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.
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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