Subpoenas, search warrants and members
Members have no explicit immunity as such against subpoenas or orders for discovery of documents issued by courts or tribunals or search warrants, which may be used to obtain access to documents held by members (for the service of subpoenas in the precincts, see under Matters constituting contempts, below; for the execution of search warrants in the precincts, see under Police powers in the precincts, below). The use before a court or tribunal of material obtained by subpoena, discovery or search warrant is of course restricted by the law of parliamentary privilege as has been indicated above.
There may be, however, an effective immunity from such processes for compulsory production of documents where the documents are so closely connected with proceedings in Parliament that their compulsory disclosure would involve impermissible inquiry into those proceedings.
In O’Chee v Rowley, Queensland Court of Appeal, 1997 150 ALR 199, the court, influenced by an American precedent, Brown and Williamson Tobacco Corp v Williams 1995 62 F 3d 408, in effect held that documents created for purposes of or incidental to parliamentary proceedings could be immune from orders for discovery of documents, although there was some uncertainty about whether this extended to documents created by persons other than the senator concerned. This case was referred to in the 75th Report of the Committee of Privileges, PP 52/1999.
In NTEIU v the Commonwealth (19/4/2001, not reported) the Federal Court accepted submissions on behalf of the Senate and by the Australian Government Solicitor to the effect that certain documents were immune from production because they were matters done for purposes of and incidental to parliamentary proceedings. Similarly, in Australian Communications Authority v Bedford, the Federal Magistrates Court held that briefs prepared for Senate estimates hearings are immune from production in a criminal matter (28/3/2006, not reported). In CPSU v the Commonwealth a claim by the Commonwealth that a document prepared for Senate estimates hearings should not have been admitted into evidence in the Federal Court was not contested, and orders were made by consent to strike out references to the document in the evidence (11/7/2007, not reported). In Niyonsaba v the Commonwealth the Commonwealth claimed immunity from production in the Federal Court for briefing notes for Senate question time and estimates hearings, and this claim was not contested (2007, not reported).
For a claim by the Auditor-General, uncontested, that draft Audit Office reports, prepared for the purpose of presentation to Parliament, are immune from discovery because of parliamentary privilege, see tabled letters from the Audit Office and the Clerk of the Senate, 12/11/2002, J.1026; 14/6/2005, J.656.
In Crane v Gething 2000 169 ALR 727, a case involving the seizure of documents under search warrant in the offices of a senator, a judge of the Federal Court found that the court did not have jurisdiction to determine whether parliamentary privilege prevented such a seizure, as the issue of search warrants is an executive act and not a judicial proceeding, and that only the House concerned and the executive may resolve such an issue. This finding was contrary to a submission made by the Senate, to the effect that parliamentary privilege protected from seizure only documents closely connected with proceedings in the Senate, and that the court could determine whether particular documents were so protected (the submission was tabled in the Senate: 13/3/2000, J.2423-4). This aspect of the judgment was not appealed and is unlikely to be regarded as authoritative. The documents in question were forwarded to the Clerk of the Senate in accordance with the order of the court (3/10/2000, J.3267). The Senate appointed a person to examine the documents to determine whether any were protected from seizure by parliamentary privilege, to return any so protected to the senator, and to provide the remainder to the police (5/12/2000, J.3726-7; 8/8/2001, J.4617; 27/8/2001, J.4761).
In 2002 the Privileges Committee reported on the execution of a search warrant by state police in the state office of a senator. The committee found that the police had taken appropriate steps to allow the senator to claim that any of the material seized was immune from seizure by virtue of parliamentary privilege (105th report of the committee, PP 310/2002). The committee subsequently reported that, following continuing disagreement between the senator and the police about the treatment of documents for which privilege was claimed, the same arrangement had been made to settle the matter as in the 2000 case (5/2/2003, J.1457; SD, pp 8573-4). The result of the examination of the documents was that they were all returned to the senator, as none were found to be within the scope of the search warrant (114th report of the committee, 20/8/2003, PP 175/2003).
A memorandum of understanding and Australian Federal Police Guidelines agreed to by the President, the Speaker, the Attorney-General and the Minister for Justice and Customs, governing the execution of search warrants in the premises of senators and members, were tabled and debated in March 2005. The documents provide that any executions of search warrants in the premises of senators and members are to be carried out in such a way as to allow claims to be made that documents are immune from seizure by virtue of parliamentary privilege and to allow such claims to be determined by the House concerned. The agreement underlying these documents was the result of several years of effort by the Senate, successive Presidents and the Privileges Committee, arising from the committee’s consideration of the cases referred to above. (9/3/2005, J.451, SD, pp 91-2.) An agreement of the same kind was entered into with the Tasmanian government in 2006 (15/8/2006, J.2496). (See Supplement)
The US Court of Appeals ordered a similar arrangement for resolving claims of legislative immunity in a case involving documents seized in the office of a member of the House of Representatives under search warrant. In a subsequent judgment the court held that the search and seizure violated the legislative immunity, that the congressman should have been allowed to claim immunity for particular documents before they were seized, and that that claim should have been determined by the court so that immune documents would not fall into the hands of the law enforcement agencies. The court thereby came to a position identical to that argued by the Australian Senate in its submissions to the Australian Federal Court in 2000. (US v Rayburn House Office Building, Room 2113 [Jefferson case], 28/7/2006, 3/8/2007, not reported; the Supreme Court declined to review this judgment on 1 April 2008).
Documents would not have to be in the possession of a senator to attract the immunity. For example, documents such as briefing notes provided by an adviser to a senator for the purposes of proceedings in the Senate or a committee and in the possession of the adviser would be immune from seizure from the adviser.
The “dominant purpose” test applied by the courts in respect of legal professional privilege (Esso Australia Resources Ltd v Commissioner of Taxation 1999 168 ALR 123) would probably also be applied to documents to determine their immunity under parliamentary privilege.
Not only may members of Congress not be compelled to produce documents within the sphere of their legislative activities, or to undertake searches of their files containing protected material, but even when it is known or conceded that an order will turn up non-protected documents, members may not be required to search their files simply on that basis (Adams & Others v Federal Election Commission, US District Court, 9/10/2002, not reported). In US v Arthur Andersen, US District Court 2002 (not reported), a subpoena directed by the defence in a criminal case to a House of Representatives committee was quashed on the same basis.
The New South Wales Legislative Council has asserted the immunity (Standing Committee on Parliamentary Privilege and Ethics, Report No. 28, 2004; Minutes of Proceedings, 4/12/2003, pp 493-5, 501; 24/2/2004, pp 520-1).
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