however, unable to discover the source of the threat. It also concluded that the witness had suffered penalty or injury but could not establish whether this was as a result of his giving evidence to the Joint Committee of Public Accounts. Finally, it concluded that the answers and evidence given to the Senate and committees, although less helpful than they might have been, did not constitute contempt.

4.36 In its report, the committee concentrated on the defensive culture of the ACS, which the committee considered had caused much of the difficulty in dealing with a substantial number of persons and scrutiny organisations including the Public Accounts Committee and successive Senate estimates committees. The committee also noted that a total restructure of the ACS was being implemented at the time of its report and expressed optimism that the changes would lead to a breakdown of the long-standing culture. It further recommended that the Senate Economics Legislation Committee continually scrutinise the implementation of the recommendations contained in the review of the Customs Service.26 As with the two previous reports, the committee made wide-ranging comment on and expressed concern about organisational weaknesses which it found during its inquiry.

4.37 A case of improper interference which did not involve public servants or statutory officers was referred to the committee as a result of a report of the Senate Standing Committee on Community Affairs. The report drew to the attention of the Senate complaints which had been made to the secretary to the committee about a person who allegedly had intimidated others because of evidence given to the committee in respect of its inquiry into the implementation of pharmaceutical restructuring measures. The case was unusual because the persons who had advised of the possible intimidation did not respond to the Privileges Committee's invitation to make submissions to it. Consequently, the Committee had no hesitation in concluding that no finding of contempt could or should be made against the subject of the assertions. The committee expressed some disquiet that a possible abuse of process might have been involved, warning that it is possible for the committee to recommend that the Senate take action to deal with any such abuse in the future.27

4.38 Another substantial inquiry into possible interference with a witness concerned a doctor at the Northern Territory government-administered Royal Darwin Hospital, who gave evidence to a Senate committee on the hospital's state of preparation to deal with a nuclear accident. Immediately following the doctor's evidence to the committee, the Minister for Health issued a press statement which concluded with the words 'if [the doctor concerned] does not like the situation, I have no doubt that Royal Darwin Hospital would be able to scrape by without him'. The doctor was interviewed the next day for a Resident Medical Officer position for the following year and was initially not offered a position — a situation which the committee was advised was virtually unknown at the hospital.

4.39 The committee again took public evidence on this matter. The hearings in Canberra were aborted when counsel representing the Northern Territory Government produced substantial additional documentation shortly before the committee hearings, thus preventing both the committee and the other witnesses from considering it properly. After taking further public evidence in Darwin from the doctor concerned, officers from the hospital and ministerial staff, the committee concluded that, while the doctor was clearly threatened and penalties were imposed, the evidence showed that the threat and penalties could not be causally linked with his giving evidence to the Senate committee.28

4.40 This report built on comments in previous reports about the pattern of behaviour developed by institutions to deal with perceived troublemakers. The committee drew particular attention to its previous endorsement of views expressed in the report of the Senate Select Committee on Public Interest Whistleblowing. The committee can but hope that its consistent observations, derived from its parliamentary case law experience, will have a positive effect on organisations, particularly when they are public institutions.

4.41 The final three matters of possible interference with a witness were also resolved after extensive evaluation of material, although the committee did not find it necessary in these cases to hold public hearings.

4.42 The first matter concerned a newspaper report which alleged that a House of Representatives minister had refused to appoint a person to a position with the Australian Industrial Relations Commission because the person had been critical of government policies in evidence before the Senate Employment, Education and Training Committee. Before the matter was referred to the committee, a statement was made by the Leader of the Government in the Senate, on behalf of the minister concerned, which formed the basis of the minister's later submission to the committee. In accordance with its normal practice the committee also invited responses from the person concerned and a person also referred to in the minister's statement, seeking confirmation of the points made. All confirmed the substance of the statement. The committee concluded that, in the light especially of the person's categorical denial that he was penalised or injured as a result of his giving evidence before the Employment, Education and Training Committee, it should not make a finding that a contempt had been committed.29

4.43 A further matter involved two persons who appeared before the Senate Select Committee on Superannuation. Some months after they had given evidence to the select committee about what they regarded as improprieties in the management of a Queensland credit union, one of the witnesses had his membership of the credit union, and that of his wife, terminated, while the second witness was refused membership altogether. The committee concluded that penalty and injury were undoubtedly caused to the two witnesses, and the wife of one of them, but was unable to establish that this result was on account of their having given evidence to the Superannuation Committee. Although it determined not to make a finding that contempt had occurred, the committee was critical of actions taken against the two witnesses.30

4.44 Although the committee's own deliberations on this matter were relatively brief, it took a considerable time to determine, having been referred to the Committee on 16 December 1993, with the committee's report being tabled on 17 October 1995. This inquiry illustrates one aspect of the committee's work which is often not obvious to persons unfamiliar with the processes relating to privilege. Most of the committee's information is provided by the persons directly affected by the reference of the matter and, in the interests of natural justice, the committee is obliged to give reasonable opportunity for information to be provided and exchanged. In the particular case, the committee awaited the outcome of certain investigations in another jurisdiction before being able to finalise its report.

4.45 In contrast, a recent matter considered by the committee took less than four months to resolve. The question of possible interference with a witness who gave evidence before the Select Committee on Unresolved Whistleblower Cases was investigated by the Privileges Committee in accordance with its normal practice. It sought submissions from the witness and from a person referred to in the select committee's report and, after examining the submission made by the witness, concluded that the submission did not provide evidence to support his contention that reprisals and intimidation had occurred on account of his giving evidence to the select committee.31 The Privileges Committee emphasised in this case, as in other cases on which it has made comment, that although it may conclude that penalty, injury or reprisal has occurred, in order to find a contempt of the Senate it must be satisfied that any such penalty or intimidation was as a result of evidence before a parliamentary committee.

Endnotes

1 Senate Committee of Privileges, 11th report, PP 46/1988.

2 Senate Committee of Privileges, 49th report, PP 171/1994; 52nd report, PP 21/1995.