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House of Representatives                                Ch 17                                                 p 609

The Parliament

By the end of the 19th century each House of the United Kingdom Parliament was invested with the power of ordering all documents to be laid before it which were necessary for its information. Despite the powers of each House to enforce the production of documents, a sufficient cause had to be shown for the exercise of that power. ¹ This unquestioned power of the House of Commons is extended to the Australian Parliament by way of section 49 of the Constitution.

On a number of occasions questions have been raised as to the limits of the power of the Parliament in Australia to call for documents from the Executive, giving rise to conflict between public interest immunity and parliamentary privilege. These issues are most likely to arise in connection with parliamentary committee inquiries, and are covered in the Chapter on ‘Committees’. Because of the majority of government Members in the House, disputes over such matters between the Government and the House are less likely to arise and when they do, it is likely that a compromise may be reached, for example, by agreement to produce documents on a confidential basis.

The situation is different in the Senate, where the Government does not necessarily have a majority. Instances where the government of the day has come into conflict with the Senate or a Senate committee over claims of executive privilege or public interest immunity are outlined in Odgers . ² In brief summary, it would seem that the Senate has not conceded its right to determine Executive claims of public interest immunity but, on the other hand, it has not taken steps to enforce production of documents when immunity has been claimed, ‘other than exacting a political penalty’. ³ Ministers (including a Minister in the House) have been censured for contempt of the Senate for not responding to Senate orders to produce documents. ⁴

The powers of the New South Wales Legislative Council to order the production of executive government documents and to sanction a Minister for not complying with the order have been upheld by the New South Wales Court of Appeal and by the High Court. ⁵ In a related case, the Court of Appeal further ruled that the Council’s power extended to the production of documents (Cabinet documents excepted) to which claims of legal professional privilege and public interest immunity could be made. ⁶

In 1972 the question of Crown privilege was given serious consideration by the Attorney-General (Senator Greenwood) and the Solicitor-General (Mr Ellicott) in a paper entitled ‘Parliamentary Committees—Powers over and protection afforded to witnesses’. ⁷ In the paper the Law Officers expressed the view that the power of each House of the Australian Parliament to call for documents from the Executive is as wide as that of the 1901 House of Commons, whose power was, at least in theory, unlimited. The Law Officers believed that, because of the unlimited nature of this power, the extent to which it is used must necessarily rest on convention. Prior to the decision of the House of Lords in Conway v. Rimmer , the parliamentary practice of accepting as conclusive a certificate of a Minister regarding a claim of Crown privilege was consistent with the practice of the courts. Given the change in practice by the courts, the Law Officers raised the question as to whether the Parliament should accept as conclusive the certificate of a Minister or adopt a system similar to that adopted by the courts. The Law Officers were of the opinion that, given a parliamentary system based on party government and ministerial responsibility to the Parliament, the preferred course would be to continue the practice of treating a Minister’s certificate as conclusive. However, in an addendum to the report of the Senate Committee of Privileges on matters referred by Senate resolution of 17 July 1975, ⁸ Senator Greenwood expressed the view that ‘The conclusiveness of the Minister’s certificate is for the Senate to determine’. The Senator also pointed out that where this view conflicted with that given by him earlier as Attorney-General in the paper referred to above he preferred the later view. ⁹

A substantial claim of Crown privilege was made by the Prime Minister and three other Ministers in 1975. In this instance public servants were summoned to the Bar of the Senate to answer questions and produce documents relating to certain government overse as loans negotiations. The Prime Minister and the other Ministers (the Minister for Minerals and Energy, the Treasurer and the Attorney-General) each wrote to the President of the Senate making a claim of privilege on the grounds that for departmental officers to answer questions and to produce documents, as required by the Senate resolution of 9 July 1975, ¹⁰ would be detrimental to the proper functioning of the Public Service and its relationship to Government, and would be injurious to the public interest. ¹¹ The three Ministers wrote further to the President advising him that they had given instructions to their officers summoned to attend before the Senate, to the effect that, should the Senate reject the claim of Crown privilege, the officers were to decline to answer questions, except of a formal nature, and to decline to produce documents. ¹² The Solicitor-General, also summoned to the Bar of the Senate, wrote to the President pointing out that as the Crown had already made a claim of privilege he, as second Law Officer of the Crown, could not, consistent with his constitutional duty, intentionally act in opposition to the Crown’s claim. Therefore, he concluded, he must object to answering any questions relating to the Senate resolution of 9 July 1975. ¹³ The Committee of Privileges, which was directed to inquire into the Crown’s claims of privilege, presented its report to the Senate on 7 October 1975. ¹⁴ The report, agreed to by a majority—that is, by four government Senators—had no doubt that the directions given by the Ministers were valid and lawful directions. ¹⁵ The dissenting report, by three opposition Senators, held the view that a Minister’s certificate of a claim of privilege was not conclusive; it was entitled to consideration, but the conclusiveness of the certificate was for the Senate to decide. ¹⁶ The report of the committee was not considered by the Senate before both Houses of Parliament were dissolved on 11 November 1975.

The final report of the Joint Select Committee on Parliamentary Privilege (1984) ¹⁷ addressed these matters. The committee noted the trend in respect of court proceedings and considered it possible that an analogous evolution in thinking might develop in Parliament to help resolve cases where disputes arose between committees requesting information and Executives resisting their requests; however, it could not be presumed that this would happen. Observing that the Parliament had never conceded that any authority other than its Houses should be the ultimate judge of whether or not a document should be produced or information given, the committee rejected the adoption of any mechanism for the resolution of disputes over the production of executive documents, such as by arbitration by the Head of State, which involved concessions to executive authority. The committee further reasoned that it was inherent in the different functions and interests of the Parliament and the Executive that there be areas of contention between them on such matters, that it was impossible to devise any means of eliminating contention between the two without one making major and unacceptable concessions to the other, and that adjudication by a third party would be acceptable to neither ‘in this quintessentially political field’. In effect, the committee’s conclusion was that matters should be allowed to stand as they were.

In 1994, following a dispute between the Government and a Senate select committee over the production of documents concerning Foreign Investment Review Board decisions, a private Senator introduced a bill giving the Federal Court the power to determine whether documents in dispute in such circumstances could be withheld from a House or committee on public interest grounds. ¹⁸ The bill was referred to the Senate Privileges Committee, which recommended that the bill not be proceeded with and that claims of public interest immunity should continue to be dealt with by the House concerned. ¹⁹ The House also referred the matter of the appropriateness of such legislation to its Privileges Committee. ²⁰ The committee concluded that the evidence available did not establish that it would be desirable for legislation to be enacted to transfer to the Court the responsibility to adjudicate in these matters. ²¹

In any consideration of this question it is important to bear in mind that, because different aspects of the public interest are involved—that is, the proper functioning of the Parliament as against the due administration of justice—the question of disclos ure of documents to the Parliament is not the same question as disclosure of documents to the courts. ²²

May , 10th edn, pp. 507-11.

See Odgers , 11th edn, pp. 464-85.

Odgers , 11th edn, p. 468.

E.g. J 1993-95/1641. The censures did not result in the production of documents. Odgers , 11th edn, p. 461-2.

Egan v. Willis and Cahill (1996) 40 NSWLR 650, Egan v. Willis and Cahill (1998) HCA 71, 158 ALR 527.

Egan v Chadwick and others (1999) 46 NSWLR 563.

PP 168 (1972).

J 1974-75/836-7.

Senate Committee of Privileges, Matters referred by Senate resolution of 17 July 1975 , PP 215 (1975) 58.

J 1974-75/824-5.

PP 215 (1975) 16-20.

PP 215 (1975) 23-8.

J 1974-75/824-5; PP 215 (1975) 21-2.

J 1974-75/936; PP 215 (1975).

PP 215 (1975) 11-12.

PP 215 (1975) 51.

PP 219 (1984).

Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994.

Odgers , 11th edn, pp. 477-8.

VP 1993-95/1107.

H.R. Deb. (8.12.94) 4375. PP 408 (1994).

PP 168 (1972) 40.