Chapter Two

Matters for Determination


2.1 The matters before the committee involve an examination of the actions of the Attorney-General in his capacity as a Minister, some of the most senior officers of his department and of a statutory authority under his supervision, and the question which the Committee of Privileges has always regarded as potentially the most serious of all contempts possible interference with a witness. The reference is complex, involving consideration of a large number of documents, conflicting versions of conversations, and several matters of principle.

2.2 The committee's task, on the basis of the information it received, was to examine the facts and circumstances surrounding the reference, to make a finding whether or not a contempt had been committed and, in accordance with normal practice, to make some observations deriving from that finding.

Provisions relating to contempt of the Senate

2.3 The relevant provisions applying to the committee's present inquiry are set out in Privilege Resolution 6 of the Resolutions Agreed to by the Senate, 25 February 1988:

6. Matters constituting contempt

That, without derogating from its power to determine that particular acts constitute contempts, the Senate declares, as a matter of general guidance, that breaches of the following prohibitions, and attempts or conspiracies to do the prohibited acts, may be treated by the Senate as contempts.

Interference with the Senate

(1) A person shall not improperly interfere with the free exercise by the Senate or a committee of its authority ...

Interference with witnesses

(10) A person shall not, by fraud, intimidation, force or threat of any kind, by the offer or promise of any inducement or benefit of any kind, or by other improper means, influence another person in respect of any evidence given or to be given before the Senate or a committee, or induce another person to refrain from giving any such evidence.

Molestation of witnesses

(11) A person shall not inflict any penalty or injury upon, or deprive of any benefit, another person on account of any evidence given or to be given before the Senate or a committee.

Resolutions 6(10) and (11) reflect the provisions of section 12 of the Parliamentary Privileges Act 1987.

Contempt criteria

2.4 In determining whether a contempt of the Senate has been committed, both the committee and the Senate are bound by Privilege Resolution 3 to take into account the following criteria:

  1. the principle that the Senate's power to adjudge and deal with contempts should be used only where it is necessary to provide reasonable protection for the Senate and its committees and for Senators against improper acts tending substantially to obstruct them in the performance of their functions, and should not be used in respect of matters which appear to be of a trivial nature or unworthy of the attention of the Senate;
  2. the existence of any remedy other than that power for any act which may be held to be a contempt; and
  3. whether a person who committed any act which may be held to be a contempt:
    1. knowingly committed that act, or
    2. had any reasonable excuse for the commission of that act.

2.5 It is open to the committee to find that a contempt has occurred without any intent on the part of the persons performing the act in question. The committee has, however, always been reluctant to apply this strict liability standard. It would do so only in exceptional cases in which the damage to the Senate and its committees resulting from any such acts would be of a most serious kind. [1] The committee has concluded that matters raised in the present reference do not justify such treatment.In considering the three criteria, the committee has concluded that the matter before it potentially meets the first. Any improper interference with a witness, prior to giving evidence to a committee or after the event, constitutes a serious obstruction of the Senate and its members in the performance of their functions. For this reason, the Senate and this committee have in the past treated, and will continue to treat, allegations of any such interference as a most serious matter, warranting close investigation.

2.6 2.7 The second criterion concerns the issue of whether there is any remedy, other than the Senate's contempt power, to deal with the matter referred to the committee. Given the nature of the matter so referred, the committee concludes that there is no other remedy. The matters raised in criterion (c) will be considered later in this chapter, when the committee reports its finding.

Improper interference

2.8 In dealing with the question of interference, the committee first addresses the meaning of “improper”. As the committee has pointed out on more than one occasion, [2] an action can be improper and in contempt of Senate although it is otherwise lawful, and improper interference is not the equivalent of unlawful interference. The use of the word “improper” is, in the words of the Clerk of the Senate, whose definition the committee adopted many years ago, “intended to exclude actions which might be regarded as interference but which by their nature tend to assist rather than hinder a parliamentary inquiry, for example, attempting to persuade (but not by threats or other improper means) a witness to change false evidence”. [3] In the same advice, he explains:

2.9 In respect of the present matter, the Clerk has reaffirmed and expanded upon his earlier advice:

Conduct of individuals

2.10 In determining the persons and actions relevant to its terms of reference, the Committee of Privileges adopted the following approach, as summarised by the Clerk of the Senate:

In this case the task of finding the facts resolves itself into finding exactly what transpired between the Attorney-General, any person acting on his behalf, and any other person on the one hand, and on the other hand the President or other officers of the Australian Law Reform Commission. When it is discovered exactly what transpired, the intention with which actions were taken can then be determined. Finding the intention with which acts were done is part of finding the facts. The task of finding intention in this case resolves itself into determining whether any acts were done for the purpose of influencing evidence which might be given before a parliamentary committee and whether that purpose was pursued by anything in the nature of a threat or inducement. [6]

2.11 Having examined the material before it, including the nature of communications between the Attorney-General, his office and department and the Prime Minister's office, the committee has determined that the individuals whose actions are directly relevant to the decision of the ALRC to withdraw from the NTC proceedings are the Attorney-General, Mr Williams; Mr Reaburn, Acting Secretary of the Attorney-General's Department; Mr Moss, Acting Deputy Secretary of the department, and Mr Rose, President of the ALRC. Specifically, the committee has identified the following communications as central to its inquiry:

  1. the letter from the Attorney-General to Mr Rose dated 28 August 1997;
  2. the telephone conversation between Mr Moss and Mr Campbell on 18 September 1997;
  3. the briefing note to the Attorney-General written by Mr Moss, and the accompanying draft letter to Mr Rose which was sent to the Attorney-General for signature on 19 September 1997, although not sent on to Mr Rose;
  4. the conversation between the Attorney-General and Mr Reaburn on 22 September 1997;
  5. the conversation between Mr Reaburn and Mr Rose on 23 September 1997; and
  6. the conversation between Mr Reaburn and Mr Rose on 24 September 1997.

2.12 The actions of the Attorney-General and his departmental advisers all appear to have been based on their perception that the ALRC, in seeking to make a submission to the NTC, had gone beyond its statutory functions and powers. They appear to have taken the view that they were doing their duty as public officials by reminding the ALRC that, while it was ultimately the ALRC's decision as to whether to comment on the Native Title Bill, if it decided to make a submission to the NTC it would be doing so without statutory authority. In their view, as expressed by the Chief General Counsel, their conduct involved no impropriety. “Indeed, it was conduct which was consistent with the constitutional duties of the Attorney-General, and with the duties of the head of the Attorney-General's Department.” [7]

2.13 In seeking to discharge these duties, however, they did not seem to take into account the nature of the body, a parliamentary committee, with which the ALRC intended to deal — a body different in kind from the government body to which the ALRC had previously made a submission and which led to the Attorney-General's letter of 28 August 1997 to Mr Rose.

2.14 Mr Rose, as President, and other officers, of the ALRC, in all communications with the Attorney-General and departmental officers between 28 August and 23 September, responded to the concerns of the Attorney-General and his officers by relying on the argument that they had not deviated from the ALRC's governing statute and were at all times acting within the powers and functions conferred by the Act. They, too, did not direct their own, or the Attorney-General's officers', attention to the NTC as a parliamentary body.

2.15 Their own concerns, as reflected in the records of conversations, [8] were expressed to be the breakdown in communications between the Attorney-General's Department and the ALRC, and the restrictions placed on their functions. After the Attorney-General wrote to Mr Rose on 28 August questioning the capacity of the ALRC to make submissions to the Wik Task Force and requesting that Mr Rose consult him in the future when intending to make similar submissions, Mr Rose, in his response of 4 September, disputed this interpretation of the ALRC's powers and functions, and sought a meeting. No meeting was arranged before he sent a “draft submission” to the NTC to the department on 18 September. In the meantime, the ALRC had been in touch with the NTC, and had received an invitation to make the submission and give oral evidence to the committee. The consequences of these actions culminated in the conversations between Mr Rose and Mr Reaburn on 23 and 24 September.

2.16 The respective views of the parties about the functions and powers of the ALRC are irreconcilable. Whichever view is accepted depends upon the interpretation not only of the ALRC Act but also on issues such as when, if ever, a reference is spent and what powers the ALRC has concerning the making of submissions to parliamentary committees and other inquiry bodies. The Committee of Privileges does not need to get involved in what is the “correct” interpretation of the ALRC Act, although it makes a suggestion later in this report as to how the matter might be resolved. The committee has, however, dealt with the varying perceptions of the ALRC Act to the extent necessary to assist it in determining the intent that lay behind the actions that are under examination.

2.17 Regardless of the motivations of both sides in taking the attitudes they did, one matter which puzzles the committee, and which has influenced its finding, is that no-one on either side of the debate about the ALRC's powers and functions appeared to advert to the status of the NTC as a parliamentary committee, as distinct from a public forum in which the ALRC would publish views antithetical to the government's position. There is no record available to the committee throughout the period from 28 August to 23 September which refers to the changed nature of the forum in which the ALRC proposed to present evidence. No-one on either side of the debate raised any question of possible contempt until after it was publicly raised in The Sydney Morning Herald on 29 September, more than a month after the Attorney-General had sought consultations about the ALRC's proposed submissions to inquiries. Only then did the Attorney-General's Department seek advice from the Chief General Counsel on privilege implications. Similarly, only on 30 September did the ALRC seek advice from the NTC secretariat about these implications

2.18 The committee found this apparent omission by both parties particularly baffling, because the Attorney-General and his officers are responsible under the Administrative Arrangements Order for administering the Parliamentary Privileges Act 1987. The President of the ALRC, too, as a former Secretary to the Department, might have been expected to have special awareness of the Act. The committee would thus have assumed that such officers would be particularly sensitive to the parliamentary privilege aspects of dealing with a parliamentary committee, and discusses the implications of this apparent omission later in the report.

Knowledge and intent

2.19 The committee now considers the issues of knowledge and intent under criterion (c) of Privilege Resolution 3. At the time the ALRC made its written submission to the Wik Task Force, and later, when it sent the draft of the proposed submission to the NTC to the Attorney-General's Department, the ALRC did not possess an active reference directly focused on native title. Between its making the submission to the Wik Task Force and its proposal similarly to make a submission, and give oral evidence, to the NTC, the statutory basis for its actions became a matter of dispute between the ALRC and the Attorney-General and his department, as evidenced by the exchange of correspondence of 28 August and 4 September between the Attorney-General and Mr Rose.

2.20 Once the Attorney-General had formed the judgement that the Commission was acting outside its statutory functions and powers, the Attorney-General and the officials under his direction regarded themselves as bound in duty to remind the ALRC of those functions and powers and to act so as to ensure that the Commission did not go beyond them. From their point of view, they were faced with a statutory body that insisted upon a high level of independence, and they also realised that the Attorney-General did not have the power to direct the ALRC in the performance of its general functions. They nonetheless regarded it as their duty to find some means to persuade the ALRC to conform to its functions and powers. Thus the Attorney-General asked in his letter of 28 August that Mr Rose consult him before making submissions in areas in which the ALRC did not have a current reference.

2.21 The Attorney-General, the Chief General Counsel and Mr Reaburn have all made the point that, since the Attorney-General and his officers were discharging their duty under the law, they had no choice but to act in the way that they did. They were not intending to interfere with the ALRC, or prevent its proposed submission to and appearance before, the NTC. Consequently, they did not regard their actions as improper, done with the intent of improperly influencing or inducing the ALRC to refrain from giving evidence to a parliamentary committee. Rather, they regarded such actions as constituting the exercise of an administrative duty imposed upon them by law. In the words of Mr Reaburn:

2.22 Given the ALRC's perception of its own role, and its long history of seeking, and being invited, to make submissions on a wide range of topics to a similarly wide range of other inquiry bodies, notably parliamentary committees, it is unsurprising that it should wish to continue its activities unfettered by what it regarded as unwelcome supervision by the Attorney-General's Department, and therefore continue to pursue its normal practice of seeking to advise a body on a matter about which it regarded itself as having some specific knowledge.

2.23 The committee considers that every effort should have been made by both the Attorney-General's Department and the ALRC to resolve the question of the ALRC's functions and powers as soon as Mr Rose had responded to the Attorney-General's letter of 28 August. The matter might not have developed to the extent it subsequently did had early action been taken to resolve not merely that specific question but also the underlying problem of communication failures between the department and the ALRC which were subsequently so publicly identified. [10]

2.24 Under the circumstances it might perhaps have been appropriate for Mr Rose to pursue the matter further, given the ALRC's interest in participating in the NTC inquiry. The committee has not been able to identify any reasons why Mr Rose did not consult the Attorney-General before preparing the submission, having had the Attorney-General's interpretation of his functions and powers brought to his attention. It therefore has some understanding of the reactions of the Attorney-General's departmental officers when the ALRC's draft submission was received in the department. That the Attorney-General and his officers were anxious that the ALRC withdraw from participation in the NTC inquiry is clear from the record of Mr Moss' conversation with Mr Campbell, [11] and from this comment from Mr Moss, in his briefing note of 19 September to the Attorney-General: [12]

2.25 What is clear from this briefing note, and the draft letter accompanying it, together with the accounts of the conversations between Mr Reaburn and Mr Rose, is that the officials did not advert to the changed circumstances resulting from the ALRC's approach to the NTC on 12 September. After that date, all the actions of the ALRC came within the ambit of parliamentary privilege and thus any conduct on the part of any person designed to influence the ALRC with respect to evidence before the NTC became a potential matter for this committee to consider.


2.26 The genesis of this matter is to be found in the tense relationship that had developed between the ALRC and the Attorney-General's Department, acknowledged by both parties, about communication failures between the department and the commission, culminating in their competing and incompatible beliefs about the powers and functions of the ALRC. In concentrating on their duty to focus the ALRC on its functions and powers, and to seek from the ALRC a commitment to consult the Attorney-General, at no stage did the most senior officers of the Attorney-General's Department appear to direct their attention to the fact that the ALRC was proposing to give written and oral evidence to a parliamentary committee, as distinct from any other body, with all that that implied.

2.27 On the other side, the ALRC has a two-decade-long history of making submissions and giving evidence on matters connected with references that it has reported upon or which it has in train. The ALRC was, as the letters from Mr Rose to the Attorney-General demonstrate, [13] sure of its interpretation of its powers and functions. The committee considers that the ALRC was concerned to defend what it perceived to be its legislated functions and powers against what it regarded as unjustified constraint, as the records of conversations between Mr Rose and Mr Reaburn clearly show.The committee is required to consider whether any person sought improperly to influence the ALRC or its President in respect of evidence to be given to the NTC. It has concluded that the Attorney-General, in acting as he did, was seeking to return the Commission to its statutory functions and powers as he saw them. Evidence indicates that he did not focus on, and therefore was not attempting to influence the ALRC in respect of, its proposed evidence before a parliamentary committee, although his actions may have had this unintended side-effect.

2.28 2.29 The committee accepts that at all times the Attorney-General was acting on the advice of his officials. Since Mr Reaburn and Mr Moss were acting on the same beliefs as the Attorney-General, the same reasoning applies to them: they were merely seeking to return the Commission to its legislative powers and functions and were thus not seeking to influence the ALRC in respect of its proposed evidence or appearance before the NTC. Given their focus upon the statutory limitations on the ALRC and the extremely limited time available to respond to the ALRC's actions following its failure to comply with the Attorney-General's request to consult him, it is perhaps understandable that they failed to include in their advice what should have been a vital component — the question of parliamentary privilege — which has led directly to this present inquiry.

2.30 Similarly, the committee must determine whether the ALRC and its President were induced by the actions of the Attorney-General and his officers to withdraw from the NTC inquiry. Mr Reaburn has advised the committee that:

Mr Rose himself has stated that he did not view the actions of the Attorney-General or his officers towards the ALRC as threats. [15] Mr Rose, as a former Secretary to the Attorney-General's Department, can be expected to present his views in a forthright and forceful manner. This is demonstrated by the robust way in which he presented his views, by letter to the Attorney-General, by each of the accounts of his conversations with Mr Reaburn, and in the media following publication of the ALRC's decision to withdraw from the NTC inquiry. What emerges is a picture of the head of a statutory body who was not easily intimidated.

2.31 The committee considers that the President and officers of the ALRC were not induced by the behaviour of any person to refrain from making a written submission or appearing before the NTC, and therefore has concluded that responsibility for the decision rests with the ALRC itself.


2.32 The Committee of Privileges finds as follows:

  1. The Attorney-General (Mr Williams), Mr Norman Reaburn and Mr Richard Moss did not seek, by force or threat, or by other improper means, to influence the Australian Law Reform Commission, or its President, in respect of evidence to be given before the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund;
  2. The Attorney-General, Mr Reaburn and Mr Moss did not induce the ALRC or its President to refrain from giving that evidence;
  3. Consequently, no contempt was committed in respect of this matter.


Legislative ambiguity

2.33 At the time of the introduction of the Native Title Amendment Bill 1997, the reference of which to the Native Title Committee precipitated this committee's present inquiry, officers of the Australian Law Reform Commission believed that they had the power to generate submissions to parliamentary and other committees, so long as the submissions could be related, however tenuously, to some other, earlier reference which the ALRC had long since completed or to some current reference. They appear still to believe that the ALRC has the power to pursue such matters, and to offer or provide submissions to parliamentary committees, without an active reference on those matters from the Attorney-General.

2.34 Conversely, the Attorney-General and his officers, having had their attention directed to this question as a result of the ALRC's earlier submission to the Wik Task Force, do not believe that the ALRC has such a power, but acknowledge that the Attorney-General has no power of direction of the ALRC in respect of this aspect of its performance of its functions. [16]

2.35 As indicated in Chapter One, [17] there is an inherent conflict between ministerial responsibility to ensure that a statutory body does not exceed the functions and powers laid down by its enabling act and the question of potential interference with that statutory body when the minister and departmental officers believe it to be acting beyond power under the protection of parliamentary privilege.

2.36 These irreconcilable differences are well demonstrated in the present case. Given the concluded views of the Attorney-General and his officers and of the ALRC, particularly since the passage of the 1996 ALRC Act and the unsatisfactory outcome of the exchange of correspondence in respect of the Native Title Bill matter, the Committee of Privileges considers that there might be some utility in the further examination of this question in the abstract, with a view to clarification of the legislation should that be perceived to be necessary. To that end, the committee recommends that the following matter be referred to the Legal and Constitutional Legislation Committee for inquiry and report: The statutory powers and functions of the Australian Law Reform Commission.

Public servants' duties towards Parliament

2.37 One significant aspect of this reference, which in fact has influenced the committee's finding that no contempt has been committed, is the presumed failure by all persons involved to take account of the rights, obligations and protections of witnesses before parliamentary committees.

2.38 As explained in the report, there is no evidence available to the committee to suggest that the issue of possible contempt involved in the differences between the Attorney-General and his officers, on the one hand, and the ALRC, on the other, exercised the minds of any of these most senior law officers until after an article appeared in The Sydney Morning Herald on 29 September 1997. To the contrary. The briefing note by Mr Moss of 19 September which set in train the withdrawal of the ALRC from participation in the NTC inquiry did not refer to privilege implications. Nor did any versions of the telephone conversations between various parties. And it was not until 30 September — the day after the article appeared — that an officer of the ALRC contacted the NTC to ask about possible protection of witnesses and their evidence before parliamentary committees.

2.39 This is the third report of this kind involving bodies for which the Attorney-General has had statutory responsibility under the Administrative Arrangements Order. The committee's 36th report, in respect of the National Crime Authority, which comprised senior lawyers in a direct relationship with a parliamentary committee, expressed dismay at the lack of knowledge and understanding of the basic parliamentary framework in which that organisation operated. [18] A similar display of ignorance by another body under the Attorney-General's supervision at the time, which included among its senior ranks, and was advised by, government lawyers, led the committee to make the following recommendation in its 42nd report: [19]

This recommendation was adopted by the Senate as a continuing resolution on 21 October 1993. [20]

2.40 It is therefore particularly disturbing to the committee that the same issue should again have arisen in the present case. It appears, from the evidence, that the highest levels of the Attorney-General's Department itself, as well as yet another statutory body under its jurisdiction, have failed to take into account this most basic requirement. And, as previously observed, the Attorney-General is also responsible for the Parliamentary Privileges Act 1987.

2.41 Admittedly, this responsibility is a somewhat curious anomaly given the Act's initiation by the President of the Senate and its narrow focus on the effective operation of parliament. This incongruity does not, however, excuse these senior officers of the department charged with administering the Act. Furthermore, assuming that parliamentary privilege did not immediately present itself to the department as something that was a necessary consideration in dealing with the ALRC, the officers might have been expected at the least to draw an analogy with witness tampering and court proceedings. This they also failed to do, concentrating only on their very limited brief to ensure that the ALRC did not operate outside its perceived powers and functions.

2.42 Nor is the lack of regard for parliamentary privilege matters confined to officers and former officers of the Attorney-General's Department. This issue has been a feature of several other reports of this kind, and was referred to most recently in the committee's 64th report, tabled on 19 March 1997. Accordingly, the committee recommends that the resolution of 21 October 1993 be reaffirmed, and proposes that the Senate seek a specific report, in a year's time, from each Commonwealth department, on behalf of that department and its agencies, on how the terms of the resolution have been complied with.

Robert Ray


[1] 18th Report, para. 30. (Parliamentary Paper No. 461/1989)

[2] See, e.g., 18th, 36th and 67th reports, (Parliamentary Paper Nos. 461/1989, 194/1992, 141/1997) and see also Clerk's advices, as follows: 6 March 1989; 13 November 1990; 28 February 1991, and 28 October 1997.

[3] Clerk's advice, 28 February 1991, p. 5.

[4] ibid.

[5] Submissions and Documents, pp. 19-21.

[6] ibid., p. 18.

[7] ibid., p. 129, para. 7.

[8] ibid., p. 98.

[9] ibid., p. 124.

[10] ibid., p. 98.

[11] ibid., p. 44.

[12] ibid., p. 142, para. 9.

[13] ibid., pp. 28, 101-106.

[14] ibid., p. 125.

[15] ibid., p. 13; and see *Senate Hansard, 30 September 1997, pp. 7189, 7198.

[16] ibid., p. 58.

[17] Report, paras. 1.55 and 1.56.

[18] Parliamentary Paper No.194/1992.

[19] See Committee of Privileges 42nd Report, p. 42, sec. 3.6 and p. 45, sec. 3.8.3 (Parliamentary Paper No. 85/1993)

[20] Standing Orders and Other Orders of the Senate, August 1997, p. 130.

(Note: References are to final version of printed Hansard)