Submission from the Clerk of the House of
Representatives
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OFFICE OF THE CLERK OF THE HOUSE
PO Box 6021,
Parliament House, Canberra ACT 2600 | Phone: (02) 6277 4111 | Fax: (02) 6277
2006 | Email: clerk.reps@aph.gov.au
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Parliamentary Joint Committee on Corporations and
Financial Services
Parliament House
Inquiry into whistleblower protections – request
for comment
Thank you for your letter of 7 June 2017 in which
you passed on the Committee’s request for comment on its terms of reference and
interaction with the Parliament, parliamentary privilege and the Parliamentary
Privileges Act 1987 (Privileges Act).[1]
Given the timeframe for a response I will focus on the application of the Public
Interest Disclosure Act 2013 (PID Act), and the Privileges Act
generally in the parliamentary context before I turn to disclosures in respect
of the four interactions that you drew to my attention:
1.
about
wrongdoing by Members of Parliament or their staff
2. by Members of Parliament or their
staff
3. to Members of Parliament or their
staff; and
4. to parliamentary committees.
I will also refer to the
possibility of broadening the coverage of the PID Act in the parliamentary
context.
Parliamentary context
General PID Act framework
The PID Act establishes a framework to encourage the
reporting and investigation of wrongful conduct (such as fraud, corruption and
misconduct) in the Commonwealth public sector by protecting public officials
who make disclosures in accordance with its provisions from reprisals. The Act
focuses on disclosures being made internally—that is, to a supervisor or agency
official appointed to receive disclosures—although in certain circumstances,
‘external’ and ‘emergency’ disclosures can be made to persons outside the
official’s ‘home’ agency. The PID Act generally does not cover members of
Parliament or their staff, although it does draw in Parliamentary Service
employees and former employees. Parliamentary Service employees are also bound
to comply with the Code of Conduct in s.13 of the Parliamentary Service Act
1999, and are subject to the penalties outlined in s.15 for established
breaches.
Public officials included in PID
Act coverage
The PID Act includes as ‘public officials’,
employees of the Parliamentary Service and former employees[2]
but it does not include members of Parliament or their staff employed under the
Members of Parliament (Staff) Act 1984 (MOPS Act). So, members and their
MOPS Act employees are not included as a category of authorised recipients of
disclosures (although it may be that they could be the recipients of ‘external’
or ‘emergency’ disclosures under s.26 of the Act).[3]
Nor does the PID Act cover disclosures about wrongdoing by members of
Parliament or MOPS Act employees. Their roles were considered to be very
distinct from the roles of public sector employees and to fall more
appropriately within the sole jurisdiction of parliament.[4]
Parliamentary privilege preserved
Clause 81 of the original Public Interest Disclosure
Bill 2013 had provided, for the avoidance of doubt, the Bill did not affect the
powers, privileges and immunities of the Senate, House of Representatives,
their members and committees, under section 49 of the Constitution, nor the
provisions of the Privileges Act. An amendment moved by the Attorney-General
during the House’s consideration in detail, in June 2013, omitted clause 81.
The former Clerk of the Senate, Dr Laing, had argued in her submission of 9
April 2013 that because the bill did not expressly apply to Members and
Senators, the inclusion of clause 81 was unnecessary and could lead to
confusion if it remained. The Senate’s Legal and Constitutional Affairs
Committee recommended in its report of June 2013 that the clause be removed.[5]
The history of the PID bill has been so
well-canvassed and documented in the Senate Committee’s inquiry and report and
the inquiries and reports of the House of Representatives Legal and
Constitutional Affairs Committee and Social Policy and Legal Affairs Committee[6]
that it should be very clear that the PID Act is not intended to and does not
affect provisions of the Parliamentary Privileges Act or the law of
parliamentary privilege generally.
I will refer now to the potential application of the
Parliamentary Privileges Act and the law of parliamentary privilege generally
in relation to disclosures in the parliamentary context, and then to the four
interactions that you referred to in your letter.
Possible application of
parliamentary privilege to disclosures of alleged wrongdoing
As the Committee would be well aware, the term parliamentary privilege refers
to the special rights and immunities that apply to the Houses, their committees
and members, and that are essential for the proper operation of the Parliament.
The most significant privilege—and the most relevant for present purposes—is
the privilege of freedom of speech. The Parliamentary Privileges Act offers
some clarification of the nature and extent of the rights and immunities of the
Houses inherited by the House through s.49 of the Constitution.
Section 16 provides that members, witnesses who give
evidence to parliamentary committees, and others who participate in
parliamentary proceedings are protected from civil or criminal action and
cannot be examined in court in relation to those proceedings. Also,
‘proceedings in Parliament’ cannot be impeached or questioned in courts or
tribunals.[7]
Members and others involved in ‘proceedings in Parliament’ enjoy absolute
privilege from prosecution and legal proceedings in respect of what they say in
proceedings in Parliament—provided what they say complies with House practice
and rules. Members are still accountable to the House in respect of their
statements and actions.[8]
These protections, if they apply to disclosures of wrongdoing that would
otherwise fall within the PID Act, would appear to offer a substantial degree
of comfort to those who make disclosures in the parliamentary context.
The Parliamentary Privileges Act clarifies in s.
16(2), to a degree, the meaning of ‘proceedings in Parliament’, defining its
broad meaning as ‘all words spoken and acts done in the course of, or for purposes
of or incidental to, the transacting of the business
of a House or of a committee’.. . But interpretation of
section 16 by the Courts has been rare. What might be encompassed by the words
‘for purposes of or incidental to’ the transaction of the business of a House
or a committee is not entirely clear and therefore what special immunity—if
any—might be available to communications of wrongdoing in these circumstances is
unclear. In a decision in the Queensland Court of Appeal it was accepted that
certain documents obtained by or provided to a Senator (and related to a
subject he had raised in the Senate) did not need to be produced in response to
an order because of subsection 16(2).[9]
Also, section 16 has been found to cover documents
prepared for Senate committee briefings, with the result that they could not be
produced in response to a subpoena.[10]
If documents or disclosures are made to a member and then are subsequently used
in the transacting of business in a House or committee (such as contributing to
debate or asking questions in the House or a committee), there may be some
protection available. But, in the case of Rowley v Armstrong a
single Judge of the Supreme Court of Queensland concluded that a person who had
communicated a matter to a Senator could not be regarded as participating in
‘proceedings in Parliament’.[11]
The Senator had apparently used the information in two questions to a Minister
and in a debate in the Senate. While the Judge’s comments were not central to
his decision, and have been contested as not being well founded, they
demonstrate that the further interpretation of section 16 could provide
greater clarity.
With respect to other communications, House of
Representatives Practice states: ‘Conversations, comments or other
communications between Members, or between Members and other persons, which are
not part of “proceedings in Parliament” would not be expected to enjoy absolute
privilege. ... [C]itizens communicating with a Member on matters that have no
connection with proceedings in Parliament are not protected.’[12]
This could be relevant, for example, to the disclosure by a member to a
Minister.
Protection
of qualified privilege
A
defence of qualified privilege might also be available to actions for defamation
against persons communicating information or allegations concerning a Commonwealth
department or agency to members when there was no connection with proceedings
in Parliament. Broadly that is where there is a duty to pass on the information
and an absence of malice in making the disclosure.
Punishment for contempt
The
House can treat as a contempt, an act or omission that obstructs or impedes it
in the performance of its functions, or obstructs a Member in the discharge of
his or her duty, or tends to product such results.[13]
It is possible that reprisals against a person who provided information to a Member,
or a against a Member who made a disclosure, even where there was no connection
with ‘proceedings in Parliament’, could be dealt with as a matter of contempt,
although this may be of limited comfort. The requirements of s.4 of the
Privileges Act would also need to be met:
Conduct (including the use of words) does not constitute an offence against a
House unless it amounts, or is intended or likely to amount, to an improper
interference with the free exercise by a House or committee of its authority or
functions, or with the free performance by a member of the member's duties as a
member.
Disclosures about wrongdoing—four interactions
I am supposing that the disclosures you refer to
relate to wrongdoing in the sense of ‘disclosable conduct’ within s.29 of the
PID Act and not to personal or professional disagreements and not matters that
could appropriately be dealt with in a less formal or public way.
1.
Disclosures
about wrongdoing by Members of Parliament or their staff
It is clear from debate during the passage of the
PID Act that parliament itself is seen as the most appropriate venue for
allegations about any such wrongdoing. If a disclosure of wrongdoing were made
about a Member, I would expect it would most likely be made by another Member
who ensured that it fell within ‘proceedings in Parliament’, as discussed
above, and that he or she complied with House rules and practices when making
the disclosure. I would also expect that disclosures about wrongdoing by staff
of Members would be made at least in the first instance to the employing
Member. Ministerial staff are subject to a Code of Conduct for Ministerial
Staff.
2.
Disclosures
by Members of Parliament or their staff
If a disclosure of wrongdoing were to be made publicly
by a Member, I would expect the Member who wanted to enjoy the protection of
parliamentary privilege, to ensure that it fell within ‘proceedings in
Parliament’, as discussed above, and that he or she complied with House rules
and practices when making the disclosure. I would also expect a staff member of
a Member to pass on to the Member disclosures that had been made and in doing
so to seek as far as possible to bring the disclosure within ‘proceedings in
Parliament’. It is possible although unlikely that a Member or staff member
could fall within the category of ‘public official’ by being former staff of
agencies covered by the PID Act and bring a disclosure within the terms of a
public interest disclosure under s.26 of the Act. If so I expect they would
make an internal disclosure to an appropriate person in their former agency,
and if necessary an external disclosure or emergency disclosure to any person
other than a foreign public official. If seeking to rely on the protections of
the PID Act, the Member or staff member would need to comply with the PID Act.
3.
Disclosures
to Members of Parliament or their staff
In making disclosures to a Member or their staff, a
person may or may not fall within the protection of the umbrella of
‘proceedings in Parliament’ depending on the circumstances surrounding the
communication. As already noted, what is encompassed by ‘proceedings in
Parliament’ and, in particular, what is ‘for purposes of or incidental to’ the
transacting of the business of a House or committee is not entirely clear. If
the allegations were serious, it may be that a Member would endeavour to ensure
the disclosures fell with the umbrella of ‘proceedings in Parliament.
4.
Disclosures
to parliamentary committees
During their
inquiries, House committees and joint committees sometimes receive submissions
and oral evidence from people who include allegations about perceived
wrongdoing of Commonwealth government departments and agencies and staff. The
protection of absolute privilege applies to such submissions and to such
evidence in accordance with the provisions of the Parliamentary Privileges Act.
House standing orders 236 (power to call for witnesses and documents), 242
(publication of evidence), and 256 (witnesses entitled to protection) may also
be relevant to disclosures of wrongdoing to committees.
Section
12 of the Parliamentary Privileges Act provides that a person shall not, by
fraud, intimidation, force or threat, ... or by other improper means, influence
another person in respect of any evidence given or to be given, or induce
another person to refrain from giving any such evidence. So, in addition to the
immunity available in respect of evidence that falls within ‘proceedings in
Parliament’, this statutory offence provision complements the protections
available to witnesses who might make disclosures to parliamentary committees.[14]
Future:
the implications of including Members as authorised recipients of disclosures
and the subject of public interest disclosures
The
Committee would be aware of some criticisms surrounding the omission of Members
in particular, but also their staff, from coverage of the PID Act as recipients
of disclosures and the subject of disclosures.
The
inclusion of Members and Senators as authorised recipients of disclosures would
increase the number of people to whom disclosures could be made and acknowledge
their role as representatives. I am not sure that Members necessarily would
consider they have the requisite resources to undertake such a significant role
in addition to their existing responsibilities. The PID Act is complex and its
requirements are rigorous. Members do not have the stable, institutional
resources enjoyed by other agencies included in the Act. They also operate in
an environment that is founded on freedom of speech and political difference
and it may be difficult to maintain and be seen to maintain necessary
confidentiality and to avoid perceptions that political considerations could
have an influence on disclosures and the way they were treated.
In his Review of the PID Act, Mr [Phillip] Moss AM
noted that the Commonwealth is the only Australian jurisdiction to exclude
scrutiny of members and their staff from similar legislation and compared the
range of provisions relating to Members and staff in other jurisdictions. Mr
Moss considers that allegations of wrongdoing by or about members or their
staff should be scrutinised by Parliament, for example through the House
Standing Committee of Privileges and Members’ Interests and the Senate Standing
Committee of Privileges.[15]
He also notes submissions were made about the incomplete exclusion of members
and their staff, with Ministers exercising statutory powers possibly being
considered to be public officials, and MOPS Act staff possibly being considered
to be contracted service providers and has called for clarification.[16]
While Mr Moss considers that members and their staff
should be subject to robust scrutiny, he also notes the likelihood of
politicisation and extensive media coverage that would follow alleged
wrongdoing. Mr Moss recommends that the Act be amended to make clear that it
does not apply to reports about alleged wrongdoing by Senators, Members and
their staff, or allegations made by them. He also recommends that consideration
be given to extending the application of the PID Act to members or their staff
if an independent body with the power to scrutinise their conduct is created.[17]
My view is that, at present, issues relating to the
conduct of members, unless they amount to criminal conduct, are best dealt with
by the Parliament, and the relevant House to supervise, in particular through
the relevant Privileges committee. The continued oversight of members’ conduct
by parliament would perhaps be considered to be more effective if Members and
Senators were subject to a Code of Conduct. I draw the Committee’s attention to
the Discussion Paper presented on 23 November 2011 following the House of
Representatives Standing Committee of Privileges and Members’ Interests inquiry
into a Draft Code of Conduct for Members of Parliament. With respect to
members’ staff, I agree that their role is substantially different from other
staff in the public sector and so I consider that, for now, it is not
appropriate for them to be covered by the PID Act as recipients of disclosures
or as the subjects of disclosures.
I hope this assists the Committee in its
deliberations and, of course, I would be pleased to discuss any of these
matters in more detail with the Committee if it wishes.
Yours sincerely,
DAVID ELDER
Clerk of the House
21 June 2017
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