CHAPTER TWO
2.1 The matters before the Committee are of serious
moment. The particular questions on which the Committee is required to
make a determination are best set out in the advice of 30 August 1995
from the Clerk of the Senate:
Did any threats of legal proceedings which may have
been made against persons have as their focus the provision of information
by those persons to Senator O'Chee?
Was that provision of information connected with
actual or potential proceedings in the Senate or a committee or with
proceedings contemplated by Senator O'Chee, and, if so, what was the
nature of that connection?
(c) Did any such threat of legal proceedings have the effect of interfering
or tendency to interfere with the free performance by Senator O'Chee
of his duties as a senator?
(d) Were any threats of legal proceedings made with the intention of
influencing the use of the information so provided in actual, contemplated
or potential proceedings in the Senate or a committee?[1]
2.2 Before the Committee reaches conclusions on the issues of fact addressed
by these questions it has decided to discuss the underlying question whether
the protection afforded by parliamentary privilege extends to the provision
of information by other persons to members of parliament. The Committee's
views on this matter are influenced by the analysis provided in the Clerk's
advice, the relevant extracts of which are:
This matter gives rise to two issues: (a) whether the immunity afforded
by parliamentary privilege extends to the communication of information
to senators by other persons; and (b) whether the Senate may treat as
a contempt any interference with such communication of information to
senators by other persons. The answer to question (a) does not necessarily
determine the answer to question (b). If the communication of information
to senators does not attract the immunity of parliamentary privilege
it may still be lawful for the Senate to treat as a contempt any interference
with such communication. If, however, the communication of information
to senators is protected by parliamentary privilege, this probably determines
the answer to question (b), in that there can then be little room for
doubt that it is open to the Senate to use its contempt jurisdiction
to protect such communication. The committee is required by its reference
to determine only question (b), depending on the facts found, but in
doing so may find it necessary to consider question (a). (a) Parliamentary
privilege and communications with senators It has always
been thought, in the absence of definitive judicial authority, that
the immunity of parliamentary proceedings from any impeachment or question
before any court or tribunal extends to matters which, while not part
of the actual proceedings of the Senate or its committees, are closely
connected with those proceedings. The kinds of examples usually cited
include the "publication" by a senator of information to a
parliamentary officer or to a stenographer in the course of seeking
advice on, or composing, a notice of motion or question to be used in
the Senate or a committee; it is fairly certain that a senator would
be protected by parliamentary privilege in making such "publications".
It is possible to postulate many other circumstances in which the immunity
applies or should apply. This extended operation of the immunity is
provided for in the Parliamentary Privileges Act 1987 in the
following terms:
`proceedings in Parliament' means all words spoken and acts done
in the course of, or for purposes of or incidental to, the
transacting of the business of a House or of a committee [emphasis
added].
This provision is regarded as a codification of the pre-existing law,
not as an extension of the law, and the relevant section of the Act
has been accepted in general as such by the Federal Court in Amann
Aviation v Commonwealth 1988 19 FCR 223. In relation to the Commonwealth
Houses, therefore, the extended operation of the immunity is a matter
of statutory interpretation. There has yet been no occasion for judicial
construction of the relevant words of this provision. The issue which
arises is whether this extended operation of the immunity applies to
communications of information to senators by other persons. The answer
to this question is likely to be determined by the circumstances of
particular cases, and, in particular, by the closeness of the connection
between the communication of the information to the senator and potential
or actual proceedings in the Senate or a committee. For example, if
a person provides information to a senator with an explicit request
that the senator initiate some action in the Senate in relation to that
information, such as an inquiry by the Senate, there is a much stronger
basis for concluding that the communication of that information is protected
by parliamentary privilege than if the person provides the information
simply as a matter of political intelligence ... Similarly, if a senator
has requested the information for the purpose of using it in the Senate
or a committee, there is a stronger basis for applying the immunity
than if there is no evidence of any potential relationship between the
information and parliamentary proceedings. If a senator has actually
used the information in the course of parliamentary proceedings, that
also provides a firmer basis for applying the immunity to the provision
of the information than if no parliamentary use is made of the information.
The courts would be likely to determine the question in particular cases
by considering these kinds of factors.[2]
2.3 The Clerk then addresses the substantive issue of principle as to
whether it would be lawful for the Senate to treat as a contempt interference
with communication of information to senators by other persons:
(b) Interference with communications to a senator as a contempt
It is well established that the taking or threatening of legal
action can constitute a contempt of Parliament or a contempt of court
if the effect or tendency is to interfere with the conduct of proceedings
in Parliament or court proceedings. This question was dealt with in
some detail in the advices to the committee dated 6 March 1989, 12 November
1990 and 28 February 1991, and the attention of the committee is drawn
to the authorities cited in those advices. They also dealt with the
question of whether a culpable intention is required to establish a
contempt or whether the effect or tendency of an act is sufficient.
The advice dated 10 April 1992 summarised the relevant principles and
also considered the question of the connection between a threatened
or actual legal action and its "target". All of those issues
are relevant to the matters now referred to the committee, and their
application to the cases in hand will depend on the facts found by the
committee. The new issue is whether the provision of information to
a senator by another person can be the "target" of a contempt,
in the sense that a contempt is committed by improper interference with
such provision of information. For the Commonwealth Houses this is clearly
a question of statutory interpretation, turning on the application of
section 4 of the Parliamentary Privileges Act 1987:
Conduct (including the use of words) does not constitute an offence
against a House unless it amounts, or is intended or likely to amount,
to an improper interference with the free exercise by a House or committee
of its authority or functions, or with the free performance by a member
of the member's duties as a member.
Unlike the statutory definition of "proceedings in Parliament",
this provision does not merely give expression to the pre-existing law,
but is thought to embody the rationale of the law which empowers the
Houses to punish contempts. The provision limits the power to punish
contempts which existed before the Act was passed. There has been no
judicial construction of the provision, so one can only reason from
its terms and first principle. It is clear that the provision of information
to senators is often a vital part of their participation in Senate and
committee proceedings, and that the suppression of such provision of
information could severely hinder those proceedings. It is also clear,
however, that information is often provided to senators without any
connection, actual or potential, to parliamentary proceedings. The lawfulness
of treating as a contempt any interference with the provision of information
to a senator is therefore likely to depend on the circumstances, and
in particular the closeness of any connection between the provision
of information and actual or potential parliamentary proceedings. In
a case where interference with the provision of information to a senator
clearly had the effect or tendency of hindering the senator in the free
performance of the senator's duties, it would be lawful to treat such
interference as a contempt. (The attention of the committee is also
drawn to the analysis in the previous advices of the significance of
the word "improper" in section 4 of the Parliamentary Privileges
Act.) As with other aspects of contempt of Parliament, it is instructive
to make comparison with the equivalents in relation to legal proceedings,
contempt of court and its criminal law counterpart, attempting to pervert
the course of justice. If it can be a contempt of court or a perversion
of the course of justice for a person to interfere with the provision
of information to an actual or potential participant in actual or potential
legal proceedings, this is strong ground for concluding that it is lawful
for the Senate to treat interference with the provision of information
to a senator as a contempt. Fortunately, there is a recent judgment
of the High Court which throws considerable light on this matter. In
R. v Rogerson 1992 174 CLR 268 the High Court held that interference
with the gathering of evidence by police can constitute a perversion
of the course of justice even though such gathering of evidence is not
part of the course of justice as such and even though no actual proceedings
are contemplated by the police:
The fact that police investigation stands outside the concept of
the course of justice does not mean that, in appropriate circumstances,
interference with a police investigation does not constitute an attempt
or a conspiracy to pervert the course of justice ... it is enough
that an act has a tendency to frustrate or deflect a prosecution or
disciplinary proceedings before a judicial tribunal which the accused
contemplates may possibly be instituted, even though the possibility
of instituting that prosecution or disciplinary proceeding has not
been considered by the police or the relevant law enforcement agency.
(at 277) The ways in which a court or competent judicial authority
may be impaired in (or prevented from exercising) its capacity to
do justice are various. Those ways comprehend, in our opinion, erosion
of the integrity of the court or competent judicial authority, hindering
of access to it, deflecting applications that would be made to it,
denying it knowledge of the relevant law or of the true circumstances
of the case, and impeding the free exercise of its jurisdiction and
powers including the powers of executing its decisions. (emphasis
added, at 280)
To apply these principles to contempt of Parliament, interference with
the provision of information to a senator "in appropriate circumstances"
may constitute a contempt even though such provision of information
is not part of proceedings in Parliament as such, and even though the
senator does not contemplate use of the information in proceedings in
the Senate or a committee. It cannot be suggested that potential legal
proceedings are entitled to a greater degree of protection than parliamentary
proceedings: the provision of information to a senator may lead to inquiry
and legislative action in relation to a matter of immense public interest.
That is why proceedings in Parliament are protected by parliamentary
privilege and why the Houses have the power to deal with interference
with their proceedings.[3]
2.4 The Clerk's views are supported by advice received from the Law and
Public Administration Group of the Parliamentary Library. In responding
to the Committee's request for advice on the scope of legal professional
privilege, the paper also offered observations on the scope of parliamentary
privilege which are consonant with the Clerk's analysis. The paper concludes
with the following summary:
The legal system has clearly established that interfering with a witness
or a potential witness by intimidation may constitute contempt of court
in that it is perverting the course of justice. The legal system in
England has extended that protection to the stage of police investigation.
In the legal system, a police investigation need not necessarily result
in a charge being made nor in legal proceedings in a court of law. In
the legal system, legal professional privilege is strictly limited and
it may be put aside to allow evidence to be tendered that would prove
the innocence of an accused. The privilege must not be used to cloak
a crime. The vigilance of the courts in such matters is fundamental
to maintaining the integrity of our system of justice and public confidence
in that system. The role of the courts is to determine the rights and
in some cases, the very limit of the citizen. There are parallels between
the justice system and the Parliamentary system in terms of protecting
those involved in the proceedings in Parliament, and the mechanisms
for determining whether a breach of privilege has occurred. Although
there may be a tendency by some to identify the potential for political
considerations to influence the disclosure of information in Parliament,
this does not diminish the need for equivalent principles to those in
the legal system to apply. Disclosure in Parliament of a wrong may lead
to the removal of unfairness, oppression and injustice.[4]
2.5 After the matter was referred, Senator O'Chee, in both written and
oral submissions, drew to the Committee's attention attempts on behalf
of Mr Rowley to seek access to the Senator's constituency files and his
intention to apply for an order for discovery in relation to those files
(and see paragraph 1.20 above). This matter, too, caused the Committee
concern, because of the implications for all members of parliament in
the performance of their duty. Evidence was given at the public hearing
that such access was sought in relation to such comments made outside
the Parliament and subject to defamation action. While the
Committee did not itself seek formal advice from the Clerk on this question,
it has had access to general comment he has made on the subject:
Subpoenas, search warrants and discovery of documents If
the provision of information to a member may in appropriate circumstances
be protected, is there any protection against legal processes which
may be used to obtain that information and proof of its provision to
a member, such as subpoenas, search warrants and orders for the discovery
of documents? Such processes may be used to facilitate the taking of
action against a person in respect of the provision of information to
a member. The immunity of parliamentary proceedings, and matters "for
purposes of or incidental to" those proceedings, which is codified
in section 16 of the Parliamentary Privileges Act 1987, is an
immunity against the use which may be made of material in legal proceedings,
not an immunity against processes for the production of such material.
There is no immunity against those processes as such (except in relation
to in camera evidence: s 16(4)). A member in possession of relevant
material must produce it in response to such processes but may subsequently
contest the use which may be made of it in the proceedings. It is possible,
however, that subpoenas, search warrants and discovery of documents
may be resisted on the basis that the only purpose of the discovery
or the subsequent production of the documents would be a purpose contrary
to the parliamentary immunity. In other words, a court may hold that
a person is not required to comply with a subpoena, search warrant or
order for discovery because it is directed to impermissible use of protected
material. In a recent case in the United States the US Court of Appeals
quashed subpoenas on the ground that they constituted an interference
with legislative processes protected by the parliamentary immunity (Brown
& Williamson Tobacco Corp v Williams, 1995, not yet reported).
A tobacco company, in pursuit of former employees who had allegedly
taken company documents, sought to subpoena the documents from two members
of Congress to whom the employees had provided the documents, and who
were members of a committee investigating the activities of tobacco
companies. The Court of Appeals observed:
the nature of the use to which documents will be put , testimonial
or evidentiary , is immaterial if the touchstone is interference with
legislative activities ... a party is no more entitled to compel congressional
testimony , or production of documents , than it is to sue congressmen.
This judgment was based on a line of Supreme Court judgments indicating
that the legislative activity protected by the immunity extends beyond
proceedings in the Houses or their committees. This case suggests that,
given appropriate circumstances, the immunity protects the provision
of information to members and also provides a basis for resisting legal
processes which aim to facilitate a legal attack on such provision of
information.[5]
2.6 Before reporting its conclusions on both the issues of principle
and the issues of fact, the Committee wishes first to address the
two matters of law on which Bottoms English has made comment (see paragraph
1.25 above). Briefly, Bottoms English declared that the provision of information
to members of parliament is not covered by privilege, citing the case
of Grassby in support; and that, as a matter of law, the taking of legal
proceedings against a person cannot constitute contempt.
2.7 Further advice was sought from the Clerk on the implications of the
judgment in the Grassby case, which involved a prosecution for criminal
libel in respect of the provision of a document to a member of the New
South Wales Parliament. The Clerk's response was provided in the context
of the two questions discussed at paragraphs 2.2 and 2.3 above, and concluded
that, for the reasons set out in the response, it could not be regarded
as an authority on any aspect of either of the two issues. Bottoms English
also referred to a challenge to the validity of section 16 of the Parliamentary
Privileges Act 1987, which was at the time before the Queensland Supreme
Court and is currently before the High Court of Australia. Senator O'Chee
has also taken action before the Supreme Court of Queensland seeking clarification
of the scope of privilege under that section. Both cases are at present
undecided, but the Commonwealth has intervened in the High Court action.
2.8 The statement by Bottoms English on the question whether a court
action can constitute contempt is simply wrong. In one of its earliest
cases (see 18th report) the Committee based much of its deliberation on
advice that:
it is of the very nature of contempt of Parliament, and, indeed, of
contempt of court, that an act which is otherwise lawful and proper
may be a contempt. In relation to contempt of Parliament, even the bringing
of legal proceedings, which is not only lawful but the right of every
citizen, has been treated as a contempt where it constituted interference
with witnesses.[6]
2.9 That advice in respect of parliament was reinforced by reference
to an analogous case of contempt of court, R v Kellett (1976) 1QB 372,
which is also discussed in the Law and Public Administration paper for
the present committee.[7] It is noteworthy that, during the hearing
in Brisbane on 16 April, the Bottoms English view was not restated by
any of the witnesses or legal advisers.
2.10 A further question, which was of primary concern to the Queensland
Law Society, the Law Council of Australia, and counsel, particularly Sir
James Killen, on behalf of Mr Rowley, involved the sub judice implications
of the Committee's examination of the matters referred by the Senate.
It was claimed by all these parties that the Committee's consideration
of the reference could not avoid impinging upon, and by implication interfering
with, judicial determination of defamation actions outstanding between
Mr Rowley, Senator O'Chee, Mr Armstrong and others. The Committee believes,
and the parties seem generally to accept, that it satisfied the concerns
about its comprehension of the sub judice doctrine and the doctrine's
limited application to the present case, and draws attention to paragraph
1.39 above.
2.11 When inquiring into any matter referred to it, the Committee is
required to take into account three criteria, laid down in Privilege Resolution
3, the first of which is:
the principle that the Senate's power to adjudge and deal with contempts
should be used only where it is necessary to provide reasonable protection
for the Senate and its committees and for Senators against improper
acts tending substantially to obstruct them in the performance of their
functions, and should not be used in respect of matters which appear
to be of a trivial nature or unworthy of the attention of the Senate.
2.12 In considering the matter under this criterion, the Committee has
weighed two important, and perhaps potentially conflicting, principles.
On the one hand, it is vital for the proper functioning of a house of
parliament that information is produced to the maximum extent possible
to enable proper decision making. Any obstruction of the free flow of
information may be regarded as having the effect of substantially obstructing
senators in the performance of their functions. Such an obstruction may
be improperly intended by persons who take otherwise lawful legal action
against persons who provide information to a senator. Whether such legal
action may be regarded as improper obstruction must be determined in each
individual case. In making a judgment as to whether the obstruction was
improper the Committee would be influenced by evidence as to whether a
person with ready access to the law was using legal action as a bludgeon
against others who are properly raising matters for the consideration
of elected members of parliament. It must be noted that, even if a person
against whom action has commenced finds either that there is a defence
to that action or the action is not proceeded with, there is generally
considerable time and expense involved in responding to the action in
its earliest stages.
2.13 On the other hand, the Committee accepts and recognises the right
of persons to bring action against other persons who are alleged to have
caused them harm. Clearly, the Committee would not contemplate providing
protection for a person who had simply sought cover for acts done with
malice where this would provide a defence against the operation of the
law. In this regard, the Committee must rely at least in part on the responsibility
and good judgment of any senator through whose actions protection may
be accorded to materials and information provided. If all information
given to senators for the purpose of speeches to the Senate is covered
by privilege, there may be some danger that Senate privilege could be
used to protect documents and files which may be required in court proceedings.
This is especially true of primary documents which do not exist in any
other form. The only sanction open to the Senate for the misuse
of material is its own contempt powers.
2.14 At the commencement of this present case, the Committee believed
it was dealing with three separate claims, made by Senator O'Chee, that
action has been taken as a consequence of his raising in the Senate matters
on behalf of his constituents. During evidence at the public hearing,
it became clear that Mr Rowley has several defamation actions outstanding
against persons not previously known to the Committee. However, as no
question of parliamentary privilege has been raised in respect of the
other legal actions the Committee has confined itself to the questions
initially raised by Senator O'Chee.
2.15 The first of these relates to Mr Ron Crew, against whom legal action
was allegedly threatened as a result of his presumed provision to Senator
O'Chee of a photograph tabled in the Senate by Senator O'Chee on 8 June
1995. Documents before the Committee indicate that the first time Senator
O'Chee became aware that such action was to be taken was through a note
to Senator O'Chee from his executive assistant advising of Mr Crew's concerns.[8]
This appears to have occurred on 6 July. The basis of the claim against
Mr Crew was an alleged admission in the Cairns Post on 9 June 1995
(subsequently established to be 10 June 1995) that he had supplied to
Senator O'Chee the tabled photograph.[9]
2.16 Evidence presented to the Committee showed that the initial approach
to Mr Crew on behalf of Mr Rowley was based on what turned out to be the
mistaken assumption that he had given the photograph in question to Senator
O'Chee.[10] Presumably on discovering that the Cairns Post
report was inaccurate, Mr Rowley decided to take no further action. The
Committee did not pursue the matter any further because, although it contacted
Mr Crew on several occasions, he did not make any submissions to it, or
appear as a witness.
2.17 The second action taken on behalf of Mr Rowley is in respect of
the Cairns Professional Game Fishing Association (CPGFA). This action
relates primarily to a submission made by the CPGFA to ECTUNAMAC. The
fourth paragraph of the statement of claim mentions among some 60 organisations
and individuals Senator O'Chee as a person who would have understood the
matters raised in that submission as referring to the plaintiff, Mr Rowley.
It is not claimed in the statement that Senator O'Chee had access to or
used the submission in the Senate, and no other reference is made to Senate
proceedings.[11]
2.18 The defendants to the claim admit that they made a submission to
ECTUNAMAC but then go on to deny the imputations made in the statement.
In addition, in the CPGFA's letter to the Committee it is clear that the
Association regards itself as having action taken against it in respect
of the submission made to ECTUNAMAC. The letter admits that, although
the submission was marked "confidential , not for public distribution",
it was handed to Mr Ron Crew, as National Party candidate for Barron River,
by Susan Mason as Secretary of the CPGFA. She also provided certain photographs
to Mr Crew.[12]
2.19 That the Association did not regard itself as involved with the
matter of privilege is supported by its declining the Committee's invitation
to make any further written or oral submissions on the matter.
2.20 Thus, although the Committee notes that Senator O'Chee has raised
the question of the action taken against the CPGFA in the context of the
Association's provision of information to him for use in the Senate, it
appears to the Committee, and the defence to Mr Rowley's claim recognises,
that any such action does not arise out of the provision of information
to a senator for the purpose of or incidental to the transaction of the
business of the Senate. These conclusions were reinforced by oral evidence
at the hearing on 16 April.
2.21 The third action is against Mr David Armstrong, formerly manager
of a company of which Mr Rowley is a director and shareholder. In this
case, the link between Mr Armstrong's provision of information to Senator
O'Chee and the action taken against him is clear. The letter of demand
against Mr Armstrong is based solely on speeches made in the Senate[13]
(and in the Queensland Parliament, with which this Committee is not further
concerned). Similarly, the statement of claim delivered on 25 August 1995
implied that the only knowledge that Mr Armstrong had given information
to Senator O'Chee was Senator O'Chee's use of that information in the
Senate.[14]
2.22 The Bottoms English letter of 18 June 1996 advised that action against
Mr Armstrong was continuing,[15]
and this was confirmed during the Committee's hearing.[16]
The June 1996 letter also mentioned the televised broadcast of allegations
on the program A Current Affair, but it is clear from the context
of the Bottoms English letter that the initial action was taken before
such a broadcast, as the firm mentioned the broadcast to illustrate only
that the persons concerned in the matter before the Committee have not
been intimidated as a result of Mr Rowley's actions. This, too, was confirmed
during the Committee's hearing on 16 April.[17]
2.23 It also emerged from the hearing that the `publication' on which
Mr Rowley relied in both the letter and the statement of claim is oral
information given by Mr Armstrong to Senator O'Chee, at the suggestion
of Senator O'Chee's other constituents at earlier meetings with Senator
O'Chee. There is no record of Mr Armstrong's information other than notes
taken by Senator O'Chee of the conversation with Mr Armstrong.[18]
These notes which, it appears, have been seen neither by Mr Armstrong
nor by Mr Rowley or his legal representatives, formed the basis of Senator
O'Chee's speech in the Senate. In the Committee's view, there could be
no clearer connection between the provision of information to a Senator
and that Senator's use of information in Senate proceedings.
2.24 When considering the matter last year, the Committee did not have
available to it the defence raised by Mr Armstrong in response to Mr Rowley's
statement of claim. It expected, wrongly as it turned out, that Mr Armstrong's
lawyers would have filed as a defence on his behalf that the identification
of Mr Armstrong as the source of information to Senator O'Chee was made
in the Senate and thus could not be used in actions against him. An amended
defence made available to the Committee at the hearing[19] did not include any such defence,
which puzzled the Committee given that the inadmissibility of matters
raised in parliamentary proceedings in support of court action is well
recognised in the courts. Even if this defence had been raised, as in
the Committee's view it clearly should have been, the Committee suggests
that this is cold comfort to Mr Armstrong who has been put to the expense
and stress of defending an action which resulted from his provision of
information to a senator.
2.25 The second element of the terms of reference concerns whether a
threat of legal proceedings was made against Senator O'Chee in respect
of his activities as a senator. In raising the primary matter of privilege
with the then President of the Senate, and this Committee, Senator O'Chee
also drew to attention the threat he perceived as having been made by
Mr Rowley to prosecute him in the event that he raised a matter of privilege.[20]
2.26 In response, Bottoms English made the following written statement:
Our reference to the provisions of the Queensland Criminal Code with
respect to Senator O'Chee's threats to our client could not in any way
be seen to be a threat against him in relation to his intentions to
raise a matter as a matter of privilege in the Senate. The reference
to his arguable breach of the Criminal Code was in respect of an act
which had already occurred and was not with respect to any future actions
he might undertake. In any event members of parliament are as much bound
by the criminal law as any other citizen.[21]
2.27 After some robust exchanges during the hearing, it was clear to
the Committee that the several exchanges of letters between Senator O'Chee
and Bottoms English on behalf of their client, Mr Rowley, could not be
regarded by any objective observer as other than antagonistic.
2.28 The Committee also discovered in the course of its inquiry that
action for defamation had been taken against Senator O'Chee in respect
of statements made outside the Senate -- action which, at the time of
its hearing, was being vigorously pursued, notably through attempts to
discover documents which Senator O'Chee advised the Committee included
constituency files. The Committee would not wish to deny any person a
right to take action against any person for matters raised outside the
Senate, and Senator O'Chee has himself not raised this action against
him as a question of privilege. Indeed, he advised the Committee that
it was in his interest to produce the documents without demur in his defence
against the action, but chose not to do so because of his concerns to
protect his informants in the fisheries matter.[22]
As a consequence, Senator O'Chee has claimed that these files are privileged,
and it is this question which is currently before the Queensland Supreme
Court. The Committee does not consider it appropriate to make any further
comment on the specific case, as the scope of privilege is a matter for
the courts to determine.
2.29 In this context, the Committee also draws attention to questions
raised both before and during the Committee's hearing, by Mr Rowley's
lawyers and the various law bodies, in the case of Katter v. Laurance.
The Committee notes that judgments delivered in the Queensland Supreme
Court were divided as to the scope of section 16 of the Parliamentary
Privileges Act, and the majority decision is at present the subject of
an appeal to the High Court. Accordingly, the Committee makes no further
comment on this matter either, other than to say that it will welcome
a judicial interpretation of the scope of subsection 16(2), to assist
in all parliamentary deliberations on the question.
2.30 As to the question whether Senator O'Chee was the subject of a "threat"
of legal proceedings through the reference in a letter dated 10 July 1995[23]
to a section of the Queensland Criminal Code, this is not materially
different in substance from Senator O'Chee's actions in similarly drawing
to the attention of Bottoms English his possible recourse to the Senate's
contempt powers. The Committee, noting the injunction in resolution 3(a)
that the Senate's power to adjudge contempt should be used sparingly,
does not consider under that paragraph that the letter from Bottoms English
amounts to an improper act tending substantially to obstruct Senator O'Chee
in the performance of his functions.
2.31 As its comments on terms of reference (a) and (b) illustrate, the
Committee now confirms its tentative conclusion conveyed to all parties
on 14 February 1997 that any question of contempt was likely to revolve
around the legal action taken against Mr Armstrong. During its deliberations,
and following representations made during the hearing, the Committee gave
consideration to whether at any time it should have sought from the Senate
an expansion of its terms of reference to deal with the circumstance that
the "threat" of legal proceedings against Mr Armstrong was actually
realised. At the time Senator O'Chee raised possible legal actions with
the President of the Senate as a matter of privilege they had gone no
further than letters of demand and, in respect of Senator O'Chee, a less
than subtle warning against the consequences of his raising the matter
with the President. However, the Committee concluded that no change
was required. The pursuit of the charge could suggest that Mr Rowley was
determined to take all reasonable steps to do as he had every right to
do: clear his name. Alternatively, Mr Rowley might have pursued his claim
for the purpose of punishing Mr Armstrong, and deterring others from making
their allegations known. The Committee's finding is not dependent on whether
the threat was carried out, but rather involves an evaluation of
the intention behind the commencement of legal action taken against Mr
Armstrong.
2.32 In previous reports, the Committee has emphasised that motive has
been a dominant factor in reaching a conclusion as to whether contempt
should be found. Its importance was underlined in a submission by the
Queensland Law Society following the hearing of 16 April, in which it
was argued that any intention of Mr Rowley to intimidate or punish persons
through defamation action following their provision of information to
Senator O'Chee could not be inferred by the Committee from the evidence
before it.[24]
2.33 The Committee notes this submission but believes there is a possibility
of making a finding as to motive for both the threatened, and the
continuing, action. For example, Mr Rowley gave evidence at the hearing
that his primary concern was with the integrity of his reputation. Given
that the matter of concern to him was raised in the Senate, the Committee
asked him, in the light of his already declared understanding and knowledge
of the Parliamentary Privileges Act and Resolutions, whether he considered
exercising his right under Resolution 5 to respond in the same forum as
Senator O'Chee's adverse comments.
2.34 Mr Rowley advised the Committee that, although he was aware of the
procedure, his legal advice was that he should take defamation action.[25] While the Committee acknowledges the general right
of aggrieved persons to avail themselves of appropriate legal action,
it emerged in the course of the evidence that the only conduct and source
relied on by Mr Rowley as constituting his cause of action for defamation
is the speech made in the Senate (and the Queensland Legislative Assembly).
As it is established principle that such information cannot be used in
legal proceedings, it is unfortunate that, if Mr Rowley was aggrieved,
he did not avail himself of the Senate procedures to correct any alleged
misrepresentations as to his business activities.
2.35 Moreover, it would appear that Mr Armstrong has available a complete
defence to the defamation proceedings in that his identification as the
provider of the alleged defamation information to Senator O'Chee as part
of Senate proceedings is inadmissible. This should have been apparent
to Mr Rowley's legal advisers, particularly following the reference to
the Committee.
2.36 Mr Rowley and his legal advisers were aware of the possible implications
of continuing with the action. It may have been reasonable for Mr Rowley
and his legal advisers to have initiated the action, without being fully
cognisant of the implications of parliamentary privilege. However, having
been alerted, firstly by Senator O'Chee and subsequently through their
dealings with the Senate and the Committee, to the serious nature of proven
contempt of the Senate, the Committee is entitled to infer that the action
has been deliberately continued in complete disregard of the consequences.
2.37 Evidence given to the Committee by both Senator O'Chee and Mr Armstrong
leads it to conclude, on balance, that the action was intended to punish
Mr Armstrong, and to deter others from pursuing the matter as a result
of the action against Mr Armstrong. Mr Rowley's action, while legal and
in his view entirely justified as a means of protecting his integrity,
could thus be regarded as giving rise to a conclusion that a contempt
has been committed.
2.38 The Committee is left with the task of determining the matters of
principle involved in the current reference. As the President and Clerk
of the Senate have both observed, the question whether the provision of
information to a Senator in a situation such as the Committee has examined
should be regarded as proceedings in Parliament, on the ground that it
is for purposes of or incidental to the transacting of business of the
Senate or of a committee, is not critical for the purpose of determining
whether a contempt has been committed. The Committee recognises, however,
that if the Committee were so to conclude, it would clearly be open to
the Senate to protect the provision of information.
2.39 The question for the Committee then becomes whether the connection
between the provision of information and its use is so strong in the present
case as to warrant a conclusion that a contempt has been committed. It
notes that questions relating to the scope of section 16 of the Parliamentary
Privileges Act 1987 are at present before both the Supreme Court of
Queensland and the High Court. The Committee in discharging its duty to
the Senate has determined that it should make a finding based on
the ground that the communication of information by Mr David Armstrong
to Senator O'Chee should be protected as proceedings in Parliament under
subsection 16(2) of the Parliamentary Privileges Act. This is because
of the use in the Senate by Senator O'Chee of the information given to
him by Mr Armstrong and the close proximity of the action taken against
Mr Armstrong following his identification in the Senate as the source
of Senator O'Chee's information.
2.40 The Committee sees this as a clear example of information being
provided to a Senator for the purposes of transacting business in the
Senate, as provided under the Parliamentary Privileges Act. One of the
essential purposes of Mr Armstrong's raising the question of possible
illegal taking of marlin with Senator O'Chee was, in the terms of section
16 of the Parliamentary Privileges Act 1987, "for purposes
of or incidental to" the transacting of business in the Senate, thereby
coming within the definition of "proceedings in Parliament"
under subsection 16(2) of the Act. In evidence to the Committee, corroborated
by Senator O'Chee, Mr Armstrong continually explained that he both expected
and wanted the matter raised in the Senate, and Senator O'Chee did in
fact do so.[26]
2.41 Argument was put to the Committee that this interpretation
represents an "extension" of the law of parliamentary privilege.
The Committee is of the view that it is consistent with legal principle
and parliamentary practice. Committee members are aware of the necessary
continuity of process between the provision of information to a senator
and its use by that senator in parliamentary proceedings. As was suggested
during the hearing, this is analogous to the protection of information
given by clients to their legal advisers for the purpose of legal
proceedings. The interests of justice demand that information provided
to a lawyer by a client, with the intention and for the purpose of its
use in court proceedings, is protected. If information passing between
a senator and that senator's constituent for the purpose of its use in
Senate proceedings is not similarly protected, subject to the sanction
of the Senate under its contempt powers, then the legislative interest
may be undermined.
2.42 It is not in dispute that the first knowledge by Mr Rowley that
information had been given to Senator O'Chee came from Senator O'Chee's
exposition in the Senate of the concerns about illegal taking of marlin.
Senator O'Chee's submission of 22 May 1996 advises that he was approached
by a "delegation of constituents" early in 1995.[27]
On the basis of information provided at that meeting and subsequently,
with the information being corroborated by Mr Armstrong on the suggestion
of these constituents, he first raised the matter in the Senate on 8 June.
Legal proceedings were commenced on behalf of Mr Rowley following newspaper
reports of those proceedings, including most potently Senator O'Chee's
identification in the Senate of Mr David Armstrong as a primary source
of the information.
2.43 The Committee observes that it also has the capacity to make a finding
without addressing the question whether the oral publication of information
by Mr Armstrong to Senator O'Chee is covered by privilege under section
16 of the Act. The taking of legal action against Mr Armstrong could,
in the Committee's view, be regarded as having the effect or tendency
of hindering Senator O'Chee in the free performance of his duties. The
Committee indicates that, on this ground too, it makes a similar finding.
2.44 The Committee is now in a position to answer the questions posed
at paragraph 2.1 of this chapter as follows:
any possible threat of legal proceedings against
Mr Ron Crew was not pursued by the Committee in the absence of relevant
evidence on the matter;
the threat of legal proceedings, subsequently realised,
against the Cairns Professional Game Fishing Association did not relate
to the provision of information to Senator O'Chee, but rather to the submission
made by the organisation to ECTUNAMAC; and
the threat of legal proceedings, subsequently realised,
could be construed as having as its focus the provision of information
by Mr David Armstrong to Senator O'Chee.
The provision of information by Mr Armstrong was directly connected
with actual proceedings in the Senate, and threats of legal proceedings,
subsequently realised, came as a direct result of the use made
of information provided by Mr David Armstrong to Senator O'Chee.
(i) The threat of legal proceedings, subsequently realised, was made
after Senator O'Chee initially raised matters in the Senate, and apparently
did not deter him from the free performance of his duties in the Senate,
as he raised matters connected with the proceedings on several occasions
after the threats had been made.
(ii) The "threat" of legal proceedings against Senator O'Chee
made by Bottoms English on behalf of Mr Rowley in a letter dated 10 July
1995, although made in respect of Senator O'Chee's activities as a senator,
could not be regarded as having the effect or tendency of obstructing
his performance of his duties as a senator.
The Committee has concluded that the threats, and the carrying
out of the threats, by commencing the legal proceedings could be construed
as intended to prevent the provision of further
information, by both Mr Armstrong and others, to Senator O'Chee and
thus intended to influence the use of information so provided in actual
and contemplated proceedings in the Senate.
- Legal action was threatened and subsequently taken by Mr Michael Hebbron
Rowley against Mr David Armstrong in respect of his provision of information
to Senator Bill O'Chee in relation to matters raised in the Senate by
Senator O'Chee.
- Threats of legal proceedings, and actual proceedings, made or taken
by Mr Rowley against other persons were not in respect of their provision
of information to Senator O'Chee in relation to matters raised in the
Senate by Senator O'Chee.
- Matters raised in correspondence between Bottoms English, representing
Mr Michael Rowley, in a letter of 10 July 1995 to Senator Bill
O'Chee did not constitute a threat of legal proceedings against Senator
O'Chee in respect of his activities as a Senator.
- Defamation action against Senator O'Chee, taken by Mr Michael Rowley
as a consequence of matters raised by Senator O'Chee in a radio broadcast,
did not constitute a threat against Senator O'Chee in respect of his
activities as a Senator.
- Both the threat, and the fulfilment of that threat, by Mr Michael
Rowley to take legal proceedings against Mr David Armstrong were primarily
intended to punish him for giving information to Senator O'Chee for
the purpose of its use in Senate proceedings. The Committee has found
that a contempt of the Senate has been committed by Mr Rowley. The Committee
finds that at all times Mr Rowley was acting on legal advice.
- No contempt of the Senate was involved in the matter of threatened
or actual legal proceedings against Senator O'Chee.
2.45 Senator O'Chee's first submission to the Committee suggested that
if the Committee were to find that a contempt had been committed, it should
recommend to the Senate a series of remedial and punitive actions.[28] The Committee has decided that no penalty
should be imposed. Given the unusual circumstances of the case, and the
difficulties involved in making a judgment between the conflicting principles
discussed in this report, the Committee considers it inappropriate to
recommend a penalty against a person who regarded himself as exercising
his legal rights, particularly as his actions at all times were taken
after seeking legal advice. The inquiry process itself, and the findings
the Committee has made, are in the Committee's view of sufficient moment
to alert the person concerned, and others who might otherwise attempt
or advise similar intimidatory action, to the seriousness with which such
matters are regarded by the Senate.
2.46 In the present case the Committee does not intend to definitively
state principles of general application. The Committee recognises
the potential for abuse of the principle that the protection of information
conveyed to a senator in connection with proceedings in Parliament should
take precedence over a person's available rights under the law.
While, as its present finding makes clear, the Committee does not endorse
legal processes being used to intimidate persons with a legitimate right
and indeed duty to give information to a member of parliament, senator
or a committee, equally, the Committee would not wish to see an inappropriate
use of the "proceedings in Parliament" provision of the Parliamentary
Privileges Act to give improper protection to persons against the proper
jurisdiction of the courts. Thus, the Committee agrees with the President's
initial advice to the Senate, when giving the matter before the Committee
precedence, that it is not necessary to make a definitive finding as to
the scope of privilege, even though it has in the present case been prepared
to make a finding of contempt on a limited interpretation of the scope
of subsection 16(2) of the Parliamentary Privileges Act. It makes the
point that it was prepared to make the same finding without making such
a determination.
2.47 The Committee does not address the question as to the extent
to which protection should be extended to consultations between constituents
and senators, and to information held by senators, in the performance
of their duties as senators. Initially, the Committee contemplated a recommendation
that a form of legislative protection should be extended to the integrity
of senator' files and information stored electronically. While the question
as to the scope of subsection 16(2) is of vital interest to all members
of parliament and indeed is a matter of public importance, and the Committee
considers that many of Senator O'Chee's observations, particularly in
his opening statement at the hearing of 16 April, require resolution
by the Senate, the Committee does not regard it as appropriate to bring
forward a recommendation of this kind in the context of this case.
2.48 This is particularly the case because questions as to the scope
of subsection 16(2) of the Parliamentary Privileges Act 1987 are
currently before both the Queensland Supreme Court and the High Court
of Australia -- the first time that the extent of this element of privilege
has been considered by the courts. The Committee's view accords with the
insistence by the Queensland Law Society and the Law Council of Australia
on the need to ensure minimal interference with due legal process, and
the Committee's own understanding that the interpretation of the law is
properly left to the courts. This conclusion has added weight, since it
became clear, during the course of the hearing, that the issue was tangential
to the terms of reference of the Committee, in that it derived from the
defamation action against Senator O'Chee which was generally accepted
as falling outside the terms of reference given to the Committee by the
Senate on 23 August 1995. 2.49 Following the outcome of the two court
cases, the Committee undertakes to seek from the Senate a general reference
to establish whether it should make any recommendations as to any further
legislative initiatives which may be required to clarify the scope of
parliamentary privilege.
Robert Ray
Chairman
ENDNOTES
[1] Submissions
and Documents, pp. 307-8.
[2] Submissions
and Documents, pp. 300-1.
[3] Submissions
and Documents, pp. 303-5.
[4] Submissions
and Documents, p. 297.
[5] Submissions
and Documents, p. 104A-105.
[6] Senate Committee
of Privileges, Possible interference with witnesses in consequence
of their giving evidence before Senate Select Committee on Administration
of Aboriginal Affairs, (18th report), 1989, Committee
Documents, Volume 3.
[7] Submissions
and Documents, pp. 291-3.
[8] Submissions
and Documents, p. 4.
[9] Evidence,
p. P59.
[10] Evidence,
p. P60.
[11] Submissions
and Documents, pp. 269-272.
[12] Submissions
and Documents, pp. 264-5.
[13] Submissions
and Documents, p. 72.
[14] Submissions
and Documents, pp. 78-81.
[15] Submissions
and Documents, p. 88.
[16] Evidence,
p. P94.
[17] Evidence,
p. P98.
[18] Evidence,
pp. P112-3.
[19] Submissions
and Documents, pp. 260-2.
[20] Submissions
and Documents, pp. 1-2, 16.
[21] Submissions
and Documents, p. 85.
[22] Evidence,
p. P27.
[23] Submissions
and Documents, p. 51.
[24] Submissions
and Documents, p. 171.
[25] Evidence,
p. P95.
[26] Evidence,
p. P116.
[27] Submissions
and Documents, p. 22.
[28] Submissions
and Documents, p. 25.