Report
Background
1.1
On 21 November 2012 the following matter was referred to the committee
for inquiry and report:
Whether there was any
unauthorised disclosure of the draft report of the Select Committee on
Electricity Prices and, if so, whether any contempt was committed in that
regard.[1]
1.2
The investigation of unauthorised disclosures is a subject that has
attracted detailed consideration by this committee, most recently in a 2005
inquiry which considered the principles that should apply.[2] The committee has always considered that any unauthorised disclosure may, in
some circumstances, constitute a serious contempt of the Senate. The committee
has also been highly critical of breaches of confidentiality in committee
processes, and of the betrayal of trust among committee members this often
involves. It does not follow, however, that every unauthorised disclosure
warrants investigation as a contempt.
1.3
The law and practice of parliamentary privilege is intended to protect
the parliament’s processes from obstruction and interference, and it is that
principle of protection which guides the Senate in determining questions
relating to contempt. The Senate’s characterisation of unauthorised disclosures
as contempts is based on an assessment of the interference that such
disclosures can cause to the work of committees.
1.4
In its 122nd report the committee described the evolution of
its own views and of Senate practice in relation to unauthorised disclosures,
and recommended measures to assist committees in assessing the harm which might
flow from such disclosures. As this is the first such matter referred since the
Senate adopted those recommendations, the committee takes the opportunity to
remind senators of relevant matters of practice and procedure.
Consideration of contempt matters
1.5
In undertaking an inquiry into a possible contempt, the Privileges
Committee has regard to the Parliamentary Privileges Act 1987 and
relevant Senate resolutions. Chief among these are the Privilege Resolutions,
adopted by the Senate on 25 February 1988, which declare the manner in which
the Senate will observe its privileges, and provide guidance to committees on
the principles involved and procedures which must be followed.
1.6
In considering whether particular acts (or omissions) may constitute a
contempt, the committee has particular regard to:
-
section 4 of the Parliamentary Privileges Act 1987, which
provides a statutory definition for contempt
- the criteria to be taken into account when determining matters
relating to contempt (Privilege Resolution 3)
- the list of possible contempts in Privilege Resolution 6.
1.7
The contempt jurisdiction of the Senate is designed to protect the work
of senators and the processes of the Senate and its committees against
obstruction and interference. This is emphasised both in section 4 of the Act
and in Privilege Resolution 3.
Investigation of unauthorised
disclosures as contempts
1.8
The Senate has provided guidance, in Privilege Resolution 6, as to the
categories of acts that may be treated as contempts. That resolution declares
that breaches of certain prohibitions, and attempts or conspiracies to do the
prohibited acts, may be treated by the Senate as contempts.
1.9
In relation to the unauthorised disclosure of committee proceedings,
Privilege Resolution 6 provides:
(16) A
person shall not, without the authority of the Senate or a committee, publish
or disclose:
(a) a document that has been prepared for the purpose of
submission, and submitted, to the Senate or a committee and has been directed
by the Senate or a committee to be treated as evidence taken in private session
or as a document confidential to the Senate or the committee;
(b) any oral evidence taken by the Senate or a committee in private
session, or a report of any such oral evidence; or
(c) any proceedings in private session of the Senate or a committee
or any report of such proceedings,
unless the
Senate or a committee has published, or authorised the publication of, that
document, that oral evidence or a report of those proceedings.[3]
1.10
The Senate has supplemented this guidance with two additional
resolutions. The first of these, agreed to on 20 June 1996, establishes the
principle that committees have a responsibility to investigate any unauthorised
disclosure for themselves and to undertake an assessment of the actual or
potential substantial interference with their work before deciding whether to
raise a matter of privilege. The second resolution, of 17 September 2007,[4] reinforces that principle and provides detailed guidance to committees about
the types of unauthorised disclosures that should and should not be raised.
The 2007 resolution
1.11
While confirming that any disclosure of evidence given to a
committee, documents prepared by it or private deliberations may be treated as
a contempt, the Senate indicated in the 2007 resolution that the following
types of unauthorised disclosures should not be raised as matters of privilege,
unless there are particular circumstances involving actual or potential substantial
interference with a committee’s work:
(a) disclosure of a committee report in the time between the
substantial conclusion of the committee’s deliberations on the report and its
presentation to the Senate;
(b) disclosure of other documents prepared by a committee and not
published by the committee, where the committee would have published them, or
could appropriately have published them, in any event, or where they contain
only research or publicly-available material, or where their disclosure is
otherwise inconsequential;
(c) disclosure of documents and evidence submitted to a committee
and not published by the committee, where the committee would have published
them, or could appropriately have published them, in any event;
(d) disclosure of private deliberations of a committee where the
freedom of the committee to deliberate is unlikely to be significantly
affected.
1.12
The resolution also establishes a process for a committee concerned
about an unauthorised disclosure to consult with the Privileges Committee prior
to raising a matter of privilege. That requirement is based on the possibility
that the Privileges Committee would itself initiate the inquiry in sufficiently
serious circumstances. The committee’s 122nd report sets out the
principles it will apply in the course of such consultations.[5]
1.13
The effectiveness of the 2007 resolution in establishing a process for
dealing with these matters is evidenced by the fact that there have been no
referrals to this committee of unauthorised disclosures since 2005, when the
sessional order preceding the 2007 resolution was agreed to.[6] On the other hand, there have been several reports from committees of how they
have dealt with unauthorised disclosures.
1.14
A practical difficulty arises, however, when a committee affected by an
unauthorised disclosure ceases to exist before it is able to undertake the
consultation required under the 2007 resolution and complete its deliberations.
This was the situation in which the select committee found itself.
The matter of privilege
1.15
By letter dated 5 November 2012, Senator Thistlethwaite, the former chair
of the Select Committee on Electricity Prices, raised a matter of privilege,
concerning the unauthorised disclosure of the committee’s draft report.[7] The letter described the matter in the following terms:
The committee’s
report was pre-empted by an article written by Lenore Taylor and published in
the Sydney Morning Herald online edition on 31 October 2012 and which
included video excerpts of Ms Taylor speaking about the contents of the report.
At that point the committee became aware of the article, it was yet to have its
final meeting to adopt the draft report.
1.16
The commentary in the video appeared to compare
some of the recommendations of the unpublished report with a package of
measures the government apparently proposed to announce some days later.
1.17
The select committee reported on its investigations into the
matter in Chapter 7 of its report.[8] The committee wrote to ‘the
persons whom the committee understood to have been provided with the Chair’s
draft prior to its scheduled tabling in the Senate’, including committee
members and their staff, and the committee secretary and secretariat staff. The
committee also wrote to two ministers seeking an explanation of the disclosure,
without providing any further context as to why such inquiries were considered
necessary.
1.18
The report also refers to commentary by ABC Radio’s Fran Kelly on
the morning of tabling, but indicates that the committee resolved not to
investigate this further unauthorised disclosure because it ‘did not wish to
delay tabling of its important report on electricity prices’. Thus, there
appear to have been concerns about multiple unauthorised disclosures.
1.19
In determining whether a matter should be given precedence as a matter
of privilege, the President is required to consider the criteria specified in
Privilege Resolution 4, and only those criteria. They are:
(a) the principle that the Senate’s power to adjudge and deal with
contempts should be used only where it is necessary to provide reasonable
protection for the Senate and its committees and for senators against improper
acts tending substantially to obstruct them in the performance of their
functions, and should not be used in respect of matters which appear to be of a
trivial nature or unworthy of the attention of the Senate; and
(b) the existence of any remedy other than that power for any act
which may be held to be a contempt.
1.20
In relation to the first criterion, the President
noted:
...the Senate has
identified the unauthorised disclosure of a report of the private proceedings
of a committee as a matter which may be treated by the Senate as a contempt.
While the Senate’s resolution of 17 September 2007 provides further guidance on
the types of unauthorised disclosure for which the contempt jurisdiction should
primarily be reserved, the resolution only serves to reinforce the seriousness
of unauthorised disclosures and their obstructive potential for the work of
Senate committees.[9]
1.21
The second criteria concerns the availability of
remedies other than the contempt jurisdiction to deal with the matter. The President again drew the Senate’s attention to the 2007
resolution, noting that:
...there would normally
be an alternative remedy available in the form of a process established by the
Senate for committees to deal with cases of unauthorised disclosure, and for
such disclosures not to be raised as matters of privilege until after the
committee concerned had consulted the Privileges Committee.
1.22
A select committee does not have the capacity to undertake the
inquiries, consultation and deliberation envisaged by the 1996 and 2007
resolutions once it has presented its final report. While the Select Committee
on Electricity Prices did make inquiries of its members, staff and two
ministers about the unauthorised disclosure, it was unable to consult with this
committee or deliberate on any such consultation. As the President concluded:
The Senate’s contempt
jurisdiction therefore provides the only remedy for cases of unauthorised
disclosure involving the final reports of select committees.
1.23
On the basis that those two criteria had been satisfied, the President
determined that a motion to refer the matter to the Privileges Committee should
have precedence over other business on the day for which it is given.
1.24
Senator Thistlethwaite gave a notice of motion in the following terms:
(1) That the
following matter be referred to the Committee of Privileges for inquiry and
report:
Whether there was any
unauthorised disclosure of the draft report of the Select Committee on
Electricity Prices and, if so, whether any contempt was committed in that
regard.
(2) That, for the
purpose of this inquiry, the Committee of Privileges have power to consider and
make use of the minutes of private meetings of the Select Committee on
Electricity Prices, correspondence referred to in paragraphs 7.6 to 7.8 of the
committee’s report and any other document relevant to the question of possible
unauthorised disclosure of the committee’s draft report.[10]
1.25
The Senate agreed to the motion on 21 November 2012.[11]
Conduct of the inquiry
1.26
The Committee’s usual processes in relation to contempt matters have
been set out on numerous occasions.[12] The role of the committee is primarily inquisitorial. When the Senate refers to
the committee a matter giving rise to allegations of contempt, it is the
committee’s role to establish the facts and to investigate any particular allegations
or suspects which emerge.
1.27
The committee is under no illusions, however, about the inherent
difficulty of undertaking such a task. One of the principal problems identified
in the 122nd report is the difficulty for committees – and not least
for the Privileges Committee itself – in establishing the facts in unauthorised
disclosure matters, and particularly in identifying the sources of leaks.[13] It was this difficulty, and the committee’s experience of multiple fruitless
investigations into disclosures to the media, which led to the 2005 inquiry and
informed the recommendations in the 122nd report.
1.28
The committee therefore determined that it should approach the present
case by applying, to the extent possible, the principles reflected in the 2007
resolution. Accordingly, the committee resolved to consider whether further
investigation of the matter was warranted, having regard to:
- its own assessment of the actual or potential interference with
the work of the select committee, and
- the approach it had declared it would apply if consulted by
another committee on such a matter.
1.29
The committee undertook preliminary inquiries to enable it to make that
assessment.
Material before the committee
1.30
The motion referring the matter authorised the committee to seek access
to relevant records of the select committee, which were in the custody of the
Clerk of the Senate.
1.31
Having sought and received these documents, the committee invited submissions
on the matter from former members of the select committee; the two ministers to
whom the select committee had written; and the two journalists mentioned in
chapter 7 of the select committee’s report. This correspondence and the
responses received are published in Appendix 4.
1.32
Chapter 7 of the select committee’s report records that that committee’s
investigations did not reveal the source of the disclosure, and that conclusion
is supported by the records of the select committee. In correspondence from
this committee former members of the select committee were asked whether they
had any role in, or information about, the unauthorised disclosure. No member
admitted to any such role. Only one former member – Senator Milne – provided a
substantive response, suggesting Executive government intervention in the
committee’s processes, interference with the committee’s freedom to deliberate
and damage to the reputation of committees. In correspondence to the committee,
the relevant minister denies any knowledge of, or involvement in, the matter.
Ms Taylor’s response
1.33
The journalist whose publication led to the investigation raised the
shield of journalistic ethics and made no other comment.
1.34
The committee now regards such responses from the media as inevitable,
but they are often unsatisfactory. Journalists raising their ethics as a shield
are essentially asking the parliament to respect their confidences while
wilfully disregarding the right of the parliament to insist on its own; however
the committee does not consider it necessary to consider that matter further in
the context of this inquiry.
Interference with the work of committees
1.35
The Senate’s characterisation of unauthorised disclosures as matters
that may be treated as contempts is based on an assessment of the interference
such disclosures can cause to the work of committees. As noted in paragraph
1.11, the 2007 resolution provides that the unauthorised disclosure of a draft
report should not be raised as a matter of privilege ‘unless there are
particular circumstances involving actual or potential substantial interference
with a committee’s work.’ The Privileges Committee considers that to be the
appropriate test to apply in determining whether the matter warrants further
investigation.
1.36
In this case it might be concluded that, because the committee was able
to adopt a unanimous report and complete its work on schedule, there was no
substantial interference with its work. However, this was not the view set out
in the report of the select committee, which concluded that ‘the disclosure of
the chair’s draft was a serious breach of the committee’s confidence’[14] and determined to raise the issue as a matter of privilege.
1.37
In his letter to the President, the former chair stated that the article
‘pre-empted’ the report, and that, in the committee’s view, the disclosure of
the chair’s draft ‘not only impeded its freedom to deliberate but reflected
adversely on the value of the committee’s inquiry’.
1.38
It is on the basis of those views that the President was able to
conclude that the matter of privilege met the criterion in Privilege Resolution
4(a).[15]
1.39
It is apparent, however, that the majority of those members do not now
consider that the disclosure actually interfered with the committee. In their
responses to this committee, four members of the former committee, including
the chair, stated that the disclosure did not interfere, or did not
substantially interfere, with the committee’s work. Three members and two
participating members noted concerns with what might be characterised as the potential
for interference, citing process matters and a reduction in the impact of the
report, but again did not appear to consider that any actual interference had
occurred.
1.40
Only one member – Senator Milne – expressed concerns about actual
interference. Her response is dealt with further below.
1.41
This is an echo of the situation which often arose prior to the adoption
of the 2007 resolution. As noted in the committee’s 125th report:
5.35 Particularly frustrating for the committee in recent
cases has been its inability to find that unauthorised disclosures have led to
substantial interference, or the potential for such, with the work of
committees because of widely differing perceptions by the members of those
committees.[16]
1.42
One of the aims of the 2007 resolution is to provide additional guidance
to committees on assessing these matters. The opportunity to consult the
Privileges Committee would ordinarily provide a mechanism for confirming that
assessment. While correspondence with former members of the select committee is
a poor substitute for that mechanism, it has enabled the committee in this case
to conclude that the unauthorised disclosure did not substantially interfere
with the select committee’s work.
1.43
Absent a finding that the circumstances of the disclosure substantially
interfered with the select committee’s work, this committee is unable to
conclude that the matter warrants further investigation as a possible contempt.
Potential interference with
committees
1.44
Whatever effect an unauthorised disclosure has on the work of a
particular committee, it also has the potential to inflict broader damage on
the integrity of committee processes and the authority and credibility of
committees more generally. It is for this reason ‘potential substantial interference’
forms part of the assessment envisaged in the 1996 and 2007 resolutions.
1.45
In assessing the potential for the unauthorised disclosure of draft
reports to interfere with inquiry processes, this committee has previously
distinguished between the different stages at which such a disclosure might
occur: for instance, an early leak is more likely to inhibit a committee’s
freedom to deliberate. It appears in this case, however, that the select
committee had substantially completed its work and was not influenced in its
deliberations by the discovery of the disclosure. The committee does not
consider that disclosures of this character – however undesirable – are likely
to substantially interfere with committee processes and, again, is unable to
conclude that the matter warrants further investigation in this case.
Consultations between committees
1.46
The select committee undertook initial investigations into the apparent
disclosure but was unable to discover its source. Because the committee ceased
to exist upon the presentation of its report, it was unable to consult with the
Privileges Committee as envisaged by the 2007 resolution and to complete its
deliberations.
1.47
In its 122nd report, this committee set out the approach it
intended to take during such consultations.[17] As noted in that report, the basis for proposing such consultations is that:
...the Committee of Privileges has had wide experience in
dealing with such matters and may be able to assist other committees in making
judgments as to the appropriateness of raising questions which, at first sight,
might be considered serious but subsequently may not warrant further
investigation.[18]
1.48
Having undertaken the preliminary investigations outlined above, the
committee has concluded that this is not a matter on which it would have
recommended further action, had it been possible to undertake consultations
with the select committee.
1.49
In particular, the committee is not persuaded that it should depart from
the following position set out in its 122nd report:
Deliberations and draft reports
3.51 Unauthorised disclosure and publication of the
deliberations and draft reports of a committee, regardless of the stage at
which disclosure occurs, should be a matter for internal discipline unless the
disclosure and publication of those deliberations or draft reports:
(a) also discloses actual or identifiable in camera
evidence; or
(b) discloses
deliberations which may have an adverse effect on, or raise the expectations
of, individuals who are the subject of or may be affected by the observations
or recommendations in a committee’s report.
3.52 Again, any committee which consults the Committee of
Privileges on this matter can assume that, unless the leaker of the information
is discovered, the committee will be reluctant to undertake an inquiry unless in
camera evidence is involved...[19]
1.50
The material received by the committee gives it little cause to consider
it would have any more success than the select committee in identifying the
source of the disclosure.
Intervention in committee processes
1.51
As has been noted, the response from Senator Milne expressed concerns
about government intervention in the select committee’s processes. Senator
Milne submits that ‘It has become the norm for the Executive to involve themselves
in the work of committees and to seek to influence the outcome of inquiries’
and suggests that this interference ‘undermines the integrity of the Senate
committee system and reflects a significant cultural shift away from the
independence of the Senate’s processes’.
1.52
The committee is highly critical of any conduct which impedes the
freedom of a committee to deliberate. On the other hand, there is no bar on any
member of any committee pressing a party position during a committee’s
deliberations, however much that may limit the scope of the consensus a
committee may be capable of reaching.
1.53
While Senator Milne provides one possible explanation, the committee
notes that her conclusions are not supported by other material put before the
committee. In those circumstances, and again in the absence of evidence of
substantial interference with the select committee’s work, this committee does
not consider that line of inquiry warrants further investigation in this case.
Procedural matters for select committees
1.54
The case has revealed a gap in relevant procedure, in that the 2007
resolution is not available as a remedy where a committee has ceased to exist.
In similar circumstances in the future it might be appropriate for such a
committee to seek from the Senate a brief extension of time for the limited
purpose of complying with that resolution.
1.55
The committee stops short of proposing this as a recommendation, leaving
it to the members of such a committee, and the Senate itself, to determine such
matters on a case-by-case basis.
1.56
Should such a matter again come before this committee, the committee
intends to follow the process it has undertaken in this case of applying as
best it can the procedures and principles of the 2007 resolution before
determining whether to further investigate any apparent unauthorised disclosure
as a possible contempt.
Conclusion and recommendation
1.57
Applying the principles reflected in the resolution of the Senate of
17 September 2007, the committee has concluded that the matter referred does
not warrant further investigation. The committee is unable to conclude, on the
evidence before it, that a contempt of the Senate has been committed and recommends to the Senate that a contempt not be found.
(Senator Gary
Humphries)
Chair
[1] Journals of the Senate, 21 November 2012, pp. 3343-44.
[2] Senate Committee of Privileges, 122nd report, Parliamentary
privilege – unauthorised disclosure of committee proceedings, June 2005, PP
No. 137/05.
[3] The unauthorised disclosure of a draft report comes within the
description in paragraph (16)(c) of proceedings in private session of a
committee that have not been authorised for publication.
[4] This resolution was initially adopted as a sessional order on 6 October
2005 before being adopted as a continuing order on 17 September 2007.
[5] Senate Committee of Privileges, 122nd report, paragraphs 3.45
– 3.48; 3.51 – 3.52.
[6] The committee considered an aspect of the 2007 resolution in its 151st report, although unauthorised disclosure was not directly raised in the terms
of reference for that inquiry. See Senate Committee of Privileges, 151st report, PP No. 95/12, paragraphs 1.35–1.46.
[7] That letter appears at Appendix 1.
[8] Senate Select Committee on Electricity Prices, Report, Reducing
energy bills and improving efficiency, November 2012, PP No. 407/12,
Chapter 7. That chapter appears at
Appendix 2.
[9] The President’s statement appears at Appendix 3.
[10] Journals of the Senate, 20 November 2012, p. 3312.
[11] Journals of the Senate, 21 November 2012, p. 3343-4.
[12] See, for example, Senate Committee of Privileges, 142nd report at paragraphs 1.23 – 1.25 and, more generally, Senate Committee of
Privileges, 125th report, Parliamentary privilege: Precedents,
procedures and practice in the Australian Senate 1966–2005, PP No. 3/2006,
Chapter 5.
[13] See, for example, the contribution of the then chair of the
Privileges Committee, at Senate Committee of Privileges, 122nd report, paragraph 1.20.
[14] Senate Select Committee on Electricity Prices, Report, paragraph 7.11.
[15] As noted at paragraphs 1.19 – 1.23, above.
[16] Senate Committee of Privileges, 125th report, paragraph 5.35.
[17] See Senate Committee of Privileges, 122nd report,
paragraphs 3.43 – 3.52.
[18] Senate Committee of Privileges, 122nd report, paragraph 3.48.
[19] Senate Committee of Privileges, 122nd report, paragraphs 3.51 –
3.52.
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