1. On 26 June 1997 the following matter was referred to the
Committee of Privileges on the motion of Senator Ferris:
That the questions raised in the letter dated 26 June 1997
from the Joint Committee on the National Crime Authority be referred
to the Standing Committee of Privileges.
2. The letter read as follows:
On the committee's behalf, I hereby notify you of the following committee
resolution:
That, in relation to the appearance at a public hearing of the Parliamentary
Joint Committee on the National Crime Authority in Melbourne on 12 June 1997
by Mr John Elliott, the Committee refer to the Committee of
Privileges the following questions:
(a) whether Senator Conroy's rights in relation to his capacity
to question a witness appearing before the Committee were infringed
in relation to the Committee's proceedings in Melbourne on 12 June 1997.
(b) whether a member of the Committee is prohibited from asking questions
of a witness in respect of evidence given to the Committee by that witness
covered by either of the elements of subsection 55(2) of the National
Crime Authority Act 1984 or that relates to material covered by
section 51 of the Act.
(c) whether the Committee was prohibited from receiving some or all
of the evidence of Mr John Elliott in Melbourne on 12 June 1997,
because of the provisions in subsection 55(2) of the National Crime
Authority Act 1984, or because the evidence related to material
covered by section 51 of the Act.
(d) whether, as a consequence of the consideration of point (c), some
or all of the evidence Mr Elliott gave to the Committee should
be expunged from the transcript of evidence.
The Committee requests that you give consideration to this matter and
that you determine to refer the matter to the Committee of Privileges.
[1]
3. The reference derives from a public hearing by the Parliamentary Joint
Committee on the National Crime Authority (NCA Committee) on 12 June 1997,
during which certain evidence was taken by that committee from Mr John Elliott,
a person who had been charged with criminal offences and acquitted. Mr Elliott
came before the NCA Committee to record his experience as a demonstration
of what he perceived to be substantial flaws in the operations of the
National Crime Authority (NCA).
4. In doing so, Mr Elliott made extensive reference to the conduct
of his own case, while at all times relating it to his argument that the
NCA should be abolished. His written submission referred to the self-generated
terms of reference of the NCA Committee, which were to “conduct a
comprehensive evaluation of the operations of the National Crime Authority”.
[2] However, it also set out in detail actions
and activities by the NCA which Mr Elliott claimed illustrated his
contention. [3] The attachments to the submission
reinforced the assertions made. In particular, one attachment detailed
what he claimed were some twenty illegal acts by the NCA in respect of
his case. [4]
5. The submission and attachments were supplemented by an oral opening
statement, in which Mr Elliott discussed and analysed the conduct
of the particular case; in answers to questions posed by committee members,
he continued to refer to his own experience. [5]
6. A member of the NCA Committee, Senator Conroy, referring to Mr Elliott's
written submission, then began to ask questions the purpose of which was
not immediately apparent either to the NCA Committee or to Mr Elliott.
Subsequently, on being challenged by Mr Elliott and another member
of the committee, Mr Truss, as to the relevance of his questions,
Senator Conroy again quoted from Mr Elliott's submission and
proceeded, with the Chair's concurrence, to question him. After some further
exchanges between Senator Conroy and Mr Elliott, Senator Conroy
was challenged by a second member of the committee, Senator McGauran,
who took a point of order as to the relevance of the questions. Senator McGauran
was joined by Mr Elliott, leading to the following response from
the Chair:
Mr Elliott, the difficulty I foreshadowed a moment ago was that,
because your submission is couched in the terms that it is, it will
be difficult to judge this line of questioning as being outside of the
terms of reference in a broad sense. It would be helpful if you could
answer the question in whatever terms you see fit and we will move on.
[6]
7. After further discussion on relevance, at 10 30 a.m. — an
hour after the public hearing began — the committee met privately.
On resuming the public hearing some quarter of an hour later, the Chair
made the following statement:
Mr Elliott, the committee has met and I have determined that Senator Conroy's
questioning should proceed. I have asked that he ensures that his questions
are directed towards our terms of reference and are in terms of evidence
that has already been presented to the committee. In my judgment, the
questions do that. If you object to answering a question on any ground,
including on the ground that — and I am referring to the standing
orders of the Senate — `the question is not relevant or that the
answer may incriminate the witness, the witness shall be invited to
state the ground upon which the objection to answering the question
is asked'. At that point in time the committee will deal with the matter
as it arises, otherwise I invite you to answer the questions as you
see fit and as best you are able. [7]
8. Following consideration of a further protest from Mr Elliott,
the Chair reiterated his ruling and proceedings continued, with questioning
from both Senator Conroy and other members. Mr Robert Richter,
counsel assisting Mr Elliott, subsequently joined in the proceedings,
to assist the committee on technical legal matters arising from the discussion.
9. Senator Conroy returned to the matters he had raised earlier, again
relating some of his questions to Mr Elliott's written submission.
Mr Richter intervened, raising “a point of order” —
immediately challenged by Senator Conroy, on the ground that Mr Richter
was not a witness and had no standing. Mr Richter turned his statement
into an objection, that he felt “that the law is being flouted here”.
[8] One claim made by Mr Richter in support
of his view that the law was being flouted was as follows:
...Senator Conroy is purporting to read from a transcript of evidence
which was given in confidence. That confidentiality was never lifted.
His Honour Mr Justice Vincent ruled that it was illegally
obtained and excluded the evidence. [9]
10. On the basis of Mr Richter's description of the document, the
Chair ruled:
that that particular document is of such a nature that it is inappropriate
for you to quote from it. I would ask the committee to give consideration
to expunging what you read from that document from the transcript of
evidence. I seek the committee's resolution on that matter. [10]
11. The committee immediately adjourned, at 11.53 a.m., to a private
meeting at Senator Conroy's request. The minutes record that, having
received advice from the Secretary as to the scope of both section 51
and subsection 55(2) of the NCA Act, with particular reference to “the
statutory proscriptions on the Committee's powers”:
The Chair noted that it is his responsibility to ensure that questions
put to witnesses are relevant to the committee's inquiry and that the
information sought is necessary for the purpose of the inquiry. He added
his concern that Senator Conroy's questioning may lead the committee
to be in breach of the provisions of subsection 55(2) of the NCA Act.
[11]
12. The proposal put by the Chair at the public hearing that Senator
Conroy's quotes from the document be expunged from the record was dissented
from, but the dissent was lost on a tied vote, and a direction not to
publish was given. [12] The material was expunged.
[13]
13. On the resumption of the public hearing after 15 minutes, Senator
Conroy continued his questioning; Mr Richter again took, and continued
to take, objection under section 55(2) of the NCA Act. The Chair determined
to seek advice from the Clerk of the Senate on the matters, questioning
continued from other members relating to other areas, and the public hearing
concluded at 12.35 p.m. Any such advice provided to the NCA Committee
has not been made available to the Committee of Privileges.
14. After further discussion at a subsequent meeting, the NCA Committee
sought to have the matter referred by the Senate for what is, in effect,
an advisory opinion from this committee. The reference is unusual, although
not unprecedented, because normally this committee undertakes specific
inquiries in respect of matters on which it is required to perform a fair,
impartial and objective role in making a finding that contempt has or
has not been committed. The Committee of Privileges has treated the reference
in a similar manner to matters reported in its 11th, 49th and 52nd reports,
all of which have involved an evaluation of issues on which its opinion
has been sought.
15. The Committee of Privileges has already encountered at least one
of the major issues raised by the terms of reference — the relationship
between the NCA and the NCA Committee [14]
— and proposes to comment in the context of its previously-determined
views on these questions.
Previous views of sections 51
and 55 of the NCA Act
16. The issues raised for consideration in this report, which have led
to the difficulties encountered by both present and past NCA Committees,
have been readily identified since the passage of the National Crime Authority
Act in 1984, and the travails of successive committees in attempting to
perform the vital supervisory functions of a parliamentary committee which
were statutorily entrusted to them are well documented.
17. In November 1991, the NCA Committee (the 1991 Committee) tabled a
report entitled Who is to Guard the Guards? An evaluation of the National
Crime Authority, which was intended by that committee to be “a comprehensive
evaluation of the [National Crime] Authority” since its establishment.
[15] The committee's report canvassed the justification
for the continuing existence of the Authority — a matter which is
also the subject of the present NCA Committee's self-initiated reference
[16] — and difficulties encountered by
and with the Authority. The 1991 Committee devoted Chapters 6 and 7 to
the accountability requirements statutorily imposed on the NCA. In Chapter
7 of the report, the 1991 Committee specifically addressed difficulties
associated with sections 51 and 55 of the Act, stressing that the differing
perceptions of the scope of the sections had led to significant disagreement
between the committee and the Authority.
18. The relevant section and subsections of the NCA Act are as follows:
Secrecy
51. (1) This section applies to:
(a) a member of the Authority; and
(b) a member of the staff of the Authority.
(2) A person to whom this section applies who, either directly or indirectly,
except for the purposes of this Act or otherwise in connection with
the performance of his duties under this Act, and either while he is
or after he ceases to be a person to whom this section applies:
(a) makes a record of any information; or
(b) divulges or communicates to any person any information;
being information acquired by him by reason of, or in the course of,
the performance of his duties under this Act, is guilty of an offence
punishable on summary conviction by a fine not exceeding $5,000 or imprisonment
for a period not exceeding 1 year, or both. [17]
The section then goes on to prescribe circumstances where persons may
divulge information before a court or other tribunal or authority, and
to define the terms used in the section.
Section 55 provides as follows:
Duties of the [NCA] Committee
55. (1) The duties of the Committee are:
(a) to monitor and to review the performance by the Authority of
its functions;
(b) to report to both Houses of the Parliament, with such comments
as it thinks fit, upon any matter appertaining to the Authority or
connected with the performance of its functions to which, in the opinion
of the Committee, the attention of the Parliament should be directed;
(c) to examine each annual report of the Authority and report to
the Parliament on any matter appearing in, or arising out of, any
such annual report;
(d) to examine trends and changes in criminal activities, practices
and methods and report to both Houses of the Parliament any change
which the Committee thinks desirable to the functions, structure,
powers and procedures of the Authority; and
(e) to inquire into any question in connection with its duties which
is referred to it by either House of the Parliament, and to report
to that House upon that question.
(2) Nothing in this Part authorizes the Committee:
(a) to investigate a matter relating to a relevant criminal activity;
or
(b) to reconsider the findings of the Authority in relation to a
particular investigation. [18]
“Relevant criminal activity” is defined in section 4 of the
NCA Act as “any circumstances implying, or any allegations, that
a relevant offence may have been, or may be being, committed against a
law of the Commonwealth, or a State or a Territory”.
19. The 1991 Committee, in canvassing the difficulties involved in the
interpretation of the two sections, quoted with approval the views, among
others, of the then Solicitor-General, Dr Gavan Griffith QC,
that “what is needed are statutory provisions enacted to implement
clear policy decisions on the relationship between the Committee and the
Authority”. [19]
20. The committee made the following recommendations:
(a) that paragraph 55(2)(a) of the NCA Act be amended by deleting the
words `a matter relating to'
(b) that paragraph 55(2)(b) be amended to make it clear that the expression
`findings' refers only to major matters formally declared by the Authority
to be findings at the time they are made, and does not include all conclusions
reached by the Authority; and
(c) that paragraph 55(2)(b) be amended to make clear that it does not
prevent the Committee reviewing alleged maladministration within the
Authority or the general adequacy of procedures used by the Authority,
even if the end result of the Authority's use of the procedures is the
making of a `finding' in particular cases. [20]
21. After also analysing section 51 of the Act, the 1991 Committee concluded
that amendment to that section was also required:
Accordingly, the Committee recommends that section 51 of the NCA Act
be amended so as to make clear that section 51 does not prevent members
and staff of the Authority providing any information or documents to
the Committee, or appearing before it. [21]
22. The Government response to the 1991 Committee's report, prepared
in consultation with the intergovernmental council which supervises the
NCA on behalf of executive governments of all states and territories,
recognised the ambiguities of these sections. It did not, however, view
the specific recommendations favourably, claiming priority to executive
rights over, rather than parliamentary supervision of, the Authority.
However, the assurance was given in the government response that legislative
amendments would be introduced “in a manner acceptable to the Government,
the States and Territories, the Parliamentary Joint Committee, and the
Parliament as a whole”. [22]
23. The Committee of Privileges in its 36th report, tabled on 25 June 1992,
involving possible contempts by the NCA, concluded that the lack of precision
in the sections had led to an inappropriately restrictive view taken by
the Authority of the powers of the Joint Committee. Taking into account
the then Government's response of 1 June 1992 to the NCA Committee
report, the Committee of Privileges suggested that the Parliament:
should give urgent and serious priority to considering legislation
... to declare, for the avoidance of doubt, that the powers, privileges
and immunities of each House of Parliament, and of the members and committees
of each House, are not affected by a provision of a law other than the
Parliamentary Privileges Act except to the extent that the provision
expressly provides that those powers, privileges and immunities are
affected. [23]
24. The committee drew attention to a private senator's bill to that
effect, already introduced, and specifically to a series of advices, relating
to secrecy provisions of both the NCA Act and other legislation, which
was attached to the bill. [24]
25. Unfortunately, no legislative action was taken to remedy the problems
and ambiguities, identified by all three bodies, arising from the imprecision
and potential conflicts between sections 51 and 55. It is therefore not
surprising that the present difficulties with the scope of the same two
sections of the Act, leading to the reference to the Committee of Privileges,
have again arisen.
26. Upon receiving the reference, the Committee sought comment from the
following persons:
- Mr J.W. Bradford, MP, Chairman, Joint Committee on the National Crime
Authority
- Mr John Broome, Chairperson, National Crime Authority
- The Hon. Daryl Williams AM, QC, MP, Attorney-General
- Mr John Elliott, a witness before the NCA Committee on 12 June 1997
- Senator Stephen Conroy, a member of the NCA Committee
- Mr Harry Evans, Clerk of the Senate
- Mr Ian Harris, Clerk of the House of Representatives
It received substantive comment from Mr Broome, [25]
Mr Elliott, [26] Senator Conroy,
[27] and Mr Evans. [28]
27. The NCA Committee, in addition to providing this committee with a
public transcript of evidence, granted access to the relevant minutes
of the proceedings of the meeting of 12 June 1997, [29]
initially with a request that they be treated by the Committee of Privileges
as in camera evidence. In accordance with its usual practice, this committee
did not accept them on that basis, and the NCA Committee ultimately gave
unfettered access to them, which was of considerable assistance to the
Committee of Privileges in making this report.
28. The Attorney-General responded that, while he did not propose to
offer comment on the matters before the Committee of Privileges, he would
be pleased to give legal advice or arrange for it to be given if the committee
required. He went on to observe:
However the terms of reference do not indicate clearly what legal questions
might need to be answered, and whether there are any such questions
at all may depend on what facts are established to the satisfaction
of the Committee. [30]
The Committee of Privileges concurs with the Attorney-General's comment,
and for reasons discussed at paragraph 36 did not consider it appropriate
to seek any such advice.
29. Mr Elliott's concern was with the question whether any possible
abuse of privilege by Senator Conroy had occurred through Senator Conroy's
use of what Mr Elliott and his counsel asserted was unlawfully obtained
material, and suggested that the terms of reference transmitted by the
Senate to this committee were biased in Senator Conroy's favour. Specifically,
Mr Elliott asserted that the terms of reference were too narrow “and
do no justice to the gravity of what occurred on 12 June 1997”. [31]
This first response was subsequently followed by a letter from Mr Elliott
to the committee, referring to a speech given by Senator Conroy in
the Senate and drawing the committee's attention to what he regarded as
a further abuse of privilege. [32]
30. Senator Conroy's response to the Committee of Privileges gave the
source of the document from which he quoted at the hearing of 12 June
and, referring to both sections 51 and 55 of the National Crime Authority
Act, suggested that the proceedings of the NCA Committee had infringed
his rights as a member of the committee. [33]
31. Mr Broome noted that the issues referred to the committee related
to the interpretation of provisions in the National Crime Authority Act,
with particular reference to subsection 55(2) and section 51. [34]
Mr Evans discussed the in principle issues arising from the committee's
terms of reference. [35] Mr Broome's and
Mr Evans' observations are discussed in more detail below.
32. All comments provided in response to the committee's invitation have
been included as an appendix to this report.
33. The committee proposes to address the terms of reference in the following
order: (b) and (c), (a) and then (d), because the answers to questions
(a), and to a lesser extent (d), depend on the answers to question (b)
and (c).
34. The task of the committee in answering these questions is well set
out by the Chairperson of the National Crime Authority, Mr John Broome,
as follows:
Essentially the issues which have been referred to the Committee of
Privileges relate to the interpretation of provisions in the National
Crime Authority Act 1984. In particular, they relate to sub-section
55(2) which places certain limitations on the Parliament Joint Committee
on the National Crime Authority to investigate a matter relating to
a relevant criminal activity or to reconsider the findings of the Authority
in relation to a particular investigation. The other provision is section
51 of the Act which imposes on past and present members of staff of
the Authority certain limitations as to the disclosure of information.
35. The submission then goes on to comment:
...In the absence of a judicial determination relevant to the matters
before the Committee, the appropriate source of such authoritative advice
would be from the Attorney-General. In the circumstances I do not think
that the Authority can provide a submission which would assist the Committee
in resolving the matters before it. [36]
36. It will be recalled the Attorney-General offered any legal advice
the committee may require. For the reasons implied by Mr Broome's
submission, and indeed in the response of the Attorney-General himself,
this committee declines to do so. The utility of any such advice, whether
provided by the Attorney-General or by other distinguished advisers, is
limited, a point acknowledged in several of the responses to the committee's
invitation to comment.
37. As observed by the Clerk of the Senate, it is the duty of the relevant
statutory committee, in the first instance, to interpret and apply any
statutory limitations. It is open to the two Houses jointly by resolution
to interpret the limitations on the committee and to give the committee
directions as to how it is to observe them. In addition, there is a possibility
that the limitations may be enforceable by the courts. Although there
may be some reluctance by the courts to interfere with the internal operations
of the Houses and their committees, statutory stipulation of limitations
and any possible infringement of rights of individuals might lead a relevant
court to conclude that it should so intervene.
38. On this construction, the Committee of Privileges regards its present
reference as a request by the relevant committee, in the first instance,
to assist it in the interpretation of the limitations of the sections.
If either House of Parliament wishes, then, either to accept or to reject
this committee's conclusions, it has the opportunity to do so, and to
seek the concurrence of the other House in its actions. At present, there
seems little likelihood that any party intends to resort to the courts
to clarify the issues.
39. In discharging its essentially parliamentary responsibilities, the
committee first addresses the question whether prohibitions apply to material
covered by section 51 of the NCA Act. It draws attention to the statement
by the Clerk of the Senate of his long-held view:
that parliamentary privilege is not set aside except by express words
in a statute, that statutory secrecy provisions of the form concerned
therefore do not affect inquiries by parliamentary committees, and that
section 51 of the NCA Act has no application to proceedings of the NCA
Committee.
He goes on to point out that:
In any event, nothing which happened at the hearing of the NCA Committee
on 12 June 1997 consisted of a disclosure by a person to whom section
51 applies. [37]
40. As a member of the NCA Committee, Senator Conroy clearly did not
fall into this category, as he is not a person to whom section 51 applies.
Further, the Committee of Privileges is satisfied that no person to whom
section 51 applies was involved in improper provision of information to
Senator Conroy in respect of the matter expunged from the Hansard record
of proceedings. It has reached this conclusion as a result of its consideration
of relevant matters and Senator Conroy's confirmation, in his response
to the committee's invitation to make comment on its terms of reference,
that the document was published during the legal proceedings against Mr Elliott.
Finally, taking the broad view of the powers of parliamentary committees
espoused by earlier committees and the Clerk, this committee is satisfied
that section 51 has no application to the present case.
41. The greater difficulty for all involved in the present reference,
including this committee, lies with section 55 of the Act, with particular
reference to the limitations prescribed under subsection 55(2). The duties
of the NCA Committee as prescribed in subsection 55(1) are as set out
in paragraph 18 above, and the Committee is confined to these duties.
It is then statutorily constrained by subsection 55(2) from investigating
a matter relating to a relevant criminal activity, or reconsidering the
findings of the Authority in relation to a particular investigation.
42. A principled approach to construing the section will firstly require
an examination of the terms of reference that were before the NCA Committee.
That committee was engaged in conducting a comprehensive evaluation of
the operations of the NCA, with particular reference to its examination
of the following:
(1) the constitution, role, functions and powers of the authority,
and the need for a body such as the authority, having regard to the
activities of other Commonwealth and state law enforcement agencies;
(2) the efficiency and effectiveness of the authority;
(3) accountability and parliamentary supervision of the authority;
and
(4) the need for amendment of the National Crime Authority Act 1984.
[38]
43. The terms of reference appear to be wholly within the defined duties
of the NCA Committee as set out in section 55, subject to the prohibition
on investigating a matter relating to a relevant criminal activity or
a reconsideration of the findings of the Authority in relation to a particular
investigation.
44. That this statutory prohibition on the committee is potentially severe
is evidenced by the anxiety of the NCA itself about the scope of the subsection,
expressed by Mr Broome, as Chairperson of the Authority, as follows:
... it would be a matter of some concern to the Authority if the legislation
were found to prevent the Parliamentary Joint Committee on the National
Crime Authority from being able to satisfy itself that the Authority
had acted properly in a particular matter.
In the absence of any external and independent complaint handling body,
the Parliamentary Joint Committee has, for many years, sought to deal
with the complaints about the propriety or legality of the Authority's
actions.
Both the Committee and the Authority agree that there are significant
limitations which make it difficult for the Committee to perform such
a role but nonetheless it provides an important form of accountability.
[39]
45. This committee notes in passing the positive nature of these comments,
as they are in sharp contrast to fears previously expressed by the NCA
which led to the frustrations of earlier NCA committees referred to above.Attempts
to divorce operational details from the supervisory functions of the NCA
Committee have never been entirely successful, as evidenced by the reports
already referred to. As the Clerk observes:
Given the very broad definition of “relevant criminal activity”
in subsection 4(1) of the Act, subsection 55(2) would seem to prevent
the NCA Committee either investigating any particular case in which criminal
activity was alleged or considering any conclusions by the NCA in relation
to such a case.
The question which then arises is how the NCA Committee is able to carry
out its statutory duties while observing these very wide limitations.
For example, it is not clear how the committee can monitor and review
the performance by the Authority of its functions while steering clear
of an investigation of any particular case or any particular findings
of the Authority. [40]
46. Attempts to divorce operational details from the supervisory functions
of the NCA Committee have never been entirely successful, as evidenced
by the reports already referred to. As the Clerk observes:
Given the very broad definition of "relevant criminal activity"
in subsection 4(1) of the Act, subsection 55(2) would seem to prevent
the NCA Committee either investigating any particular case in which
criminal activity was alleged or considering any conclusions by the
NCA in relation to such a case.
The question which then arises is how the NCA Committee is able to
carry out its statutory duties while observing these very wide limitations.
For example, it is not clear how the committee can monitor and review
the performance by the Authority of its functions while steering clear
of an investigation of any particular case or any particular findings
of the Authority.
47. The severity of these constraints is well demonstrated by the matter
of Mr Elliott's evidence, both written and oral, referred to the Committee
of Privileges. Having considered the terms of reference of the NCA Committee,
the question for the Committee of Privileges is, firstly, whether the
evidence given by Mr Elliott, as summarised at paragraph 4 above, and
the subsequent line of questioning were within those terms of reference.
Secondly, if the committee were so to conclude, it would need also to
establish whether any of that evidence could be characterised as investigating
a matter implying or alleging that a relevant offence may have been or
may be committed against a law of the Commonwealth or a State or Territory
or reconsidering the findings of the authority in relation to a particular
investigation. If any of the evidence could be so characterised expressly,
that evidence is prohibited under the Act.
48. Although Mr Elliott's complaint against the NCA is a perfectly legitimate
and proper subject to be ventilated before the NCA Committee, and members
have the right and indeed duty to properly evaluate the evidence, they
are nevertheless constrained in their duties by the limitations set out
in section 55(2).In the present case it is clear that certain evidence
led by Mr Elliott, and at least part of the chain of inquiry pursued by
Senator Conroy, sought to revisit prohibited detail of the NCA investigation
of Mr Elliott and others, and to examine financial transactions that
at least implied that a relevant criminal offence may have been committed.
49. 50. Whilst it is a matter for the NCA Committee to identify and separate
those parts of the evidence that offend against section 55(2) from any
other relevant and permissible evidence, the Committee of Privileges has
concluded in this case that the evidence led and the questions asked were
so inextricably intertwined with an examination of relevant criminal activity
that the whole of the evidence was prohibited under the Act and should
have been rejected.
51. Notwithstanding these conclusions, the question nonetheless arises
as to the basis on which the NCA Committee, having permitted Mr Elliott's
submission and evidence at its hearing, could then deny Senator Conroy
the opportunity to question Mr Elliott on his submission and evidence.
Clearly, once the submission and evidence were accepted, there was no
basis for prohibiting questioning on the matter by any member of the committee.
In the words of the Chair of the committee, also quoted at paragraph 6
above:
Mr Elliott, ... because your submission is couched in the terms
that it is, it will be difficult to judge this line of questioning as
being outside of the terms of reference in a broad sense. It would be
helpful if you could answer the question in whatever terms you see fit
and we will move on. [41]
52. As discussed above, the committee appreciates that it may be difficult
to distinguish evidence going to a proper examination of the conduct of
the NCA in carrying out its functions which are permissible and that going
to investigation of matters that relate to a relevant criminal activity,
which is prohibited. There is also the practical difficulty that, once
evidence is permitted to be heard, members of the committee in the usual
course are able to pursue as of right a relevant line of inquiry to test
that evidence.
53. The difficulty in this case is that once an investigation can be
characterised as one relating to a relevant criminal activity or reconsideration
of the findings of the Authority in relation to a particular investigation,
evidence relating to it is expressly prohibited by statute. Accordingly
it is difficult to sustain an argument that there is a right of members
to pursue, or to continue to pursue, what the legislature has seen fit
to prohibit.
54. It is entirely unsatisfactory that a situation can arise whereby
evidence that should be rejected is permitted to be led and members are
then constrained from asking questions. The NCA Committee prohibited Senator
Conroy's questioning primarily on the wrong basis, that is, not that his
questioning was beyond the bounds of section 55 of the Act, but rather
because he was quoting from what was assumed to be an improperly obtained
document. Given, however, the committee's conclusion that all evidence
submitted to the NCA Committee, both written and oral, should have been
excluded, it is unwilling to compound the initial error by accepting that
Senator Conroy's rights were infringed.
55. The committee first draws attention to Privilege Resolutions 1(12)
as follows:
Where a witness gives evidence reflecting adversely on a person and
the committee is not satisfied that that evidence is relevant to the
committee's inquiry, the committee shall give consideration to expunging
that evidence from the transcript of evidence, and to forbidding the
publication of that evidence. [42]
56. This provision is designed to ensure maximum protection of persons
who may be subjected to malicious or ill-advised comments by witnesses
in the course of presenting evidence to committees. Other situations which
might warrant committee intervention to prevent publication of evidence
include revelations, whether deliberate or inadvertent, of national security
issues or inappropriate invasions of privacy. In addition, it may become
necessary for committees to consider forbidding publication of evidence
which is beyond their capacity to receive, as in the present case. The
power of expungement, however, if it is to be used at all, should always
be used sparingly and any decision to invoke the power should be made
during the relevant hearing.
57. Ultimately the question of expunging the submission and evidence,
and indeed any or all of the proceedings relating to each, is for the
NCA Committee to determine. The Committee of Privileges has, however,
concluded that it would be impractical, ineffectual and undesirable now
to recommend any such expungement. The proceedings of the NCA Committee
have been on the public record since 12 June 1997, and were widely
reported at the time. In addition public evidence, taken on 8 October 1997,
makes extensive reference to those proceedings.
58. The committee answers the questions on which its opinion has been
sought as follows:
(a) whether Senator Conroy's rights in relation to his capacity
to question a witness appearing before the Committee were infringed
in relation to the Committee's proceedings in Melbourne on 12 June 1997.
Having concluded that none of the evidence given by Mr John Elliott in
his written submission of 4 June 1997, and his oral presentation of 12 June
1997, should have been received by the National Crime Authority Committee
(see answers to questions (b) and (c) below), and that as a consequence
no members of that committee should have been permitted to question him,
the Committee of Privileges must also conclude that Senator Conroy's rights
as a member of the committee were not infringed.
(b) whether a member of the Committee is prohibited from asking
questions of a witness in respect of evidence given to the Committee
by that witness covered by either of the elements of subsection 55(2)
of the National Crime Authority Act 1984 or that
relates to material covered by section 51 of the Act.
and
(c) whether the Committee was prohibited from receiving some or
all of the evidence of Mr John Elliott in Melbourne on 12 June 1997,
because of the provisions in subsection 55(2) of the National
Crime Authority Act 1984, or because the evidence related
to material covered by section 51 of the Act.
The Committee of Privileges has concluded that, given the nature of Mr Elliott's
evidence, both written and oral, before the NCA Committee, that committee
was so constrained by subsection 55(2) of the National Crime Authority
Act 1984 that it was prohibited from receiving any such evidence.
It follows that committee members were similarly prohibited from asking
questions of him in respect of the proscribed evidence. It also follows
that committee members generally are prohibited from either receiving,
or asking questions in respect of, evidence given by a witness covered
by either of the elements of subsection 55(2) of the National Crime
Authority Act 1984.
The committee has further concluded that section 51 of the National
Crime Authority Act 1984 had no application to the proceedings of
the National Crime Authority Committee on 12 June 1997, and has no general
application to that committee's proceedings.
(d) whether, as a consequence of the consideration of point (c),
some or all of the evidence Mr Elliott gave to the Committee should
be expunged from the transcript of evidence.
While this question is ultimately a matter for the NCA Committee to determine,
the Committee of Privileges suggests that expungement of any evidence
taken by that committee on 12 June 1997 is impracticable,
ineffectual and undesirable.
59. In view of the continuing problems experienced by successive Parliamentary
Joint Committees on the National Crime Authority in their relationship
with the National Crime Authority, the Committee of Privileges suggests
that the Joint Committee on the National Crime Authority might consider
making an urgent approach to government, possibly in the context of its
inquiry into the operations of the NCA and its own role in those operations,
seeking:
(a) the amendment of section 55 of the Act, assuming the continued
existence of both the NCA and the NCA Committee, possibly on the lines
suggested by its predecessor committee in its 1991 report entitled “Who
is to Guard the Guards; and
(b) the amendment of section 51 of the National Crimes Act, as similarly
suggested by its predecessor committee.
60. This committee also reiterates the recommendation contained in its
36th report, tabled in June 1992, that parliamentary consideration be
given to a declaratory enactment to make explicit that parliamentary privilege
cannot be set aside except by express words in a statute. If this latter
course were adopted, this would render superfluous any requirement to
amend section 51 of the National Crime Authority Act.
Robert Ray
Chairman
ENDNOTES
[1] Journals of the Senate, No. 114,
26 June 1997, p. 2257.
[2] Public Hearing, NCA Committee, 12 June 1997,
prefatory page.
[3] ibid., pp. 759-785.
[4] ibid., pp. 832-839.
[5] ibid., pp. 840-842.
[6] ibid., p. 858.
[7] ibid., p. 860.
[8] ibid., p. 881.
[9] ibid., p. 882.
[10] ibid., p. 882.
[11] Appendix, p. 31. Sections 51 and 55 of
the National Crime Authority Act 1984 appear at paragraph 18 of
this report.
[12] ibid., p. 32.
[13] Public Hearing, NCA Committee, 12 June
1997, Evidence, p. 883.
[14] Senate Committee of Privileges, Possible
Improper Interference with a Witness and Possible Misleading evidence
before the National Crime Authority Committee (36th Report), tabled
June 1992. (PP No. 194/1992)
[15] NCA Committee report, Who is to Guard
the Guards? An evaluation of the National Crime Authority, tabled
November 1991 (PP No. 297/1991), p. 1.
[16] Public Hearing, NCA Committee, 12 June
1997, terms of reference, prefatory page.
[17] National Crime Authority Act 1984,
p. 57
[18] ibid., pp. 59-60.
[19] NCA Committee report, Who is to Guard
the Guards?, p. 144.
[20] ibid., p. 151.
[21] ibid., p. 153.
[22] Senate Hansard, 1 June 1992, p.
3125.
[23] Senate Committee of Privileges, 36th Report,
op. cit., p. 29.
[24] Parliamentary Privileges Amendment
(Effect of Other Laws) Act 1991.
[25] Appendix, pp. 17-18.
[26] ibid., pp. 20-22.
[27] ibid., pp. 26-28.
[28] ibid., pp. 2-6.
[29] ibid., pp. 29-32.
[30] ibid., p. 19.
[31] ibid., p. 21.
[32] ibid., p. 25.
[33] ibid., pp. 26-28.
[34] ibid., pp. 17-18.
[35] ibid., pp. 2-6.
[36] ibid., p. 17.
[37] ibid., pp. 3-4.
[38] Public Hearing, NCA Committee, 12 June
1997, terms of reference, prefatory page.
[39] Appendix, pp. 17-18.
[40] ibid., pp. 3-4.
[41] Public Hearing, NCA Committee, 12 June
1997, Evidence, p. 858.
[42] Privilege Resolutions, 25 February 1988.