Appendix H - Advices from the Clerk of the Senate
SEPTEMBER
2002 – NOVEMBER 2004
ADVICE NO. 33
PARLIAMENTARY PRIVILEGE —
DOCUMENTS PROTECTED FROM
COMPULSORY PRODUCTION — FURTHER
US JUDGMENT
There has recently been
a further judgment in the American courts about documents protected by
parliamentary privilege from compulsory process for production.
In this case, a
group of litigants sought to compel several members of Congress to produce
documents from their offices relevant to an action about campaign financing
legislation.
The court refused to
order the production of documents in the terms sought, on the basis that it
would be inconsistent with the parliamentary privilege to require the members
to identify and separate from protected documents the non-protected documents
which would be compelled, because this would impose a burden of the kind which
the privilege is construed to avoid.
The judgment follows
others, including that in the tobacco corporation case (Brown and Williamson Tobacco Corp v
Williams, 1995 62 F 3d 408). The
latter, in addition to confirming that members may not be compelled to produce
documents within the sphere of their legislative activities, indicated that it
would be inconsistent with the privilege to authorise wide-ranging searches of
members’ files containing protected material.
The
additional element in the recent judgment is that, even when it is known or
conceded that an order will turn up non-protected documents, members may not be
required to search their files simply on that basis.
If
that principle were followed in Australia, and applied in criminal
investigations, the Senate, following the judgment in Crane v Gething, could reasonably have declined to authorise the
examination of Senator Crane’s documents and returned them to him, and Senator
Harris could have required the return of all his documents without separating
the protected and non-protected documents.
This
gives added point to the contention that it is not proper for searches under
warrant of senators’ offices simply to sweep up all documents in the offices
without regard to their relevance to the investigation or their privileged
status, and impose on the senators the task of identifying and separating the
protected documents.
Attached
is a copy of the judgment, which is very brief.
ADVICE NO. 34
PARLIAMENTARY PRIVILEGE —
EXECUTION OF SEARCH WARRANTS
DRAFT GUIDELINES
Thank you for your
letter of 4 December 2003, in which the Committee of Privileges seeks my
comments on the draft guidelines for the execution of search warrants provided
to the President by the Attorney-General and the Minister for Justice and
Customs.
The draft guidelines
appear to have been significantly amended since I last saw them, and they also
take into account comments made on earlier drafts.
In analysing the
draft guidelines, it should be recognised that they are to be interpreted and
applied by police officers in the process of executing search warrants and
conducting searches. The draft guidelines therefore cannot be lengthy or
complex. They are not an exercise in legal drafting or law codification.
The draft guidelines
are basically sound. They cover all of the essential points, and appropriately
preserve the rights of senators who may be subjected to warranted searches.
The following
changes, however, would improve the drafting of the guidelines.
Paragraph 4.1, third
dot point: It is not clear why “confidential material” is referred to here.
Parliamentary privilege and confidentiality are two different issues, and the
guidelines are intended to cover parliamentary privilege. The expression
“confidential material” should be replaced by “material covered by
parliamentary privilege”, in accordance with the expression used elsewhere in
the guidelines.
Paragraph 5.6,
subparagraph (a): “in Parliament” should be “in Parliament House”.
Paragraph 5.11,
third dot point: Perhaps the Presiding Officer and Clerk of the relevant House
should be added to the list of examples of neutral third parties who might be
asked to hold material until a process for determining its status is begun or a
claim of parliamentary privilege is abandoned. It may be thought that the
Presiding Officer and Clerk are not sufficiently neutral, in that they may be
expected to favour unduly the affected member, but the member and the police
could well agree on their acting as the neutral third party.
Paragraph 5.11,
fourth dot point: The phrase “the Presiding Officer of the relevant House”
should be “the relevant House”. The Presiding Officer of the relevant House
cannot make a ruling on the status of material; the ruling has to be made
either by a court (if the judgment of French J is not followed) or by the
relevant House (if that judgment is followed).
Paragraph 5.11,
after fourth dot point: For complete clarity, there should be a new fifth dot
point here, along the following lines:
- When
a member notifies the executing officer that the member will seek a ruling
on a claim of parliamentary privilege, the items are to remain in the
possession of the neutral third party until the disposition of the items
is determined in accordance with the ruling.
It may be thought
that this goes without saying, but it should be included for completeness.
With these changes I
think that the draft guidelines will be appropriate.
I would be pleased
to provide the committee with any further assistance in relation to this matter
which the committee may require.
ADVICE NO. 35
This note is to
acquaint the committee with two matters of interest, and to suggest a possible
course of action in relation to one.
United Kingdom Corruption Bill
The committee would
be aware that there has been considerable publicity and concern in the United
Kingdom in recent years about corruption of members of Parliament. Due to
defects in the statutory law, it was discovered that members of Parliament
could be prosecuted only for a common law offence of corruption. There arose a
quite mistaken perception that parliamentary privilege was a barrier to the
successful prosecution of members for corruption, and a view that the law of
parliamentary privilege should be modified accordingly. A joint committee on
parliamentary privilege gave credence to this view, notwithstanding attempts to
dissuade them of it. The Home Office prepared a draft Corruption Bill, which
included a provision that parliamentary privilege would be waived to allow
proceedings in Parliament to be used against any person in a prosecution for a
corruption offence. This bill was referred to another joint committee.
I made a submission
to the joint committee, pointing out that the perception that parliamentary
privilege was a problem was mistaken, and that it would be extremely unwise to
undermine the fundamental constitutional principle of parliamentary immunity,
not least because this would indirectly undermine that principle in other
jurisdictions which gained their parliamentary privilege law by reference to
the United Kingdom. This submission was supported by others, including the
recently retired Clerk of the House of Commons.
In its report, the
joint committee recommended that the provision be narrowed so as to permit the
use of parliamentary proceedings to prosecute only the accused member and any
co-accused. This is still a highly unsatisfactory and unnecessary erosion of
parliamentary immunity.
Attachment 1 is an
extract from Odgers' Australian Senate Practice, 10th ed, 2001, which sets out the principle involved and refers
to two supporting cases, one American and one British. Attachment 2 shows the
provision in the draft bill, attachment 3 is my submission to the joint
committee, and attachment 4 shows the joint committee’s report on the relevant
provision and the recommended substitute provision.
I have expressed to
my British counterpart the hope that members of the House of Commons will have
sufficient independence and regard for a basic constitutional principle to
reject the proposed provision.
The Privileges Committee may wish to consider the possibility of writing
to its British counterpart to express concern about the proposed provision.
Answers to questions on notice: privilege of
publication
Attachment 5 is a
brief paper on a gap in the protection by parliamentary privilege of the
process of asking and answering questions on notice. All stages of the asking
and answering of such questions are protected, but the gap is that the general
publication of answers is not protected until they appear in the next sitting’s
Hansard, which may be after many weeks where questions are answered in a long
adjournment.
The paper suggests a
simple amendment of the standing orders to close this gap.
The paper has been
circulated to the Procedure Committee by the President, with a suggestion that
the matter can wait until that committee has sufficient business to hold a
meeting, but if members of that committee consider that the matter should be
dealt with more expeditiously, this will be arranged.
Likewise, if the Privileges Committee considers that the matter should be dealt with
more expeditiously, I will suggest to the President that this be done.
ADVICE NO. 36
PARLIAMENTARY
PRIVILEGE—EXECUTION OF SEARCH WARRANTS
DRAFT GUIDELINES
Today I attended a
meeting with officers of the Attorney-General's Department and the Australian
Federal Police (AFP) at which we discussed a proposed memorandum of
understanding between yourself, the Speaker, the Attorney-General and the
Minister for Justice and Customs to agree to the proposed AFP guidelines for
execution of search warrants where parliamentary privilege may be involved.
An amended version
of the guidelines was presented at the meeting. All of the amendments which
were endorsed by the Senate Privileges Committee have been incorporated, with the exception of the suggestion that the Presiding
Officer and Clerk of the relevant House could be added to the list of examples
of neutral third parties who might be asked to hold material until a process
for determining its status is conducted. The guidelines do not preclude anyone
acting as a neutral third party, but the AFP is reluctant to expand the list of
possible examples beyond the indication in the guidelines that the warrant
issuing authority or another agreed third party may perform this role. I
indicated that, as this was merely a suggestion and did not substantively
affect the operation of the guidelines, you and the Privileges Committee would probably not insist on the amendment.
The other amendments, which have all been made, are of greater significance.
Attached is a copy
of the draft memorandum of understanding. It will be noted that it provides for
the guidelines to be changed by the AFP, but only after consultation with
yourself and the Speaker. As the guidelines are issued by the AFP to bind their
officers and may need to be changed in accordance with operational exigencies
or emerging legal requirements, I think that this provision is appropriate.
There is a remote possibility that the guidelines might be changed, even after
that consultation, in a way which is not approved by yourself or the Speaker.
Because of that possibility, I suggested that the memorandum include a
revocation clause whereby the Presiding Officers could revoke their agreement
to the guidelines. This suggestion was accepted. The only other amendment of
the draft memorandum is that the "promulgation" referred to in
section 3 will be carried out by tabling in each House.
I think that, with
these amendments, the proposed memorandum is appropriate for signature. It will
be provided for that purpose in the next few weeks.
I am sending a copy
of this note to the Privileges Committee in case the committee wishes to make any further comment on the
guidelines or the proposed memorandum.
ADVICE NO. 37
REFERENCE TO PARLIAMENTARY
PROCEEDINGS IN DEFAMATION SUITS — COURT DECISIONS
The committee may be
interested to hear of two recent court decisions relating to the question of
whether parliamentary proceedings may be referred to, and, if so, to what
effect, in the course of defamation proceedings relating to statements made
outside parliamentary proceedings.
It is clear that the
repetition outside of parliamentary proceedings of statements made in the
course of those proceedings is not protected by parliamentary privilege. The
question which arises is whether reference may be made to statements in
parliamentary proceedings (protected statements) to establish the meaning or
effect of statements made outside parliamentary proceedings (unprotected
statements) to support a defamation action.
Such a course
clearly involves using parliamentary proceedings to further a legal action
against a person, and is therefore prohibited by the law of parliamentary
privilege. The wording of section 16 of the Parliamentary
Privileges Act 1987 clearly prevents such a course, as it prohibits reference
to parliamentary proceedings by way of, or for the purpose of,
(b) otherwise
questioning or establishing the credibility, motive, intention or good faith of
any person; or
(c) drawing,
or inviting the drawing of, inferences or conclusions wholly or partly from
anything forming part of those proceedings in Parliament.
These provisions
simply codify the pre-existing law of parliamentary privilege, and various
judicial decisions have recognised that that is all the Act does.
While this may be
crystal clear to us, certain judges do not find it so. The problem appears to
arise from a deeply-ingrained view in the legal system that the law of
defamation is a fundamental law, and that the right to sue for defamation is
the most fundamental human right, and every other law must give way to it.
There have been three cases in which courts have held that use may be made of
protected statements to support an action in respect of unprotected statements.
Laurance v Katter (1996) involved
federal parliamentary proceedings but state defamation law, and was adjudicated
by Queensland Supreme Court judges, two of whom appeared to hold that the
Parliamentary Privileges Act had to be either read down or held invalid to
allow the defamation law precedence; the case was settled before a final
determination. Beitzel v Crabb (1992)
was a Victorian case in which parliamentary statements were used to prove the
defamatory meaning of unprotected statements; and Buchanan v Jennings (2002) was a New Zealand case to the same
effect. The approach of the judges in these cases was expressly repudiated by
others in other defamation cases in which the law was correctly applied, for
example by the full South Australian Supreme Court in Rann v Olsen (2000).
The latest news is
that the New Zealand case was taken to the Privy Council on appeal, and the
appeal was dismissed earlier this month. The Judicial Committee of the Privy
Council did not see that reference to a protected statement to further a
defamation action involves using parliamentary proceedings against a person in
a manner prohibited by parliamentary privilege. Its judgment boiled down to
nothing more than a reiteration of the principle that an unprotected statement
is unprotected. Having gone to the highest court of appeal of the country, the
New Zealand Parliament has nowhere else to go except to change the statutory
law.
The other recent
case occurred in Queensland, and is more complex because of the peculiar
circumstances. The case involved a member of the nursing staff of a hospital,
Ms Erglis, suing some of her colleagues (the nurses) and the state for
statements made in a letter and apparently circulated by the nurses. Those
statements responded to statements made by Ms Erglis to Opposition members
who raised the content of her statements in the Legislative Assembly. The
responsible minister read out in the Assembly and tabled a copy of the nurses’
letter. The relationship between this copy and other circulated copies is not
clear. The state applied to strike out part of the ground for Ms Erglis’
action, which is that the tabling of the letter compounded the defamation by
the nurses. The basis of the application was that parliamentary privilege
attached to the tabling of the nurses’ letter and its publication by the
Legislative Assembly. There was also an argument that the letter was prepared
for the minister to table, although there appears to be no evidence of this. A
further difficulty is that some copies of the letter as circulated appear to be
different from the tabled copy.
The application to
strike out that part of the ground of action was successful, but Ms Erglis
appealed to the Supreme Court sitting as the Court of Appeal, and her appeal
was upheld earlier this month by a majority of two to one. In upholding the
appeal the majority simply restored the ground of Ms Erglis’ action, and did
not of course adjudicate on its merits. The majority judgment, however,
endorses the erroneous notion that reference may be made to parliamentary
proceedings, the tabling of the letter, to further the action against the
unprotected statements, in the letter as circulated. It goes further than the
New Zealand judgment in allowing the parliamentary proceedings to be regarded
as adding to the damage of the original publication.
The minority judge
correctly held that referring to the minister’s act of tabling the letter in
Parliament for the purpose of furthering the defamation action necessarily
involves questioning and impeaching the parliamentary proceedings, and that one
consequence of the majority’s finding would be:
the potential detrimental effect on the willingness of citizens to
provide possibly important and possibly defamatory information to members of
Parliament ... A Member of Parliament who is exposing a source of information to
the risk of increased damages by merely publishing verbatim the information
given, thus enabling civil proceedings to occur of the kind brought here ... may be able to avoid that consequence
to her or his informants by adding comment and observation from other asserted
or actual sources and thus providing a bowdlerized or fragmented version of the
information given ... it will [then] be difficult for any person to tender the
relevant Hansard extract without it being held that the plaintiff is requiring
the court to examine what the Member said and the extent to which it was a
republication.
In other words,
freedom of communication to Parliament and freedom of speech in Parliament are
both infringed. Furthermore, the reasoning of the majority judgment collapses
as soon as it is extended to the slightest variation of the facts. It also
involves the absurdity of recognising the immunity of parliamentary proceedings
when they are a primary publication, but allowing them to be questioned when
they are merely a republication. The judgment represents a failure to apply
properly the general principle of parliamentary privilege to the facts of the
case.
It is not known
whether the Queensland government will now apply to the High Court, or wait for
the action to progress to see how the offending ground of Ms Erglis’ action
fares in the court proceedings. That part of the action may fail. The latter
course, however, is dangerous, as an unfavourable result in the defamation
action would be more difficult to overturn in the long run.
The judgment is
another bad precedent weighing in the scales against the sound precedents, and
it is to be hoped that it will not stand.
Further developments
in this case will be awaited with interest, and I will keep the committee
informed.
ADVICE NO. 38
DRAFT NATIONAL DEFAMATION LAW
Thank you for your
letter of 12 August 2004, in which the committee seeks comments on the
parliamentary privilege implications of the revised outline of a possible
national defamation law, provided to the committee by the Attorney-General.
There are two
provisions in the draft law which relate to the law of parliamentary privilege:
the proposed statutory absolute privilege in respect of parliamentary
proceedings (clause 12 of the draft law); and the defence of fair report (clause
15 of the draft law).
Parliamentary proceedings
This provision would
provide a statutory defence to a defamation action that the contested
publication occurred in the course of parliamentary proceedings, and also
covers certain other transactions. The privilege giving rise to the defence is
stated to be absolute, that is, the defence is not lost if the defendant makes
the publication from malice or some other improper motive. The definition of
parliamentary proceedings covers proceedings in the Houses of the Commonwealth
Parliament and their committees, and is virtually identical to the definition
contained in section 16 of the Parliamentary
Privileges Act 1987.
The proposed
provision would therefore duplicate, but only in relation to defamation actions,
the parliamentary privilege provided by section 49 of the Constitution and the
Parliamentary Privileges Act. The privilege under section 49 and the
Parliamentary Privileges Act, of course, has a much wider application than in
the defamation law.
It would be
conceptually more accurate to say that the proposed law would merely reflect,
rather than duplicate, that aspect of parliamentary privilege: the privilege is
conferred by section 49, explicated in the Act and reflected, in one aspect, in
the draft law.
The question which
first arises is why it is necessary to reflect that aspect of parliamentary
privilege in the proposed defamation law. The answer, no doubt, is that the
proposed law is intended to be a code, and the defence of parliamentary
privilege is included for the sake of completeness. There is no harm in this,
provided that there is no difference in language which would enable some future
judicial finding that the Act and the defamation law are inconsistent or in
conflict. Given the copying in the proposed law of the language of the
Parliamentary Privileges Act, this problem should not arise.
I therefore see no
difficulty with clause 12 of the proposed law.
Fair report
Clause 15 of the
proposed law would provide a defence to a defamation action of fair report of a
range of public proceedings. Public proceedings are defined to include
parliamentary proceedings within the meaning of clause 12. The outline of the
proposed law refers to section 10 of the Parliamentary Privileges Act, which
provides a similar defence.
In relation to this
proposed provision a number of questions arise.
(1) The
traditional formulation of this defence, including in the common law, refers to
fair and accurate report. Section 10 of the Parliamentary Privileges Act uses
that expression. The outline of the proposed law also uses that expression in
describing the draft law. Clause 15 of the draft law, however, refers only to
fair report. This disparity between the outline and the draft law requires some
explanation.
(2) The
proposed defence of fair report would apply to all parliamentary proceedings,
including the proceedings of a parliamentary committee in private session.
Section 10 of the Parliamentary Privileges Act explicitly excludes the defence
in cases of publication of unauthorised reports of private meetings. In other
words, any unauthorised publication of private committee proceedings is not
protected under the Parliamentary Privileges Act but would be protected under
the draft law.
It may be that the drafters of the proposed law would say that
unauthorised publication of private committee proceedings is not a problem to
be dealt with by the defamation law, that the appropriate course is to protect
reports of all proceedings and to leave it to the House concerned to deal with
any unauthorised disclosures. In order to establish the defence of fair report,
however, the defendant in a defamation action would have to refer to the
proceedings reported, and the law of parliamentary privilege, as explicated in
section 16(4) of the Parliamentary Privileges Act, prevents the tendering of
any evidence in a court about any private proceedings of a committee unless the
committee has authorised the publication of the proceedings. The answer of the
drafters of the proposed law may be that, in practice, their proposed defence
would not be available in a case of unauthorised disclosure of private
committee proceedings, so the effect would be the same as that of the
Parliamentary Privileges Act. It would be better for the question to be completely
clarified, and for the proposed provision to make the defence available only
for reports of public or published proceedings. Perhaps the use of the
expression “public proceedings” in the draft law is intended to convey this,
but that interpretation is not available because of the way in which the
expression is defined.
(3) Section
10 of the Parliamentary Privileges Act refers only to proceedings at a meeting
of a House or a committee, not to parliamentary proceedings under the broad
definition of that expression in both the Act and the proposed law. Clause 15
of the proposed law, however, would confer the defence in relation to all
parliamentary proceedings. This would include, for example, a report of the
preparation of a document for purposes of or incidental to parliamentary
proceedings. So a journalist could have the defence for a fair report of a
witness drawing up a submission to a parliamentary committee even before the
submission is presented: the drawing up of the submission is a proceeding in
Parliament, so a fair report of the drawing up of the submission would be
protected. It might be thought that the use of the expression “public
proceedings” in the draft law excludes this interpretation, but as already
noted that expression is defined to include all parliamentary proceedings. In
some way the clause needs to be narrowed to avoid this unwanted consequence. It
has been suggested that section 10 of the Act is too narrow, in that it may
exclude from the defence, for example, a report of a submission published by a
committee which was published under a standing resolution of the committee but
not at a meeting of the committee. Regardless of that kind of contention, the
application of the proposed clause 15 would be too wide.
(4) The
defence provided by section 10 of the Parliamentary Privileges Act is stated in
the explanatory memorandum which accompanied the bill for the Act to be a
qualified privilege for a fair and accurate report. The outline of the proposed
defamation law also refers to that section as providing a qualified privilege.
The description in the explanatory memorandum was based on a belief that the
section did no more than make uniform across the country the common law defence
of qualified privilege for a fair and accurate report in respect of
Commonwealth parliamentary proceedings, that section 10 would therefore be
interpreted as conferring a qualified privilege only, and that additional words
would have to be added to the section in order to make privilege absolute. The
section was based on the 1984 report of the Joint Select Committee on
Parliamentary Privilege, which recommended qualified privilege only for a fair
and accurate report.
The outline of the proposed defamation law, however, while referring to
the common law privilege and that of section 10 as qualified, describes the
proposed defence of fair report in clause 15 as “available, regardless of the
defendant’s motive in publishing the matter”, that is, as absolute. The various
statements in the outline of the draft law cannot all be correct. There is a
contradiction in the outline. If section 10 of the Parliamentary Privileges Act
confers only a qualified privilege, clause 15 must confer only a qualified
privilege, but if clause 15 confers an absolute privilege, section 10 must also
confer an absolute privilege. There is no difference in the language of the two
provisions which would make one absolute and one qualified. This contradiction
should be cleared up.
Unlike clause 12,
clause 15 would in any event probably provide a very different defence from the
equivalent provision in the Act. This may be thought to be of no consequence: a
defendant can choose whichever defence is the most favourable. The difference
between the provisions, however, is likely to cause difficulties when
considered in conjunction with the matters set out above.
I hope that these
observations are of some interest to the committee. I would be pleased to
provide any elaboration of these points or any further information that the
committee requires.
ADVICE NO. 39
DRAFT NATIONAL DEFAMATION LAW
(2)
Since I responded on
18 August 2004 to the committee’s request for comments on the Draft National
Defamation Law, the states and territories have issued a document called Model
Defamation Provisions. The committee may be interested in some comparison
between the parliamentary privilege clauses of the model and those of the draft
national law.
Clause 31 of the
model begins with a general defence of absolute privilege (subclause 31(1)).
This effectively incorporates the Parliamentary
Privileges Act 1987 as well as any other pre-existing source of absolute
privilege. It then specifically covers a publication occurring in the course of
parliamentary proceedings (subclause 31(2)(a)). It applies to the proceedings of
all parliaments and legislatures, domestic and foreign (clause 4).
Parliamentary proceedings extend to words spoken and acts done in the course,
or for the purposes, of parliamentary proceedings (subclause 31(3)). While this
wording is slightly different from that of the Parliamentary Privileges Act 1987, the difference should cause no
difficulties, and in any event the specification of parliamentary proceedings
is subject to the general defence of absolute privilege contained in subclause
31(1).
The defence of fair
report of parliamentary proceedings, in clause 33, mostly overcomes the
questions which arise in relation to the equivalent provision in the draft
national law. The following refers by number to the questions raised about the
national draft.
(1)
The
model also refers to fair report, rather than fair and accurate report. It may
be that the omission of any reference to accuracy is thought to make the
defence less onerous for the defendant.
(2)
The
defence applies only to public
parliamentary proceedings (clause 33(4)(a)), and therefore overcomes the
problem relating to unauthorised reports of in camera proceedings. There may be
a question about whether the defence would apply to evidence taken in camera by
a committee and subsequently published by the committee or the house concerned,
but I should think that such evidence would then be regarded as proceedings in
public, because the publication would occur in the course of parliamentary
proceedings. Section 10 of the Parliamentary Privileges Act lends itself more
readily to that interpretation because it refers to proceedings at a
parliamentary meeting. Perhaps this should be clarified in the model. The
qualified defence of publication of a public document (clause 32) would
certainly apply.
(3)
Because
the definition of proceedings already referred to applies only to the defence
of absolute privilege in clause 31, the defence of fair report would be
confined to actual parliamentary proceedings and would not extend to the
“penumbra” of matters incidental. It is therefore limited in much the same way
as section 10 of the Parliamentary Privileges Act is limited.
(4)
It is
clear that the defence of fair report would confer a qualified privilege only,
by virtue of subclause 33(3).
On the whole, the parliamentary privilege provisions in the model are
an improvement on those in the draft national law, subject to the clarification
mentioned in (2).
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