CHAPTER TWO
CONSIDERATION OF REFERENCES
Introduction
2.1 The six references before the committee are as follows:
(1) Whether any person, other than a member of the House of Representatives
who is not a minister, and other than in the course of proceedings in
the House of Representatives, dealt with two documents of the Parliamentary
Joint Committee on Native Title and the Aboriginal and Torres Strait
Islander Land Fund in a manner that had not been authorised by the Committee.
(27 October 1997)
(2) Whether there were disclosures of the report, including the minority
report, of the Joint Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund on the Native Title Amendment Bill
1997, not authorised by the Committee, before the presentation of the
report to either House of the Parliament. (29 October 1997)
(3) Whether there was an unauthorised disclosure of any advice to the
Parliamentary Joint Committee on the National Crime Authority, and,
if so, whether any contempt was committed in that regard. (26 November 1997)
(4) Whether there was an unauthorised disclosure of the report of the
Environment, Recreation, Communications and the Arts References Committee
on the Telstra (Dilution of Public Ownership) Bill 1996, and, if so,
whether any contempt was committed in that regard. (26 November 1997)
(5) The unauthorised disclosure of a draft report of the Economics
References Committee referred to in the report by the committee of 10
March 1998. (12 March 1998)
(6) Whether there was an unauthorised disclosure of the report of the
Joint Committee on the National Crime Authority on the committee's third
evaluation of the National Crime Authority and, if so, whether any contempt
was committed by that disclosure. (2 July 1998) [1]
Reference (1) — Possible unauthorised disclosure of documents
of the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund
Background
2.2 This matter, and the second matter discussed below, both involve
the Native Title Committee (NTC). They were referred to the Committee
of Privileges on 27 and 29 October 1997, respectively. The first,
referred on the motion of Senator Chris Evans at the request of Senator Nick Bolkus,
involved two documents. The documents in question were a copy of a facsimile
transmission from a research officer on the committee to an officer of
the Australian Law Reform Commission (ALRC), and the second was a letter
from the secretary of the committee to the Chair. These two documents
had been tabled in the House of Representatives on 22 October 1997 by
the Attorney-General, the Honourable Daryl Williams AM QC, when commenting
on matters which were the subject of another inquiry on which this committee
has reported, relating to possible improper interference with potential
witnesses before the NTC. [2]
2.3 The documents appeared to have been sent by facsimile by the then
Chair of the NTC, Mr Warren Entsch MP, to Senator the Honourable
Nick Minchin, at the time Parliamentary Secretary to the Prime Minister
on native title matters. Senator Minchin in turn appeared to have given
the facsimiled information to the Attorney-General. The tabled documents
indicated that they were transmitted by Mr Entsch to Senator Minchin
at 4.30pm and 4.37pm on 1 October 1997.
2.4 An unusual feature of this inquiry, as reflected in the terms of
reference, was that it involved a member of the House of Representatives,
who chaired the NTC. The claim was made that the Chair had transmitted
the documents without the authority of the committee. A second complication
for this committee was that the evidence of the Attorney-General's having
dealt with the documents came from his disclosure of those documents in
the House of Representatives. As the President pointed out in her statement
giving precedence to refer the matter to the committee, the Senate cannot
inquire into the behaviour of members of the House of Representatives,
other than ministers when acting in that capacity, or into proceedings
in the House of Representatives. [3]
Conduct of inquiry
2.5 The committee wrote to all relevant persons in respect of both inquiries.
The two responses of relevance to the question of unauthorised disclosure
of the two documents are from Mr Warren Entsch, as Chair of
the NTC, and Senator the Hon. Nick Minchin. Mr Entsch advised that
the faxed document of 12 September had been authorised by the committee
for publication on 30 September. He also stated that the second document
was “a covering letter of 1 October” which did “little
more than list the (published) attachments”. [4]
The committee notes that the letter in question was a response by the
secretary to the NTC to Mr Entsch's request for “details of
all contacts between the committee and the ALRC regarding the inquiry
into the Native Title Amendment Bill 1997”, and, in addition to including
several attachments, the letter also gave details of all oral communications
between the secretary and the ALRC. While all the attachments were authorised
for release at the meeting of 30 September, the accompanying letter
was not similarly authorised.
2.6 Senator Minchin's response to the committee advised that the NTC
had not followed the procedures laid down in the resolution of June 1996
concerning investigations of unauthorised release [5]
and suggested that “perhaps the matter should not be considered further
by the Committee of Privileges until the joint committee determined that
there had been substantial grievance in the handling of the relevant documents”.
[6] It is not clear to the Committee of Privileges
how the minister was aware at the time he wrote the letter that proper
procedures had not been followed. In acknowledging that the letter from
the secretary to the Chair had been provided to his office, the minister
noted that the letter “records PJC authorisation for the public release
of documents, including the facsimile message of 12 September, which
is the subject of the Senate referral”. [7]
The committee observes that this latter document was not the only document
referred to it under the terms of reference of 27 October as an example
of possible unauthorised disclosure.
Conclusion
2.7 While on the evidence before it the Committee of Privileges has concluded
that the second of the two documents, that is, the letter of 1 October
1997 from the secretary to the Chair of the committee, was transmitted
without the authority of the NTC, it does not consider this of such significance
as to warrant a finding that a contempt has occurred.
2.8 In the first place, the committee cannot make a finding of contempt
against a member of the House of Representatives, who sent both documents
to Senator Minchin. In any case the first of these documents was clearly
authorised for release, while all the attachments to the second document
had also been released. The committee has concluded that it is not appropriate
to make any such finding against the minister, who could not reasonably
have been aware from the documents that he was a recipient of one document
which had not been authorised for release.
2.9 Finally, the Committee of Privileges agrees with Senator Minchin
that the matter of improper release could properly have been considered
by the NTC before being initiated by Senator Bolkus as a direct reference.
In this regard it is noteworthy that the second matter, to be discussed
below, was considered by the NTC in accordance with the resolution. However,
the Committee of Privileges, having examined the matter, does not consider
that an investigation under the resolution now by a newly-constituted
NTC would be useful or justified.
FINDING
2.10 The committee has found that no contempt of the Senate has been
committed in respect of this matter.
Reference (2) — Possible premature disclosure of the report
of the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund
Background
2.11 The second reference concerns improper disclosure of both the majority
and the minority reports of the NTC.
2.12 On Saturday 25 October, and on Monday 27 October 1997 — the
day on which the NTC report on the Native Title Amendment Bill 1997 was
due to be tabled — at least two newspapers gave what turned out to
be an accurate account of some small part of the majority report, and
a considerable number of conclusions of the minority report. [8]
Two members of the committee, Senators Ferris and Abetz, raised with the
President the question of the premature disclosure, notably of the minority
report. [9] Their letter asserted that photocopies
of the minority report had been provided to members of the press gallery,
various journalists appeared to have been privately briefed on its content,
and at least three articles, two of which were in the one newspaper, indicated
that the authors had some knowledge of the content of the minority report.
In addition, two members of the committee, Senator Bolkus and Mr Melham MP,
held a press conference based on the minority report, before the NTC report
was tabled.
2.13 According to Senators Ferris and Abetz, the press conference began
shortly after 4pm and was televised throughout Parliament House. Senators
Ferris and Abetz also referred to a section of the minority report which
they claimed disclosed a decision of a private meeting of the NTC which
had not been made public. The President gave precedence to the matter
of privilege arising from the letter on 28 October 1997 and
the matter was referred to the committee on 29 October.
Conduct of inquiry
2.14 In this case the Committee of Privileges wrote, not only to the
members of the relevant committee but also to the authors of the articles
to which attention had been drawn, and their editors. No response was
received from The Australian Financial Review, while the editor of The
Canberra Times wrote also on behalf of the journalist concerned. [10]
All members of the NTC responded either to the Committee of Privileges
or to the NTC, with the exception of Mr Melham. In this regard the
committee reminds the Senate that it is unable to consider and judge the
actions of a member of the House of Representatives. All other members,
except Senator Bolkus, advised that they had not been involved in any
improper disclosure.
Responses to committee's invitation
2.15 The letter from the then Chair of the Committee, Mr Entsch, set
out the following unauthorised disclosures which gave rise to a decision
of that committee to seek the referral of the matter to the Committee
of Privileges:
(1) The apparent press-boxing or passing to journalists of some or
all of the contents of the Third Minority Report at about 10.00am on
Monday, 27 October 1997. Individual members of the Committee (Senator
Abetz, Senator Ferris and Mr Entsch) had this confirmed to them
by journalists.
(2) The apparent disclosure of some or all of the contents of the Minority
Report at the media conference, held by Senator Bolkus and Mr Melham,
which was broadcast live on Channel 12 within Parliament House at about
4.00pm on 27 October.
(3) The disclosure of some of the contents of the Minority Report in
the Financial Review on 25 October (`Wik accord signals Senate
impasse'; p.4) and in the Canberra Times on 27 October (`Wik
law to halt work worth millions: report' p.2).
(4) The apparent disclosure to Ms Margo Kingston of the Sydney Morning
Herald and to other journalists of correspondence to the Committee
from the Kimberley Language Resource Centre (13 October) and from
Mr Peter Yu (24 October); and the replies from the Committee Secretary
to both (27 October).
(5) The apparent disclosure to Ms Margo Kingston of the Sydney Morning
Herald and to other journalists of the first draft of the Chair's
Report on the Native Title Amendment Bill 1997.
(6) The disclosure at p.21 of the Minority Report on the Native Title
Amendment Bill 1997 of the voting on a Committee decision in relation
to the ALRC which took place at a private meeting. [11]
The response reached the following conclusion:
The Committee believes that the cumulative effect of these apparent
unauthorised disclosures constitutes a substantial and serious interference
with its work in that it creates a perception that the Committee cannot
maintain confidentiality and is unable to appropriately conduct its
affairs, particularly in relation to sensitive issues. [12]
2.16 The response also included as an attachment a sequence of events
leading to the decision of the committee to seek the reference, and concluded:
- Unlike all other members, neither Mr Melham nor Senator Bolkus
has written to advise whether they have any knowledge of the unauthorised
disclosure.
- Notably, Mr Melham and Senator Bolkus conducted the press conference
on 27 October prior to the tabling of the Committee report. [13]
2.17 In his response to the Committee of Privileges, Senator Bolkus admitted
to briefing the journalists on the minority report, indicating that he
had placed an embargo on the document until the time after which he had
been advised the report would be tabled, but that the embargo had expired
prior to the tabling of the report. Senator Bolkus responded that he did
not consider that the disclosure had materially affected the operation
of the committee and also advised that he resolved to disclose the minority
report only after he had been told by members of the press gallery “that
they had received and were also about to receive briefings about the Majority
Report from members of the Government”. Senator Bolkus expressed
his regret that he briefed the journalists “subject to an embargo
which stated a fixed time”. He concluded by indicating that “consistent
with Government practice in the tabling of documents such as the Budget
Papers” he would ensure that “an embargo is placed on the documents
such that they cannot be released until tabled”. [14]
Comment
2.18 Senator Bolkus has claimed that he disclosed the minority report
on the basis that authors of the majority report intended to brief the
press gallery. The committee is unable to determine one way or the other
whether any such briefing was proposed or undertaken, although it observes
from Mr Entsch's letter that an early draft of the chair's report had
previously been disclosed to journalists. [15]
The committee has also been unable to establish when the briefings on
the minority report began: clearly, the bulk of The Australian Financial
Review article published on Saturday, 25 October, described the minority,
rather than the majority, findings, while the other two newspaper articles
available to the committee addressed only the minority report.
2.19 In a further letter to the committee, following its advice to Senator
Bolkus of its finding in respect of the matter referred, Senator Bolkus
assured the committee that “neither [he] nor [his] staff were responsible
for providing this information to the Australian Financial Review”.
Indeed, he went on to say:
[I]t was the appearance of this article, together with other statements
made to me, that led me to believe that the Government itself was proposing
to disclose the Report prior to its tabling. [16]
2.20 In his initial response Senator Bolkus had advised the committee:
First, I do not deny that I briefed journalists in relation to the
Minority Report on the Bill prior to the tabling of the Report in the
Parliament. However, I note that I placed an embargo on the documents
in question until a time after which I had been advised the Report would
be tabled. I note that due to delays in the Government's legislative
program, the embargo expired prior to the Report being tabled. [17]
2.21 The committee observes that an embargo on a press conference that
was televised throughout Parliament House was unlikely to be effective.
It also appears that the minority report had, as claimed, been given to
at least one journalist, who contacted Senator Abetz at approximately
10am for comment.
Conclusion
2.22 As discussed above, the committee is unable to examine, or make
a finding in respect of, the actions of Mr Melham as the other participant
in the press conference. It has also been unable to discover the source
of the earlier disclosures of the draft report, the minority report, and
private committee documents, to various news media. So far as the disclosure
of proceedings of the NTC in the minority report is concerned, the committee
regards this disclosure as akin to the publication of in camera evidence
which is authorised by Standing Order 37(2), and believes that similar
processes should have been followed. It has made a recommendation in Chapter
One to bring private committee proceedings within the ambit of the standing
order [18] but has decided that a finding of
contempt on this question is not appropriate.
2.23 The committee cannot help but conclude, however, that Senator Bolkus
has committed a contempt of the Senate. His statement that he was motivated
by the assumption that the majority report was the subject of media briefings
does not excuse his own actions. As a senior senator, he is, or should
be, aware of the implications of improper disclosure of committee documents.
The only virtue of his behaviour is that he improperly disclosed the report
in the most public way imaginable, by holding a televised press conference
within Parliament House. His overt actions contrast with the more common
behind-the-scenes leaking to a selected few.
2.24 As recounted at paragraph 2.17, Senator Bolkus also suggested in
his original response that, in future, and “consistent with Government
practice in the tabling of documents such as the Budget Papers”,
he would “ensure that an embargo is placed on the documents such
that they cannot be released until tabled”. [19]
When conveying its finding to Senator Bolkus, the committee advised him
of its view that: “Senator Bolkus' proposed action in future, based
as it is on government practice to brief under embargo before a report
is released to the Senate, is, however, entirely unsatisfactory and would
be visited with more serious consequences if he were to pursue this course”.
2.25 In his response to this advice, Senator Bolkus has expressed concern
that the committee's statement:
implies that this practice is acceptable when done by the Government
but not when done by non-Government senators. If this was the Committee's
intention then I submit that it is inappropriate as it implies an unequal
application of the principle to Government and non-Government Senators.
If this was not the Committee's intention then I believe that the intent
of the Committee could be better expressed. [20]
2.26 The committee makes the point that control of government documents
is not within its purview. The committee's concern is solely with reports
of parliamentary committees. Any senator, whether government or non-government,
who improperly releases a report of a parliamentary committee before its
tabling is potentially subject to the same finding as the committee has
made in respect of Senator Bolkus.
FINDING
2.27 The committee has found that Senator Nick Bolkus has committed a
contempt of the Senate. It observes, however, that the improper disclosure
by Senator Bolkus was made overtly, and he took responsibility for his
actions in doing so.
Reference (3) — Possible unauthorised disclosure of advice to the
Parliamentary Joint Committee on the National Crime Authority
Background
2.28 On 23 October 1997 Senator Stephen Conroy spoke during
the adjournment debate, [21] responding to
a matter raised in the Senate by a member of this committee concerning
the use of parliamentary privilege. [22] In
the course of his response, Senator Conroy quoted an opinion sought by
the Parliamentary Joint Committee on the National Crime Authority (NCA
Committee) from Professor Jim Davis, Professor of Law at the Australian
National University who, as Senator Conroy commented, “regularly
works for a number of parliamentary committees”. [23]
2.29 On 17 November, on behalf of the NCA Committee, Senator Ferris and
Senator McGauran wrote to the President seeking that the matter of Senator
Conroy's disclosure of the advice be given precedence as a matter of privilege,
as the disclosure had not been authorised by the committee. [24]
The President gave precedence to the matter of privilege on 19 November
and it was duly referred on 26 November.
Conduct of inquiry
2.30 The Committee of Privileges wrote to the then Chair of the NCA Committee
and Senator Conroy, seeking their comments on the reference. In particular,
the committee sought from the NCA Committee confirmation as to whether
that committee had decided whether the disclosure had a tendency substantially
to interfere, or actually interfered, with its work. This advice was sought
specifically to conform with the terms of the resolution of the Senate
of 20 June 1996, to which reference has been made earlier in this
report.
2.31 Given the nature of the NCA Committee, it requires probably a higher
level of confidentiality than other committees of the Parliament. This
appears to be reflected in the response by the NCA Committee to this committee's
request for comment. [And see comment on Reference (6) below.] The Chair
advised as follows:
At the commencement of the Committee's operations in this Parliament
it adopted the following resolution:
On 28 August 1997, after concern was expressed about the relationship
between this resolution and the Committee's decision to publish all
of the non-confidential submissions to its inquiry into the operations
of the NCA, the Committee resolved:
So as to put the matter beyond doubt, the Committee resolved that correspondence
to the Committee which is not a “submission” directed at the
terms of reference of an inquiry for which submissions have been publicly
sought, only be authorised for public release by the Committee on a
case-by-case basis, with such conditions on its release as the Committee
might deem appropriate. [25]
2.32 The Chair of the NCA Committee informed this committee that the
advice from Professor Davis had been received and considered by the NCA
Committee at its morning meeting on 23 October 1997, that is,
before its disclosure by Senator Conroy in the adjournment debate that
same evening. There was no resolution that it be published and nor was
the issue raised. The letter concluded:
[T]he Committee takes the view that any unauthorised disclosure of
its activities is likely to have the effect of lessening the extent
to which it will receive full and frank advice in the future. [26]
thereby leading the NCA Committee to conclude that the improper disclosure
had a tendency to interfere with its proceedings. Senator Conroy has not
responded to the Committee of Privileges' invitation to comment.
Comment
2.33 The context of Senator Conroy's speech must be taken into account
before the committee reports its findings. Over a period of some months,
Senator Conroy had tried to produce, and read into the record, certain
documents relating to a National Crime Authority prosecution of Mr John
Elliott. Following submissions from and questioning of Mr Elliott
at an NCA Committee hearing on 12 June 1997, Senator Conroy was precluded
from asking certain questions of Mr Elliott, at least one of the
bases being that he was reading from a transcript of illegally obtained
evidence. The extracts from the document quoted by Senator Conroy
in the adjournment debate challenged this basis of exclusion. The whole
question of the proceedings of the NCA Committee meeting was the subject
of the 70th report of the Committee of Privileges, tabled on 6 April 1998.
[27]
2.34 It is not surprising that Senator Conroy was eager to place on the
record, in the Senate chamber, an alternative view to the one suggested
by a member of this committee. The problem which arose, however, was that
he did not have authority for release.
Conclusion
2.35 Given that the NCA Committee had so recently discussed the processes
for publication of committee documents, the Committee of Privileges is
concerned that Senator Conroy should have revealed the document without
authority. It is not as if the NCA Committee had discussed or contemplated
withholding the material from publication. If this had been the case,
and given the desirability of the senator's having the opportunity to
place a view on the public record, improper disclosure after a decision
possibly even to suppress the document might have been understandable
if not excusable (and see the recommendation of the committee to deal
with this eventuality at paragraph 1.54). It appears, however, that there
was no attempt to prevent Senator Conroy using the document by a deliberate
decision to suppress it for that purpose. The committee suspects that,
in his eagerness to reveal publicly an authoritative evaluation of the
issue which had concerned him over a considerable period, Senator Conroy
did not advert to the NCA Committee resolution.
FINDING
2.36 Although Senator Conroy was unwise in disclosing the document without
the authority of the National Crime Authority Committee, the circumstances
do not warrant a finding that a contempt has been committed.
Reference (4) — Possible unauthorised disclosure of the report
of the Environment, Recreation, Communications and the Arts References
Committee
Background
2.37 On 24 November 1997, Senator the Honourable Chris Schacht raised
with the President the question of a possible unauthorised disclosure
of the report of the Environment, Recreation, Communications and the Arts
(ERCA) References Committee on the Consideration of the Telstra (Dilution
of Public Ownership) Bill 1996. The reference was unusual in that it was
generated nearly 12 months after the report had been tabled in the Senate.
The reason for the delay was because information that the report of the
committee had been improperly disclosed was not forthcoming until a departmental
response was made to a question asked during the 1997/98 budget supplementary
hearings of August 1997, almost a year after the report's tabling.
2.38 The full question, asked on 21 August 1997, as recorded and responded
to by the department on 8 September 1997, is as follows:
Sub-Program 4.1 Telecommunications and Postal Policy
Senator Schacht (Hansard page No. 117) asked the following Question-on-Notice
I want assurance that the majority report was not provided to either
your office or to DoCA to help draft the minority response or the critique.
Answer:
The minority report was prepared by the Coalition senators and Coalition
advisers. At an early stage, an outline of the minority report was prepared
and circulated, including to the Department.
In July/August 1996 the Department provided information for inclusion
in the minority report based on that outline.
This was done without access or reference to any draft of the majority
report.
After that point, the Department had no substantive involvement in
the preparation of the minority report. The Department was not involved
in reviewing drafts of the majority report and preparing responses to
that report for inclusion in the minority report.
Copies of pre-publication draft of the majority report, dated Wednesday
4 September 1996 (4.10 pm), have been located in the Department. This
was received to assist the Department to prepare briefing for the Minister,
for his response to the majority report when it was tabled on Monday
9 September.
Successive drafts of the majority report were provided to the Coalition
senators and reviewed by Coalition senators and advisers in the course
of preparation of the minority report. [28]
2.39 Following the departmental response to Senator Schacht's question,
on 13 November 1997 the ERCA Legislation Committee reconvened
for supplementary hearings. On the basis of the response, Senator Schacht
began to question the minister, noting that a question of privilege might
be involved. The minister suggested, and it was agreed, that it would
be more appropriate to follow up the matter at a reconvened hearing. [29]
2.40 At that hearing, which was held on 20 November 1997, the minister
advised as follows:
A copy of a draft — indeed I think there were successive drafts
of the majority report — were made available by the secretariat
to a member of my staff for the purpose of assisting in the drafting
of the minority report. A final copy of the majority report was made
available to a member of my staff and that draft was provided to the
department on 4 September. The draft was made available to the
department in order to enable it to provide a ministerial brief in relation
to matters which might arise subsequent to the tabling of the report,
which actually occurred on 9 September. The department made no comment
to anyone on the majority report prior to publication of the report
and the department made no use of the majority report in assisting in
the preparation of the minority report. Indeed, the last input into
that occurred on 20 August, which is roughly two weeks prior to
receiving the only copy of the majority report. [30]
2.41 In the course of the hearing, the minister advised that the then
secretary to the Senate committee was asked by a committee member to provide
the majority report to the minister's office. The then secretary to the
committee advised the ERCA Legislation Committee as follows:
I was instructed at the time by the Deputy Chair of the Committee,
Senator Michael Baume, to provide a copy of the Committee's report to
the research officer assigned to assist the Government members,
[a ministerial staff member], so that the minority
report of the Government members of the Committee could be finalised.
[31]
Conduct of inquiry
2.42 After the matter had been referred to the Committee of Privileges,
the Chair wrote to all members of the references committee at the time,
including the Honourable Michael Baume, now Australian Consul-General
in New York; to the then committee secretary; to the minister; to the
member of the minister's staff named in the letter of 20 November
by the former secretary to the committee, and to the secretary to the
Department of Communications and the Arts. The membership of the committee
for the consideration of the Telstra (Dilution of Public Ownership) Bill
1996 was as follows:
Senator Meg Lees (from 2 May 1996; Chair from 8 May 1996)
Senator John Tierney (from 2 May 1996; Deputy Chair from 20 June 1996)
Senator Sue Knowles (from 19 June 1996)
Senator Kate Lundy (from 29 May 1996)
Senator William O'Chee (from 19 June 1996)
Senator the Honourable Margaret Reynolds (from 2 May)
Senator the Honourable Chris Schacht (from 2 May 1996)
2.43 The then Senator Michael Baume was a member of the committee for
the duration of the inquiry and was Deputy Chair for a significant part
of that period, including the crucial time when the report was in preparation.
Several other senators were participating members, but given the nature
of this committee's inquiries it did not pursue the matter with those
members.
Responses to committee's invitation
2.44 Specifically, the committee wrote to Senator Meg Lees as Chair of
the ERCA References Committee, to seek that committee's views on the question;
a response was received on the committee's behalf from Senator Lyn Allison,
her successor as Chair. Senator Allison advised that in October, following
the departmental response of September 1997 concerning the unauthorised
disclosure, the committee followed the procedures laid down by the resolution
of the Senate of 20 June 1996. She stated:
that on that occasion the disclosure did not interfere directly with
the work of the majority of the Committee because at that stage, the
majority report of the Committee had already been finalised for tabling.
The minority report however, was likely to be improperly advantaged
by unauthorised access to the draft of the majority report. This is
a matter which your Committee may wish to consider. [32]
She concluded:
Although the matter is no longer current, the committee views such
breaches very seriously and it is salutary to remind all Senators of
the prohibitions on release of documents contained in Standing Orders
37 and of the care that must be taken with documents received by their
office on the basis of confidentiality. [33]
2.45 The minister responded to the committee on behalf of both his staff
and his department, giving the following account of the department's acquisition
of the “draft majority report”:
- [A] member of my staff received a copy of a draft of the majority
report dated 4 September 1996 (4.10pm) directly from the Committee
Secretariat;
- it was passed to the Department for internal use only to assist in
briefing me to respond when the report was tabled in the Senate on 9
September 1996;
- it was not used by the Department for any other purpose, including
the purpose of assisting in the preparation of the minority report;
- there was no public disclosure by my office or the Department of the
contents prior to tabling on 9 September 1996; and
- the actions which were taken did not involve the essential elements
of an offence against the Senate as set out in section 4 of the Parliamentary
Privileges Act 1987, as they did not constitute conduct which `amounts,
or is intended or likely to amount, to an improper interference with
the free exercise by a House or a committee of its authority or functions'.
[34]
2.46 The minister concluded as follows:
As part of the normal processes of government both my office and the
Department were closely involved throughout the process of preparation
and consideration by Parliament of the Telstra (Dilution of Public Ownership)
Bill 1996. That process included the drafting of the Bill, preparing
debate briefing, preparing submissions and appearing before the Senate
Committee which inquired into the bill, and assisting Government Senators
in the preparation of the minority report. The roles played by staff
of my office and of the Department reflected their respective responsibilities
and were directed at supporting and enhancing proper consideration of
the issues by Parliament and in particular the Senate. [35]
2.47 The most expansive source of information on the material was the
Consul-General, former Senator Michael Baume. He explained the involvement
of the ministerial staff member, including in the anticipatory preparation
of the minority report in the absence of the majority report the final
version of which was not made available till Wednesday, 4 September.
The Consul-General advised that he came to Canberra on that Wednesday,
knowing that there was a deadline of midday on 5 September to complete
the minority report, so that both the majority and the minority reports
could be printed in time. As he had to return to Sydney in the afternoon,
he asked the ministerial staff member to handle the final arrangements
with the secretary to the committee so that the minority report could
take into account any further contributions from committee members.
2.48 The Consul-General advised the committee that:
As far as I am aware, the information on which we based our minority
report was available either from evidence presented to the committee
or from public sources; to my knowledge there was no direct involvement
by the department in the drafting of the report, although I presume
[the ministerial staff member] would have sought advice from departmental
officers in providing answers to our questions of fact raised on several
occasions during the drawn-out process of majority committee drafts.
[36]
He added:
However, at no stage did I instruct [the ministerial staff member]
to disclose the contents of the majority report to anyone; on the contrary,
I advised [him] that the report must remain confidential until after
tabling in the Senate. I asked [the secretary to the committee] to reinforce
this prohibition when providing [the ministerial staff member] with
the final version of the majority report and I understand this was done.
If the majority report was provided to any unauthorised person, it was
done despite instructions to the contrary. [37]
2.49 The then secretary to the committee clarified one element of his
letter of 20 November 1997, indicating that he could not confirm
the specific circumstances under which the member of the minister's staff
received a copy of the majority report, but advised that copies were distributed
only to those who were authorised to receive them, that is, the committee
members and their designated staff. [38]
2.50 Having considered all the responses, the committee was not satisfied
that the response provided by the minister on behalf of his department
comprehensively covered the actions of the department. Accordingly the
committee wrote again, directly to the departmental secretary, seeking
his comment on the matters raised. The response did not add anything of
substance other than to confirm that the department had received from
the minister's office a copy of the majority report and, it appears, made
no attempt to return it as improperly received. [39]
Comment
2.51 The committee is disturbed at a number of features of this reference.
It is clear to the committee that the secretary to the references committee
was under instructions to give both successive drafts of the minority
report, and the draft majority report when it became available, to the
minister's office, so that the minister's staff member could assist the
government minority senators in the preparation and processing of the
draft, and have access to departmental resources in doing so.
2.52 The committee disputes the assertion of the minister, in his response
to its invitation to comment, that “assisting Government Senators
in the preparation of [a parliamentary committee] report” could ever
be regarded as “part of the normal processes of government”.
[40] The committee considers the practice of
using the resources of the executive, both within a minister's office
and within the department, to assist government senators in the preparation
of a Senate committee report to be inappropriate. It is inevitable that
the distinction between Senate committee deliberations and direct government
influence on the outcome of those deliberations will become blurred. The
committee is not surprised, therefore, that what it regards as a serious
matter of privilege involving both the ministerial office and the department
should ultimately have arisen.
2.53 Secondly, former Senator Michael Baume has advised the Committee
of Privileges that as Deputy Chair of the References Committee he had
made clear to the ministerial staff member that under no circumstances
should the majority report be disclosed to anyone until after tabling.
[41] The committee has not established whether
such instructions were flouted with the knowledge of the minister himself,
but the minister bears responsibility for operations within the office,
and for the staff member's necessarily close consultation with the department
to establish a factual basis to assist in the preparation of the government
minority report.
2.54 Equally disturbing for the committee is the role of the department.
The source of the improper disclosure is clear: it was given to the department
by a ministerial staff member. The problem for the department, however,
is that it should have refused to receive the document. If it did not
do so through ignorance, this is bad enough; if it retained the document
knowing of the existence of parliamentary rules concerning such documents,
the officer or officers responsible would be in serious contempt of the
Senate. It is not clear from the documents before the committee which
explanation is to be preferred and, in this instance, it does not propose
to press the matter any further. The committee understands that senior
officers of the department have since undertaken a course entitled Parliament,
Privilege and Accountability, conducted by the Department of the Senate;
maybe it would have been wiser for them to have undertaken such a course
sometime earlier, as they might well have been aware of the possible implications
of receiving and retaining the draft report.
Conclusion
2.55 The committee has concluded that a contempt of the Senate has occurred,
within both the minister's office and his department, and expresses its
grave concern at the improprieties involved in the whole process leading
up to the tabling of a highly contentious report. It notes, however, that
no-one appears to have prematurely published the report to the media or
elsewhere and thus any damage caused by the improper dissemination of
information has been minimised.
FINDINGS
2.56 The committee finds as follows:
(a) In the absence of conclusive evidence that the Minister for Communications,
the Information Economy and the Arts was personally aware that the confidential
majority report of the Environment, Recreation, Communications and the
Arts References Committee had come into the hands of a ministerial staff
member, the committee is not able to find that the minister has committed
a contempt of the Senate;
(b) whilst the ministerial staff member in the office of the minister
improperly disclosed the majority report in the course of his duties,
responsibility for his actions must rest with the minister and it would
not be appropriate to make a finding of contempt against the staff member
personally;
(c) that a contempt has been committed by an unidentified officer,
or officers, of the Department of Communications and the Arts in that
they received and retained a copy of the majority report without the
authority of the committee;
(d) that the disclosure did not interfere directly with the work of
the majority report of the committee because it had already been finalised
for printing; and
(e) that the evidence does not establish whether and if so in what
respect those preparing the minority report were improperly advantaged
by unauthorised access to the draft majority report.
Reference (5) — Possible unauthorised disclosure of a draft report
of the Economics References Committee
Background
2.57 On 7 December 1997 an article appeared in the Weekend Australian
newspaper quoting from the Senate Economics References Committee's draft
report, Promoting Australian Industry. [42]
This disclosure was unauthorised. At that time the Senate had commenced
its summer recess; however, references committee members contacted the
then Chair of the committee, Senator Jacinta Collins, about the article,
“concerned at the breach of standing orders and of the trust that
normally pertains to procedures in dealing with matters still before the
Committee.” [43]
2.58 Senator Collins advised that in accordance with procedures laid
down by the Order of the Senate of June 1996 she immediately wrote to
all members and the secretariat asking if they could shed any light on
the disclosure. She received written or oral responses from all committee
members and the secretariat advising that they had no knowledge of how
the draft report contents were disclosed.
2.59 In making the committee's report on the matter to the Senate, Senator
Collins commented that:
This unauthorised disclosure is damaging to the Committee's work, occurring
at a time when the Committee had almost finalised its deliberations
and amidst publicity surrounding the approach government would take
to industry policy. [44]
2.60 The report also stated that the references committee had determined
that the matter should be raised as a matter of privilege. The matter
was raised with the President under Standing Order 81, it was given precedence
and was referred to this committee on 12 March 1998.
Conduct of inquiry
2.61 The Committee of Privileges, in turn, sought advice from the members
and secretariat of the Economics References Committee, and has received
helpful and constructive comments in response. Specifically, in addition
to advising that no staff of the secretariat can explain the disclosure,
the secretariat advised that the Economics References Committee has reviewed
its procedures in relation to the handling of draft reports. All copies
circulated will now bear a confidential stamp on each page and the Chair
has emphasised the need to maintain security over drafts in the possession
of members. [45]
2.62 One member of the committee, who filled a Senate casual vacancy
a short time before the matter arose, noted in his response to the Committee
of Privileges what this committee regards as two significant matters:
That Committee documents are not clearly stamped Confidential
and could be inadvertently passed on by staff or left lying in an open
area of the office rather than appropriately secured. [46]
This first matter has now been addressed by the committee secretary,
and this committee believes that if it is not already the practice of
other committees they may consider following the Economic References Committee's
example.
2.63 Secondly, he pointed out that there was a lack of briefing available
at the time of his coming to the Senate regarding the handling of committee
documents, and went on to suggest that:
a small handbook be produced setting out matters such as confidentiality
of documents for advice of Senators. [47]
The committee accepts this recommendation and will draw it appropriately
to the attention of Senate staff.
2.64 In this case, the committee did not write to the journalist concerned
in the disclosure or his editor, for reasons previously stated in relation
to earlier references (see paragraph 1.9). While it is unfortunate that
the unauthorised disclosure of the draft report occurred at a critical
time in the Economics References Committee's deliberations, the Committee
of Privileges is satisfied that, even if a contempt were to be found,
it would be on a lesser scale of seriousness than the earlier matters
on which it has made findings of contempt.
Conclusion
2.65 The committee is not in a position to make a finding of contempt
against any person. The committee commends the process followed by the
Economics References Committee and draws the documents associated with
this reference to the attention of other committees. That the disclosure
was serious is beyond dispute, as demonstrated by the Economics Committee
in seeking a referral of the matter for examination. This case, too, draws
attention to the potential destruction of the relationship of trust between
committee members, as pointed out in the letter from the Chair of the
Economics Committee.
FINDING
2.66 The committee finds that a contempt of the Senate has been committed
by a person or persons who disclosed a draft report of the Economics References
Committee, but is unable to discover the source of the improper disclosure.
Reference (6) — Possible unauthorised disclosure of a draft report
of the National Crime Authority Committee
Background
2.67 This matter, the second relating to the National Crime Authority
Committee (NCA Committee) and the last reference received by this committee
in the previous Parliament, was referred on 2 July 1998, as the committee
was completing its report on the earlier references. It is timely, because
it exhausts virtually all the variations on the theme of improper disclosure
of committee reports.
2.68 On 6 April 1998, the morning that the report by NCA Committee on
its evaluation of the NCA was due to be tabled, an article appeared in
The Age, giving an accurate account of the outcome of the committee's
deliberations. The report was unanimous but, as the committee has observed
in Chapter One, [48] it became newsworthy as
much because of its early disclosure as its content.
2.69 On behalf of the NCA Committee the Chair, Senator Ferris, sought
by letter of 25 June 1998 that the unauthorised disclosure be given
precedence as a matter of privilege. [49] In
giving the matter precedence on 30 June 1998, the President advised the
Senate that appropriate procedures to discover the source of the unauthorised
disclosure had been followed, but no other documentation was provided.
[50] Details of the reasons for proposing the
reference of the matter were given during debate in the Senate on 2 July
1998. [51] The committee observes that, had
details of the NCA Committee's reasons for seeking precedence been given
in a letter to the President, or in a report to the Senate, it is likely
that no debate would have been required before the matter was referred
to it.
Conduct of inquiry
2.70 Given the approach the Committee of Privileges has taken to the
other inquiries the subject of this report and noting, from both the President's
statement to the Senate and debate on the motion to refer the matter of
privilege, that the NCA Committee had followed the appropriate procedures,
the committee has decided, in the present case, itself not to investigate
the matter further. What is clear, from the report in The Age and the
NCA Committee's decision to refer the matter to the Committee of Privileges,
is that, unlike the Native Title Committee report discussed earlier, [52]
the unauthorised disclosure was made surreptitiously.
Comment
2.71 The committee has noted from the debate [53]
that the actual act of disclosure in this case, whether deliberate or
inadvertent, did not substantially obstruct the NCA Committee in the performance
of its functions in respect of the tabling of the particular report. The
disclosure does, however, illustrate the point the committee has made
in Chapter One and in respect of Reference (5) above, that the operations
of a committee are dependent on a relationship of trust between committee
members. Unauthorised disclosure places the relationship in jeopardy.
FINDING
2.72 The committee finds that it is likely that a contempt of the Senate
has been committed but in view of the circumstances of the case it does
not propose to take the matter further on this occasion.
Summary of findings in relation to all matters referred
2.73 The committee has found that contempts have been committed in respect
of all references except references (1) and (3). Details of all the committee's
findings are at paragraphs 2.10, 2.27, 2.36, 2.56, and 2.66.
2.74 In accordance with paragraph 2(10) of the Privilege Resolutions,
the committee sent its findings to Senator Bolkus (reference (2)) and
the Minister for Communications, the Information Economy and the Arts,
Senator Alston (reference (4)). Senator Bolkus responded to the committee's
invitation to make submissions on its finding, and his comments have been
taken into account in this report.
Penalties
2.75 For the reasons discussed in Chapter One, the committee has decided
that no penalty should be imposed on any person against whom a finding
of contempt has been made in this report, and recommends to the Senate
accordingly.
Robert Ray
Chairman
Footnotes
[1] For full terms of reference, see Journals
of the Senate, pp. 2717, 2759, 2991, 3779 and 4162, Volume of Documents,
pp. 1, 27, 58, 64, 110 and 126.
[2] 73rd Report, Parliamentary Paper No. 118/1998.
[3] Senate Hansard, 23 October 1997,
p. 7797, Volume of Documents, p. 3.
[4] Volume of Documents, pp. 18-22.
[5] See report, para.1.28.
[6] Volume of Documents, p. 17.
[7] ibid.
[8] ibid., pp. 30-32.
[9] ibid., p. 29.
[10] ibid., pp.33-35.
[11] ibid., p. 48.
[12] ibid., p. 49.
[13] ibid.
[14] ibid., p. 52.
[15] ibid., p. 48.
[16] ibid., p. 56.
[17] ibid., p. 52.
[18] See report, para. 1.54.
[19] Volume of Documents, p. 52.
[20] ibid., p. 56.
[21] ibid., p. 61.
[22] Senator Helen Coonan, Senate Hansard,
24 September 1997, p.6833.
[23] Volume of Documents, p. 61.
[24] ibid., p. 60.
[25] ibid., p. 63.
[26] ibid.
[27] 70th Report, Parliamentary Paper No. 68/1998.
[28] Volume of Documents, p. 68.
[29] ibid., p. 69.
[30] Volume of Documents, p. 70.
[31] ibid., p. 78.
[32] ibid., p. 91.
[33] ibid.
[34] ibid., pp. 80-81.
[35] ibid., p. 81.
[36] ibid., pp. 86-87.
[37] ibid., p. 87.
[38] ibid., pp. 83-84.
[39] ibid., p. 92.
[40] ibid., p. 81.
[41] ibid., p. 87.
[42] ibid., p. 114.
[43] ibid., p. 113.
[44] ibid., p. 112.
[45] ibid., p. 117.
[46] ibid., p. 115.
[47] ibid.
[48] See report, para. 1.40.
[49] Volume of Documents, p. 128.
[50] Senate Hansard, 30 June 1998, p.
3824, Volume of Documents, p. 127.
[51] Volume of Documents, pp. 130-134.
[52] See Reference (2).
[53] Volume of Documents, p. 130-134.