Chapter 2
Statutory Secrecy
Provisions and Parliamentary Privilege
The
first principle – the supremacy of parliamentary privilege
2.1
The
law of parliamentary privilege protects proceedings in Parliament from being
questioned or impeached in any place outside of Parliament. The principle has
a long and consistent history. It took its first statutory form in 1689 in
article 9 of the Bill of Rights. It was inherited by the Commonwealth
Parliament in 1901 through section 49 of the Australian Constitution. The
principal has been since codified in section 16 of the Parliamentary
Privileges Act 1987.[1]
2.2
As
a result of this principle, the Houses and committees, members and witnesses of
the Parliament are able to operate without their proceedings being questioned
or interfered with in any way. Any statutory provision which seeks to limit
this freedom is therefore fundamentally obnoxious to this general principle.
2.3
It
would only be in the rarest and most extraordinary of cases that the Parliament
would decide to set some limit on its own operations, and legislate so as to
limit itself in some way.
The status of statutory
secrecy provisions
2.4
It
has long been acknowledged that statutory secrecy provisions have no
application to the operations of the Houses of Parliament or their committees
unless there are express words to the contrary. The committee examined the
impact of statutory secrecy provisions in the former National Crime Authority
(NCA) Act in its 36th report.[2]
In a difficult case the committee found that members of the NCA, senior lawyers
working at the highest levels of a statutory authority which had a direct
relationship with a parliamentary committee, had attempted to prevent another
of their members giving evidence to the parliamentary joint committee on the
NCA in the mistaken belief that the secrecy provisions of the NCA Act overrode
the protections and requirements of parliamentary privilege. At the time of
this case, the issue was explored in a number of opinions, the history and outcome
of which is covered in detail in the submission to this inquiry by the Clerk of
the Senate.[3]
2.5
That
only a statutory declaration can affect the powers, privileges and immunities
of the Commonwealth Houses was the view expressed in 1985 in a joint opinion by
the then Attorney-General and the then Solicitor-General as follows:
Whatever
may be the constitutional position, it is clear that parliamentary privilege is
considered to be so valuable and essential to the workings of responsible
government that express words in a statute are necessary before it can be taken
away. ... In the case of the Parliament of the Commonwealth, s.49 of the
Constitution requires an express declaration.[4]
2.6
Section
49 of the Australian Constitution provides as follows:
49 Privileges etc. of
Houses
The
powers, privileges and immunities of the Senate and of the House of
Representatives, and of the members and committees of each House, shall be such
as are declared by the Parliament , and until
declared shall be those of the Commons House of Parliament of the United
Kingdom, and of its members and committees, at the establishment of the
Commonwealth. (Emphasis supplied).[5]
2.7
What
is required is an express statutory declaration that a provision is intended to
affect the powers, privileges and immunities of the Senate and the House of
Representatives before it can be effective. "The Federal Parliament has
therefore unrestricted authority to define and declare its powers, privileges
and immunities."[6]
2.8
Recitations
of the settled nature of the principle are also to be found in all of the
standard manuals of parliamentary practice, including Odgers, McGee and
Lovelock & Evans:
Parliamentary
privilege is not affected by provisions in statutes which prohibit in general
terms the disclosure of categories of information...Statutory provisions of
this type do not prevent the disclosure of information covered by the
provisions to a House of the Parliament or to a parliamentary committee in the
course of a parliamentary inquiry. They ... do not prevent committees seeking
the information covered by such provisions or persons who have that information
providing it to committees.[7]
In
general, a statutory secrecy provision cannot be taken as applying as a matter
of law to prevent the disclosure of information to the House or a committee
unless this is one of the necessary intentions of the provision.[8]
In
general terms, statutory secrecy provisions in New South Wales have no effect
on parliamentary privilege, although that is not to say that members of parliament
should not consider seriously claims by witnesses that they cannot answer a
question due to statutory secrecy provisions which prohibit the disclosure of
particular information.[9]
It
is a fundamental principle that the law of parliamentary privilege is not
affected by a statutory provision unless the provision alters that law by
express words.[10]
The problem of
statutory secrecy provisions
2.9
As
the committee found in its 36th report, there is a widespread perception
throughout the public service that statutory secrecy provisions limit the
information that public servants can provide to parliament and its committees.[11] This is
clearly incorrect, but the pervasiveness of this view can frustrate legitimate
attempts by parliamentary committees to obtain the information they require to
conduct their inquiries.
2.10
The
potential scale of the problem has been demonstrated in the recent report by
the Australian Law Reform Commission, entitled Secrecy Laws and Open
Government in Australia, which included a comprehensive survey of existing
secrecy laws in Australia.[12]
2.11
In
a submission to the committee, the ALRC advised:
The
ALRC undertook a comprehensive mapping exercise to catalogue the secrecy
provisions currently on the federal statute book. The ALRC identified 506 secrecy
provisions in 176 pieces of legislation, including 358 criminal offences.[13]
2.12
It
is this large and wide-ranging body of secrecy provisions in
Commonwealth statutes, and the potential for an argument to be made out in
relation to each one of them that it should be extended to apply to the giving
of information to the Parliament, which is of potential concern in inhibiting
the operations of the Houses and their committees.
Are
there any statutory limitations on the powers, privileges and immunities of the
Parliament?
2.13
A
small number of provisions in Commonwealth law expressly limit the powers,
privileges and immunities of the Parliament in certain circumstances.
2.14
One
example of these provisions is subsection 37(3) of the Auditor-General Act
1997:
Sensitive
information not to be included in public reports
(3) The Auditor-General cannot be
required, and is not permitted, to disclose to:
(a) a House of the Parliament; or
(b) a member of a House of the
Parliament; or
(c) a committee of a House of the
Parliament or a joint committee of both Houses of the Parliament;
information
that subsection (1) prohibits being included in a public report.[14]
2.15
In
her evidence to the committee, the Clerk of the Senate referred to the history
of this provision and its origin in a recommendation of the former Public
Accounts Committee to strengthen the independence of the Auditor-General as an
officer of the Parliament, free from direction by any other party including the
Parliament itself.[15]
Other examples include subsection 439(5) of the Migration Act 1958 and
subsection 8(3) of the Inspector-General of Taxation Act 2003, both of
which safeguard the independence of particular operations by excluding the
possibility of parliamentary direction. None of these provisions could be characterised
as a secrecy provision.
2.16
The
provisions in the Tax Laws Amendment (Confidentiality of Taxpayer Information)
Bill 2009 are the only provisions known to the committee which attempt to limit
the information that officers may provide to committees. They are also the only
provisions known to the committee which create offences for providing evidence
to parliamentary committees. It is certainly the case that oversight committees
established by Parliament to monitor the operations of certain intelligence,
law enforcement or corporate regulatory bodies have functions and terms of
reference limited by statute, but such provisions can be distinguished from
those in the bill which are directed at limiting the conduct of individual
officers in their dealings with Parliamentary committees.
2.17
The
problems which the committee has identified with the provisions are examined in
the next chapter.
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