Submission from the Clerk of the Senate
D17/41309
21 June 2017
Parliamentary Joint Committee on
Corporations and Financial Services
Parliament House
Canberra ACT 2600
By email: corporations.joint@aph.gov.au
I write in
response to your letter, dated 7 June 2017, which I take to be an invitation
from the Corporations and Financial Services Committee to provide a submission
on aspects of its current inquiry into whistleblower protections.
The catalyst for
the inquiry was the adoption of a scheme of protection in relation to the
Registered Organisation Commission, together with government undertakings to
investigate and, eventually, legislate for broader whistleblower protections across
public and corporate sectors. In this regard, the committee’s terms of
reference contemplate “a comprehensive whistleblower protection regime for the
corporate, public and not-for-profit sectors”.
The phrase whistleblower
protections, here, connotes a regime of procedural and legal protections
for persons making disclosures (usually alleging maladministration or
wrongdoing), provided those disclosures are made by a prescribed method to an
authorised recipient. The committee seeks my views on the interaction between
whistleblower protections and parliamentary privilege. My attention is
particularly drawn to disclosures about, by or to members
of parliament and their staff; and disclosures to parliamentary committees.
Senate Clerks have
previously made submissions on proposals for “public interest disclosure”
schemes. For instance, in December 2008, Harry Evans submitted to a House of
Representatives committee inquiry that he considered it “appropriate that
members of the Parliament be authorised recipients of public interest
disclosures”. Similarly, in my view, there is no obstacle to including, in a
properly-designed scheme, mechanisms for disclosures about, by or to members
(or their staff), provided the distinction between privilege law and the
whistleblowers protection regime is maintained.
I make the
following observations about maintaining that distinction in different
situations.
Disclosures by or
about members
If it is intended
that the regime include disclosures by or about members (and their staff), then
conduct which forms part of parliamentary proceedings should be carved out of
the definition of disclosable matters, to preserve the operation of the
privilege law.
Generally,
participants in parliamentary proceedings are protected by privilege law in two
ways. The first involves the use of the contempt powers of the two Houses,
whose purpose is to protect the ability of the Houses, their committees and
members to carry out their functions without improper interference. For
instance, the Senate may determine that conduct which obstructs or impedes its
work, or that of its members, amounts to a contempt — that is, an offence
against the Senate — and may punish a person for undertaking such conduct. It
would be highly undesirable to limit or interfere with the powers of the two
Houses to deal with such matters by overlaying a statutory disclosure scheme in
relation to those proceedings.
The other way
participants may be protected by parliamentary privilege is by a legal immunity
descended from Article 9 of the Bill of Rights, 1688. Parliamentary privilege
in this sense is an evidentiary rule that prevents “proceedings in Parliament”
from being used in courts or tribunals for prohibited purposes; traditionally,
for the purposes of “questioning or impeaching” those proceedings. Both of
those terms are defined in section 16 of the Parliamentary Privileges
Act 1987. This prohibition sits at the core of parliamentary freedom of
speech. It protects parliamentary proceedings from external interference.
Again, it would be highly undesirable to undermine this protection by
constraining the operation of those provisions.
In relation to
conduct other than in connection with parliamentary proceedings, no doubt an
appropriate regime for disclosures about members and their staff could be
devised. For instance, in his Public Interest Disclosure Bill 2007 [2008],
former Senator Andrew Murray proposed that the Presiding Officers of the
Commonwealth Parliament be authorised to receive disclosures about members of
their respective Houses.
In relation to
disclosures by members, provided such disclosures are made in accordance with
the process prescribed by the statute, there is no reason for disclosures by
members and their staff to be handled differently than disclosures made by
others.
Disclosures to
members
If members are to
be designated as authorised recipients in a statutory disclosure scheme, their
roles and responsibilities must be adequately defined by the statute in a
manner which does not affect (or derogate from) the law of parliamentary
privilege, as explicated by the Parliamentary Privileges Act. In this regard,
Harry Evans submitted to the House Legal and Constitutional Affairs Committee
in 2008:
It is important that this aspect of
parliamentary privilege be left to operate in conjunction with, and unaffected
by, any statutory regime for public interest disclosures to members of
Parliament. The ability of citizens to communicate with their parliamentary
representatives, and the capacity of those representatives to receive
information from citizens, should not be restricted, inadvertently or
otherwise, by a statutory public interest disclosure regime.
There are several
points to note about privilege and a statutory disclosure regime working
together.
First, a
non-derogation clause may be appropriate, although this would depend on the
design of the statute. In this regard I note that, in its report on the Public
Interest Disclosure Bill 2013, the Legal and Constitutional Affairs Legislation
Committee endorsed the advice of the then Clerk of the Senate, Dr Rosemary
Laing, that a non-derogation clause is necessary and appropriate only where a
statute expressly provides for disclosures to be made to members, as such a
provision may otherwise be interpreted to modify, alter or affect the powers,
privileges and immunities of the Houses or their members [see paragraphs
3.21–3.24, under the heading Clause 81 and preservation of parliamentary
privilege].
Secondly, it is
useful to keep in mind that different roles and protections may co-exist. For
instance, as noted above, former Senator Murray's bill would have authorised
the Presiding Officers to receive disclosures about members of their respective
Houses. The Presiding Officers’ powers, functions and responsibilities here –
like those of other authorised recipients – would initially be those specified
in the statute under which the regime is to operate. That is, they would be
administrative, rather than parliamentary, in nature. If a Presiding Officer
subsequently put such a disclosure before their House, or a parliamentary
committee, the usual protections of parliamentary privilege would apply, and
the matters would be dealt with in accordance with the procedures of the House.
Similarly, the powers, functions and responsibilities of other members, if designated
as authorised recipients, would initially be those specified in the statute,
but any subsequent use of disclosures in connection with parliamentary
proceedings would attract absolute privilege. In those circumstances, a person
making a disclosure may receive both the protections adhering under the statute
and the protection of privilege.
Finally, it may be
appropriate for addition considerations to apply before members were authorised
to receive disclosures. For instance, former Senator Murray’s bill provided a
mechanism for members to receive “external disclosures” only in specified
exceptional circumstances, including where “internal disclosures” to proper
authorities (eg, heads of affected agencies) had not been adequately dealt
with. This would be a matter for consideration in developing the policy detail.
Disclosures to
parliamentary committees
The difficulty of
maintaining the distinction between privilege and other statutory protections
where parliamentary committees are involved militates against their inclusion
as authorised recipients. Nevertheless, as noted above, the Presiding Officers
and other members of parliament in receipt of disclosures may initiate the
reference of disclosures to committees, or otherwise raise them in
parliamentary proceedings. In those circumstances, persons making disclosures
may be protected both under the statute and by parliamentary privilege.
No doubt there
would also be a role for Senate committees in overseeing any proposed statutory
regime, particularly where an authority is charged with administering the
disclosure regime.
Conclusion
Notwithstanding my
view that privilege law and statutory whistleblowers protection regime may
co-exist, the complexities of defining and maintaining the distinctions between
them should not be underestimated. No doubt there will be opportunities to
address these matters in more detail if and when relevant legislation is put
before the Parliament.
Yours
sincerely,
(Richard
Pye)
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