CHAPTER 4 — PRIVILEGE 1988-1999 — ANALYSIS OF CONTEMPT MATTERS
Introduction
4.1 Since the passage of the Privileges Act and resolutions in 1987 and
1988, the workload of the committee has been considerable. Between its
establishment in 1966 and 1987, it tabled ten reports; from then till
the end of May 1999, it tabled a further 65 reports. As indicated in chapter
3, twenty-six of these reports, or 40 per cent of reports tabled from
1988, were right-of-reply matters. Two reports [1] produced since 1988 were general reports; five
[2] were what the committee has categorised
as advisory reports; and the remaining 32 have dealt with possible contempt
matters, with individual reports occasionally covering more than one type
of contempt or several references.
4.2 The matters considered by the committee have ranged in complexity
from what have turned out to be relatively trivial questions to matters
of grave concern, going to the heart of possible obstruction of the Senate
and senators in the performance of their duties. This chapter describes
thematically reports from the passage of the Privilege Resolutions of
25 February 1988 to 31 May 1999. A sequential resume of each Privileges
Committee report from the first, in 1971, to the 75th, in 1999, is included
at Appendix G.
Scope of privilege — advisory reports
Circulation of petitions
4.3 The complex and unusual nature of privilege cases was exemplified
by the first matter referred to the committee following the passage of
the Parliamentary Privileges Act 1987 and the Senate privilege
resolutions. What began in the Senate as a proposed specific reference
to the committee of the matter as a possible contempt metamorphosed during
an extensive debate to a general question as to whether the circulation
of a petition containing defamatory material is or ought to be privileged.
The committee concluded that the circulation was not so covered, and that
it should not be, although one committee member did not agree with this
view. It made the point that persons with specific grievances could themselves
petition the Senate and their petitions, if in order, could be presented
and thus would be covered by privilege. The committee considered it inappropriate
that privilege, whether absolute or qualified, should extend to the malicious
circulation of defamatory material purportedly to collect signatures for
a petition. [3]
Claims of executive privilege
4.4 Two reports [4] took up the theme of the
committee's 1975 report [5] on executive privilege.
Each derived from an executive failure to comply with an order of the
Senate to produce documents required by the Senate. As a result of one
such failure, in March 1994 the then Leader of the Australian Democrats,
Senator Kernot, introduced into the Senate the Parliamentary Privileges
Amendment (Enforcement of Lawful Orders) Bill, [6]
proposing that the Federal Court act as an independent arbitrator should
the executive government refuse a Senate demand for material. Like her
predecessors in 1975, the senator presenting the bill worked from the
basis that the Senate or its committees should not punish public servants
because they obeyed ministerial orders not to comply with demands. Thus,
the sanctions proposed in the bill related solely to the minister, a refusal
by whom to produce such information could result in a finding of contempt
of court.
4.5 Having taken public evidence from a range of experts, the committee
concluded that removing the responsibility to make such determinations
from the Senate to the courts was inappropriate. The committee considered
that ultimate power lay within the Senate and it was for the Senate to
assert that power. It also suggested that it might be possible for an
independent arbiter, such as a retired judge or a person such as the Auditor-General,
to examine material on behalf of the Senate.
4.6 During the course of the committee's consideration of the bill, the
Senate referred to it a further example of refusal to provide information,
on commercial confidentiality grounds, for examination in the context
of the bill. The committee's report, following a successful examination
by the Commonwealth Auditor-General on behalf of the Senate of documents
which had been the subject of commercial-in-confidence claims, noted that
the arbitration process had occurred in this case, and very successfully.
The bill was not proceeded with following the presentation of the committee's
report.
Reports on questions raised by other committees
4.7 The next advisory report of the committee was tabled in the Senate
in April 1998. [7] The report resulted from
a request by the Parliamentary Joint Committee on the National Crime Authority
(NCA) for advice as to whether that committee had gone beyond its terms
of reference in respect of a public hearing in June 1997. The NCA
Committee's terms of reference are established by the National Crime
Authority Act 1984. The Senate referred the question to the Privileges
Committee on 26 June 1997. The committee concluded that the
entire hearing was contrary to the statute under which the joint committee
is established, and, as it had done in respect of another matter relating
to the NCA Committee, [8] involving a question of contempt, again drew attention
to the extremely restrictive provisions of the NCA Act and suggested that
they should be reviewed.
4.8 The final advisory report is also the committee's most recent. [9]
This report derived from a request made in December 1998 by the Procedure
Committee that the Committee of Privileges consider the matter of the
execution of search warrants in senators' offices. In its report, tabled
on 30 March 1999, the committee made some observations on the question
whether parliamentary privilege provides an immunity from legal processes
for compulsory production of documents, and on the significance of search
warrants in the context of this question.
4.9 The committee noted that it did not need to reach a conclusive view
on these matters. Instead, it recommended that steps be taken to have
procedures for the execution of search warrants in senators' offices agreed
to by the President and the Australian Federal Police, along the lines
of a similar arrangement between the Australian Federal Police and the
Law Council of Australia. The committee observed that the police had voluntarily
adhered to such procedures in recent times.
Possible improper obstruction of senators or committees
4.10 Another category of possible contempts is the improper obstruction
of senators or committees in the exercise of their duties. In the three
matters, involving four references, on which the committee has reported
in recent years, the committee has continued the practice first established
in 1904 [10] of taking a robust view as to
whether senators have been improperly obstructed.
4.11 The first case, involving an attempt by representatives of the pornography
industry to influence members of the opposition, and of a select committee,
was dismissed by the Committee of Privileges, although it was critical
of the representatives. [11] In a second case,
the Committee concluded that the efforts of a property developer vigorously
to prosecute his own interests by threatening to sue a senator did not
in the particular case have the effect or tendency of substantially obstructing
the senator in the performance of his duties. [12] Similarly the committee concluded that certain
correspondence to a senator from lawyers representing a client who was
the subject of a finding of contempt against another person [13] did not constitute a threat against him in respect
of his activities as a senator. The committee also found that defamation
action taken by the client against the senator did not constitute a threat
against him in respect of his activities as a senator. [14]
Possible false or misleading evidence before committees
4.12 Eleven of the committee's reports in the period 1988-1999 related
in whole or in part to whether false or misleading evidence was given
to a Senate committee. Given the likely scope for differing interpretations
of the character of evidence, it is not surprising that the committee
has been unable, to date, to find contempt on this ground.
4.13 Two of the cases involving possible misleading evidence are considered
below in the context of the potentially more grave offence of possible
improper interference with witnesses. The first concerned a National Crime
Authority matter, discussed at paragraphs 4.56-4.59; the second occurred
as part of the committee's extensive inquiry into the Australian Customs
Service, discussed at paragraphs 4.63-4.65.
Matters raised by senators or committees
4.14 In an earlier case, a committee also examining estimates learnt
that three witnesses had travelled to Canberra and given evidence to a
select committee, although the relevant department maintained that it
had not committed funds for such a purpose. The Privileges Committee accepted
that the visit had been primarily for another reason and that, on the
evidence before it, false or misleading evidence had not been given and
nor was there any attempt to manipulate the evidence before the select
committee. [15]
4.15 In its next case, the committee considered a matter of possible
false or misleading evidence before a Senate committee examining defence
estimates. The nature of the evidence was such that it had the effect
of misleading senators interested in a highly specialised subject. The
Committee of Privileges found that no contempt had been committed, but
was critical of the public servant who gave the evidence, taking the view
that he should have been more forthcoming to the senators who had asked
the questions. [16] This is one of several instances in which the
committee, while not finding contempt, has been critical of unhelpful
or disingenuous responses to responsibly-posed questions by senators.
4.16 A second case involving defence estimates had the opposite outcome.
The Privileges Committee found that, far from deliberately giving false
or misleading information, the particular defence services officer had
been singularly assiduous in his attempts to provide a senator with responses
to questions asked. [17] The senator concerned
had been involved in the previous matter, which might perhaps have given
rise to mistrust when the answers, however well-intended and quickly provided,
appeared to the senator to be incomplete.
4.17 A further case relating to information before a committee examining
estimates involved the then Minister for Customs, Senator the Hon. Chris
Schacht, who was questioned about the diesel fuel rebate scheme. The minister
twice provided an incorrect answer with some hours elapsing between the
first time he gave the answer and the second. He was not corrected by
any of the Customs officers assisting him in the hearing. This matter
was referred to the committee while it was examining two other matters
also involving the Customs Service and one of which involved possible
misleading information (see paragraphs 4.63-4.65). The Privileges Committee
concluded that Senator Schacht's misleading of the estimates committee
was unintentional; it was suspicious of the silence of the Customs officers
present but on balance concluded that they too may not have known the
exact situation or might have believed that the minister had more recent
knowledge. Although the Committee concluded that no contempt should be
found in respect of any of the matters referred by the Senate, it was
highly critical of the lack of knowledge by public servants of their obligations
and responsibilities to the Parliament. In setting down briefly its view
of such responsibilities, it drew specific attention to the Government
Guidelines for Official Witnesses before Parliamentary Committees and
related matters, and expressed the hope that the recommendations of a
review of the Australian Customs Service would be implemented. [18]
4.18 The committee also drew attention to a resolution adopted by the
Senate in 1993 relating to the obligations of senior officers of departments
and agencies to undertake study of the principles governing the operation
of parliament. The committee's actions in relation to this matter, and
its concerns which have given rise to the resolution and its subsequent
reaffirmations, will be discussed further in chapter 5.
Matters raised by other persons
4.19 Most cases of false or misleading information are raised by senators
in their own right or on behalf of committees. However, persons interested
in the subject matter of inquiries can also feel strongly that witnesses,
or ministers acting on advice of other persons, have misled a committee
or the Senate. The first such instance is discussed at paragraphs 4.63-65.
The second involved a claim by a former senior officer of a Tasmanian
bank that false or misleading statements had been given to the Select
Committee on Public Interest Whistleblowing on a number of matters, including
the reasons for his no longer being employed by the bank. While the Privileges
Committee determined that the offending statements were not as helpful
as they might have been to the select committee, it found that they did
not constitute false or misleading evidence.
4.20 Another private citizen ensured that the Privileges Committee examined
the question of alleged misleading evidence deriving from evidence before
the same committee. The person alleged that the Queensland Criminal Justice
Commission (CJC) had misled the Select Committee on Public Interest Whistleblowing
by withholding certain documents. The Committee of Privileges found that
the Commission was unaware at the relevant time of the existence of the
documents in question, and therefore was not guilty of contempt. [19] The Queensland parliamentary committee with responsibility
for supervising the Criminal Justice Commission followed up the original
complaint, asking that the Privileges Committee again look at the question
of misleading evidence; the original complainant, aware the matter had
been referred to this committee, again made a submission which was in
effect an expansion of the submission previously made on his behalf and
published with the earlier report.
4.21 The committee, after considering the material provided by the Queensland
Committee and the original complainant, together with a response from
the CJC, found that the CJC had satisfactorily answered such allegations
as were identified in the material before it. [20] In its response the CJC sought that the Committee
of Privileges make a finding that:
absent genuine and substantive fresh evidence, it does not intend to
inquire again into any of the allegations contained in the documents
tabled on this occasion about false and misleading evidence being given
by officers of the Commission to the Senate Committee on Unresolved
Whistleblower Cases. [21]
4.22 The committee, while noting that it would like to give effect to
the plea, advised in its report that it could not accede to the CJC's
request, in that if the Senate refers a matter of privilege it must undertake
an investigation. It also observed that the most appropriate avenues for
examination of such matters are state institutions. Furthermore, it endorsed
the view of the President of the Senate in correspondence with the Queensland
Parliamentary Committee that, if that committee is sufficiently concerned
about the matters raised, it has a capacity to conduct its own inquiries.
4.23 The Committee subsequently received a further letter from the same
complainant. It considered and noted his views.
4.24 The final matter raised by persons with an interest in committee
proceedings involved evidence given by a witness from a statutory authority
to a committee examining estimates. Initially, two persons raised with
the President of the Senate questions about the accuracy of his evidence.
The President referred the letters, and subsequent correspondence, to
the relevant committee which, after considering the material, recommended
that the allegations of misleading evidence be referred to the Committee
of Privileges.
4.25 The Privileges Committee found that the effect of certain evidence
was to mislead the Senate committee, but that the witness did not intend
to do so. The committee, while concluding that under the circumstances
it should not find that a contempt had been committed, was highly critical
of both the officer and the statutory authority which he represented.
It made the point that the organisation had demonstrated over a considerable
period that it was inappropriately equipped to deal with its accountability
responsibilities to each House of the Parliament and its committees. This
conclusion led the committee to recommend that the Senate's long-standing
assertion of its right to hold statutory authorities accountable for their
activities be reaffirmed. [22]
Misreporting of committee proceedings
4.26 Another matter categorised as coming under the heading of false
or misleading information might more appropriately have been called a
misinterpretation of terms of reference of a committee. The editor of
a bulletin for shareholders and others who regarded themselves as having
had unsatisfactory dealings with the then Australian Securities Commission
editorialised about an inquiry by the Senate Legal and Constitutional
Affairs Committee into the way the Commission handled its inquiries. He
implied that the committee inquiry had been established for the purpose
of criticising the Commission and suggested that the Legal and Constitutional
Affairs Committee was `on side' with complainants. While the Committee
of Privileges found that there was indeed misrepresentation, it did not
find that a contempt had been committed. It did, however, recommend that
the Senate order that a report of the committee's concerns be placed in
the relevant newsletter, and warned the person against further misrepresentation.
[23] The Senate adopted the recommendation
and the resultant order was complied with.
Unauthorised disclosure of proceedings or documents of committees
4.27 In the period between February 1988 and May 1999, eleven cases of
unauthorised disclosure of committee proceedings, reports, evidence or
documents were referred to the Privileges Committee. It must be said that
the committee finds some difficulty in considering such questions. Until
recently it has followed the principle first established in 1984 that
it should not make a finding of contempt against, and punish, the publisher
of the improperly disclosed material without also making an attempt to
find the person who disclosed the matter. As the 1984 case indicates,
the committee treats Senate members of committees with the same severity
as it does any known publisher, in that it has made demands of them to
provide information, has taken sworn evidence and has made contempt findings
against them.
4.28 However, the process involved in examining these matters can sometimes
be frustrating and ineffectual. Persons receiving or publishing the material,
normally journalists, will not reveal their sources, often on grounds
of `journalistic ethics'. Similarly, it is unusual for a person who has
deliberately disclosed material to admit to the offence. Furthermore,
the most egregious offences have derived from proceedings of joint committees.
Both the Senate and the Committee of Privileges have recognised that it
is beyond power for the committee to inquire into actions of members of
the House of Representatives and of other legislatures. As a result the
committee has been inhibited in pursuing the question of unauthorised
disclosure as far as it would wish.
Discovery of sources of unauthorised disclosure
4.29 The committee has, however, had some success in dealing with improper
disclosure matters. For example, one early case involved a senator who
had given a premature briefing to the media on the content of a report,
in the expectation that the report would be presented to the Senate on
the day that the briefing was given. In the event, Senate delays meant
that the report was not tabled until the next day but information contained
in the report was widely and prematurely published. In this case, the
committee did not seek information from the relevant newspapers or journalists,
because the senator admitted to giving the premature briefing. The committee
decided that in the circumstances a finding of contempt should not be
made but recommended that the attention of all senators be drawn to their
obligations in respect of committee reports or proceedings. It further
recommended changes to the Senate's order of business to ensure that committee
reports may be tabled early. It also suggested guidelines for Senate committees
to follow in the investigation of possible unauthorised disclosures. [24]
4.30 In two further cases, the committee was able to discover the identity
of at least one party to the premature disclosure, and made findings of
contempt in each case. The first matter, reported in an omnibus 74th report
involving six separate matters of unauthorised disclosure referred to
the committee, led the committee to find that a senator had committed
a contempt in that he gave a public briefing to journalists at a press
conference on the content of a minority committee report before its tabling.
4.31 In the second case, the committee found that a contempt had been
committed by certain officers of a department in that they received and
retained a copy of a draft report of a committee without the authority
of that committee. It also found that a ministerial staff officer had
improperly disclosed the report but that responsibility for his actions
must rest with the minister. The committee was unable to find a contempt
against the minister directly, in the absence of conclusive evidence that
he was personally aware that the report was in the possession of the staff
member concerned. In the same report, the committee found that no contempt
had been committed in respect of two identified senators. The remaining
matters canvassed in the report are discussed at paragraph 4.39 below.
4.32 In tackling the general problem evidenced by the number of matters
of this nature, the committee also made general comments about its future
approach to unauthorised disclosure. These and other general matters going
to its operations will be discussed in chapter 5 of this report.
4.33 An earlier case involving public servants' possession of committee
documents without authority concerned the unauthorised release of a submission
to the Health Legislation and Heath Insurance Select Committee. The person
who had made the submission discovered that it was in the possession of
officers of the relevant public service department before the committee
had publicly released it. In reaching a conclusion that in the light of
the particular circumstances no finding of contempt should be made, the
Privileges Committee nonetheless took the view that submissions must remain
in the control of a committee, however innocuous those submissions might
appear to be to persons making or receiving them, until the committee
authorises their release. The committee recommended that all committees
should introduce mechanisms to reduce the likelihood of the inadvertent
release of documents. [25]
Undiscovered sources of unauthorised disclosure
4.34 A more characteristic example of the committee's `leak' inquiries
was its investigation of the publication in a major newspaper of information
relating to the proceedings of the Joint Standing Committee on Migration.
The Privileges Committee was unable to establish the source of the information,
and was unable to make a finding that there was an improper disclosure
of committee documents or proceedings. In making its report, the committee
advised the Senate it was hampered in its investigation of the matter
by the unwillingness of journalists to assist it. It reported also that
it regarded premature publication of information, or speculation possibly
based on inside information with the intentional effect of influencing
the outcome of a committee's deliberations, as being of considerable concern.
It went on to recommend that the issue of journalistic ethics arising
from the case be referred to the Senate Standing Committee on Legal and
Constitutional Affairs for consideration as part of that committee's media
reference. [26] That committee decided at the commencement of
the present parliament in 1998 not to pursue the matter further.
4.35 The matter of the unauthorised disclosure of an in camera submission
from a police officer to the Joint Committee on the National Crime Authority
was, and remains, in the Privileges Committee's view, the most serious
example of an improper act tending substantially to obstruct a committee
in the performance of its functions which it had encountered since the
passage of the Parliamentary Privileges Act 1987 and the Senate
privilege resolutions of 1988. The submission, which at no stage was authorised
for publication by the NCA Committee, was tabled in a state parliament.
4.36 The Committee of Privileges was unable to establish the source of
the improper disclosure, not least because of the constraints on its capacity
to examine members of the legislature responsible for publishing and referring
to the privileged documents. However, in view of the serious nature of
the improper disclosure, the committee found that it constituted a serious
contempt and recommended that, if the source of the improper disclosure
was subsequent revealed, the matter should be referred to it again with
a view to a possible prosecution for an offence under section 13 of the
Parliamentary Privileges Act 1987 — the only time to date
that the committee has made such a recommendation. [27]
4.37 A later possible improper disclosure matter referred to the committee
related to the proceedings of the Select Committee on the Dangers of Radioactive
Waste. The then Minister for Justice issued a press release which was
clearly based on private proceedings of the select committee. In raising
the matter of privilege, the chairman of the select committee made it
clear that he was not raising any question relating to the conduct of
the minister concerned, but rather was concerned with the unauthorised
disclosure of material on which the minister's press release was based.
4.38 Because the chairman subsequently advised the Privileges Committee
that the select committee had not been obstructed in its operations and
had itself been unable to determine the source of the disclosure, the
Committee of Privileges concluded that no question of contempt was involved.
However, in considering the matter, it decided to recommend that the procedures
previously recommended in its report relating to the possible unauthorised
disclosure of a report before a committee be formalised as a resolution
of the Senate. [28] The Senate adopted the
recommendation on 20 June 1996. [29]
4.39 The remaining two matters, which the committee included in its “omnibus”
74th report, involved the premature disclosure of the draft reports of
a Senate and a joint committee. The Committee of Privileges made the almost
customary findings that it had been unable to discover the source of the
premature disclosure, but found that a contempt had or was likely to have
been committed. [30]
Possible improper interference with persons providing information to
the Senate and committees
4.40 The committee continues to regard the protection of persons providing
information to the Senate, and in particular of witnesses before parliamentary
committees, as constituting the single most important duty of the Senate,
and therefore of the committee as its delegate, in determining possible
contempts. As a result all fifteen cases of possible intimidation reported
on to date have been considered with the utmost care and have resulted
in the most comprehensive inquiries which the committee has undertaken.
In six cases, [31] the committee has determined
that it was necessary to take evidence in public session, and in five
cases [32] has made a finding that a contempt
has been committed.
General
4.41 Two matters of possible interference with witnesses arose from the
inquiry into drug use in sport by the Senate Environment, Recreation and
the Arts Committee. In the first case, following one athlete's evidence
to that committee the owner of a shared house immediately evicted her.
The Committee of Privileges found that, because the requisite intention
to punish the witness specifically as a result of her evidence before
the committee had not been established, no contempt had been committed.
[33] The second matter involved a proposal
to publish a document claiming that false evidence had been given to a
Senate committee, with the intention of influencing the outcome of an
election for a sporting association position. Again the committee concluded
that no contempt of the Senate had been committed. [34]
4.42 The next general case of improper interference was referred to the
committee as a result of a report of the Senate Standing Committee on
Community Affairs. The report drew to the attention of the Senate complaints
which had been made to the secretary to the committee about a person who
allegedly had intimidated others because of evidence given to the committee
in respect of its inquiry into the implementation of pharmaceutical restructuring
measures. The case was unusual because the persons who had advised of
the possible intimidation did not respond to the Privileges Committee's
invitation to make submissions to it. Consequently, the committee had
no hesitation in concluding that no finding of contempt could or should
be made against the subject of the assertions. The committee expressed
some disquiet that a possible abuse of process might have been involved,
warning that it is possible for the committee to recommend that the Senate
take action to deal with any such abuse in the future. [35]
4.43 Another matter involved two persons who appeared before the Senate
Select Committee on Superannuation. Some months after they had given evidence
to the select committee about what they regarded as improprieties in the
management of a Queensland credit union, one of the witnesses had his
membership of the credit union, and that of his wife, terminated, while
the second witness was refused membership altogether. The committee concluded
that penalty and injury were undoubtedly caused to the two witnesses,
and the wife of one of them, but was unable to establish that this result
was on account of their having given evidence to the Superannuation Committee.
Although it determined not to make a finding that contempt had occurred,
the committee was critical of actions taken against the two witnesses.
[36]
4.44 While the committee's own deliberations on this matter were relatively
brief, it took a considerable time to determine, having been referred
to the committee on 16 December 1993, with the committee's report
being tabled on 17 October 1995. This inquiry illustrates one aspect
of the committee's work which is often not obvious to persons unfamiliar
with the processes relating to privilege. Most of the committee's information
is provided by the persons directly affected by the reference of the matter
and, in the interests of natural justice, the committee is obliged to
give reasonable opportunity for information to be provided and exchanged.
In the particular case, the committee awaited the outcome of certain investigations
in another jurisdiction before being able to finalise its report.
4.45 In contrast, a further matter considered by the committee took less
than four months to resolve. In accordance with its normal practice, the
Privileges Committee investigated the question of possible interference
with a witness who gave evidence before the Select Committee on Unresolved
Whistleblower Cases, by seeking submissions from the witness and from
a person referred to in the select committee's report. After examining
the witness's submission, the committee concluded that it did not provide
evidence to support his contention that reprisals and intimidation had
occurred on account of his giving evidence to the select committee. [37]
The committee emphasised in this case, as in other cases on which it has
made comment, that although it may conclude that penalty, injury or reprisal
has occurred, in order to find a contempt of the Senate it must be satisfied
that any such penalty or intimidation was as a result of evidence before
a parliamentary committee.
4.46 In two further cases, however, the committee has been able to make
a direct link between provision of information — to a senator for
use in the Senate — and a person's being penalised as a consequence.
The first, which also involved the committee in public hearings, is also
among the most far-reaching. The processes involved in these hearings
are discussed in chapter 5.
4.47 On 23 August 1995, the committee received a reference involving
threats of legal proceedings against both a senator and other persons.
The committee's conclusions relating to the senator are discussed in paragraph
4.11 above. It became clear to the committee on an examination of papers
and submissions sent to it that most other persons had not been penalised
as a result of Senate proceedings. However, one person against whom the
threat of legal proceedings was made and subsequently carried out was
a person who had been named in the Senate as a source of information by
a senator whom he had briefed orally on particular matters. The legal
proceedings involved actions for defamation.
4.48 In its 67th report, [38] presented on
3 September 1997, the committee found that a contempt had been committed
by a person who took legal action for defamation against the other person
because he provided information to a senator for use in proceedings in
the Senate. Owing to the unusual nature of the finding, which the committee
observed came about because the person acted on legal advice, it decided
not to recommend any penalty against the offender.
4.49 This report is significant, in that it identifies circumstances
in which the provision of information to a senator may be protected by
the Senate's contempt jurisdiction.
4.50 On 4 September 1997 the committee received another reference relating
to possible reprisals against a person, for giving documents to a senator
who tabled them in the Senate. The reference itself came about as a result
of the President's receipt of further documents, which the President laid
before the Senate. They contained a complaint by an academic that a university
had initiated disciplinary proceedings against him because of his earlier
communication to the senator.
4.51 The committee found that the university had committed a contempt
of the Senate in taking disciplinary action against the person concerned,
and duly notified this adverse finding to the university before reporting
to the Senate, as the privilege resolutions require it to do. The university
thereupon withdrew its action against the academic. Because of the withdrawal,
the committee recommended in its report to the Senate that no penalty
be imposed.
4.52 The committee was also critical of the academic concerned, although
it considered that it should not pursue the question whether a matter
of contempt was involved. In addition, it drew the attention of all senators
to their duty to read all aspects of material they are tabling and to
take responsibility for it. [39]
Possible contempts involving public officials
4.53 Primary sources of advice and information available to senators
generally, and particularly in relation to their service on parliamentary
committees, are public officials at Commonwealth, state and territory
levels. It may therefore seem unsurprising that several matters of contempt,
involving ministers and their ministerial advisers, senior public servants
and statutory office holders, have come before the Committee of Privileges.
[40] At another level, however, the continuing
series of matters involving public officials who, by the nature of their
profession, should be more aware than most of parliamentary principles,
has been of concern to the committee, as evidenced in its reports. The
committee's observations and recommendations to address the problem are
discussed in chapter 5.
4.54 What has caused the committee its greatest worry has been the persistence
of representation of public officials in cases involving possible interference
with, or penalty imposed on, persons giving information to the Senate
and parliamentary committees.
4.55 Two of the early matters involved the then Aboriginal Development
Commission (ADC). The first involved suggestions that reprisals had been
taken against the Chairman and the General Manager of the ADC as a result
of their having given evidence to the Senate Select Committee on the Administration
of Aboriginal Affairs. [41] In the following
year, a further matter involving a former senior officer of the Commission
was referred to the committee, alleging that he had been adversely treated
as a result of his giving evidence to the same committee. [42] After an extensive inquiry into the first matter,
the committee reported that, because of the particular circumstances,
no contempt was committed or should be found. However, the committee made
clear its view of the responsibilities of members and officers of statutory
authorities, although it did not make a formal recommendation. In the
second case, the committee found that a contempt was committed, although
it did not regard the contempt as serious, and recommended that in the
light of the apologies made no further action should be taken.
4.56 One of the more time-consuming matters dealt with by the Privileges
Committee involved the chairman and members of the National Crime Authority
(NCA), all of whom were senior lawyers, and their attempts to prevent
another member giving information to the joint parliamentary committee
established under the National Crime Authority Act to supervise the NCA's
activities. One of the NCA members was further accused of giving misleading
evidence to the supervisory committee. After several attempts to receive
submissions from the various persons involved, the committee held two
public hearings to examine the matter. The committee itself, and all except
one witness, were represented by counsel. The unrepresented witness, by
then the former chairman of the NCA, threatened to take the Committee
of Privileges to the High Court to challenge the committee's ruling that
he was required to answer questions. The committee adjourned the hearings
to enable him to do so, but he did not pursue the action.
4.57 Several features of this inquiry were unusual. In the first place,
all the persons concerned in the matter were senior lawyers working at
the highest levels of a statutory authority which had a direct relationship
with a parliamentary committee. Secondly, the basis of the attempts by
such members of the NCA to prevent another of their members from giving
evidence to the NCA Committee was their belief that the secrecy provisions
of the National Crime Authority Act overrode the protections and requirements
of parliamentary privilege.
4.58 The committee found that other members of the NCA had placed restrictions
on the member and that, when challenged, one member's denial that this
had occurred had the effect of misleading the NCA Committee. However,
the Privileges Committee determined that it should not find that a contempt
had been committed. It was nonetheless concerned about the failure of
such highly qualified persons at such senior levels to understand their
responsibilities and obligations to the Parliament and its committees,
particularly given their organisation's direct relationship with a parliamentary
committee. The Privileges Committee pointed out that all witnesses before
parliamentary committees, particularly persons representing statutory
authorities with a close association with a monitoring committee, are
under an obligation to take their responsibilities to such committees
seriously.
4.59 In summary, the committee was highly critical of the behaviour of
the NCA members who had, despite the question of privilege having been
brought specifically to their attention, ignored the implications of their
actions. It also recommended that ambiguous sections of the National Crime
Authority Act should be clarified. [43]
4.60 The committee was similarly concerned when it received a reference
of a second matter of possible intimidation, again involving officers
at senior levels of a statutory authority. This time, the reference involved
the then Australian Securities Commission (ASC), an organisation
also in a special relationship with the Parliament through the Joint Statutory
Committee on Corporations and Securities, which had been established to
scrutinise its activities. ASC officers imposed a penalty on a junior
officer by, inter alia, charging him under the Public Service Act for
improper conduct, as a result of his having given evidence in a private
capacity to the Corporations and Securities Committee.
4.61 The Committee of Privileges found that a contempt had been committed,
although one committee member would not have made such a finding in respect
of one of the persons involved. While the committee concluded that its
inquiry process was sufficient penalty as not to warrant the Senate's
taking any action other than to endorse its finding of contempt, the committee
was uncomplimentary about the officers and the organisation. Furthermore,
in the light of its previous experience with the NCA, it expressed its
grave concern at the `astonishing ignorance within both organisations
of officers' rights and obligations in respect of Parliament generally
and their own parliamentary committees in particular'. [44]
4.62 The committee also noted that the ASC officers acted on the advice
of the Australian Government Solicitor's Office but went on to point out
that this did not absolve them from the responsibility to ensure that
their actions accorded with well-established rules governing relations
with the Parliament. The committee emphasised that `in this case, as in
the case of the National Crime Authority, it was dealing with senior officers
of a regulatory agency with a direct relationship with a parliamentary
committee who, it is not unreasonable to suppose, would not be prepared
to accept ignorance of the law as an excuse for offences against the complex
legislation which they administer'. [45]
4.63 Another contentious reference of possible interference with a witness
also involved a senior statutory office holder, the then Comptroller-General
of Customs. It was alleged that the Comptroller-General and other officers
of the Australian Customs Service (ACS) had penalised a witness before
another joint statutory committee, the Joint Committee of Public Accounts,
on account of evidence he had given before that committee. The same witness
further alleged that the Comptroller-General and officers had given,
or had caused ministers to give in the Senate and its committees, false
or misleading information in respect of a number of matters.
4.64 The complexity of the issues made this inquiry the most difficult
of all that the committee has considered, involving a comparative examination
of some 25 000 pages of documentation. The committee was further
hampered in its investigations by the time which had elapsed between the
alleged intimidation and the alleged misleading information and the reference
of the matter to the Committee of Privileges. Having analysed the issues
involved, the committee concluded that the witness had been threatened
and that the threat constituted a serious contempt. It was, however, unable
to discover the source of the threat. It also concluded that the witness
had suffered penalty or injury but could not establish whether this was
as a result of his giving evidence to the Joint Committee of Public Accounts.
Finally, it concluded that the answers and evidence given to the Senate
and committees, although less helpful than they might have been, did not
constitute contempt.
4.65 In its report, the committee concentrated on the defensive culture
of the ACS, which the committee considered had caused much of the difficulty
in dealing with a substantial number of persons and scrutiny organisations
including the Public Accounts Committee and successive Senate committees
examining the ACS estimates. The committee also noted that a total restructure
of the ACS was being implemented at the time of its report and expressed
optimism that the changes would lead to a breakdown of the long-standing
culture. It further recommended that the Senate Economics Legislation
Committee continually scrutinise the implementation of the recommendations
contained in the review of the Customs Service, [46]
and linked the current report to another highly critical report on the
behaviour of customs officers before the committee examining ACS estimates
at that time. [47] As with the NCA and ASC
reports, the committee made wide-ranging comment on and expressed concern
about organisational weaknesses which it found during its inquiry.
4.66 The committee's next reference involving possible penalty to a witness
arose from a newspaper report which alleged that a House of Representatives
minister had refused to appoint a person to a position with the Australian
Industrial Relations Commission because the person had been critical of
government policies in evidence to the then Senate Employment, Education
and Training Committee. Before the matter was referred to the committee,
the Leader of the Government in the Senate made a statement to the Senate,
on behalf of the minister concerned, which formed the basis of the minister's
later submission to the committee.
4.67 In accordance with its normal practice the committee invited responses
from the person who had allegedly been refused the appointment and also
from a person referred to in the minister's statement, seeking confirmation
of the points made. All confirmed the substance of the statement. The
committee concluded that, in the light especially of the person's categorical
denial that he was penalised or injured as a result of his giving evidence
before the Employment, Education and Training Committee, it should not
make a finding that a contempt had been committed. [48]
4.68 It is noteworthy that the committee was able to examine the actions
of the member of the House of Representatives because he was acting in
his ministerial capacity, not as a member. This understanding of the committee's
capacity to examine contempt also enabled it to examine a later matter
of possible ministerial intervention in other committee proceedings. [49]
4.69 Another substantial inquiry into possible interference with a witness
concerned a doctor at the Northern Territory government-administered Royal
Darwin Hospital, who gave evidence to a Senate committee on the hospital's
state of preparation to deal with a nuclear accident. Immediately following
the doctor's evidence to the committee, the Northern Territory Minister
for Health issued a press statement which concluded with the words `if
[the doctor concerned] does not like the situation, I have no doubt that
Royal Darwin Hospital would be able to scrape by without him'. The doctor
was interviewed the next day for a Resident Medical Officer position for
the following year and was initially not offered a position — a situation
which the committee was advised was virtually unknown at the hospital.
4.70 The committee took public evidence on this matter. The hearings
in Canberra were aborted when counsel representing the Northern Territory
Government produced substantial additional documentation shortly before
the committee hearings, thus preventing both the committee and the other
witnesses from considering it properly. After taking further public evidence
in Darwin from the doctor concerned, officers from the hospital and ministerial
staff, the committee concluded that, while the doctor was clearly threatened
and penalties were imposed, the evidence showed that the threat and penalties
could not be causally linked with his giving evidence to the Senate committee.
[50]
4.71 This report built on comments in previous reports about the pattern
of behaviour developed by institutions to deal with perceived troublemakers.
The committee drew particular attention to its previous endorsement of
views expressed in the report of the Senate Select Committee on Public
Interest Whistleblowing. The committee can but hope that its consistent
observations, derived from its parliamentary case law experience, will
have a positive effect on organisations, particularly when they are public
institutions.
4.72 The final report involving possible interference with persons giving
information to the Senate or a committee involved the question whether
the Attorney-General or any other person sought improperly to influence
a statutory officer to refrain from giving evidence to a parliamentary
committee. The matter was referred on 2 October 1997.
4.73 Briefly, it was alleged that the Attorney-General and his officers
had sought improperly to dissuade the President of the Australian Law
Reform Commission (ALRC) from presenting a submission and appearing before
the Parliamentary Joint Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund, in respect of the Native Title Amendment
Bill 1997. Following consideration of written material from or in relation
to all persons concerned, the committee concluded that no contempt was
committed, because the Attorney-General and his officers had not sought
by improper means to influence the evidence of the ALRC, but had acted
in ignorance of the parliamentary dimension of the matter. It also recommended
that the Senate:
- refer ambiguities in the powers and functions of the ALRC to the Legal
and Constitutional Legislation Committee
- reaffirm earlier resolutions of the Senate, based on the recommendation
of the committee, that heads of departments and other agencies and senior
executive officers of the Public Service should undertake study of parliamentary
principles, to avoid committing offences through ignorance
- require the tabling, by 1 December 1999, of reports by departments
on how they have complied with the resolution.
4.74 The committee presented its report to the Senate on 30 June 1998.
The Senate adopted the report in the present Parliament, on 1 December 1998.
Footnotes
[1] Senate Committee of Privileges, 35th
report, PP 467/1991; 62nd report. PP 108/1996.
[2] Senate Committee of Privileges, 11th
report, PP 46/1998; 49th report, PP 171/1994; 52nd report,
PP 21/1995; 70th report, PP 68/1998 and 75th report,
PP 52/1992.
[3] Senate Committee of Privileges, 11th
report, PP 46/1988.
[4] Senate Committee of Privileges, 49th
report, PP 171/1994; 52nd report, PP 21/1995.
[5] See paragraphs 1.22-1.27.
[6] Journals of the Senate, 23 March
1994, p. 1460.
[7] Senate Committee of Privileges, 70th
report, PP 68/1998.
[8] Senate Committee of Privileges, 36th
report, PP 194/1992
[9] Senate Committee of Privileges, 75th
report, PP 52/1999
[10] See paragraph 1.6.
[11] Senate Committee of Privileges, 43rd
report, PP 389/1993.
[12] Senate Committee of Privileges, 53rd
report, PP 44/1995.
[13] See paragraphs 4.46 to 4.49.
[14] Senate Committee of Privileges, 67th
report, PP 141/1997.
[15] Senate Committee of Privileges, 14th
report, PP 461/1989.
[16] Senate Committee of Privileges, 15th
report, PP 461/1989.
[17] Senate Committee of Privileges, 26th
report, PP 438/1990.
[18] Senate Committee of Privileges, 46th
report, PP 43/1994.
[19] Senate Committee of Privileges, 63rd
report, PP 360/1996.
[20] Senate Committee of Privileges, 71st
report, PP 86/1998.
[21] ibid., pp. 9-10.
[22] Senate Committee of Privileges, 64th
report, PP 40/1997.
[23] Senate Committee of Privileges, 44th
report, PP 390/1993.
[24] Senate Committee of Privileges, 20th
report, PP 461/1989.
[25] Senate Committee of Privileges, 22nd
report, PP 45/1990.
[26] Senate Committee of Privileges, 48th
report, PP 113/1994.
[27] Senate Committee of Privileges, 54th
report, PP 133/1995.
[28] Senate Committee of Privileges, 60th
report, PP 9/1996.
[29] Standing Orders and Other Orders of
the Senate, February 1999, p. 108.
[30] Senate Committee of Privileges, 74th
report, PP 180/1998.
[31] Senate Committee of Privileges, 17th
report, PP 461/1989; 21st report, PP 461/1989; 36th report,
PP 194/1992, 42nd report, PP 85/1993; 55th report,
PP 134/1995 and 67th report, PP 141/1997.
[32] Senate Committee of Privileges, 21st
report, PP 461/1989, 42nd report, PP 85/1993; 50th report,
PP 322/1994; 67th report PP 141/1997 and 72nd
report, PP 117/1998.
[33] Senate Committee of Privileges, 17th
report, PP 461/1989.
[34] Senate Committee of Privileges, 30th
report, PP 258/1991.
[35] Senate Committee of Privileges, 37th
report, PP 235/1992.
[36] Senate Committee of Privileges, 57th
report, PP 183/1995.
[37] Senate Committee of Privileges, 58th
report, PP 476/1995.
[38] Parliamentary Paper No. 141/1997.
[39] Senate Committee of Privileges, 72nd
report, PP 141/1998.
[40] See paragraphs 1.24-25, 1.39, 4.13-18,
4.20-24, 4.31 and 4.33.
[41] Senate Committee of Privileges, 18th
report, PP 461/1989.
[42] Senate Committee of Privileges, 21st
report, PP 461/1989.
[43] Senate Committee of Privileges, 36th
report, PP 194/1992.
[44] Senate Committee of Privileges, 42nd
report, PP 85/1993, p. 3.
[45] ibid., p. 42.
[46] Senate Committee of Privileges, 50th
report, PP 322/1994.
[47] Senate Committee of Privileges, 46th
report, PP 43/1994. And see paragraph 4.17.
[48] Senate Committee of Privileges, 51st
report, PP 4/1995.
[49] See paragraphs 4.72-4.74.
[50] Senate Committee of Privileges, 55th
report, PP 134/1995.