CHAPTER 5 — PRIVILEGE 1988-1999 — COMMITTEE'S METHODS OF OPERATION
Conduct of committee inquiries
5.1 Most of the questions concerning the operations of the Committee
of Privileges have arisen in connection with the committee's inquiries
into possible interferences with witnesses and other persons providing
information to the Senate and its committees. Consequently, the first
part of this chapter describes the committee's proceedings with particular
reference to these inquiries, although its general methods of operation
apply to all questions of contempt referred to it.
5.2 The committee's first action has been to advise persons who the committee
is immediately aware may be affected by a reference from the Senate that
a certain matter has been referred to it, and, inter alia, to invite written
submissions on the matter. As the committee has pointed out in all correspondence,
the purpose of seeking a written submission is to enable the committee
to gain basic information from the persons involved in the matters before
it. In other words, it regards its first task as being to undertake an
inquiry into the circumstances surrounding the reference, and thus, in
all cases so far, has performed the inquiry function of any normal Senate
committee.
5.3 In performing this function, however, the committee must afford to
all persons special protections provided under the privilege resolutions.
The resolutions affecting the committee's proceedings are resolutions
1 and 2, which are included at Appendix B to this report. Where the second
resolution is inconsistent with the first, the second resolution prevails
to the extent of the inconsistency. In practice, the committee has undertaken
all its inquiries on matters involving contempt, and on general matters,
as nearly as possible consonant with the procedures outlined in resolution 1,
because it, like most Senate committees, regards its primary function
as being to investigate matters referred to it. However, it has always
at the outset drawn the attention of persons possibly affected by allegations
of contempt to the provisions of resolution 2.
Legal representation
(a) for persons affected by matters referred to committee
5.4 Features of the second resolution include the automatic right of
a person to be accompanied by counsel if he or she so wishes, if a hearing
is held. The committee must give the person all reasonable opportunity
to consult counsel. The committee may authorise counsel to examine any
witnesses, and must afford that right to a person or that person's counsel
if any evidence is given containing any allegation against, or reflecting
adversely on, the person. As a consequence persons affected by matters
before the committee have used lawyers at any or all stages of the committee's
inquiries, regardless of whether public hearings have been involved.
(b) for Committee of Privileges
5.5 The committee has found it necessary to appoint counsel to assist
it in relation to only two matters, both of which it considered soon after
the passage of the Parliamentary Privileges Act 1987 and the Senate
Privilege Resolutions of February 1988. In each case the committee appointed,
with the approval of the President, an experienced counsel, who is now
a judge of the Supreme Court of New South Wales, to assist it. In respect
of the first inquiry, he provided written advices. While the committee
envisaged that he might also advise it during the course of public hearings,
in the event it was able to make findings based on the papers before it,
and no public hearings ensued. In relation to the second matter, he assisted
the committee both in preparing briefings and advices, and through his
presence at the two public hearings which the committee conducted.
Public hearings
5.6 Although public hearings may be conducted either on the initiative
of the committee or in response to requests from persons who are subject
to potential findings of contempt, such hearings have in practice been
rare, and have been conducted on the initiative of the committee. Of the
39 matters of potential contempt referred to the committee since 1988,
only six have involved public hearings, with a seventh hearing being conducted
in respect of a bill referred to the committee. Not surprisingly, given
the gravity with which the committee views possible improper interference
with persons providing information to the Senate and its committees, all
six of the contempt hearings have involved these matters. The hearings
have been arranged as follows:
(a) all persons affected by the matter before the committee were permitted
to be accompanied by counsel;
(b) each witness was heard by the committee on oath or affirmation;
(c) opening personal statements were permitted;
(d) each witness, or his or her counsel, was permitted to examine other
witnesses in relation to written and oral evidence;
(e) each witness, or his or her counsel, was given the opportunity of
adducing further evidence or suggesting other witnesses for examination
by the committee; and
(f) closing personal statements, or statements by counsel on behalf of
their clients, were permitted.
The full outline of the arrangements, as sent to the persons involved
in the sixth case, is at Appendix F.
5.7 In each case, the committee has been concerned to ensure that the
proceedings have been conducted with as little formality as possible,
within the constraints imposed by resolution 2, and in the spirit of inquiry
rather than as quasi-judicial proceedings. It may be that in future the
committee will perceive the need for more formal proceedings; given, however,
the serious nature of all the matters before it and the way in which it
has been able to deal with them under existing procedures, the committee
is optimistic that the procedures adopted so far will continue to provide
a blueprint for future operations.
Notification of committee's findings
5.8 Resolution 2 requires the committee, in the event that an adverse
finding is to be made against a person, to acquaint the person of the
finding to enable the person to make further submissions to the committee,
which must take any such submissions into account before making its report
to the Senate. The committee has interpreted this provision broadly, so
that most persons who might not be subject to an adverse finding but are
subject to adverse committee comment have been offered the opportunity
to make comments before the committee reports to the Senate.
Senate proceedings
5.9 When the committee reaches its conclusions on a matter, it reports
its findings, with or without recommendations, to the Senate, which in
turn decides whether to endorse the findings and adopt the recommendations,
if any.
Reimbursement of legal costs
5.10 Although the committee has itself used counsel sparingly and only
in relation to its earlier proceedings, it accepts that persons who might
be the subject of a contempt finding could feel the need to have early
access to legal advice. It does, however, express its concern that persons
affected by its inquiries have incurred unnecessary expenditure on legal
representation. In four of the six cases which have resulted in public
hearings, the cost of legal representation was met by the taxpayer, while
in two cases persons with legal representation were responsible for their
own costs. Several other cases which did not require public hearings have
involved legal representation.
5.11 Under Privilege Resolution 2(11), the committee is empowered to
recommend to the President reimbursement of costs of legal representation
to witnesses before the committee, as follows:
The Committee may recommend to the President the reimbursement of costs
of representation of witnesses before the Committee. Where the President
is satisfied that a person would suffer substantial hardship due to
liability to pay the costs of representation of the person before the
Committee, the President may make reimbursement of all or part of such
costs as the President considers reasonable. [1]
5.12 The committee wishes to reaffirm the view taken in its 35th report
that, as a general principle, it is disinclined to exercise its power
to recommend reimbursement of costs of representation of witnesses before
the committee. The resolution requires the President to be strict in administering
the reimbursement provision, and the committee regards itself as obliged
to assist the President in making the determination. The committee accepts
the right of all witnesses to be assisted by counsel, and acknowledges
that such a right is rendered nugatory if persons are unable to afford
to exercise it. The committee emphasises, however, that only in the exceptional
circumstances provided in resolution 2(11) can reimbursement of legal
costs be agreed to and, in determining whether to make a recommendation
to the President, will apply strictly the prescribed criteria.
5.13 It acknowledges the inevitability, recognised by privilege resolution
2(4) which gives all witnesses before the committee a right to be assisted
by counsel, that those witnesses would choose to exercise that right if
it were in practice available to them. When funding is open-ended in respect
of one of the parties, this can lead to a perception of structural unfairness.
The committee believes, however, that its procedures have ensured that
persons without access to legal representation have not been disadvantaged.
It makes the point that, in three of the six cases which have resulted
in public hearings, one of the parties appearing before the committee
did not have legal representation, and this did not seem to cause detriment
to the person's case. The committee draws attention to its own obligation
to protect the rights of all persons who appear before it.
Committee's sources of advice
5.14 This report has already mentioned that the committee has appointed
counsel to assist it on two occasions. The primary source of advice, however,
in keeping with the traditions of committees of this nature, has been
the Clerk of the Senate. He has provided the committee with 20 written
advices, most of which have been published as part of the records of individual
inquiries. These advices have often involved more general comment. For
example, the Clerk has addressed the scope of privilege, with particular
reference to whether information given by a person to a senator, for purposes
of or incidental to the transacting of business of a House or of a committee,
should be covered by parliamentary privilege; he has provided useful commentary
on court judgments in the United States of America, reinforcing the committee's
views on the need to protect such information; and has also analysed of
the scope of parliamentary privilege as interpreted by the New South Wales
courts. In addition he has produced for the committee's information two
memoranda dealing with judicial developments in a general context.
5.15 The committee has welcomed these documents as a useful addition
to knowledge on the subject, and has consolidated both the published advices
and the two memoranda in a separate volume tabled with this report, to
make available in an easily accessible form the body of Senate literature
on subjects which the committee regularly considers.
5.16 As well as papers by the Clerk, the committee has from time to time
received unsolicited views from various bodies and individuals on aspects
of individual inquiries. These have usually been published as part of
the relevant proceedings. The most significant involved exchanges of correspondence
between the Queensland Law Society, the Law Council of Australia, lawyers
advising one of the participants in an inquiry, the President of the Senate
and the committee on a question as to whether proceedings of the committee
infringed the sub judice doctrine. The committee appeared to satisfy all
interested parties that its proceedings did not impinge upon court proceedings.
[2]
5.17 On one occasion, for the purposes of its only inquiry into a bill,
the Parliamentary Privileges Amendment (Enforcement of Lawful Orders)
Bill 1994, the committee advertised for submissions in accordance with
normal Senate committee processes, and heard evidence from all who responded.
[3]
5.18 Certain other matters arising from the committee's constant stream
of references are of general application, and are thus briefly discussed
in the hope that they will assist other committees in the conduct of their
own inquiries.
Participation of members of committee in certain inquiries
5.19 A full account of the committee's first dealings with this matter
is contained in the 35th report. [4] After considering the Clerk's advice on the question,
the committee concluded that `it was a matter for the Senator concerned,
and ultimately the Senate, whether he or she should sit on an inquiry.'
In that report it commented that it `regard[ed] as wise [the Clerk's]
caution against too ready an acceptance of the misleading analogy with
the rules and practices of the courts when Senators are considering the
question of their participation in Senate or committee proceedings'.
5.20 Since the committee's pronouncement, two senators have disqualified
themselves from participation in committee deliberations, the first in
respect of a reference relating to the National Crime Authority [5]
and the second in relation to a reference regarding unauthorised disclosure
of a draft report of a committee. [6] Another senator withdrew from deliberations on
a complex matter because he was unable to attend the relevant committee
hearing. [7]
Standard of proof
5.21 Also in the 35th report, the committee reported on its receipt of
advice on the question of the standard of proof which might be appropriate
for the committee to bear in mind when making findings concerning contempt.
The committee, noting the Clerk's suggestion that it adopt a combination
of the following two of five options:
- to vary the standard of proof in accordance with the gravity of the
matter before the committee and the facts to be found; and
- not to adhere to any stated standard of proof or to formulate a standard
of proof, but simply to find facts proved or not proved according to
the weight of the evidence,
observed that the conclusions contained in the Clerk's response accorded
with its already existing practice. The practice has continued to the
present time.
Relationship between public officials and Parliament
5.22 A further theme, that has dominated the committee's proceedings
both before and after the passage of the Parliamentary Privileges Act
1987 and resolutions, has been the relationship of the Senate and
its committees with the public officials. Successive Committees of Privileges
have been astonished at what they have found to be, in rather too many
cases, the ignorance of public servants and statutory office holders of
their obligations to the parliament and its committees. The Committee
of Privileges has encountered many such examples, particularly post-1988.
The individual cases are described in the summary of the reports at chapter
4 and Appendix G.
5.23 The committee's concerns have led it in several cases to recommend
to the Senate that it note, affirm or reaffirm two resolutions that relate
directly to public servants and statutory office holders. In all cases
the Senate has unanimously adopted the unanimous committee recommendations.
The two resolutions are as follows:
That whilst it may be argued that statutory authorities are not accountable
through the responsible minister of state to Parliament for day-to-day
operations, they may be called to account by Parliament itself at any
time and that there are no areas of expenditure of public funds where
these corporations have a discretion to withhold details or explanations
from Parliament or its committees unless the Parliament has expressly
provided otherwise. [8]
That the Senate is of the opinion that all heads of departments and
other agencies, statutory office holders and Senior Executive Service
officers should be required, as part of their duties, to undertake study
of the principles governing the operation of Parliament, and the accountability
of their departments, agencies and authorities to the Houses of Parliament
and their committees, with particular reference to the rights and responsibilities
of, and protection afforded to, witnesses before parliamentary committees.
[9]
5.24 The Senate originally adopted the first of the resolutions on 9 December 1971,
as a result of consideration of a report of an estimates committee. It
was reaffirmed in 1974, 1980, 1984 and 1997. The most recent reaffirmation
was as a result of the 64th report of the Committee of Privileges.
5.25 The second resolution was included in the 42nd report of the committee,
was adopted by the Senate on 21 October 1993, and was referred to again
in its 46th and 64th reports. In response to the resolution, the Department
of the Senate arranged courses specifically directed at departmental secretaries
and other heads of agencies, and senior executive service (SES) officers,
in addition to its already-existing courses for other public service officials.
The organisation whose activities led to the committee's recommendation
arranged for seminars to be conducted throughout Australia by members
of the committee and Senate officers, and the Public Service and Merit
Protection Commission began regularly to invite officers of the Senate
to address entry level SES officers.
5.26 Despite these developments, the committee's concerns continued.
As a result, it included in its 73rd report a recommendation that the
resolution be reaffirmed. Furthermore, it recommended that the Senate
seek a specific report, in a year's time, from each Commonwealth department,
on how the terms of the resolution have been complied with. Following
the tabling of the report in the Senate on 30 June 1998, the Public Service
and Merit Protection Commission developed a specialised course to accommodate
this requirement. The committee understands that the program of regular
seminars, involving the participation of heads of departments and agencies,
and other senior officers, has been accelerated since the passage on 1
December 1998 of what is now a Senate order. It looks forward with interest
to notification of departments' compliance with the terms of the original
resolution.
5.27 The purpose of quoting both resolutions, and outlining their history,
is to demonstrate to all persons, notably public officials, the institutional
consistency of the Senate in reminding persons who come before it of their
responsibilities. It is a matter of some concern that the need to reaffirm
such basic principles has been so constant over such a long period.
Guidelines relating to unauthorised disclosure of committee proceedings
5.28 A new development in the committee's procedures occurred in its
consideration of six matters of unauthorised disclosure of committee proceedings,
referred to it over an eight-month period. The matters involved four references
from joint committees and two from Senate committees. As the committee
has previously indicated, [10] it is constrained
in its capacity to examine the actions of House of Representatives members.
However, all cases either involved or were likely to involve Senate members
of various committees, and in one case also involved ministerial staff
and public servants. As a consequence, the committee was able to undertake
productive inquiries in respect of all matters referred.
5.29 Given the similarity of issues raised by the references, and also
their wide range, the committee decided not merely to report individually
on the matters referred, but also to give what might be regarded as a
general report, in keeping with other general reports such as this present
one, setting out its approach to matters of unauthorised disclosure and
the future approach it intends to take. In order to make its views on
this constantly recurring question available within this consolidated
volume, it quotes in full the general guidance set out in that report.
The committee has determined for general guidance its future approach
to improper disclosure of committee evidence, submissions, reports and
documents and proceedings.
In camera evidence
All persons within the jurisdiction of the Senate who are party to
disclosure of in camera evidence may be expected to face severe
findings of contempt, with attendant penalties, and a possible prosecution
under the criminal provisions of the Parliamentary Privileges Act
1987. Publishers and authors within the media, regardless of whether
the source of the documents is discovered, can similarly expect to face
severe sanctions.
Committee documents or proceedings not authorised for disclosure
Unauthorised disclosure of documents or proceedings of a committee
can be expected to be examined by the Committee of Privileges
on an assumption that a contempt is likely to be found.
Premature release of committee reports
This committee does not welcome any references of this nature, and
is particularly concerned at the betrayal of trust and one-upmanship
which deliberate, premature release of reports, at whatever stage of
their preparation, represents. The committee does not subscribe to the
fiction, either, that sanctions against improper disclosure of the material
to the media may be evaded by phrases such as “it is believed that”
or “the committee is expected to” or similar devices. If any
such matters are referred to the committee in the future, both the discloser,
if discovered, and the media, can be expected to receive severe treatment.
Investigations by relevant committee
In determining this approach, the Committee of Privileges points out
that it is predicated on an assumption that a committee has undertaken
its own investigations in accordance with the Order of the Senate of
20 June 1996. The committee assumes that adherence to this order will
ensure that the relevant committees will deliberate seriously on a matter
before a reference is sought from the Senate.
The committee also accepts and acknowledges that the procedures to
be followed under the order may be used as a weapon by the majority
to pursue, or subdue, the minority. The committee therefore continues
to endorse the capacity included in that order for senators to take
their own separate action under Standing Order 81 to raise a matter
of privilege. It [considers], however, … that every effort should
be made to reach agreement within a committee as to whether a possible
matter of contempt should be pursued. [11]
5.30 Following the publication of the 74th report, the chair of the committee
wrote to all members of both Houses of the Parliament pointing out the
committee's views on the subject of improper disclosure; including guidelines
developed for committees to minimise inadvertent release; and asking senators
and members to draw the committee's comments to the attention of all personal
staff. In addition, the committee sent the report to the Chiefs of Staff
of the Prime Minister and Leader of the Opposition and to the President
and Secretary of the Parliamentary Press Gallery. Heads of all Commonwealth
departments were also advised of its tabling.
References to other bodies
5.31 The committee draws attention to another continuing feature of its
reports. It has recommended in various reports, and the recommendations
have always been adopted, that parliamentary committees and government
organisations examine particular matters in their area of expertise. For
example, it has recommended that the Procedure Committee examine proposed
procedural changes as a result of Privileges Committee recommendations
in respect of disclosure of committee documents [12]
and procedures relating to the early tabling of committee reports, [13]
that committees and government should examine sections of acts with a
view to their clarification, [14] and that
other committees keep watching briefs on matters of concern. [15]
5.32 The committee has also made suggestions to enhance the administration
of committees in areas such as warning about conditions of disclosure
of submissions, preparation of guidelines to senators and others handling
committee documents, and notification of release of submissions to persons
making submissions. [16]
Relationship with courts
5.33 The committee has been careful to ensure that its work does not
impinge inappropriately on the work of the courts. Probably the most significant
development in the committee's proceedings since it made its last general
report to the Senate involved the protection of persons giving information
to senators for use in the Senate, and the general protection of senators'
files. As each of its reports on these matters has made clear [17]
the committee has acknowledged the primary role of the courts in interpreting
the law of parliamentary privilege and has withheld any definitive judgment
of its own as to how far the law should extend until the courts have made
their determination as to where the law stands.
5.34 In each of these reports, the committee has given an undertaking
that it will seek a reference from the Senate as to any possible change
to the law of parliamentary privilege only after the courts have brought
down judgments in individual cases currently before them, and only after
the committee has evaluated the judgments to see whether any such inquiry
is warranted.
5.35 The committee believes that it has struck an appropriate balance
between the need to protect the integrity of parliamentary proceedings,
the necessity to ensure comity between the executive, legislative and
judicial arms of governance, and the role of the courts in the interpretation
of legislation relating to parliamentary privilege.
Footnotes
[1] Appendix B, p. 74.
[2] Senate Committee of Privileges, 67th
report, PP 141/1997. And see paragraphs 5.33-35.
[3] Senate Committee of Privileges, 49th
report, PP 171/1994.
[4] Parliamentary Paper 467/1991.
[5] Senate Committee of Privileges, 36th
report, PP 194/1992, paragraph 1.23.
[6] Senate Committee of Privileges, 74th
report, PP 180/1998. p. iii.
[7] Senate Committee of Privileges, 67th
report, PP 141/1997, p. iii.
[8] Standing Orders and Other Orders of the
Senate, February 1999, p. 119.
[9] Senate Committee of Privileges, 42nd
report, PP 85/1993, p. 45, and ibid, p. 121.
[10] See paragraph 4.28.
[11] Senate Committee of Privileges, 74th
report, PP 180/1998, pp. 10-11.
[12] ibid., p. 11.
[13] Senate Committee of Privileges, 20th
report, PP 461/1989.
[14] Senate Committee of Privileges, 36th
report, PP 194/1992; 68th report, PP 158/1997 and 73rd report,
PP 118/1998.
[15] Senate Committee of Privileges, 36th
report, PP 194/1992, 48th report, PP 113/1994 and 50th report,
PP 322/1994.
[16] Senate Committee of Privileges, 22nd
report, PP 45/1990 and 74th report, PP 180/1998.
[17] Senate Committee of Privileges, 67th
report, PP 141/1997, 72nd report, PP 117/1998 and 75th report,
PP 52/1999.