121st Report

Possible unauthorised disclosure of draft reports of Community Affairs References Committee

15 March 2005

© Commonwealth of Australia 2005
ISSN 1038-9857
ISBN 0 642 71505 X

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Members of the Committee

Senator the Hon. John Faulkner (Chair) (New South Wales)
Senator Sue Knowles (Deputy Chairman) (Western Australia)
Senator Gary Humphries (Australian Capital Territory)
Senator David Johnston (Western Australia)
Senator Marise Payne (New South Wales)
Senator Robert Ray (Victoria)
Senator the Hon. Nick Sherry (Tasmania)

The Senate
Parliament House
CANBERRA ACT 2600

Telephone: (02) 6277 3360
Facsimile: (02) 6277 3199
E-mail: Priv.sen @aph.gov.au
Internet: http://www.aph.gov.au/senate_privileges

Possible unauthorised disclosure of draft reports of Community Affairs References Committee

Introduction

Matter no. 1 – possible unauthorised disclosure of draft report on poverty and financial hardship

1.1                 On 12 May 2004, on the motion of Senator Ferris at the request of Senators Knowles and Humphries, the Senate referred the following matter to the Committee of Privileges for inquiry and report:

Whether there was an unauthorised disclosure of the draft report of the Community Affairs References Committee in relation to poverty and financial hardship and whether any contempt was committed in that regard.[1]

Background

1.2                 On 27 February 2004, articles based on the draft report of the Community Affairs References Committee’s inquiry into poverty and financial hardship appeared in The Advertiser, Courier Mail, Herald Sun and Mercury, a week prior to the scheduled tabling of the committee’s report and before any consideration by the committee. All were by the same journalist, presumably syndicated, but there were some variations in the content of each.[2] One article led to an editorial, and another to a cartoon.[3]

1.3                 Senators Knowles and Humphries, both members of the Community Affairs References Committee, wrote to the President of the Senate on 29 March 2004, advising that the disclosure of the draft report had caused potential or actual interference with the committee’s work.

1.4                 In their letter, Senators Knowles and Humphries stated:

We have come to the conclusion that the disclosure has caused potential or actual interference with the work of the Committee, including:

1.5                 Senators Knowles and Humphries acknowledged:

Other members did not consider that the disclosure had significantly interfered with how the Committee worked. The work of the Committee had not been influenced in any significant way – no aspect of the report had been redrafted or recommendations revised as a result of the disclosure and the confidentiality of submissions and other evidence had been retained.[5]

1.6                 As a result, the matter of privilege was not raised by the Community Affairs Committee. The two senators, however, considered that the matter warranted being raised under standing order 81 because they “still believe[d] that there ha[d] been potential or actual interference with the work of the Committee”.[6]

1.7                 The President gave precedence to the matter of privilege on 11 May 2004. While the President, in his statement, noted that the committee had investigated the matter in accordance with the order of the Senate of 20 June 1996 and had determined that the disclosure had not substantially harmed its proceedings, he reminded the Senate that the order does not prevent other senators raising the issue as a matter of privilege. Accordingly, he left it to the Senate to determine whether the matter should be taken further.[7] The matter was referred to the Committee of Privileges the following day.

Matter no. 2 – possible unauthorised disclosure of draft report on Hepatitis C and blood supply

1.8                 On 24 June 2004, on the motion of Senator McLucas, Chair of the Community Affairs References Committee, the Senate also referred the following matter to the Committee of Privileges for inquiry and report:

Having regard to the letter dated 23 June 2004 from the Community Affairs References Committee to the President, whether there was an unauthorised disclosure of a draft report of that committee, and whether any contempt was committed in that regard.[8]

Background

1.9                 On 12 June 2004, articles based on the draft report of the Community Affairs References Committee on its inquiry into Hepatitis C and blood supply appeared in the Sydney Morning Herald and The Age. As with the first matter, the articles were by the same journalist with variations as between the two newspapers.[9] An editorial based on the article also appeared in the Sydney Morning Herald on 14 June 2004.[10]

1.10             In this second matter, Senator McLucas wrote to the President on 23 June 2004 on behalf of the committee, advising that the unauthorised disclosure had caused potential or actual interference with the committee’s work, including:

1.11             The President, when giving the matter precedence, noted that the Community Affairs References Committee had investigated the matter in accordance with the order of the Senate of 20 June 1996.[12]

1.12             The President’s statements in relation to both matters are included at Appendices A and B to this report.[13]

Conduct of inquiries

1.13             After having sought information from the Community Affairs Committee members at the relevant time, and given that the two references before the Committee of Privileges involved the same committee and the same subject matter, that is, possible unauthorised disclosure of draft reports, the Committee of Privileges decided to deal with both references together. The two members of the Community Affairs Committee, Senators Knowles and Humphries, who raised the first matter and who participated in the decision to raise the second matter with the President, are also members of the Committee of Privileges. They received no private documents, and did not participate in any of the proceedings, of the Committee of Privileges in respect of these two matters.

1.14             In accordance with normal procedures, the Committee of Privileges wrote to all members and the secretary of the Community Affairs Committee seeking information.[14] The membership of the Community Affairs Committee was the same in respect of each inquiry, although the chair had changed from Senator Hutchins to Senator McLucas. All six members replied. None admitted to disclosing either of the draft reports; nor did they indicate any knowledge of who might have done so. The secretary of the committee denied, on behalf of himself and his staff, that they had revealed without authority the content of either of the draft reports.

1.15             As indicated above at paragraphs 1.5-7, in the first case there was a division within the Community Affairs Committee before the matter was referred to the Committee of Privileges as to whether its proceedings were significantly affected as a result of the premature publication of a draft report. A majority of that committee concluded that there had been no substantial adverse effect. Two members, however, took the opposite view. It is no coincidence that they are members of the Committee of Privileges, one of whom in particular has had extensive experience in general committee work, is a long-standing member of the Committee of Privileges, and is well aware of the changes in committee operations that can develop as a result of the betrayal of trust implicit in leaking. The other has had extensive experience in another legislature.

1.16             The second matter was referred as a result of actions by the Community Affairs Committee as a whole. In the letter to the President seeking precedence for a matter of privilege, the chair of the committee indicated that the disclosure had caused potential or actual interference with its work. When asked explicitly by the Committee of Privileges whether any interference, actual or potential, was substantial, however, individual members of the Community Affairs Committee varied in their responses. While acknowledging that interference had indeed occurred, some members appear not to have regarded it as substantial.

1.17             The responses in respect of both references are included at Appendices A and B to this report.[15] The committee was considerably assisted in its deliberations on the general matter of unauthorised disclosure by these thoughtful responses.

Comment

Previous matters

1.18             The two matters referred to the Committee of Privileges illustrate well the problems this committee has recently encountered in dealing with matters of unauthorised disclosure of draft reports. When considering these references, and also the reference the subject of the 120th report,[16] Privileges Committee members reviewed previous matters of unauthorised disclosure, and views that the committee had expressed in its 74th report[17] which dealt with a spate of unauthorised disclosures. That report made it clear as to how severely the committee intended to approach all future matters of this nature.

1.19             In succeeding reports the committee did have some success in making definitive findings on matters of unauthorised disclosure. However, in a case involving the chair and members of the Environment, Communications, Information Technology and the Arts (ECITA) Legislation Committee, discussed in the Privileges Committee’s 112th report,[18] the Committee of Privileges encountered a problem which has again occurred in respect of the reference on which the committee most recently reported[19] and the two references concerning the Community Affairs Committee.

1.20             In the ECITA Committee case, even though the procedures recommended by this committee in 1996 had been followed, the chair found himself alone at a public hearing in arguing, in this committee’s view persuasively, that, under the rules regarding contempt as understood till that time, substantial interference with the proceedings of the ECITA Committee had occurred through the unauthorised disclosure of a draft report. Other members, when pressed at the public hearing, concluded that no substantial actual or potential interference had occurred, although most had participated in the ECITA Committee’s decision to raise the matter. Again, and also not coincidentally, the chair of the ECITA Committee had been a long-standing member of the Privileges Committee.

1.21             In the 120th report, the committee noted that no members of the Select Committee on the Free Trade Agreement between Australia and the United States of America believed that any substantial interference had occurred – a conclusion with which, for reasons outlined in that report, this committee concurred.

Present matters

1.22             In the two cases the subject of this report, there was a significant variation in Community Affairs Committee members’ perception about the effects of the unauthorised disclosure on the operations of that committee, both before and after the matters were referred by the Senate. What is important to this committee in dealing with matters of unauthorised disclosure is to receive evidence from persons or committees who raise a matter of privilege of this nature as to whether the operations of the relevant committee have been substantially interfered with as a result of the unauthorised disclosure. A feature of both matters was that the initial letters raising them for the President’s consideration did not address the question whether the potential or actual interference with the work of the committee had been substantial.

1.23             It may be noted that the terms of the Procedural Order of the Senate of 20 June 1996 which enjoins other committees to determine whether unauthorised disclosure should be raised as a matter of privilege includes at paragraphs (b) and (c) the word “substantial” before “interference”.[20] It is for this reason, and also the reason that in order to find contempt the Committee of Privileges must itself judge whether substantial obstruction has (potentially) occurred, that the committee has sought declarations or clarifications from members of the relevant committee as to whether they regard any identified interference as substantial.

1.24             As indicated, the responses by committee members when pressed by the Committee of Privileges have varied. If there is no unanimity of view by the members of a committee even when that committee as a whole has raised a matter of privilege, it is difficult for this committee to see how the threshold test of substantial interference can be reached. The Committee of Privileges is entitled to make findings from its own knowledge and experience that a strict liability offence has occurred, and there is a strong argument to suggest that any deliberate unauthorised disclosure intrinsically constitutes substantial interference with the operations of any committee, because of the betrayal of trust necessarily involved. Ever since the passage of the Parliamentary Privileges Act and the Senate privilege resolutions, however, the committee has declined to do so. It sees no reason to change its approach in respect of the present matters. Consequently, the Committee of Privileges has decided not to take the matters further, either by the futile process of seeking information from the media or through public hearings to seek denials from those involved. It may be noted that the committee reached similar conclusions in respect of the 120th report, which was tabled on 8 March 2005.

Consideration of unauthorised disclosures as contempts

1.25             The question of “substantial interference” has dominated the Privileges Committee’s consideration of the present matters. This has led the committee to examine whether it should change its approach to handling such matters.

1.26             The committee has always – and with good reason – made the assumption, however distasteful, that deliberate unauthorised disclosure is usually made by or on behalf of parliamentary committee members themselves. Having by its recommendations in 1996 made other committees initially responsible for establishing whether their own proceedings are significantly adversely affected by unauthorised disclosures, the Committee of Privileges has now decided to give consideration to the question whether dealing with matters such as the leaking of draft reports or private committee deliberations should involve questions of contempt at all, but rather should be treated as matters going to the internal operations of parliamentary committees, to be dealt with as disciplinary matters within the committees themselves. It should be reasonable to expect that elected members have the maturity to take their responsibilities seriously, without the need for any sanction or potential punishment.

1.27             As previously expounded in its 112th report,[21] one sanction available to the Committee of Privileges is to hold a public hearing under which a culprit can either confess to having leaked or, alternatively, to lie under oath – a dangerous position to be in when at least one other person knows that that person has lied. While there is some attraction in discomforting renegade committee members through the requirement that they deny on oath that they have revealed information, the advantages of doing so are outweighed by the disadvantages.

1.28             The more irresponsible committee members will continue to leak, regardless of any sanctions, safe in the knowledge that journalists will not reveal their sources. For the journalists concerned, once the apparent frisson of excitement which comes from being party to a leak and the subject of potential contempt charges disappears, the level of interest in a story is likely concomitantly to diminish. As the committee has had cause to observe in previous reports, frequently the only element of certain reports which makes them newsworthy is the fact that conclusions or recommendations are leaked.

Possible changes to legislative and procedural provisions relating to privilege

1.29             The committee acknowledges the difficulty in finding leakers of draft reports and the like. This is not unusual in dealing with such matters. After all, if governments, with so many law enforcement resources at their disposal, have a similar level of failure in discovering leakers, a parliamentary committee, with limited resources other than an expectation that people will tell the truth, cannot be expected to do so.

1.30             In any case, the committee has always taken the view that its most important function is to protect witnesses giving information to each House of Parliament and their committees. That this is the general view of the Parliament is acknowledged through the provisions in the Parliamentary Privileges Act 1987 that separately specify that intimidation of witnesses and unauthorised disclosure of in camera evidence may be prosecuted in the courts as criminal offences.[22]

1.31             All other matters which may be treated as possible contempts under resolutions of the Senate are covered by the following general provision in section 4 of the Act:

Essential element of offences

4.       Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.

1.32             The question of unauthorised disclosure requires far more wide-ranging consideration than the Committee of Privileges contemplated when it received these two references, together with the reference involving the Senate Select Committee on the Free Trade Agreement. It was only when the committee was deliberating again on the meaning of “substantial” in respect of the present two references that it directed its attention to a possible change of attitude to matters of unauthorised disclosure.

1.33             As indicated at paragraph 1.13, both Senator Knowles and Senator Humphries were enforcedly absent when the committee was considering the matters. If the more broad-ranging approach the committee is considering is to be contemplated, possibly involving changes to legislative and procedural provisions relating to privilege, the committee considers that a full complement of its members is required to examine the ramifications. The Committee of Privileges has therefore decided that it should make a further report on the question of unauthorised disclosure as a separate reference, following completion of its consideration of the three matters most recently before it. In the meantime, the committee has requested and received information, via the Clerk of the Senate, from many legislatures throughout the world on their current practices. The responses will be evaluated and compiled into a research document, which the committee intends to publish as part of its deliberations on the general question of unauthorised disclosure.

Conclusion

1.34             The committee as at present constituted is of a mind to make a radical recommendation in respect of improper unauthorised disclosure of parliamentary committee reports and proceedings but wishes to discuss the matter in greater detail once the full membership of the committee is available to do so. The committee considers that in the meantime it would be unfair to members of the Community Affairs References Committee to make a generalised finding of contempt. This would be a slur on all members without further investigations or without acting against the publishers of the draft – a reversal of the concerns which the committee has had in the past about making a finding against, and penalising, the receivers of stolen goods rather than their purveyors.

1.35             In order to give effect to the committee’s intentions, it proposes to give a notice of motion in the following terms:

That the following matter be referred to the Committee of Privileges for inquiry and report on or before 15 June 2005:

Whether, and if so what, acts of unauthorised disclosure of parliamentary committee proceedings, evidence or draft reports should continue to be included among prohibited acts which may be treated by the Senate as contempts.

Findings

1.36             The Committee of Privileges makes the following findings:

(1)        That there was an unauthorised disclosure of each of two draft reports of the Senate Community Affairs References Committee;

(2)        That the Committee of Privileges has been unable to discover, following denials by members of the Community Affairs References Committee – the most likely sources of the unauthorised disclosures – and committee staff, who improperly disclosed details of the draft reports;

(3)        That the Committee of Privileges would be unlikely to discover the source of the unauthorised disclosures, even if it were to pursue the matter further;

(4)        That the unauthorised disclosures are likely to have been deliberate;

(5)        That, under the current interpretation of acts which may constitute contempts of the Senate, and notwithstanding the views of some members of the Community Affairs References Committee, prima facie the unauthorised disclosures were serious, and had a tendency substantially to interfere with the work of that committee in that:

(i)      the unauthorised disclosure of both draft reports occurred before the committee had had the opportunity to consider them;

(ii)     consequently, deliberations were or could have been influenced, and conclusions changed, as a result of the unauthorised disclosure; and

(iii)    the relationship of trust which underpins successful committee inquiries has been seriously undermined if not destroyed as a result of these two disclosures.

(6)        That, while it would be open to the Committee of Privileges to find that a contempt of the Senate has been committed by persons unknown and by the publication of the draft reports, it declines to do so for reasons reflected in the conclusion at paragraph 1.34

John Faulkner
Chair


The Appendicies for this report are available in the PDF version of this report - (PDF 2504KB)

For further information, contact:

Committee Secretary
Senate Standing Committee of Privileges
PO Box 6100
Parliament House
Canberra ACT 2600
Australia

Phone: +61 2 6277 3360
Fax: +61 2 6277 3199
Email: priv.sen@aph.gov.au