Possible Improper Action Against a Person (DR WILLIAM DE MARIA)
June 1998
MEMBERS OF THE COMMITTEE
Senator Robert Ray (Chair) (Victoria)
Senator Sue Knowles (Deputy Chairman) (Western Australia)
Senator Helen Coonan (New South Wales)
Senator Barney Cooney (Victoria)
Senator Alan Eggleston (Western Australia)
Senator Marise Payne (New South Wales)
Senator the Hon. Nick Sherry (Tasmania)
The Senate
Parliament House
CANBERRA ACT 2600
Telephone: (02) 6277 3360
Facsimile: (02) 6277 3199
CONTENTS
CHAPTER ONE
Introduction
Background
(b) Tabling of documents from University of Queensland
(c) Documents sent to the President of the Senate
(d) Documents provided to Committee of Privileges
Conduct of inquiry
Summary of the responses
Further submissions under Privilege Resolution 2(10)
CHAPTER TWO
Matters before the committee
Advices from Mr David Jackson QC and Clerk of the Senate
(a) Was Dr De Maria's submission privileged?
(b) Use of privileged documents in other proceedings
(c) Whether contempt is involved
Actions by the University of Queensland
Actions by Dr De Maria
Findings
Penalty
Observations
POSSIBLE IMPROPER ACTION AGAINST A PERSON
(Dr WILLIAM De Maria)
CHAPTER ONE
Introduction
1.1 On 4 September 1997 the following matter was referred to the Committee
of Privileges on the motion of Senator Bourne:
Having regard to the documents tabled by the President on 25 August 1997,
whether any action was taken against Dr William De Maria in consequence
of his communication with the Senate through Senator Woodley, and, if
so, whether any contempt was committed in taking that action. [1]
Background
1.2 On 27 May 1997 Senator John Woodley gave a speech in the Senate which
added to remarks he had made on the previous evening about whistleblowers.
His speech mentioned two Senate select committee reports on whistleblowing,
referring specifically to the work of Dr William De Maria,
who had been a witness before the committees, and in particular to his
“pioneering work in researching case histories of many whistleblowers”.
[2] Senator Woodley went on to suggest
that a member of the Queensland Parliament had attacked the credibility
of Dr De Maria, based on material provided by the Criminal Justice
Commission in Queensland.
(a) Tabling of documents from Dr De Maria
1.3 Two days later, Senator Woodley, in speaking to a report of the Committee
of Privileges reporting on a reference deriving from the second select
committee on whistleblowing, took the opportunity to table documents which
he believed to be associated with his previous speech relating to Dr De Maria.
Senator Woodley stated that his purpose in tabling the documents was to
“give the [then] Minister for Employment, Education, Training and
Youth Affairs, Senator Vanstone, an opportunity to have before her information
that would be very valuable to her as she seeks to understand how universities
operate and would be particularly useful in Dr De Maria's case,
as he is in contact with her”. [3]
1.4 On 18 June 1997, during discussion of matters of public interest,
Senator Woodley again addressed the subject of whistleblowing, indicating
that the documents he had tabled on 29 May 1997 “contained
very adverse comment about certain staff within the University of Queensland”.
[4] In taking responsibility for not having
checked the documents carefully enough, Senator Woodley indicated that
he had become aware that there was a long-running dispute between Dr De
Maria and other staff within the department in which Dr De Maria researched
and taught. Senator Woodley went on to state that he had since discovered
that Dr De Maria had “no support amongst the staff within the
department”, and apologised to several named individuals.
(b) Tabling of documents from University of Queensland
1.5 Senator Woodley sought and was granted leave to table documents
responding to Dr De Maria's statement and concluded as follows:
This whole incident has caused me quite a deal of distress and a lot
of concern. My concern about the situation of whistleblowers in Australia
continues. The tragedy is that this dispute clouds the work done by so
many sincere whistleblowers. I hope that I will be able to revive my rather
dented enthusiasm for pursuing whistleblower legislation in the federal
parliament. [5]
1.6 Included in these tabled documents was a letter from Senator Woodley
to Professor E.T. Brown, Senior Deputy Vice-Chancellor of the
University of Queensland, outlining the circumstances which gave rise
to the tabling, together with documents on behalf of the University responding
to matters raised in the papers previously tabled. The committee includes
at this point what it regards as a useful and accurate summary of Senator Woodley's
letter, provided to it by the University of Queensland:
In February 1997 Senator Woodley met with Dr De Maria and
received a written submission from him. On the basis of that material
the Senator was advised by his senior adviser, Mr [now Senator] Bartlett,
to make a speech refuting certain allegations made against Dr De Maria
by Mr Goss in the Queensland Parliament and supporting the importance
of Dr De Maria's research into whistleblowing.
Senator Woodley was advised that the submission should not [emphasis
in original] be tabled as it concerned a dispute within the University
of Queensland. Senator Woodley accepted this advice and Dr De Maria
was advised of this decision by Mr Bartlett.
Senator Woodley made speeches in relation to whistleblowing issues
on 26 and 27 May 1997. These speeches did not outline Dr De Maria's
allegations against staff of the University. Instead, their focus was
on whistleblowing issues, with the 27 May speech focusing upon
attacks made by the then Queensland Premier, Mr Goss, on Dr De Maria's
research.
Following the speech on 27 May another member of Senator Woodley's
staff, Vivienne Wynter, apparently was telephoned by Dr De Maria
on Wednesday, 28 May 1997. Ms Wynter has provided a written
account of that call. She says that Dr De Maria inquired if
Senator Woodley had tabled “the documents”. Ms Wynter
made some inquiry with Senator Woodley, who thought that there
had been no arrangement to table the documents, since they were not
in Canberra. However, Dr De Maria said that it was part of
the arrangement and urged that the documents be tabled as soon as possible
because he needed parliamentary privilege for a story which was being
prepared by a Sunday Mail reporter. Arrangements were then made for
the documents in question to be couriered overnight so that the alleged
arrangement could be carried out. Ms Wynter says that her clear
impression from her conversation with Dr De Maria was that
the Senator's office had erred somehow in forgetting to bring the documents
to Canberra and tabling them with the speech. As a result, Ms Wynter
wished to correct the problem and arrange for the documents to be tabled,
as agreed. Mr Bartlett was in Townsville and difficult to contact
that day.
On 29 May 1997 Senator Woodley tabled certain documents
which had been sent overnight to him. The documents apparently were
extracts from the more voluminous material received in February. Senator Woodley
apparently thought that the documents referred to the Goss allegations
and only to the University dispute by way of background. In fact, the
documents refer to numerous allegations against University staff ...
[committee excision]. They did not relate in any substantial way to
the whistleblower issues which Senator Woodley raised in his speech
on 27 May 1997. However, without appreciating their contents,
Senator Woodley tabled them.
Senator Woodley acknowledges that the documents tabled by him
did not in any substantial way support the speech which he had earlier
given. He advises that the documents “should not be part of the
public record”.
Upon further investigating the matter, and realising the distress caused
to staff by the allegations contained in the documents, Senator Woodley,
through a staff member on 6 June 1997 advised Dr De Maria
that he would not support the allegations in the tabled documents.
Notwithstanding Dr De Maria's claim that he did not know
of the advice not to table the documents, Mr Bartlett confirms
that he told Dr De Maria that the documents would not be tabled.
On 19 [sic - in fact 18] June 1997 Senator Woodley in
a speech in the Senate referred to some of these matters. He apologised
to University staff and students who have complained about Dr De Maria's
attitude and behaviour. The Senator apologised to the Senate and to
those involved that he did not check carefully enough the contents of
the tabled documents. [6]
1.7 It appears beyond dispute, given Senator Woodley's comments
both in the Senate and his letter to the University, [7]
that “Senator Woodley was induced to table documents which, had he
had time to consider their contents carefully, he would not have tabled”.
[8]
(c) Documents sent to the President of the Senate
1.8 On 25 August 1997 correspondence was tabled on behalf of the President
from solicitors acting for Dr De Maria, and from Dr De Maria
himself, “concerning allegations that he may be penalised by the
University of Queensland because of material supplied by him to Senator
Woodley and subsequently placed before the Senate”, [9]
together with a response from the President.In her response, the President
indicated that she would suggest that the matter be referred to the Committee
of Privileges. [10] The issues outlined in
the documents, which led the President to suggest that action might need
to be taken, were set out in the letter, dated 1 August 1997, from
Dr De Maria's solicitors. They advised of certain actions taken
by the University of Queensland after the speeches by Senator Woodley.
1.9 1.10 Initially, according to the solicitors, the University withdrew
all secretarial services from Dr De Maria, failed to act on
certain urgent administrative matters, and banned Dr De Maria
from entering certain offices in his workplace. [11]
Dr De Maria then went on one month's stress leave. At its conclusion
Dr De Maria was served with a notice, dated 8 July, from the
Vice-Chancellor of the University, suspending his employment with immediate
effect and asking him to show cause why a tribunal should not be convened
under the existing award provisions to investigate whether Dr De Maria
had committed serious misconduct. The notice alleged, in four numbered
paragraphs, that Dr De Maria had made false accusations against
certain staff members of the University. The evidence of such accusations
was identified in the notice, as follows:
Each of the accusations made by you and referred to in paragraphs 1
to 4 above is contained in a document entitled “Submission to Senator
John Woodley from Dr William De Maria Alleging Work Place
Harassment and Victimisation at University of Queensland”. [12]
As the solicitors observed, the document referred to is the document
tabled by Senator Woodley on 29 May 1997.
1.11 The fifth numbered paragraph, which followed this assertion, alleged
that Dr De Maria had “deliberately disobeyed” a written
direction from the head of school. The breach of the head of school's
direction was “constituted by your having submitted to Senator John
Woodley, the document entitled `Submission to Senator John Woodley from
Dr William De Maria Alleging Work Place Harassment and
Victimisation at University of Queensland' together with associated documentation”.
[13]
1.12 In their letter of 1 August 1997, Dr De Maria's solicitors
advised the President that they had already raised with the University's
solicitors “our suggestion that the University may be in contempt
of the Senate”. [14] According to the
solicitors, the University advised that it had received counsel's opinion
which led its own solicitors to conclude that they were “satisfied
that no breach of parliamentary privilege would be involved in their client
proceeding with the matter”. [15] Counsel's
opinion was not made available to Dr De Maria's solicitors.
It appears from a subsequent document received by this committee [16]
that the opinion was provided to the University on 25 June 1997, before
the “show cause” notice of 8 July was sent to Dr De Maria.
1.13 The President's suggestion that the matters raised by Dr De Maria
and his solicitors be taken further was effected through Senate agreement
to a motion, moved by leave by Senator Bourne, that the matter be referred
to the Committee of Privileges.
(d) Documents provided to Committee of Privileges
1.14 Following the reference of the matter to the committee, Dr De Maria
continued to keep the Clerk of the Senate informed as to the progress
of the case. In accordance with Dr De Maria's request, the Clerk
referred this correspondence to the committee. One of Dr De Maria's
letters, dated 8 September, included as an attachment a letter dated 3 September
1997, from the University's solicitors to his solicitors, advising that
the Vice-Chancellor had “referred the matter to a Misconduct Investigation
Committee” [17] (MIC). In advising that
the MIC proposed to hold a directions hearing on 9 September, the University's
solicitors advised that their client took the view that “no breach
of privilege of the Senate would be committed by proceeding with the further
investigation of the matter”. [18] The
solicitors went on to suggest that Dr De Maria might “be
minded to challenge, by way of Court proceedings, [their] client's ability
to proceed”. [19] They suggested that
if he were to do so it would be useful to begin proceedings before the
MIC hearing occurred.
1.15 It appears from the information before the Committee of Privileges
that no such proceedings were commenced and the MIC hearing proceeded,
as scheduled, on 9 September. The MIC then wrote to Dr De Maria
on 12 September, noting that neither he nor a representative had
attended the hearing. The secretary to the MIC advised that it had resolved
to reconvene the hearing on 9 October. [20]
At that hearing Dr De Maria personally expressed his concerns
about the MIC process and the composition of the Committee. [21]
The MIC appears not to have taken further action following the hearing,
pending receipt of an opinion from Mr David Jackson QC concerning the
parliamentary privilege aspects of the MIC inquiry. The MIC received Mr
Jackson's advice on 2 March, [22] and
sent it to Dr De Maria, who in turn submitted it to the Clerk of the Senate
for forwarding to this committee. [23] Subsequently,
the MIC asked Dr De Maria to give reasons as to why it should
not proceed to investigate the misconduct charge. [24]
For reasons which will be given later in this report, the MIC will be
disbanded and Dr De Maria reinstated.
Conduct of inquiry
1.16 The Committee of Privileges first met to consider the matter referred
on 25 September 1997 and sought comment from Dr William De Maria,
Professor John Hay, Vice-Chancellor, University of Queensland, and Senator
John Woodley. Dr De Maria responded to the committee's invitation
and Mr Douglas Porter, Secretary and Registrar of the University of Queensland,
responded at the request of the Vice-Chancellor. Senator Woodley
advised the committee that he did not wish to add to the material already
available. In addition, the committee received four unsolicited letters
in support of Dr De Maria.
1.17 Following receipt of responses from Dr De Maria and the
University of Queensland to the committee's invitation, and in accordance
with its normal practice, the committee sought comment from the Clerk
of the Senate on the matters raised. The Clerk's response, together with
Mr Jackson's opinion, will be discussed later in this report as part of
the committee's analysis of the matters before it.
1.18 All documents received by the committee are included with this report.
Summary of the responses
Dr De Maria
1.19 Dr De Maria, in his response of 20 October 1997 to the
committee, [25] summarised the content of several
documents transmitted to the committee. He placed particular emphasis
on his solicitors' letter of 1 August 1997, submitted to the
President of the Senate, and discussed at paragraphs 1.10 and 1.12 above.
After outlining his perception of the issues before the committee, Dr De Maria
drew attention to a copy of his covering letter to Senator Woodley
of 17 February 1997, which referred to attached documents and asked
that Senator Woodley take the following action:
(a) Table in the Senate the documentation that I have provided, and
speak to the issue of university harassment of outspoken academics,
as this applies to me.
(b) Make a formal request to the Education Minister Senator Vanstone
to institute an inquiry, independent of and external to the university,
to investigate my allegations of workplace harassment and victimisation.
The university has refused to provide effective investigations into
the issues that are now before you.
(c) carry out any other action that you see fit that will bring justice
and inspire other academics to speak out about wrongdoing. [26]
1.20 Dr De Maria then gave the following reasons for his decision
to use the procedures of the Senate:
(a) He “was getting nowhere with the University”;
(b) He “chose a parliamentary forum (rather than say private legal
action) because of the strong public interest content in my matter”;
and
(c) He “specifically focussed [his] concerns on the Senate”
because of the Senate's expertise in dealing with whistleblowing matters
and because the Minister for Education was in the Senate at the relevant
time. [27]
1.21 The remainder of Dr De Maria's response expanded on
points made in his follow up letters to the President and the Clerk,
discussed his actions following Senator Woodley's tabling of the documents
he provided to the senator, and set out what he regarded as the direct
adverse action, and the direct adverse consequences, taken against him
by the University. He concluded with a request that the Committee of
Privileges:
(a) Confirm for the general public the principle that parliamentary
privilege attaches to public interest disclosures from citizens to Senators
once those disclosures have been incorporated into the proceedings of
the Senate.
(b) Find, in a way consistent with paragraph 16(2)(d) of the Parliamentary
Privileges Act 1987, that in [his] specific case parliamentary privilege
attached to the documents that Senator Woodley tabled in the Senate
on 29 May 1997.
(c) As a result of a positive finding in (b), determine that [his]
privileged documents therefore attracted immunity from all the adverse
actions taken by the University of Queensland, specifically [his] suspension
on 8 July 1997.
(d) As a result of a positive finding in (c), determine that [his]
privileged documents cannot be punitively used by courts and tribunals,
including a misconduct tribunal established under an industrial award
[Dr De Maria's emphasis].
(e) Find that as a result of [his] disclosures to Senator Woodley
[he] was reprised against by the University of Queensland.
(f) Find that as a result of (c) the University of Queensland committed
a serious contempt of Senate by contravening s.12(2) of the Parliamentary
Privileges Act 1987.
(g) As a result of the finding of contempt, the University of Queensland
be penalised to the maximum extent. [28]
University of Queensland
1.22 The response on behalf of the University of Queensland, in addition
to summarising the content of Senator Woodley's letter of 13 June 1997
to Professor E.T. Brown, Senior Deputy Vice-Chancellor of the
University of Queensland, [29] put forward
several propositions. The first was that the provision by Dr De Maria,
first in February and then in May, of his submission to Senator Woodley
did not attract privilege. Second, that the University's instigation of
procedures against Dr De Maria did not constitute contempt and
that the Senate's power to adjudge and deal with alleged contempt should
not be exercised. Third, that the University's action was motivated by
a desire to protect the rights of staff and students, and arose because
Dr De Maria had “misconducted himself”. Finally, the
response suggested that, if the Committee of Privileges were to make a
finding of contempt against the University, no penalty should be imposed.
1.23 The response noted developments in both the Senate and the courts
in relation to the scope of privilege and emphasised that the intention
of the University was not to interfere with the Senate's authority and
functions. Having advised the Committee of Privileges that the University
understood that the disciplinary committee involved in examining the actions
brought against Dr De Maria had sought advice on the question
of parliamentary privilege, the response concluded as follows:
The University submits that Dr De Maria's conduct does not
attract the privileges of the Parliament. If, contrary to the submissions
made, Dr De Maria's conduct involved “proceedings in
Parliament”, no contempt is made out since the University's actions
did not amount, and certainly were not intended to amount, to an improper
interference with the Senate's authority or functions, or with the free
performance by a Senator of that Senator's duties. [30]
Further submissions under Privilege Resolution 2(10)
1.24 The committee, having considered the material, determined certain
findings to be included in its report to the Senate. Given the nature
of these findings, the committee was required under Privilege Resolution
2(10) to acquaint both Dr De Maria and the University of Queensland
of the findings, and afford both parties “all reasonable opportunity
to make submissions to the committee, in writing and orally, on those
findings”. [31] In order to assist Dr De Maria
and the University, the committee provided them, not merely with the findings,
but also with a working document which set out the committee's analysis
leading to those findings.
1.25 Each responded within the timeframe sought by the committee, and
their responses have been included in the volume of submissions and documents
tabled with this report. [32] As required by
the resolution, the committee took the submissions into account before
making its report to the Senate. The report has been modified to reflect
the new information provided.
CHAPTER ONE — ENDNOTES
Footnotes
[1] Submissions and Documents, p. 1.
[2] ibid., pp. 2-3.
[3] ibid., p. 4.
[4] ibid., p. 22.
[5] ibid.
[6] ibid., pp. 83-84.
[7] ibid., pp. 22, 27-30.
[8] ibid, p. 84.
[9] ibid., p. 31.
[10] ibid., p. 43.
[11] ibid., p. 32.
[12] ibid., p. 40.
[13] ibid., p. 41.
[14] ibid., p. 37.
[15] ibid.
[16] ibid., p. 103.
[17] ibid., p. 51.
[18] ibid.
[19] ibid.
[20] ibid., p. 56.
[21] ibid., p. 121.
[22] ibid., p. 120.
[23] ibid., p. 98.
[24] ibid., p. 109.
[25] ibid., pp. 62-82.
[26] ibid., p. 38.
[27] ibid., p. 70.
[28] ibid., pp. 78-81.
[29] See paragraphs 1.6-1.7 above.
[30] Submissions and Documents, p. 87.
[31] Standing Orders and other Orders of the
Senate, August 1997, p. 99.
[32] Submissions and Documents, pp.
111-130.
CHAPTER TWO
Matters before the committee
2.1 From the evidence before it, the committee has distilled the following
sequence of events. It appears that there had been some dispute, over
a considerable period, between Dr De Maria and staff within
the department in which he worked. Dr De Maria's difficulties
in his university occupation first became widely known through the tabling
by Senator Woodley on 29 May of documents making serious allegations about
several members of staff within the University of Queensland. Notwithstanding
Dr De Maria's impression to the contrary, the committee has
concluded that no undertaking had been given to Dr De Maria
by or on behalf of Senator Woodley to make the documents public by
tabling in the Senate. However, the tabling nonetheless had the effect
of attracting privilege, whether intended or unintended by Senator Woodley.
2.2 On becoming aware of the implications of their being so tabled, Senator Woodley
made a worthy attempt to undo what he perceived to be the damage caused
by his misunderstanding of the arrangements arrived at. Obviously not
satisfied with the remedies resorted to by Senator Woodley to dissociate
himself both from the act of tabling and the content of the documents
prepared by Dr De Maria, the Vice-Chancellor of the University,
on 8 July, suspended Dr De Maria, on full pay, on the basis
that he had “determined that the statements made by [Dr De Maria]
and tabled by Senator Woodley in the Australian Senate are allegedly
false, and as such constitute possible serious misconduct”, [1]
and demanded that he show cause as to why disciplinary proceedings should
not be taken against him.
2.3 Dr De Maria responded on 1 August “strongly urging
the Vice Chancellor to reconsider his action, as such appeared to be a
reprisal against [him] for drawing the Senate's attention to matters of
deep public interest”. [2] On 3 September
the University's solicitors wrote to Dr De Maria's representatives,
advising of the establishment of the Misconduct Investigation Committee,
in the terms discussed in Chapter One.
2.4 The committee does not intend to examine the subject matter of the
case made either by Dr De Maria or by the University of Queensland,
as the actual circumstances are not germane to its deliberations. The
question before the committee is whether, notwithstanding the misunderstandings
which occurred, which led Senator Woodley, and the Senate, to give
protection to documents which otherwise might have formed the basis of
disciplinary or other action against a person, a possible contempt is
involved in that the only basis of action taken against that person was
a submission and associated documents provided to Senator Woodley
“for purposes of or incidental to” the transacting of business
of the Senate, under section 16 of the Parliamentary Privileges Act 1987.
2.5 The committee first addressed this question in its 67th report, tabled
in September 1997. [3] In considering that matter,
the committee had evidence that a person identified in the Senate had
had defamation action taken against him solely on the basis of his providing
information to a senator, and was identified solely through that senator's
reference to him in the Senate. In that case, the committee's decision
to make a finding of contempt against the person taking the action for
defamation was influenced by the informant's purpose in conveying the
information to the senator, its use by the senator in proceedings, and
the proximity of the action taken against the informant.
2.6 The parallels with the present case are obvious. Clearly Dr De Maria
made a submission to Senator Woodley with the intention that the
submission be used within the Senate, Senator Woodley did so use
the material, and the University's series of actions was taken immediately,
and overtly, as a direct consequence of the publication of that submission
within the Senate.
Advices from Mr David Jackson QC and Clerk of the Senate
(a) Was Dr De Maria's submission privileged?
2.7 The committee's deliberations on the question as to whether privilege
does, or should, extend to the provision of information to Senator Woodley
have been assisted, first, by the advice provided to the University by
Mr David J.S. Jackson QC (see paragraph 1.15 above). The
advice, dated 2 March, which was provided to the committee by Dr De Maria
through the Clerk of the Senate on 9 March 1998, is, in the
committee's view, a useful addition to the literature on parliamentary
privilege. It begins by setting out questions on which the Misconduct
Investigation Committee sought Mr Jackson's opinion. The most relevant
for the committee's present purpose is the following:
(a) the submission of the De Maria submissions to Senator Woodley
in February 1997; or
(b) the sending of the De Maria tabled documents to Senator Woodley's
Canberra office for tabling at the Senate meeting on 29 May 1997.
[4]
Mr Jackson observes that the four other questions on which the advice
is sought “probably assume, rightly, that there is no question of
contempt of the Senate ... if parliamentary privilege did not attach to
the submitting of the De Maria submission to Senator Woodley
in February 1997, or the sending of the De Maria tabled documents
to Senator Woodley's Canberra office in May 1997”. [5]
2.8 Mr Jackson, noting that the Queensland Court of Appeal had considered
the scope of privilege in O'Chee v Rowley, also the subject of the 67th
report of this committee, reaches the following conclusion:
Dealing specifically with the sending of the De Maria tabled documents
to Senator Woodley's Canberra office for tabling during the proceedings
of the Senate on 29 May 1997, it does not seem to me that
it can reasonably be contended that it was not an act done for the purpose
of or incidental to the transacting of the business of a House. [cf
Sankey v Whitlam (1978) 142 CLR 1 at 35] It does not seem to
me that the undoubted collateral purpose, whether or not it was a primary
purpose, of Dr De Maria in seeking to obtain the benefit of
parliamentary privilege, relevantly alters the character of that act,
unless it can thereby be said that the sending of the documents was
not for the purposes of the transacting of the business of the House
or incidental to it. In my opinion, it cannot. [6]
2.9 The MIC's question, implicit in its request to Mr Jackson, whether
there was a distinction to be made between the submission in February
and the second submission in May is addressed by Mr Jackson, who suggests
that the distinction is not well founded.
2.10 The direction taken by the Clerk is more cautious. He suggests to
the committee that the present case “is not a case strongly suggesting
that parliamentary privilege attaches to the provision of the information”.
[7] The Clerk stresses the use to which the
material was put by a senator, suggesting that:
The circumstances could be regarded as close to those postulated by
McPherson J A of the Queensland Court of Appeal in his characterisation
of Rivlin v Bilainkin and Grassby: “It is not, I
think, possible for an outsider to manufacture Parliamentary privilege
for a document by the artifice of planting the document upon a Parliamentarian”.
[8]
2.11 The committee suggests that this view might have led the MIC in
its questions to Mr Jackson to make a distinction between the February
publication to Senator Woodley and the May publication, which ultimately
resulted in the tabling of the documents in the Senate. It has concluded,
however, that Mr Jackson's rejection of the distinction is the preferred
approach to dealing with the issue. It regards as important, notwithstanding
ultimate outcomes, that an individual citizen is free to approach directly
a member of Parliament seeking to have a matter raised. This act may be
distinguished, the committee believes, from random mail-outs or junk mail
which, as was also stated by McPherson J.A. in O'Chee v Rowley, “does
not, merely by its being delivered, attract parliamentary privilege”.
[9]
2.12 It appears to the committee appropriate that the publication by
a person to a member or senator of otherwise defamatory material should,
at the time of its publication to the senator, be protected on the understanding
that the material is intended to be used for purposes of or incidental
to the transaction of business of a House of the Parliament. If such information
were separately published, clearly the material would not, and should
not, be covered. If the member or senator receiving the material chooses
then not to use it and returns it to his or her informant, this is directly
analogous to the publication of a document to, say, a Senate committee
which may, and not infrequently does, refuse to receive the document,
return it to the submitter and advise the person that it is no longer
covered by privilege. The material provided to Senator Woodley was not,
as far as the committee is aware, separately published, and the only way
that anyone became aware of Dr De Maria's earlier submission
of the documents to Senator Woodley was through Senator Woodley's subsequent
actions following the 29 May tabling.
(b) Use of privileged documents in other proceedings
2.13 Even if the material provided by Dr De Maria were found
not to be protected by privilege, the University is still in some difficulty
in using it as the basis for action against him. In the Clerk's words:
This leaves the evidentiary question of how the publication of the
material to Senator Woodley by Dr De Maria is to be proved.
In an action against Dr De Maria for the publication of the
material to Senator Woodley, if the only evidence of the publication
were Senator Woodley's speech in the Senate and his tabling of
the documents in the Senate, the action should fail because those proceedings
in Parliament cannot, under the law of parliamentary privilege as clarified
by section 16 of the Parliamentary Privileges Act, be used to support
an action against a person. This evidentiary question, however, is distinct
from the question of whether the provision of the information was protected
in the first place. The action could be successful on the basis of other
evidence of the publication of the material to Senator Woodley
by Dr De Maria. [10]
It appears beyond dispute, however, that the University has not relied
on any other such publication to pursue its action against Dr De Maria,
given that the Vice-Chancellor's letter of 8 July 1997 explicitly states
that the foundation of the University's allegations against Dr De Maria
was his submission to Senator Woodley, together with associated documentation.
[11]
2.14 While Mr Jackson touches on, but consciously does not deal
with, the implications of Article 9 of the Bill of Rights 1689, his caution
to the University is comparable to the Clerk's comments, particularly
the following:
While it could be concluded that [Dr De Maria's] communication
with Senator Woodley should not be protected as such, it is another
matter to accept a situation of proceedings in Parliament being used
as evidence against a person in a disciplinary action. Such use of parliamentary
proceedings would seem to be unlawful under the Parliamentary Privileges
Act.
The Clerk continues:
It may be concluded, however, that, if the acts of Dr De Maria
are not eligible for protection by the exercise of the contempt jurisdiction,
the Senate should not intervene to overcome the probable evidentiary
illegality. [12]
(c) Whether contempt is involved
2.15 Mr Jackson, having accepted that protection almost certainly pertains
in respect of the documents, does not accept that a question of contempt
might be involved in the University's pursuing misconduct charges against
Dr De Maria. His reasoning is as follows:
In my opinion, it would not constitute an improper interference with
the free exercise by the Senate of its authority or functions or with
the free performance of Senator Woodley of his duties as a member
for the Misconduct Investigation Committee to continue with the hearing
of the allegations of serious misconduct raised against Dr De Maria
and to receive evidence concerning the submission of the De Maria
submission or the sending of the De Maria tabled documents or as
to the truth of their contents. It does not seem to me that such conduct
would interfere with the free exercise by the Senate of its functions,
notwithstanding that it may be said, in a general way, that to bring
proceedings against a person for submitting documents which are ultimately
tabled in a House of Parliament may deter either that person or others
in the future from engaging in similar conduct. However, even if it
could be said to be an interference, given that there appears to be
a reasonable basis for the contention that Dr De Maria deliberately
set out to obtain the advantage of parliamentary privilege to protect
himself from the consequences of making the accusations contained in
the documents, I do not consider it could be said that any such interference
would be “improper”. ... [13]
2.16 The Committee of Privileges does not share this view. It considers
that, regardless of the motives and methodology of Dr De Maria
in securing the tabling of the offending documents — which it will
further address later in this report — this does not excuse the University's
actions against him. The committee having concluded that the mechanisms
used by Senator Woodley in good faith had the result, however inadvertently,
of giving the documents privilege, his own words identifying Dr De Maria
as the source of the documents ensured that the University's only method
of identifying a possible misconduct charge against Dr De Maria
was the privileged documents. This conclusion is borne out by the evidence
in the University's letter of 8 July to Dr De Maria, as discussed
at paragraph 2.13 above.
2.17 In responding to Mr Jackson's conclusion that the means used by
the University to discipline Dr De Maria could not be regarded
as improper, the Committee draws attention to its 67th report, paragraph
2.12 of which observes as follows:
... [T]he 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. [14]
Actions by the University of Queensland
2.18 The committee has concluded that the University is culpable for
its attempts to punish Dr De Maria as a result of his provision
of information to Senator Woodley for the purposes of the transaction
of business of a House of the Parliament. It is of concern to the committee
that the University, even though it appears to have received legal advice
before its notice of 8 July to Dr De Maria, should have
minimised the implications of parliamentary privilege when making a series
of decisions to take action against Dr De Maria, based on his
provision of information to a senator. Given the availability of legal
advice, it is not unreasonable to expect the University to have been aware
of developments in respect of parliamentary privilege in this area, both
within the Queensland courts and within the Senate. The University might
therefore have been expected to proceed with caution, particularly given
that the evidence relied on by the University was tabled documentation
which, on its face, would normally have been regarded as attracting privilege.
2.19 The University was aware, from Senator Woodley's letter of
13 June 1997 to the Acting Deputy Vice-Chancellor, [15]
that procedures were not available to him to withdraw the documentation,
but that he was prepared to use every parliamentary remedy available to
him to alleviate the distress caused to university staff as a consequence
of his tabling of Dr De Maria's documents. This he did forcefully,
taking full responsibility for his own actions and heavily criticising
Dr De Maria in the process. [16]
2.20 In the committee's view, this is where the matter should have rested.
If the University felt justified in taking action against Dr De Maria
based on other evidence of possible misconduct, that is one thing. However,
to base its case against Dr De Maria solely on material tabled
in the Senate leads the committee to conclude that the University punished
Dr De Maria in an improper way.
2.21 It follows, therefore, that all actions by the University of Queensland
against Dr De Maria, on the basis of documents submitted by
him and tabled in the Senate, did and do constitute a contempt of the
Senate.
Actions by Dr De Maria
2.22 Despite its findings in respect of the University the committee
does not wish it to be thought that the actions of Dr De Maria
do not warrant criticism. It appears to this committee that, notwithstanding
Dr De Maria's declaration of higher purpose, he had in fact
used the opportunities presented by his previous dealings with Senator Woodley
to place under the protection of the Senate personal dealings with the
University which otherwise could not have been made public without action
being taken against him, whether within the court system by way of defamation
proceedings, or through the disciplinary actions the University has subsequently
visited upon him.
2.23 A conclusion that Dr De Maria was anxious to ensure the
protection of privilege is given force by the record of a telephone conversation
between Dr De Maria and Ms Vivienne Wynter, a member of Senator Woodley's
staff. According to her account included in Senator Woodley's letter of
13 June to the University of Queensland, [17]
she stated that one purpose in Dr De Maria's pressing for the
tabling of documents was “because he needed parliamentary privilege”
for a story to be published in a newspaper (and see para. 1.6). [18]
In the event, thanks to efforts by Senator Woodley's staff, publication
did not occur. Senator Woodley's letter also clearly indicates that
Dr De Maria had previously been advised that the relevant documents
would not be tabled [19] although, in his response
to the committee following its transmission of a working document to him,
Dr De Maria has strenuously denied this account.
2.24 What is of concern to the committee is that the protection afforded
to the material provided to Senator Woodley was invoked by, at best,
a misunderstanding between Senator Woodley and Dr De Maria.
This particular issue is almost a case study of the apprehension conveyed
by the committee, in its 67th report, as follows:
...[T]he 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. [20]
The committee observed that:
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. [21]
2.25 The committee, having examined the circumstances of the provision
of information to Senator Woodley, gave consideration to the question
whether a further contempt was involved in this issue. Privilege Resolution
6(2), which is a guide to matters which may be treated by the Senate as
contempts, includes the following provision:
(2) A person shall not, by ... improper means, influence a senator
in the senator's conduct as a senator ... . [22]
2.26 The evidence contained in Senator Woodley's letter to the University
of 13 June suggests that the pressure from Dr De Maria
to table the submission and its attachments might well have been based
on a misrepresentation of agreements reached between Dr De Maria
and Senator Woodley's office, although Dr De Maria vigorously
contests this implication in his response to the committee's findings.
This reinforces the committee's view that, at best, a misunderstanding
occurred between the parties, leading to the tabling of documents which
Senator Woodley subsequently repudiated.
2.27 The committee gave consideration to pursuing the matter further,
but concluded that, with the passage of time and the different recollections
and understandings of the same events, the question will never be satisfactorily
resolved. Under these circumstances, the committee regards it as futile
to pursue this second question, as ultimately the committee would regard
as unsafe any conclusion that a contempt should be found.
2.28 In all this, the Committee of Privileges emphasises, as it also
did in its 67th report, [23] the duties and
responsibilities of individual senators in receiving and releasing any
information given to them. In the present case, the committee considers
that under all the circumstances Senator Woodley's actions at the
time of tabling were understandable and his efforts to remedy the situation
were exemplary.
Findings
2.29 The committee has found as follows:
(a) The University of Queensland has taken disciplinary action against
Dr William De Maria as a direct consequence of his communication
with the Senate through Senator Woodley.
(b) The provision of material by Dr William De Maria was
privileged, and Senator Woodley's tabling of such material in the
Senate conferred absolute privilege on that material.
(c) The University of Queensland, in taking action against Dr William
De Maria as a direct consequence of his communication with the
Senate through Senator Woodley, committed a contempt of the Senate.
(d) There is some evidence to suggest that Dr De Maria might
have misrepresented arrangements made with Senator Woodley to ensure
that the material he provided was appropriately protected by parliamentary
privilege. However, Dr De Maria has given an alternative account
of arrangements made, and his perception and understanding of them.
Under the circumstances the committee would regard it as unsafe to conclude
that Dr De Maria should be found in contempt of the Senate.
(e) The committee does not believe that it would be possible to establish
with certainty how the misunderstandings arose and thus does not consider
that further investigation of this element of the reference would be
productive.
Penalty
2.30 When conveying its findings to the University, the committee also
addressed the question of penalties, indicating its conclusion that no
penalty should be imposed. The committee advised, however, that if the
University were to continue its action against Dr De Maria,
based on his submission to Senator Woodley and relying on Senator Woodley's
words in the Senate, it would expect to address the issue further with
a view to recommending penalty.
2.31 The University has responded by advising that “in view of the
conclusions reached by the Committee, the University will take immediate
steps to disband the MIC and reinstate Dr De Maria”. [24]
Accordingly, the committee recommends that no penalty be imposed.
Observations
2.32 The committee draws attention to its observations on the scope of
privilege in its 67th report, and its commitment to seeking 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, after the High Court of Australia
and the Queensland Supreme Court had handed down decisions on the matter
then before them. As both the 67th and this present report demonstrate,
this is, to adopt a comment made in the University's response, “an
area of law of considerable difficulty over which minds can clearly differ”.
[25]
2.33 Since the 67th report was tabled, one matter has been decided in
the Queensland Supreme Court and is the subject of a High Court challenge,
while the second matter has been settled. The committee does not wish
to add anything at present to the observations it made, other than to
reiterate its commitment to seek a further reference from the Senate following
the resolution of the outstanding case. It emphasises, however, the gravity
of senators' actions in placing on the public record, under parliamentary
privilege, documents on behalf of or authored by other persons. It is
the duty of all senators to read all aspects of material they are tabling
and to take responsibility for it.
Robert Ray
Chair
CHAPTER TWO — ENDNOTES
Footnotes
[1] Submissions and Documents, p. 47.
[2] ibid.
[3] Senate Committee of Privileges, Possible
threats of legal proceedings against a senator and other persons (67th
report), tabled September 1997. (Parliamentary Paper No. 141/1997)
[4] Submissions and Documents, pp. 100-101.
[5] ibid., p. 101.
[6] ibid., p. 104.
[7] ibid., p. 90.
[8] ibid.
[9] O'Chee v Rowley (unreported, Qld
Court of Appeal, 4 November 1997, Fitzgerald P., McPherson J.A. and
Moynihan J.) quoted at Submissions and Documents, p. 103.
[10] ibid., p. 91.
[11] ibid., p. 40.
[12] ibid., p. 91.
[13] ibid., p. 106.
[14] op.cit., para. 2.12, p. 17.
[15] Submissions and Documents, p. 29.
[16] ibid., p. 22.
[17] ibid., p. 28.
[18] ibid.
[19] ibid., p. 30.
[20] op. cit., para. 2.46, p. 26.
[21] ibid., para. 2.13, p. 17.
[22] Standing and other Orders of the Senate,
August 1997, p. 107.
[23] op. cit., para. 2.13, p. 17.
[24] Submissions and Documents, p. 130.
[25] ibid.