Chapter 2 - Parliamentary Privilege: immunities and powers of the Senate

Parliamentary privilege and statutory secrecy provisions

Parliamentary privilege is not affected by provisions in statutes which prohibit in general terms the disclosure of categories of information.

There are many statutory provisions, here generically designated as secrecy provisions, which prevent the disclosure of information thought to require special protection from disclosure. Usually these provisions create criminal offences for the disclosure of information obtained under the statute by officers who have access to that information in the course of duties performed in accordance with the statute.

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 have no effect on the powers of the Houses and their committees to conduct inquiries, and do not prevent committees seeking the information covered by such provisions or persons who have that information providing it to committees.

The basis of this principle is that the law of parliamentary privilege provides absolute immunity to the giving of evidence before a House or a committee. That law was made clear by section 16 of the 1987 Act, which declares that the submission of a document or the giving of evidence to a House or a committee is part of proceedings in Parliament and attracts the wide immunity from all impeachment and question which is also clarified by the Act. It is also 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. Section 49 of the Constitution provides that the law of parliamentary privilege can be altered only by a statutory declaration by the Parliament. These principles were set out in 1985 in a joint opinion of the then Attorney-General and the then Solicitor-General:

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 may be taken away .......... In the case of the Parliament of the Commonwealth, s. 49 of the Constitution requires an express declaration. (Quoted in Report by the Senate Standing Committee on Constitutional and Legal Affairs, Commonwealth Law Making Power and the Privilege of Freedom of Speech in State Parliaments, 30 May 1985, PP 235/1985, p. 2.)

These principles were called into question by advice given to the executive government by its legal advisers late in 1990. The context of the advice was the operations of the Parliamentary Joint Committee on the National Crime Authority. The National Crime Authority Act 1984 established a National Crime Authority with power to inquire into matters relating to organised crime. The Act also established a Joint Parliamentary Committee to oversee the Authority on behalf of the Parliament. The provisions establishing the committee were not initiated by the government, but were inserted into the act by an amendment made in the Senate. In the part of the Act establishing the committee there was a provision which limited the powers of inquiry of the committee, by providing that the committee was not to investigate a particular criminal activity or to reconsider the findings of the Authority in relation to a particular investigation. In another part of the Act there was a general secrecy provision, making it an offence for officers of the Authority to disclose information obtained in the course of their duties except in accordance with those duties. Members of the Authority claimed that the general secrecy provision prevented them providing information to the committee. They claimed that they could be prosecuted for providing information to the committee contrary to that provision, and at one stage they sought from the executive government immunities from prosecution under the section.

The committee sought advice from the Clerk of the Senate on this question. The advice was that the secrecy provision had nothing to do with the provision of information to the committee. Apart from the principles already enunciated, there were additional reasons for that advice. The general secrecy provision contained nothing to indicate that it had any application to the committee, and was not placed in the part of the act dealing with the committee. Moreover, the provision allowed the disclosure of information in accordance with the duty of officers, and it could readily be concluded that officers had a duty to cooperate with the committee which was statutorily charged with the task of overseeing the activities of the Authority.

Notwithstanding the cogency of these arguments, the government and its legal advisers came to the support of the Authority. An opinion of the Solicitor-General asserted that the secrecy provision prevented the provision of information to the committee. The opinion did not make it clear how the secrecy provision operated in relation to the committee’s inquiries. It appeared to contemplate that the secrecy provision had no application while the committee was operating within its statutory charter, but that should the committee stray outside its statutory bounds the secrecy provision operated in some way to stop the committee’s inquiries.

The great weakness of this argument was revealed by the question: If an officer of the Authority gave information to the committee, could the officer then be prosecuted under the secrecy provision? In the opinion, and in the subsequent government opinions to which reference will be made, this question was not answered. The government’s advisers stopped short of claiming that a person could be prosecuted for presenting information to a parliamentary committee. Such a claim could not be maintained in the face of the law of parliamentary privilege, but if a prosecution could not be undertaken, how could the secrecy provision operate? As has been indicated, the secrecy provision, like most such provisions, worked by creating a criminal offence for the disclosure of information. If there is no offence for disclosing information to a parliamentary committee, the provision could not operate in relation to such a committee. It was also pointed out that if the Joint Committee strayed outside its statutory terms of reference, the legal remedy would be to restrain it directly, not to invoke the secrecy provision in some unspecified way. The Solicitor-General’s advice appeared to contemplate that the remedy for a committee going beyond its terms of reference was that its proceedings would be deprived of the protection of parliamentary privilege. This is analogous to saying if the Parliament passes a bill which is later found to be beyond its constitutional powers, its proceedings on the bill would be retrospectively stripped of their privileged status. Alternatively, if the presentation of evidence to the committee contrary to the secrecy provision remained privileged, would this mean that the provision could not be enforced against an officer who gave such evidence voluntarily, but operated only to restrain the committee where an officer objected to giving such evidence? These difficulties with the Solicitor-General’s opinion were pointed out in a further advice to the committee.

In spite of all these considerations, the government expressed an intention of adhering to the advice of the Solicitor-General. The reaction in the Senate to this was that one of the Senate members of the committee introduced a bill to amend the National Crime Authority Act to make it clear that the secrecy provision had no application to inquiries by the committee (National Crime Authority (Powers of Parliamentary Joint Committee) Amendment Bill 1990).

In the advice to the committee it was pointed out that there are many general secrecy provisions in federal statutes, and the apprehension was expressed that if the Solicitor-General’s opinion were to go unchallenged all of these provisions could be invoked to prevent inquiries by the Houses and their committees into a wide range of information collected by government and its agencies. It was also pointed out that not only secrecy provisions could be so invoked: once the principle that parliamentary privilege is not affected by a statute except by express words is abandoned, there is no end to the provisions which may be interpreted as inhibiting the powers of the Houses and their committees.

This apprehension soon proved to be only too well founded. Early in 1991 another government opinion, composed in the Attorney-General’s Department, was presented to the Senate. This opinion contended that another general statutory secrecy provision inhibited the provision of information to a parliamentary committee. The opinion conceded that a person “probably” could not be prosecuted for giving information to a parliamentary committee contrary to the secrecy provision, without explaining how, if there could be no prosecution, the provision could operate. The opinion appeared to indicate that secrecy provisions are simply an excuse for officers who do not wish to answer questions before committees, but cannot be enforced if information is voluntarily provided.

Before there was time for the dispute to progress much further, yet another opinion of the Attorney-General’s Department was produced in the Senate. This opinion related to another statutory secrecy provision, but came to the opposite conclusion. Contrary to the other government opinions, it asserted that the Senate could require the disclosure of information to one of its committees notwithstanding that that information was covered by a secrecy provision.

All of the opinions and advices were then drawn to the attention of the Senate, and the government was called upon to determine exactly where it stood on the question. In due course a second opinion of the Solicitor-General was produced. This opinion conceded that a general statutory secrecy provision does not apply to inquiries by the Houses or their committees unless the provision in question is so framed as to have such an application. The opinion contended that a secrecy provision could apply to parliamentary inquiries by force not only of express words in the provision but by a “necessary implication” drawn from the statute. It was just such a “necessary implication” which was found by the Solicitor-General in the National Crime Authority Act to give the secrecy provision in that act an application to inquiries by the Joint Committee.

In an advice to the Senate by its Clerk on this opinion, it was pointed out that the doctrine of “necessary implication” still posed a residual threat to the powers and immunities of the Houses and their committees, because the government’s legal advisers could find “necessary implications” when there was a desire to invoke a particular secrecy provision to inhibit a parliamentary inquiry. This is well illustrated by the “necessary implication” drawn from the National Crime Authority Act, which would not necessarily be drawn by any conscientious reader of the statute.

As an indication of lack of acceptance of the final government opinion, a private senator’s bill was introduced into the Senate to declare, for the avoidance of doubt, that statutory provisions do not affect the law of parliamentary privilege except by express words. This residual question has not been resolved. The various opinions given on this matter were included in the explanatory memoranda accompanying the National Crime Authority (Powers of Parliamentary Joint Committee) Amendment Bill 1990, presented on 8 November 1990, and the Parliamentary Privileges Amendment (Effect of Other Laws) Bill 1991, presented on 9 September 1991. (See also 36th report of Committee of Privileges, 25 June 1992, PP 194/1992.)

In 1995 the government’s advisers claimed that a clause in the Auditor-General Bill 1994 which would prevent the Auditor-General releasing certain information would be an implied restriction on the powers of the Senate and would prevent the provision of such information in response to an order of the Senate. It was also claimed that it would be unconstitutional for the Parliament to enact a provision to the effect that parliamentary powers and immunities are not affected by a statute except by express words. This claim was rejected by advice provided by the Clerk of the Senate. (See the 12th and 14th reports of 1995 of the Scrutiny of Bills Committee, PP 493/1995.) A revised version of the bill introduced in 1996 overcame this issue by explicitly providing for the effect of the clause on parliamentary inquiries.

Since 1991 the government has generally adhered to the view that a generic statutory secrecy provision does not affect parliamentary inquiries, with only occasional episodes of confusion on the point. For a statement by the government of the principle, see SD, 4/12/2003, pp 19442‑3, in relation to the ASIO Legislation Amendment Bill 2003. (See Supplement)

In estimates hearings in 2006 and 2007 officers of the Department of Employment and Workplace Relations attempted to suggest that a provision in the Public Service Act requiring officers to maintain confidentiality could be breached by the giving of evidence, but this position was rejected by the committee (Reports of the Employment, Workplace Relations and Education Legislation Committee, Budget Estimates 2006-07, p. 3 and Appendix A, PP 144/2006; Additional Estimates 2006-07, pp 14-15, PP 64/2007).

For an application of the principle that Parliament cannot be assumed to have indirectly surrendered by implication in a statute part of the privilege attaching to its proceedings, see Criminal Justice Commission v Parliamentary Criminal Justice Commissioner 2002 2 Qd R 8.

It is notable that in the United States the courts have consistently held that a statutory secrecy provision does not prevent the Houses of Congress or their committees requiring the production of the protected information (for example, FTC v Owens-Corning Fibreglass Corp 1980 626 F 2d 966).

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