Application of parliamentary privilege to registrable activities
5.1
This chapter considers the application and interaction parliamentary privilege with the proposed Scheme. The evidence and issues presented here do not take account of the amendments proposed by the Attorney-General that were provided to the Committee on 7 June 2018.
5.2
As noted in previous chapters, the Foreign Influence Transparency Scheme Bill (the Bill) establishes a range of registrable activities that will intersect with the workings of parliamentarians, including:
parliamentary lobbying, such that an person acting on behalf of a foreign public enterprise, foreign political organisation, foreign business or individual, engaging in that activity for the purpose of political or governmental influence, would be subject to the Scheme;
communications activities in Australia, such that a person acting on behalf of any foreign principal, engaging in those activities for the purpose of political or governmental influence, would be subject to the Scheme;
donor activity in Australia, such that a person acting on behalf of a foreign government, a foreign public enterprise or foreign political organisation, engaging in that activities for the purpose of political or governmental influence, would be subject to the Scheme.
5.3
The Bill establishes that an activity will be for the purpose of ‘political or governmental influence’ if a purpose (whether or not there are other purposes) is to influence, directly or indirectly, any aspect (including the outcome) of a number of processes and proceedings. This includes proceedings of a House of the Parliament and a process in relation to a federal government decision such as decisions of Cabinet.
5.4
Therefore the Bill seeks to regulate a wide range of activities of, and persons engaged with, the proceedings of parliament. It will require those engaged with the parliament—including, in some circumstances, members of Parliament themselves—to register their name, the name of the foreign principal and the nature of the lobbying activities that will be undertaken. The Bill and Explanatory Memorandum makes clear that the intent of the Bill is to extend to all types of engagement with parliamentarians, from appearing before a parliamentary committee, to meeting privately with an individual member of Parliament. This would encompass activities that many Australians may regard as ‘their right’ to engage with the Parliament and members of parliament in policy making and to represent their views or business or professional interests.
5.5
For example, a professional association body that represents a foreign business would be required to register under the Scheme within 14 days of commencing parliamentary lobbying activities (including appearing before parliamentary committees) where that foreign business has engaged the association to lobby on their behalf.
5.6
As a result, the Bill’s proposed regulation of interactions with members of Parliament may, in many circumstances, engage parliamentary privilege.
Parliamentary privilege and immunities
5.7
The term parliamentary privilege refers to special legal rights and immunities which apply to each House of the Parliament, its committees and Members.
5.8
Parliamentary privilege exists for the purpose of enabling the houses of the Parliament to carry out effectively their functions to inquire, to debate and to legislate. At the Commonwealth level, the law of parliamentary privilege provides ‘procedural and legal protections to those who participate in parliamentary proceedings’.
5.9
In 2010, the Senate Committee of Privileges discussed the role of parliamentary privilege in the following terms:
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. 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.
5.10
Appearing before the Committee in relation to this Bill, Mr Bret Walker SC noted that the purpose of parliamentary privilege is not ‘a personal benefit’ for parliamentarians, but rather the people:
It’s not for the protection of the members. If it’s seen as protection for the members then the whole endeavour is wasted. Privilege is not a personal benefit. It’s for us, by which I mean the people, that you have the privilege. Seen in that light—and that’s the traditional and contemporary understanding of the purpose of parliamentary privilege—an entrenchment on it is in reality a reduction in the efficacy of the system of parliamentary government, which is for the people, not the parliamentarians.
5.11
Parliamentary privilege is derived from Article 9 of the United Kingdom’s Bill of Rights 1688. It states that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. Article 9 therefore sets out three criteria for privilege to apply:
‘proceedings in Parliament’; and
the usage of the material must be for the purpose of ‘impeaching or questioning’; and
that questioning needs to be in ‘any court or place outside of Parliament’.
5.12
It was inherited by the Commonwealth Parliament in 1901 through section 49 of the Australian Constitution. The principle has been since codified in section 16 of the Parliamentary Privileges Act 1987. The Clerk of the Senate advised that section 16 of the Parliamentary Privileges Act ‘represents only a partial codification of privilege’. Mr Walker similarly advised that the Parliamentary Privileges Act does not lessen the protection of parliamentary privilege as existing prior to its enactment and is ‘not exhaustive’ as to the consequences of breaches of privilege.
5.13
Employing the same language as the Bill of Rights, section 16 of the Parliamentary Privileges Act declares the scope of freedom of speech in ‘parliamentary proceedings’. The term ‘parliamentary proceedings’ is recognised as being drawn very broadly. The practical effect of this is that those taking part in proceedings in Parliament enjoy absolute privilege.
5.14
In advice to the Committee, the Clerk of the Senate explained the potential scope of ‘parliamentary proceedings’ that may attract parliamentary privilege:
Giving evidence to a parliamentary committee clearly comes within the definition and attracts the protection of privilege. A court will readily accept that such evidence should be excluded. For other actions, the connection to parliamentary business may be less certain and the question whether parliamentary privilege applies will depend on the individual circumstances of the case. … [For example,] tweeting support for a bill would not ordinarily be taken to be within the definition of ‘proceedings in parliament’; petitioning a House, or making a submission to a parliamentary committee, in support of the same bill, would fall within the scope of that definition.
5.15
The Clerk of the House of Representatives noted the limits of parliamentary privilege and that ‘much of the records, correspondence and actions of parliamentarians do not fall within the definition of “proceedings in Parliament” and so would not enjoy any special protection’. For example, the Clerk of the House of Representatives considered that this would not extend to constituency interactions where there is often no connection either direct or incidental with the business of a House or a parliamentary committee.
5.16
Importantly, the Clerk of the House of Representatives advised the Committee that the two remaining criteria for privilege to apply, must also be satisfied: that the material must be used for the purpose of ‘impeaching or questioning’ and ‘in any court or place out of Parliament’.
5.17
In the contemporary setting, the Clerk of the Senate explained that ‘a place out of Parliament’ may be interpreted as including entities which can compel evidence so as to protect materials ‘closely connected to the parliament from the use of coercive powers’. An example is in the execution of search warrants on members of Parliament and their staff.
5.18
For some matters, the Parliament has developed procedures where the Executive seeks to exercise certain coercive powers, such as search warrants. A protocol between the Executive Government and the Commonwealth Parliament for the purpose of search warrants provides an ‘appropriate level of procedural protection to parliamentarians and to material in their possession which is closely connected to parliamentary business’. The Clerk of the Senate explained:
These protections comprise an opportunity for parliamentarians to raise claims of privilege and a mechanism respecting the right of the relevant House to determine those claims. Material subject to a claim is temporarily withheld from investigation; material determined to be privileged is returned to the parliamentarian.
Interaction of the Scheme with parliamentary privilege
5.19
The Parliament’s powers, privileges and immunities are generally presumed not to be affected by legislation except by express intent. It therefore follows that if a bill does not by express words affect those powers, privileges and immunities there ‘is no need for a non-derogation clause (or savings provision) because the parliament’s privileges are not disturbed’.
5.20
The Department noted this presumption, and advised that ‘there is no express intention [in the Bill] … to override privilege’.
5.21
Nevertheless, Mr Walker advised the Committee that ‘there’s no doubt in my mind that these are provisions which … will successfully affect parliamentary privilege—cut it back in every case’.
5.22
Although Mr Walker found it difficult to reach a view on whether an actual registration requirement in and of itself would engage privilege, he was of the firm view that there were in the Bill serious implications for parliamentary privilege. He outlined that the most serious concerned the reporting and enforcement provisions.
5.23
The Bill grants the Secretary powers to require a person whom the Secretary reasonably suspects is liable to register, to produce information that they should not be registered (proposed section 45). Further the Secretary may require information of a third party that relates to the operation of the Scheme (proposed section 46).
5.24
Mr Walker identified proposed section 46 as ‘a very confronting section for the traditional view of parliamentary privilege’. He explained that the power is likely to be used to verify the accuracy of a registrant’s annual report on their activities of influence:
It takes two to tango. So there’s the person who has to put in the report about what he or she has done and there are the objects of that person’s attempted influence. Those objects explicitly include parliamentarians and their staff.
… [T]hen of course, under section 46 there is a power given to a member of the executive, under ministerial direction, to require a parliamentarian or a parliamentarian’s staff to give their side or their version of a dealing by a lobbyist. It’s for those reasons that, on any view, it is inescapable that it cuts into a kind of zone which in contemporary terms is really important[:] … the capacity to be compelled to expose the dealings you have with somebody who comes to you and says, ‘I have information which I believe is important to the public interest, and I want you, my local member, to consider raising it in the House.’ That’s right at the core of a contemporary—there’s nothing 17th‑century about that—concern of privilege.
5.25
Mr Walker advised the Committee that, in his view, the Bill,
… manifestly is intended to affect the scope of the immunity … that [parliamentarians] have from executive requirement or compulsion to disclose the content of dealings you have with people … for the purposes of or incidental to proceedings in parliament.
5.26
The Clerk of the Senate agreed ‘entirely’ with Mr Walker’s view that parts of the Bill are,
… confronting to the traditional scope of privilege, particularly where coercive powers given to an executive office under the bill appear intended to operate in the parliamentary sphere.
5.27
The Clerk of the House of Representatives was of the view that these issues extent beyond privilege and relate more to the separation of powers, namely to concerns about the intrusion of executive government into the affairs of the Parliament.
5.28
The Clerk of the Senate advised:
Proper recognition of the protection which should be afforded to parliamentary material is … warranted … given the overlap in conduct sought to be regulated by that scheme and the proceedings protected by privilege.
5.29
The Clerk of the Senate noted the potential for conflict between the Scheme and parliamentary privilege. This was particularly so in situations where a parliamentary committee resolves to receive evidence in camera, or where parliamentarians receive information in confidence with the intention to raise matters in proceedings of a House or a committee.
5.30
Mr Walker also discussed circumstances in which interactions between parliamentarians could be captured under the Bill. Mr Walker recommended that the Bill clarify that it is not intended to apply to interactions between parliamentarians and their staff, describing such an obligation as ‘absolutely ridiculous’.
5.31
The Clerk of the House of Representatives concluded that although it may be unusual, ‘one could envisage scenarios when all three aspects [of parliamentary privilege] could be engaged’. The Clerk further noted that, although the circumstances would likely be infrequent, the Bill may lead to circumstances in which a possible contempt of parliament could arise as a result of the operation of the Bill amounting to an improper interference in the work of a parliamentarian.
5.32
It was noted that, to the extent that the Bill does engage with parliamentary privilege in its design, the Parliament can legislate ‘so as to entrench upon the extent of privilege already existing’ and also to extend privilege. Subject to the constraints of the Constitution, it is also possible for the Parliament to enact legislation which varies an existing right or immunity or create a new immunity. That is, within the framework set by the Constitution, it is within the competence of each House to expound the law of privilege and apply that law to the circumstances of each case as it arises.
Potential amendments identified in evidence
5.33
The Clerk of the House of Representatives indicated that a savings clause, stating that the provisions do not override the operation of parliamentary privilege, could address some of these concerns. The Clerk also suggested that a supplementary explanatory memorandum to the Bill or Ministerial statement on the Bill clarifying the Parliament’s intent on the supremacy of privilege may be useful.
5.34
Mr Walker cautioned that a savings provision may lead to further interpretive arguments and so not resolve satisfactorily the tensions of the Bill with parliamentary privilege. As the Bill intends to apply to the business of parliamentarians, Mr Walker advised that an amendment that asserted that it was not intended to affect parliamentary privilege will likely ‘produce an argument of a kind which, unfortunately, will end up in a court’.
5.35
Additionally, Mr Walker outlined the inherent tension that parliamentary privilege has with the judiciary, which is further challenged if the Bill’s provisions put ‘parliamentary proceedings’ before the courts for adjudication:
The really important thing about parliamentary privilege is that at the moment it is characterised by a tension, unresolved in detail, between the courts and the houses, and that’s a good thing. The more you legislate, the more you dissolve that tension and hand all the power to the courts.
5.36
The Clerk of the Senate similarly contended:
While purists might argue that the language does not of necessity affect privilege, it certainly raises doubts as to the parliament’s intentions here. Those doubts are unlikely to be answered by a savings provision – a provision that legislation does not affect the powers, privilege and immunities of the Houses, their committees and members – because the bill deals directly with the conduct of members, and contains provisions which may be used to compel the production of information which may form part of ‘proceedings in parliament’. … A presumption that privilege is not affected, or a savings provision to that effect, is no answer here.
5.37
In providing that advice, the Clerk of the Senate outlined possible approaches to amendments that would preserve parliamentary privilege, namely, that:
an additional exemption be included in Part 2 Division 4 of the Bill for material that forms part of proceedings as defined in the Parliamentary Privileges Act, noting that this would also remove reporting requirements; and
a provision that would ‘curb’ the power of the Secretary to require information where that information forms part of proceedings in parliament, so that these powers are exercised subject to similar procedures as exist in search warrant protocols.
5.38
Responding to the Clerk of the Senate’s first proposal, the Clerk of the House of Representatives advised that he had ‘no objection’ to the proposal if … it is considered the most effective way of achieving the objective’.
5.39
In regards to the second possible amendment, the Clerk of the Senate explained that a provision curbing the Secretary’s powers would enable parliamentarians to,
… raise any claims of privilege in respect of section 46 (or other) notices directed to them or their staff, and respecting the right of the relevant House to determine such claims. The search warrant protocol operates in accordance with an MOU [Memorandum of Understanding] between the Executive Government and the Presiding Officers.
5.40
The Clerk of the House of Representatives, in a supplementary submission, similarly advised that ‘an appropriate framework for the protection of parliamentary privilege’ be developed. Such a framework would be a matter for the Houses to determine what steps to take to enhance transparency in relation to parliamentary proceedings.
5.41
The Clerk of the House of Representatives also proposed a protocol could be agreed between the Presiding Officers and the relevant Minister, modelled on the execution of search warrants processes. The Clerk noted:
This could operate specifically to protect records that may fall within the ambit of ‘proceedings in Parliament’ and which may be subject to notices requiring information to be provided under clauses 45 and 46 of the Bill and subject to penalty provisions under clause 59.
5.42
To the extent that parliamentary privilege is engaged, both Clerks supported opportunities for the respective Privileges Committees of both Houses to be consulted in the development of an appropriate framework for achieving the Bill’s transparency objectives where privilege is engaged.
5.43
Mr Walker also supported a process by which privileged matters and claims of parliamentary privilege were received and managed by the Parliament, as opposed to a court determination on the application of the Parliamentary Privileges Act to the relevant sections of the Bill. In supporting internal governance by the Houses of these matters, Mr Walker stated that ‘courts of law are not the best places for the subtleties, the political significance and the social importance of parliamentary privilege to be worked out’. He stated:
[W]hen it comes to matters of parliamentary privilege and immunities, which will often be in relation to torts and crimes, bright lines have to exist. It’s not for courts to invent. I can’t urge you too much that the houses of parliament have a unique capacity to promulgate their own governance. Standing orders are just one way they do it. If you want to entrench upon, by which I mean reduce the scope of parliamentary privilege, may I suggest that you keep that within your own grasp always by having it imposed by each chamber’s internal governance. The sanction is pretty tremendous that would be visited against a member who knowingly omitted to cooperate with the house’s own officers acting under the authority of the house through its presiding officer in requesting, for example, details of foreign lobbyists that called on you last year in order to check whether the foreign lobbyists had in turn complied with their obligations to do so.
5.44
At a hearing, the Department stated that it had not considered in detail the application of parliamentary privilege to the Bill, nor had it consulted with the clerks of either house. In response to questions taken on notice from that hearing, the Department advised:
There is no intention to abrogate parliamentary privilege, or any other privilege, by virtue of the information-gathering powers [of the Secretary]. ... The Bill does not include any search, seizure or covert powers that would potentially interfere with a person’s ability to raise a claim of privilege prior to the information or documents being accessed or obtained.
5.45
The Department stated that as with other intrusive powers such as search warrants, ‘it would be open to the Attorney‑General to enter into a protocol with the Presiding Officers to ensure that information-gathering powers under the Scheme do not improperly interfere with the functioning of Parliament’. The Department also identified other existing savings provisions in Commonwealth legislation that the Committee was open to consider, seeming to suggest that even though the Bill had been drafted without one, the policy intent could be adapted to accommodate such a provision if recommended.
5.46
At a later hearing, the Department advised that ‘an amendment may be required to restrict the secretary’s powers to request information where it forms part of proceedings in Parliament. That would address the issues that have been raised’.
5.47
Although the Department ‘did not intend to override parliamentary privilege’, it stated that the intention is for the Scheme to apply to parliamentarians. In response to questions regarding the Scheme’s application to members of Parliament, the Department stated:
The express intention of the bill is that in circumstances where there is a registrable activity on behalf of a foreign principal that would require registration. The exclusion that we would propose is to not require the production of material that would be subject to parliamentary privilege.
5.48
It was not clear from the evidence provided whether such an amendment would be in addition to, or instead of, a savings provision (which could operate to exempt members of Parliament entirely from registration), and accompanying protocols between the Attorney-General and Presiding Officers.
Committee comment
5.49
The Committee notes the following issues were raised regarding the interaction of the Bill with parliamentary privilege:
it is only in the rarest and most extraordinary of cases that the Parliament would decide to set some limit on its own operations, and the purpose of parliamentary privilege is not a personal benefit for parliamentarians, but rather the people they represent;
the Parliament’s powers, privileges and immunities are generally presumed not to be affected by legislation except by express intent, however, the clear intent of the Bill is to engage with the Parliament’s proceedings and therefore a court may perceive that the Parliament is seeking to regulate its own operations;
the ability for an officer of the Executive to issue a notice to a parliamentarian with fear of criminal sanction, conflicts with parliamentary privilege;
possible amendments to clarify the primacy of parliamentary privilege include:
a savings provision, though this may be insufficient were a court be required to determine the application of parliamentary privilege to information or activities conducted;
a provision that would ‘curb’ the power of the Secretary to require information where that information forms part of proceedings in parliament, so that these powers are exercised subject to similar procedures as exist in search warrant protocols.
5.50
A number of these concerns are addressed by the Attorney General’s proposed amendments. These proposed amendments are discussed in Chapter 9.
5.51
In Chapter 10 of this report, the Committee provides its comments and discusses areas where it considers further refinements may be made to address outstanding issues, improve the clarity and proportionality of the proposed measures, and to ensure adequate safeguards are provided.