CHAPTER ONE
1.1 On 23 August 1995, the following matter was referred
to the Committee of Privileges:
whether threats of legal proceedings were made against
persons in respect of their provision of information to Senator O'Chee
in relation to matters raised in the Senate by Senator O'Chee;
whether a threat of legal proceedings was made against
Senator O'Chee in respect of his activities as a Senator; and
whether contempts were committed in respect of those
matters.
[1] 1.2 The reference to the Committee was given precedence
by the then President of the Senate, Senator the Hon. Michael Beahan,
following the matter being raised by Senator O'Chee. In giving precedence
to the motion, the President drew attention to the complexity of the issues
involved in the reference.
1.3 In particular, the President drew attention to the "very significant
question of whether actions taken against persons in respect of their
provision of information to members of Parliament may constitute a contempt,
in the words of section 4 of the Parliamentary Privileges Act 1987,
as conduct which amounts, or is intended or likely to amount, to an improper
interference with the free exercise by a House or a committee of its authority
or functions, or with the free performance by a member of the member's
duties as a member".[2]
1.4 He went on to pose the question:
whether such a threat constitutes a contempt when directed at the provision
of information to a member of Parliament for the purpose of having a
matter raised in Parliament. A strong case can be made out that the
contempt jurisdiction extends to that area. Obviously the provision
of information to members for the purposes of raising matters in Parliament
is highly significant to the performance by members of their parliamentary
functions and an important means by which matters may be raised in Parliament.
Members would be significantly affected in their work if such provision
of information were to be regularly subjected to threats of legal action.[3]
He advised the Senate that "this question has not been determined,
either by parliamentary cases or by judgments of the courts".
1.5 The President's statement then considered the question, raised by
Senator O'Chee, "whether the provision of information to a member
for the purposes of raising a matter in Parliament may be protected by
parliamentary privilege in so far as it may fall within matters `for purposes
of or incidental to, the transaction of the business of a House or a committee'
within the meaning of subsection 16(2) of the Parliamentary Privileges
Act 1987". The President commented that "the answer to this
question, however, does not determine the answer to the question concerning
the contempt jurisdiction, although, if it were held that such provision
of information is covered by parliamentary privilege, this would be persuasive
in any consideration of the question of the contempt jurisdiction. It
is not necessary for me to consider the question."
1.6 The President, having traversed these issues, concluded that a motion
to refer the matter to the Committee should have precedence over other
business, as it clearly met the criteria he was required to consider.
1.7 On 8 June 1995, Senator O'Chee asked a question of Senator McMullan,
then Minister representing the Minister for Resources, about a possible
conflict of interest by one of the board members of the East Coast Tuna
Management Advisory Committee (ECTUNAMAC), Mr Michael Rowley, who undertakes
tuna fishing in North Queensland. Senator O'Chee claimed that a proposal
to allow longline fishing, previously forbidden in a specified area in
order to prevent the depletion of marlin and other bill fish, had been
put before ECTUNAMAC. Senator O'Chee indicated that the proposal was opposed
by several bodies, including local tuna fishermen in North Queensland,
and tabled certain photographs which purported to show Mr Rowley's boats
landing prohibited fish.[4]
1.8 Senator O'Chee followed up the question, both by a speech on the
adjournment on 19 June 1995[5] and
in a further question, this time addressed to the Minister for Primary
Industries and Energy, Senator Collins, on 22 June 1995.[6]
In his adjournment speech, Senator O'Chee referred to certain information
provided by Mr David Armstrong, a former manager of a tuna company of
which Mr Rowley is a shareholder and director.
1.9 On 13 June 1995,[7] a similar
speech was made in the Queensland Parliament, also on the adjournment,
by Mr Trevor Perrett, the National Party Member for Barambah, and at the
time the shadow Minister for Primary Industries and Forestry. Mr Perrett
also mentioned Mr David Armstrong.
1.10 There is no public record of any responses to either question asked
by Senator O'Chee. On 25 October 1995, Senator O'Chee again addressed
the same subject on a motion to take note of the annual report of the
Australian Fisheries Management Authority, and the then Minister for Primary
Industries and Energy, Senator Bob Collins, undertook to respond to the
matters raised.[8] However, there
is no public record of such a response, although in oral evidence to the
Committee of Privileges Senator O'Chee gave an outline of parliamentary
and governmental initiatives which he believes would not have occurred
unless he had raised the matters in the Senate.[9]
1.11 On 11 July 1995, Senator O'Chee raised a matter of privilege under
standing order 81 with the President of the Senate. He made the following
claims:
(a) That Mr Michael Rowley had instructed the firm of Bottoms English
to initiate defamation proceedings against Mr Ron Crew, the National Party
candidate for the state seat of Barron River, and that one of the bases
of the claim was the alleged provision by Mr Crew to Senator O'Chee of
evidence concerning Mr Rowley's fishing activities.
That a similar threat was made to Mr David Armstrong,
the letter of demand on behalf of Mr Rowley citing only the material contained
in the speeches of Senator O'Chee and Mr Perrett.
(c) That a statement of claim had been lodged with the Supreme Court
of Queensland against the Cairns Professional Game Fishing Association
, a body mentioned in Senator O'Chee's and Mr Perrett's speeches , and
executive officers Mr Brad Craft and Ms Sue Mason. Again, Senator O'Chee
suggested that the claim was based in part on the alleged provision to
him of information regarding Mr Rowley's fishing activities.
That Bottoms English threatened to prosecute him,
following his contact with that firm to draw the firm's attention to possible
contempt implications.
[10]
Senator O'Chee subsequently forwarded to the President supporting documentation.
Conduct of inquiry
(a) Advice received
1.12 In giving preliminary consideration to the reference, the committee
sought and received two papers, the first from the Clerk of the Senate
who was asked to comment on issues arising from the terms of reference,[11] and secondly from the Law and Public Administration
Group, Parliamentary Research Service, Department of the Parliamentary
Library.[12] The second paper, in complying with the Committee's
request to comment specifically on legal professional privilege and contempt
in the context of interference with a witness or a potential witness,
also made some useful observations on the question of parliamentary privilege
and contempt. The advice contained in each will be considered in Chapter
2.
(b) Initial communications
1.13 Early in its proceedings the Committee wrote to all the persons
and organisations named in Senator O'Chee's letter, and to Senator O'Chee
himself, inviting them to make submissions on the terms of reference.
All except Mr Ron Crew responded, some through lawyers acting on their
behalf. Owing to delays in receiving certain responses to its invitations,
the Committee was unable to complete its inquiry before the House of Representatives
was dissolved in January 1996, but met again to consider the matter after
the election. Because of the complex questions of principle involved in
the matters raised by Senator O'Chee, the Committee did not complete the
inquiry before the commencement of the 38th Parliament on 30 April, but
following the committee's reconstitution it resumed the reference.
It directed its attention at that time to responses made by Senator O'Chee
and Bottoms English.
(c) Senator O'Chee's responses
1.14 In his response to the Committee of 25 September 1995, Senator O'Chee
identified what he regarded as possible acts of contempt as follows:
Commencing or threatening to commence legal proceedings,
or other punitive action, against persons who may have provided him
with information for the purposes of speaking or asking a question in
Parliament.
Taking action as outlined above so as to impair
the freedom of certain persons to communicate with a member of Parliament.Threatening
to cause a prosecution to be laid against him for raising a matter of
privilege.
(c) [13] 1.15 The response went
on to discuss the rationale of protecting the provision of information.
Senator O'Chee made a specific request to the Committee that he be given
the opportunity to give in camera evidence to it. The basis of his request
was as follows:
This evidence relates, inter alia, to persons who have been
intimidated from providing me with information as a result of the legal
proceedings Mr Rowley has already commenced. Due to the fact that Mr
Rowley does not know the identity of the informants in question, I would
only be able to provide full particulars to the Committee through the
provision of in camera evidence.[14]
1.16 The Committee advised Senator O'Chee that, while it had not made
any determination as to whether it would hold hearings, it does not normally
received either written or oral evidence in camera, and asked whether
it would be possible to provide the information referred to in general
terms, with a view to ultimate publication should it become necessary.
1.17 Subsequently, in a response on 29 April 1996, Senator O'Chee indicated
his willingness to appear in public before the Committee, and advised
that Mr Rowley had initiated proceedings against Senator O'Chee in a "further
attempt to obtain discovery of files containing details of [Senator O'Chee's]
discussions and correspondence with [his] constituents".[15]
1.18 On 22 May 1996, Senator O'Chee made a further response to the Committee,
which set out more details of his concerns, summarised as follows:
- A delegation of constituents met Senator O'Chee in Cairns early in
1995, and provided information concerning the taking of marlin in protected
waters.
- Subsequently, he was provided with photographic evidence of marlin
being unloaded from a vessel in Cairns.
- Before raising the matter several times in the Senate (see paragraphs
1.7, 1.8 and 1.10), Senator O'Chee spoke with a number of constituents,
some of whom, he stated, had intimate knowledge of Mr Rowley's business
affairs, which he regarded as essential to his being able to form a
view as to Mr Rowley's activities.
- In July 1995, Mr Rowley commenced legal proceedings against several
persons. At that time, Senator O'Chee was involved in discussions about
Mr Rowley with two persons who, on becoming aware of the proceedings,
withdrew assistance from Senator O'Chee.[16]
1.19 In his response, Senator O'Chee stated that he then sought advice
as to whether any question of contempt was involved. On being advised
that it was appropriate to raise the matter with the President, but before
formally doing so, Senator O'Chee advised the solicitors acting for Mr
Rowley of his intentions, and sought confirmation that the proceedings
on behalf of Mr Rowley would be dropped. According to Senator O'Chee the
solicitors responded by accusing him of extortion, quoting the Queensland
Crimes Act and threatening to make a complaint against him to the Queensland
Police Service. Senator O'Chee advised the Committee that he then ceased
to communicate with Mr Rowley or his solicitors, and immediately referred
the matter to the President.
1.20 Senator O'Chee's May letter also emphasised his concern about Mr
Rowley's attempts to seek access to Senator O'Chee's constituency files,
and Mr Rowley's indication, through his solicitor, of an intention to
apply for an order for discovery in relation to the files. Senator O'Chee
advised the Committee that the files contain information:
the disclosure of which may cause injury or damage to certain of my
constituents who have placed their trust in me, and to whom I have given
undertakings of confidentiality. In one case, the constituent has already
suffered threats and intimidation from Mr Rowley, and disclosure of
the information on these files gives me cause for concern about that
person's safety.[17]
1.21 In a further letter to the Committee, Senator O'Chee reported that
on 15 June 1996 he was threatened by Mr Rowley at Cairns Airport terminal.[18] Following the Committee's exchange
of submissions between Senator O'Chee and Bottoms English, Senator O'Chee
reiterated his concerns about his constituents and restated the principles
involved.
(d) Responses by Bottoms English
1.22 Bottoms English responded to the Committee's initial invitation
on 8 September 1995, having also written to the President of the Senate
on 25 August, when it became aware of the Senate's reference of the matter
to the Committee of Privileges. The letter, a copy of which was supplied
to the Committee as part of Bottoms English's response of 8 September,
referred to several letters in support of the firm's claim that it had
not threatened legal action against Senator O'Chee. All these letters
were ultimately obtained by the Committee. The firm also denied threatening
to initiate proceedings against several persons, although it acknowledged
that it had made demands for apologies from two persons, on behalf of
Mr Rowley.
1.23 The response directed to the Committee denied that:
- any threats of legal proceedings or otherwise were made against persons
in respect of their provision of information to Senator O'Chee in
relation to matters raised in the Senate by Senator O'Chee [emphasis
added];
- any threat of legal proceedings was made against Senator O'Chee in
respect of his activities as a Senator [emphasis added];
and
- Bottoms English was in contempt of the Senate.[19]
1.24 The response submitted that Senator O'Chee had "misstate[d]
facts" and was "wrong as a matter of law". The misstatements
of facts were stated to be that:
- Bottoms English threatened to initiate proceedings against two persons;
- the taking of legal proceedings was to discourage these persons and
others from providing information to senators, that Mr Rowley's actions
were designed to intimidate persons who might otherwise provide information
to Senator O'Chee; and
- Bottoms English threatened to prosecute Senator O'Chee under Queensland
Criminal Code.[20]
1.25 The claimed errors of law were based on Bottoms English's declaration
that:
1. an informant out of parliament of a politician whether the politician
chooses to state the information in parliament or not is not clothed
with an immunity against suit for defamation: see R. v. Grassby (1991)
55 A. Crim. R.419; 2. the taking of legal action against a person for
the provision of information to a Senator is not a contempt of parliament.[21]
The submission concluded with a denial that there
had been any wrongdoing both as a matter of fact and as a matter of law.
[22] 1.26 Following the exchange of submissions referred to above, Bottoms
English again challenged Senator O'Chee's analysis of the question of
privilege involved in the matter, and also again drew attention to the
Grassby case.[23]
(e) Other responses
1.27 Other responses were received on behalf of the Cairns Professional
Game Fishing Association and the President and Secretary of the Association,
which referred to the Association's strenuous defence against Mr Rowley's
claim;[24] solicitors acting for Mr David Armstrong,
whom Senator O'Chee had named in the Senate as one of his informants,
who stated only that he had been "greatly inconvenienced in his current
employment" as a result of the action, and did not address the question
of privilege;[25] and Mr Rowley, who made denials in similar terms
to those of Bottoms English.[26]
(f) Public hearing of the Committee
1.28 As will become clear in chapter 2 of the report, the issues of principle
arising from the reference were of such significance in the context of
parliamentary privilege, with particular reference to how far the protection
of parliament should extend, that the Committee deliberated for some time
before taking further action. In the event, it decided that the only satisfactory
method of canvassing and evaluating the matters before it was to take
oral evidence from any or all of the parties who wished to attend. Accordingly,
it scheduled a hearing in Cairns on 31 January 1997. The Committee invited
all persons who had made submissions to it to attend the hearing, including
in the invitation a summary of matters that the Committee proposed to
canvass and a paper by Mr Harry Evans, Clerk of the Senate, delivered
to the Presiding Officers and Clerks Conference in Hobart in July 1996,
based and expanding on advice previously given to the Committee. In accordance
with normal practice, indicative committee procedures were also sent to
all parties.
1.29 In the weeks leading to the hearing, both the Committee and the
President of the Senate received letters from the following: Mr J R Bottoms,
of Bottoms English Lawyers, representing Mr Rowley;[27]
Mr Hugh Grant, President of the Queensland Law Society;[28]
and Mr Peter J Short, President of the Law Council of Australia.[29] The gravamen of these letters was that the Committee
should not proceed with its inquiry on various grounds, most notably the
principle that the Senate should adhere to sub judice conventions in matters
which were before the Queensland courts. Both law bodies advised that
they intended to send observers to the hearing.
1.30 Unfortunately, that hearing did not proceed because of the untimely
death of one of the Committee members, Senator John Panizza, who was in
Cairns to attend the hearing.
1.31 It became clear to the Committee from the correspondence received
that there was significant misapprehension as to the purpose of the hearing,
and requirements imposed on the Committee by the Senate in referring the
matter to it. Accordingly, when rescheduling the hearing in Cairns for
16 April, the Committee took the opportunity to advise all interested
parties of its purpose:
The purpose of the Committee's hearing is to gain information to assist
in its deliberations, and to give an opportunity to witnesses to put
relevant submissions to the Committee. As you are aware, the Committee
is conducting its inquiry on a voluntary basis, and is not summoning
witnesses to give evidence or produce documents.[30]
1.32 After dealing with the misapprehensions evident in the correspondence,
particularly in respect of the sub judice principle, the Committee went
on to advise all parties of the questions it was required to determine,
in the following terms:
The specific question which [the Committee] is required to determine
is whether conduct by or on behalf of Mr Rowley could be regarded under
resolution 3 of the Senate's Privilege Resolutions as tending substantially
to obstruct senators improperly in the performance of their functions.
While it has not reached concluded views on the matters coming within
the specific terms of reference, the Committee's primary area of interest
is the action taken against Mr David Armstrong. In giving consideration
to this matter, the Committee will expect to receive evidence and submissions
on Senator O'Chee's written assertions that the effect of action taken
by or on behalf of Mr Rowley has been to deter other persons from providing
information for use by Senator O'Chee as a senator. The Committee will
also give consideration to the question of principle as to whether,
and to what extent, protection should be extended to persons who provide
information to senators.[31]
1.33 In the event, and following representations concerning costs of
the rescheduled hearing, the Committee decided to hold the hearing in
Brisbane. Senator Bill O'Chee, Mr Michael Rowley and Mr David Armstrong
accepted its invitation to give oral evidence to it. In addition, the
Queensland Law Society sought leave to make oral submissions in support
of the matters it had canvassed in its earlier correspondence. The Committee
acceded to this request and received what it regarded as helpful views
from Mr Scott Carter, the solicitor to the Queensland Law Society.[32]
1.34 Mr Michael Rowley was represented by Mr Kerry Copley QC, Mr Paul
Favell and Sir James Killen, who made oral submissions on his behalf and
assisted him in proceedings. They were assisted by Mr J R Bottoms, of
Bottoms English Lawyers. Mr Rowley's solicitors sought on his behalf reimbursement
of legal expenses incurred in respect of the hearing which did not proceed
in Cairns. The Committee refused to recommend to the President that such
reimbursement should be made. Neither Senator O'Chee nor Mr Armstrong
was assisted or represented by counsel.
1.35 The Committee takes this opportunity to remind the Senate, and others
who may find themselves the subject of a privileges inquiry, of its view
stated in its 35th report that the requirement for legal representation
is limited and also draws attention to the stringent views expressed in
that report about the basis of any reimbursement of costs. The relevant
extracts from the report are at Appendix A, together with extracts from
its 55th report, which includes similar observations on these questions.
1.36 Several assertions were made in various submissions and oral evidence
about the behaviour and activities of witnesses, which the Committee regarded
as beyond its terms of reference. While the Committee concluded that it
was not appropriate to refuse to receive, or to expunge, any such evidence,
it has made no judgment as to the truth or accuracy of the assertions;
nor have they influenced its conclusions or findings and are not further
discussed in this report.
(g) Further submissions
1.37 At the conclusion of its hearing the Committee invited all parties
to make any further written submissions they wished. The Queensland Law
Society[33] and the Law Council of Australia[34] reinforced their previously stated
views, while a submission was received from Mr Copley and Sir James Killen
on behalf of Mr Rowley.[35] All
documents published by the Committee before its hearing of 16 April, together
with these subsequent submissions, are included in the volume of documents
tabled with this report.
1.38 After the Committee had determined the findings contained in this
report, in accordance with paragraph (10) of Privilege Resolution 2 it
conveyed those findings to Mr John Bottoms, representing his client Mr
Michael Rowley. Mr Bottoms made a further written submission,[36]
which the Committee took into account, in accordance with paragraph (10),
before making this report to the Senate.
1.39 In taking into account the important principles raised in all submissions,
the Committee wishes particularly to emphasise the need to protect the
integrity of parliamentary proceedings, a need that is directly analogous
to protection of court proceedings, while accepting the necessity to ensure
comity between the executive, legislative and judicial arms of governance,
and the role of the courts in the interpretation of legislation relating
to parliamentary privilege. This report reflects the Committee's judgment
as to its own capacities, and those of the Senate, to ensure that the
necessary separation between legal and parliamentary functions has been
preserved. 1.40
ENDNOTES
[1] Journals of the Senate,
23 August 1995, p. 3665.
[2] Senate Hansard, 22 August
1995, p. 33.
[3] Senate Hansard, 22 August
1995, p. 33.
[4] Senate Hansard, 8 June
1995, p. 1113.
[5] Senate Hansard, 19 June
1995, p. 1370.
[6] Senate Hansard, 22 June
1995, p. 1656.
[7] Submissions and Documents,
p. 281.
[8] Senate Hansard, 25 October
1995, p. 2548.
[9] Evidence, p. P27.
[10] Submissions and Documents,
p. 1.
[11] Submissions and Documents,
pp. 96-106.
[12] Submissions and Documents,
pp. 287-298.
[13] Submissions and Documents,
p. 16.
[14] Submissions and Documents,
p. 17.
[15] Submissions and Documents,
p. 21.
[16] Submissions and Documents,
pp. 22-5.
[17] Submissions and Documents,
p. 24.
[18] Submissions and Documents,
p. 26.
[19] Submissions and Documents,
p. 83.
[20] Submissions and Documents,
pp. 83-4.
[21] Submissions and Documents,
p. 84.
[22] Submissions and Documents,
p. 85.
[23] Submissions and Documents,
pp. 88-91.
[24] Submissions and Documents,
pp. 156-7.
[25] Submissions and Documents,
p. 153.
[26] Submissions and Documents,
p. 86.
[27] Submissions and Documents,
pp. 125-6.
[28] Submissions and Documents,
pp. 129-131.
[29] Submissions and Documents,
pp. 134-5.
[30] Submissions and Documents,
p. 138.
[31] Submissions and Documents,
p. 140.
[32] Evidence, pp. P9-19.
[33] Submissions and Documents,
pp. 171-2.
[34] Submissions and Documents,
pp. 169-70.
[35] Submissions and Documents,
pp. 174-249.
[36] Submissions and Documents,
pp. 254-5.