1. On 27 May 1999 the following matter was referred to the Committee
of Privileges:
Having regard to the documents provided by the Community Affairs References
Committee in relation to the compilation and distribution of the Allars
report:
(a) whether witnesses who gave evidence before the committee were injured
in consequence of their evidence;
(b) whether the proceedings of the committee were misused to inflict
harm upon witnesses before the committee;
(c) whether the proceedings of the committee were misrepresented; and
(d) whether there was an unauthorised publication of a document compiled
for submission to the committee and submitted to the committee,
and whether any contempt of the Senate was committed in relation to
these matters. [1]
2. The President gave the matter precedence in terms of the statement
tabled with this report, following consideration of a letter from the
Chair of the Community Affairs References Committee (CA Committee), Senator
Crowley. [2] That committee's decision to seek
precedence for the matter derived from its further consideration of a
series of documents which the Chair had tabled in the Senate on 29 April 1999.
[3]
3. In giving the matter precedence, the President pointed out that successive
Committees of Privilege, and determinations by the Senate, have always
indicated that:
the committee and the Senate take very seriously any suggestion that
witnesses have been harmed because of evidence they have given to Senate
committees. Interference with witnesses has traditionally been regarded
as belonging to the most serious category of contempt. [4]
Community Affairs References Committee report and Government response
4. In October 1997 the CA Committee, then chaired by Senator Bishop,
tabled its report on the CJD (Creutzfeldt-Jakob Disease) settlement offer.
One of the committee's recommendations (recommendation 18) was as follows:
That, in view of the availability of further information (much of which
is conflicting in its nature) which may not have been considered by
the Allars Inquiry, Professor Margaret Allars be invited to review,
with the necessary independent scientific advice, this further information
on scientific matters concerning the AHPHP [Australian Human Pituitary
Hormone Program] which has become available since the Allars Inquiry
reported. If Professor Allars is unavailable, another suitably qualified
independent person be invited to undertake the review. [5]
5. This scientific information included evidence provided to the CA Committee
by Drs Frank Peters, Wes Whitten and David Howes. The government,
in its response tabled in the Senate on 31 March 1998, accepted
the recommendation in the following terms:
Associate Professor Allars has been asked to review the `further information
on scientific matters concerning the AHPHP' that was submitted in
camera to the Senate Community Affairs References Committee Inquiry
and determine whether this information was available at the time that
she conducted the Inquiry into the Use of Pituitary Derived Hormones
in Australia and Creutzfeldt-Jakob Disease. [6]
6. The Minister, the Honourable Dr Michael Wooldridge, in a
letter to the Committee of Privileges, outlined the sequence of events
relating to the compilation and dissemination of Associate Professor Allars'
report, known as the Review Report, as follows:
On 15 June 1998, Associate Professor Allars submitted her Review Report
to my office. My Department made several comments in relation to the
Review Report. These comments concerned statements made in the Review
Report in relation to clarification of the scope of the review Associate
Professor Allars had been asked to undertake and also several possible
ambiguities arising from terminology used in the Review Report. Associate
Professor Allars decided that the points raised by my Department should
be clarified in her Review Report so as to avoid any possible misinterpretation.
Prior to the finalisation of Associate Professor Allars' Review Report,
my Department tabled, on a confidential basis, a copy of the Executive
Summary of the Review Report at a meeting of the National Pituitary
Hormones Advisory Council (NPHAC) on 25 June 1998. The members of NPHAC
were also advised that Associate Professor Allars' Review Report would
be provided to the Senate Community Affairs References Committee before
being made available for wider circulation.
On 16 July 1998, Associate Professor Allars again submitted her Review
Report to my office with the amendments she had made.
On 12 August 1998, the Review Report was forwarded to Senator Mark Bishop,
Chair of the Senate Community Affairs References Committee. My Department
also provided copies to the Committee Secretariat for the information
of the other members of the Committee.
On 14 August 1998, my Department provided copies of the Review Report
to the members of the National Pituitary Hormones Advisory Council (NPHAC)
and the State Coordinators of the CJD Support Group Network. Over the
next few weeks my Department also provided a copy of the Review Report
to Dr F E Peters, Dr W K Whitten, Dr D Howes, Dr N Semple,
Ms Karen Weeks of the Sydney legal firm Macedone Christie Willis, Mr
Dale Sloan, the Office of the Australian Government Solicitor and Ms
Carol O'Kelly. [7]
According to the CA Committee, a prcis of the Review Report was published
in the CJD Support Group Newsletter. [8]
7. Also on 12 August, the Minister advised Associate Professor Allars
that he had made the Review Report available to the CA Committee, adding
that “[his] Department will also make copies available on request”.
[9] He did not similarly advise the CA Committee. [10]
The report was distributed to all committee members on 1 September 1998,
during the election period; the committee itself did not publish the report
at that stage. [11]
8. Early in October 1998 Senator Bishop, as Chair of the CA Committee,
received a letter from one of the scientists, Dr David Howes, who
had given evidence to it. The letter alleged that the Allars Review Report
contained remarks damaging to Dr Howes and his colleagues. Dr Howes indicated
that he had written to the department concerning the review and demanding
its immediate withdrawal. [12] The Rupert Public Interest Movement also wrote
on his behalf. [13] On 22 October, Dr Howes,
together with Dr Frank Peters and Dr Wes Whitten, sought to have
their individual responses to the review considered by that committee
at the same time as it was considering the Allars Review Report. [14]
9. In December 1998, the CA Committee received, through the Rupert Public
Interest Movement, a copy of an extract from the department's reply of
25 October to two letters written by Dr Howes on 4 and 21 October
1998. [15] Included in the reply was the following:
[T]he report was prepared upon the recommendation of the Senate Community
Affairs reference committee. The report was prepared specifically for
the purpose of being presented to that committee, and has in fact been
presented to that Committee. In these circumstances, the processes involved
in that preparation and presentation are the subject of parliamentary
privilege. [16]
The CA Committee noted that “this terminology was not used by the
Minister when the review was forwarded to the Committee `for its information'
nearly two months earlier”. [17]
Advice from Clerk of the Senate
10. Following receipt of the advice from the Rupert Public Interest Movement,
and taking particular note of the department's response to Dr Howes' letter,
the CA Committee asked the Clerk of the Senate to advise on four specific
questions:
1. When the government accepts a committee recommendation and invites
a third party to undertake a review in accordance with the recommendation,
is that review a government review? Is there any capacity for government
to argue that such a review is being undertaken on behalf of the committee,
thereby giving the review parliamentary status?
2. What is the status of the Allars' review as described above? Could
the review be regarded as a parliamentary document as contended by the
department? Does any form of parliamentary privilege attach to the document?
3. Would the status change if the committee agrees to receive the correspondence
from the minister to the chair forwarding a copy of the review “for
information”?
4. Would the status change if the committee tables the review and associated
correspondence for the Senate's information as relating to the implementation
of a committee recommendation, but without authorising publication or
taking any other procedural action in respect to the review? [18]
The Clerk reached the following conclusions:
1. [T]he department and Professor Allars are probably protected by
parliamentary privilege in respect of their preparation of the Allars
report, and the department is certainly so protected in respect of the
submission of the report to the committee, but the department is not
so protected in respect of any publication of the report to persons
other than the committee, and the content of the report itself does
not attract parliamentary privilege.
2. [A]part from the preparation of a document and the submission of
a document to a committee, the publication of a document is a proceeding
in Parliament only where the document is published by or pursuant to
an order of a committee. …[T]here is no parliamentary privilege
attaching to publication of [the Allars Review Report] other than the
publication incidental to its preparation and the publication to the
committee. [19]
In respect of questions 3 and 4:
None of these actions by the Senate or the committee would alter the
conclusions I have drawn about the status of the document. An order
of the Senate or of a committee publishing a document does not retrospectively
change the basis on which the document was prepared, nor retrospectively
extend any protection to any publication of the document prior to that
order. [20]
11. The advice was included in the documents tabled in the Senate on
29 April 1999, [21] that is, before
any question of privilege arose.
Community Affairs References Committee's letter
to the President
12. The questions the Committee of Privileges has been required to consider
are derived from the CA Committee's letter of 14 May 1999 [22]
to the President of the Senate, following that committee's further consideration
of the matters raised in the tabled documents. The CA Committee states
that it is “of the view that from the adverse comments in the Allars'
review which reflect upon Dr Howes' reputation, it could be concluded
that Dr Howes may have been subjected to injury in respect of evidence
which he gave before the committee”. [23]
13. The CA Committee then goes on to express its concern that “the
Department may have abused Senate proceedings and in the process, may
have inflicted damage on Dr Howes through its further publication of the
review”; that “the Department may have belatedly used the Parliamentary
Privilege argument after criticism of the review's contents were raised”;
and that, if the review was prepared for submission to the CA Committee,
“then the Department published the review to other parties without
the authority of the Committee”. [24]
14. It was on the basis of these comments that the proposed matters of
contempt were formulated.
15. Following receipt of the reference, the Committee of Privileges wrote
to the secretary of the CA Committee seeking information on matters including
the sequence of events leading up to the reference to the Committee of
Privileges. The information provided by the secretariat demonstrated the
CA Committee's close involvement with the Minister and the department,
especially in the period before the Government's response on 31 March
1998 to its recommendation 18. In particular, the information indicates
that between 15 October 1997 and 18 December 1997 the committee responded
to requests by the department and Associate Professor Allars by releasing
all submissions, Hansards and documents, including in camera documents,
to assist her in undertaking the review. [25]
16. Before the Committee of Privileges had the opportunity to consider
documents and information provided by the CA Committee, it received an
unsolicited submission from Dr Frank Peters. Attached to his submission
were several documents, most of which this committee did not require in
order to make findings on the matters referred to it by the Senate. However,
one document of relevance was a response to him from the CA Committee,
indicating that the question of possible intimidation had previously been
considered by that committee. [26]
17. Having considered these new documents the Committee of Privileges'
next step was to write to the Minister seeking comments on the terms of
reference generally, but directing his specific attention to the following
questions:
[W]hether the Allars report was commissioned for the Community Affairs
References Committee or for assistance to government. If commissioned
for the committee, to whom was it circulated, either before or after
its submission to the committee, and under what authority? [27]
18. In addition to extracts already quoted above, [28] the Minister, in his timely and what the Committee
of Privileges regards as comprehensive response of 9 August 1999,
[29] gave the following account of the government's
involvement in accepting the CA Committee's recommendation 18:
On 8 October 1997, I invited Associate Professor Allars to undertake
the review of the further information on scientific matters concerning
the Australian Human Pituitary Hormone Program (AHPHP) which may not
have been considered in Associate Professor Allars' Inquiry, conducted
in 1993–1994, and her subsequent Report of the Inquiry into
the use of Pituitary Derived Hormones in Australia and Creutzfeldt-Jakob
Disease.
- Examine the material considered by the Senate Community Affairs
References Committee to be `further information' as referred to in
Recommendation 18 of the Report On The CJD Settlement Offer.
- Advise the Minister of the nature of this information.
- Provide advice to the Minister on whether or not this information
is considered to have been available to the independent Inquiry
into the Use of Pituitary Derived Hormones in Australia and Creutzfeldt-Jakob
Disease.
- Where information is identified as having not been available to
the independent Inquiry into the Use of Pituitary Derived Hormones
in Australia and Creutzfeldt-Jakob Disease, consider this information
and provide advice to the Minister on issues arising from this information.
On 15 October 1997, the then Department of Health and Family Services
(`my Department') wrote to the Senate Community Affairs References Committee
Secretariat (`the Committee Secretariat') advising that Associate Professor
Allars, who was on sabbatical leave in the UK, had agreed to undertake
this review. The Committee Secretariat was asked to forward the relevant
documentation, identified by the Committee as being the further information
referred to in recommendation 18, directly to Associate Professor Allars.
Following advice from the Committee Secretariat, my Department, on
28 October 1997, informed Associate Professor Allars that the Committee
would be meeting to agree on the further information it would like Associate
Professor Allars to review.
On 7 November 1997, the Committee's Acting Secretary replied to my
Department's letter of 15 October advising that “the Committee
has sent Associate Professor Allars the additional scientific information
supplied to the Committee during its inquiry.”
Associate Professor Allars subsequently received the following documentation
from the Committee Secretariat:
- six volumes of submissions, additional information tabled in public
hearings and correspondence made public by the Committee;
- Hansards for the three days of hearings conducted by the Committee;
and
- documents received as in-camera evidence from the law firm Macedone
Christie Willis.
After having received the documentation and covering letter from the
Committee Secretariat, Associate Professor Allars e-mailed my Department,
on 29 November 1997, and advised “the covering letter from the
Senate Committee, although ambiguous, seemed to be treating all of the
documents in the 6 volumes of submissions as the “additional material”.
I find this a huge task and of course much more than anticipated. I
really have to consider whether I can undertake it at all.” Associate
Professor Allars also said, “Could you please correct me if I am
wrong? Is the Senate Committee, and the Minister, asking me to review
all information of a scientific or medical nature which came before
it?”
My Department phoned the Committee Secretariat to obtain clarification
on the issues raised by Associate Professor Allars. The Secretary of
the Committee was not available and Secretariat staff were unable to
assist.
In responding to the questions raised by Associate Professor Allars,
my Department sought to identify the relevant information (ie. the further
information on scientific matters concerning the AHPHP which may not
have been considered in Associate Professor Allars' Inquiry and subsequent
report) from the large amount of material Associate Professor Allars
had received from the Committee Secretariat. On 3 December 1997,
my Department advised Associate Professor Allars to “review the
submissions listed below and prepare your report in accordance with
the Terms of Reference attached to the Minister's letter of 8 October:
Dr F Peters – No 1, Vol 1;
Dr W Whitten – No 73, Vol 4;
Dr D Howes – No 86, Vol 6; and the `in-camera' evidence that has
been provided to you by the Senate Committee.”
In identifying the above referenced submissions my Department unintentionally
omitted to include reference to Dr Whitten's second submission (No 5,
Vol 2).
As the submissions made to the Committee by my Department and the Commonwealth
Serum Laboratories Limited (CSL) were for the most part based on information
obtained from Departmental and CSL files and this information was available
to Associate Professor Allars when she conducted her earlier independent
Inquiry in 1993 – 1994, it was not considered necessary to include
these submissions in Associate Professor Allars' review.
On 13 December 1997, Associate Professor Allars contacted my Department
to ask “Is there any text to go with the in-camera submissions
to assist in indicating what each “part” was intended to prove?”
Not having access to the in-camera submissions, my Department contacted
the Committee Secretariat, on 15 December 1997, in relation to Associate
Professor Allars' question and asked if the Secretariat could respond
directly to Associate Professor Allars and forward a copy of that advice
to my Department. On 18 December 1997, the Committee Secretary
wrote to Associate Professor Allars advising that “further confidential
information provided to the Committee” had been forwarded to her
in response to her request to my Department. [30]
19. In response to the committee's specific questions, the Minister advised
as follows:
[T]he Review Report, prepared by Associate Professor Allars, was undertaken
in response to recommendation 18 of the Senate Community Affairs References
Committee's Report on the CJD Settlement Offer. I invited Associate
Professor Allars to undertake the review recommended by the Senate Community
Affairs References Committee. My sole purpose in doing this was to respond
to recommendation 18 and it was always my intention that the Review
Report would be presented to the Senate Community Affairs References
Committee. [31]
20. The Minister, having outlined his own actions and those of his department
following the submission of Associate Professor Allars' Review Report,
[32] then stated that officers of his department
were not aware of the need to obtain the authority of the CA Committee
to distribute the Review Report to people outside the membership of the
committee. [33]
21. The Minister has given an assurance to the Committee of Privileges
that his department is now aware that publication of a document which
is intended for the purpose of submission to a parliamentary committee
must not be published without authority of the committee. Furthermore,
he has advised that officers of his department are currently attending
seminars to comply with the Senate resolution of 1 December 1998,
which reaffirmed a resolution five years earlier that:
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.
[34]
22. The Minister, while acknowledging departmental officers' failure
to take account of Senate requirements, makes what the Committee of Privileges
regards as a reasonable point:
I would like to assure you that the actions by my Department in relation
to this matter were taken in genuine good faith. In distributing the
Review Report to interested parties, such as the members of NPHAC, my
Department was mindful of previous criticism, during the Senate Community
Affairs References Committee's Inquiry and during the course of the
Inquiry conducted by Associate Professor Allars in 1994, in relation
to a perceived reluctance by the Department to be more open in releasing
information to interested members of the public about issues concerning
the Australian Human Pituitary Hormone Program. [35]
23. Because of the nature of all the information before it, particularly
the Minister's response, the committee has concluded that it is not necessary
to seek further information from any of the other parties potentially
involved. It therefore turns to the terms of reference.
Term of Reference (a) — whether witnesses who gave evidence before
the [Community Affairs References] committee were injured in consequence
of their evidence
24. The Committee of Privileges considers it beyond its competence to
judge whether witnesses were injured in consequence of their evidence.
The committee has noted the robust nature of Professor Allars' Review
Report and the equally robust nature of evidence and responses given by
witnesses expert in their own field. The committee expects scientific
positions to be argued and evaluated with commitment, and accepts peer
review as the best judge of the efficacy of the respective views. As a
result of the proceedings of the CA Committee, and of the documentation
tabled in the Senate on 29 April 1999 and 27 May 1999, and again
with this report, the Privileges Committee considers that persons with
expertise in the area now have maximum opportunity to evaluate conflicting
claims.
25. The committee also observes that, in the light of its conclusion
reached in respect of term of reference (d) below, a court remedy may
be available to witnesses who consider themselves adversely affected by
comments in the Review Report. In the words of the Clerk of the Senate
in his advice to the CA Committee:
[T]he Allars report as such is not a proceeding in Parliament such
that its content could not be used in any substantive way in any legal
proceedings. [36]
Term of reference (b) — whether the proceedings of the committee
were misused to inflict harm upon witnesses before the committee
26. The CA Committee in raising this term of reference was concerned
that:
the Department misused the proceedings of the Committee to inflict
damage on Dr Howes by going outside the scope of the Committee's recommendation
in the formulation of the review, in that not only scientific material
is discussed, but also allegations about Dr Howes' duty and responsibility.
[37]
27. The Committee of Privileges' observations about robust scientific
debate apply to this term of reference also. The nature of scientific
inquiry involves vigorous disputation about conclusions that should be
reached in respect of the same subject matter or evidence. The question
whether the present dispute arose within the context of parliamentary
committee proceedings is, under those circumstances, irrelevant.
Term of reference (c) — whether the proceedings of the committee
were misrepresented
28. This third term of reference arose from the CA Committee's concern
that its proceedings had been misrepresented, “in that the Department's
assertion that the review was prepared for the committee and presented
to the committee does not align with the Department's action or the outcome”.
[38]
29. The CA Committee's perception undoubtedly arose from the department's
failure, until the content of the Review Report was questioned, to indicate
either to the CA Committee itself, or to others to whom it was published
initially, that the department regarded the Review Report as being, in
the terms of the Parliamentary Privileges Act 1987, prepared “for
purposes of or incidental to, the transacting of the business of …
a committee”. [39] The CA Committee observed that:
the Department may have belatedly used the Parliamentary Privilege
argument after criticism of the review's contents were raised. [40]
30. Having considered the Minister's response, however, and taking into
account the close liaison between the department and the CA Committee
in the preparation of the Review Report, the Committee of Privileges has
no reason to doubt that the department regarded itself as performing a
parliamentary function. As the Minister put it:
My sole purpose in doing this was to respond to recommendation 18 and
it was always my intention that the Review Report would be presented
to the Senate Community Affairs References Committee. [41]
31. The committee therefore considers it unlikely that the parliamentary
privilege element was called into play ex post facto. It prefers
the Minister's explanation that officers of the department were not aware
of the need to obtain the authority of the committee to distribute the
Review Report. Whether the officers should have been aware of this basic
parliamentary requirement is addressed below. [42]
Term of reference (d) — whether there was an unauthorised publication
of a document compiled for submission to the committee and submitted to
the committee
32. The Committee of Privileges, having accepted the Minister's declaration
that the Allars Review Report was prepared for submission to the CA Committee,
concludes that in publishing the document to other parties the department
did so without the authority of the CA Committee. In raising this matter,
the CA Committee points out that:
In such a circumstance it would be arguable that the unauthorised publication
of the review caused substantial interference with the work of the Committee
by not allowing the Committee to consider the content of the review
and seek responses from those persons adversely mentioned in the review.
[43]
33. The Committee of Privileges appreciates the concerns of the CA Committee,
particularly that committee's desire to ensure that persons affected by
the Review Report should have had an opportunity to respond, under the
authority of that committee, to Associate Professor Allars' adverse comments.
Against that proper concern, however, the Committee of Privileges accepts
that the department was eager to ensure that the early release of the
Review Report would alleviate the concerns of interested parties about
the department's secrecy in its handling of material associated with this
distressing subject. It notes that, in addition to the unauthorised publication
constituting a potential contempt of the Senate, the separate publication
by the department under these circumstances does not attract the protection
of parliamentary privilege.
34. The Committee of Privileges finds as follows:
In respect of terms of reference (a) and (b)
– that, because peer review is the most appropriate and effective
mechanism for evaluating competing scientific claims, and given the alternative
remedies which may be available to persons who consider themselves adversely
affected by comments made in the Allars Review Report, no adjudication
on these terms of reference is required. [44]
In respect of term of reference (c)
– that, in the light of the explanation provided by the Minister
for Health and Aged Care, the Honourable Dr Michael Wooldridge, the Committee
of Privileges has no reason to doubt that the department regarded itself
as performing a parliamentary function. [45]
The committee has therefore determined that no contempt of the Senate
has been committed.
In respect of term of reference (d)
– that the Committee of Privileges could find that a contempt has
been committed, in that the Department of Health and Aged Care published
a document prepared for submission, and submitted, to the Community Affairs
References Committee, without the authority of that committee. The Committee
of Privileges does not so find, on the ground that departmental officers
were not aware of the requirement that only a parliamentary committee
can authorise publication of documents submitted to it. [46]
35. This whole matter is unlikely to have been referred to the Committee
of Privileges if it were not for the failure of departmental officers,
acknowledged in the Minister's letter, to follow basic procedures for
the handling of documents relating to parliamentary proceedings. The committee
has a depressingly consistent history of drawing the attention of departments
and authorities to their shortcomings in dealing with both Houses of Parliament
and their committees. Indeed, this very department, in a previous incarnation
as the Department of Community Services and Health, released a copy of
a submission made to the Community Affairs Committee without the authority
of that committee. [47]
36. The Committee of Privileges notes that the department has initiated
specialised seminars for its senior officers, to comply with the terms
of the resolution referred to earlier in this report. It trusts either
that the corporate memory of departmental officers will ensure that a
similar incident does not occur again, or that there be a continuing program
of education of all senior officers to ensure that the concerns of the
Senate and its committees, as evidenced in this latest manifestation,
are finally heeded.
Robert Ray
Chairman
Footnotes
[1] Volume of Document, p. 1 (Note:
This and all succeeding page references refer to the Volume of Documents
tabled with this report).
[2] p. 3.
[3] Journals of the Senate, 29 April
1999, p. 814.
[4] p. 2.
[5] p. 6.
[6] p. 7.
[7] p. 197.
[8] pp. 3, 65.
[9] p. 9.
[10] p. 8.
[11] p. 130.
[12] p. 58.
[13] p. 59.
[14] p. 62.
[15] p. 93.
[16] ibid.
[17] p. 4.
[18] pp. 94, 96.
[19] p. 96.
[20] ibid.
[21] See para. 2 above.
[22] p. 3.
[23] p. 4.
[24] pp. 4-5.
[25] p. 130.
[26] p. 132.
[27] p. 193.
[28] See para. 6 above.
[29] pp. 194-197.
[30] pp. 194-195.
[31] p. 196.
[32] See para. 6 above.
[33] p. 197.
[34] Order of the Senate No. 32, Standing Orders
and other Orders of the Senate, 5 February 1999, p. 121.
[35] p. 197.
[36] p. 96.
[37] p. 4.
[38] ibid.
[39] Subsection 16(2) of the Parliamentary
Privileges Act 1987.
[40] p. 5.
[41] p. 196.
[42] See paras. 35 and 36.
[43] p. 5.
[44] See paras. 24-27.
[45] See paras. 30-31.
[46] See paras. 32-33.
[47] Senate Committee of Privileges, 22nd report,
PP 45/1990.