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STANDING COMMITTEE OF PRIVILEGES
13/05/2010
Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009

CHAIR (Senator Brandis) —Welcome. I declare open this public hearing of the Senate Standing Committee of Privileges into the provisions of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009. The purpose of the bill is to amend a range of secrecy and disclosure provisions applying to taxation information with the purpose of providing a consolidated and standardised statutory framework. The bill was referred to the committee with particular reference to the provisions in the bill relating to the disclosure of taxpayer information to parliamentary committees and the conflict which these provisions may have with the Parliamentary Privileges Act 1987. The committee has decided to proceed this afternoon by way of a roundtable public hearing.

Officers of the Treasury will not be asked to give opinions on matters of policy, although that does not preclude questions asking for explanations of policy or factual questions asking about when and how policies were adopted. Information in relation to parliamentary privilege and the protection of witnesses and evidence has been provided to all witnesses. The committee has the submissions of those witnesses before it as well as the submissions in written form of other witnesses who are not appearing this afternoon.

I am going to invite each of you to make a short opening statement. At the conclusion of the opening statements, I will ask members of the committee to put questions to you. The way I am going to proceed is that I am going to ask Dr Laing, who, although she is the Clerk of the Senate, appears here in a private capacity—

Dr Laing —No. I appear as Clerk of the Senate.

CHAIR —But the views you express are your views. Is that right?

Dr Laing —As Clerk of the Senate.

CHAIR —My point is that you do not appear on behalf of anyone. Is that right?

Dr Laing —That is right.

CHAIR —So you do not appear on behalf of anyone. That is really what I was getting at. I will then go to Professor Twomey and then the Treasury officers. I want to keep these proceedings reasonably flexible. We are going to have a roundtable discussion in which all witnesses are welcome to participate and to address one another. The only limitation I think I need to put on this is that the Treasury officers, as Public Service officers, appear in a slightly different capacity. They are here to explain and, in a sense, defend the bill as drafted. They do not appear offering expertise other than the expertise that accompanies their position as Treasury officers. They therefore have less flexibility than the other witnesses in what they can say to the committee and in the opinions they can express. That should be acknowledged as the roundtable proceeds. Dr Laing, we will go to you. Dr Laing has provided us with a very full submission.

Dr Laing —Thank you, Mr Chairman, and I thank members of the committee for allowing me to appear before you this afternoon. There are five points I would like to make to you about the provisions in subdivisions 355-B and 355-C of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009. The first point is that statutory secrecy provisions in general do not affect the provision of evidence by witnesses to parliament unless there are express words to that effect. An example that we are aware of is subsection 37(3) of the Auditor-General Act, which was inserted into the bill on the recommendation of the then public accounts committee. It was to protect the independence of the Auditor-General as an officer of the parliament and had a sound policy rationale. It provides that the Auditor-General cannot be required, and is not permitted, to disclose certain information to a house, a member or a committee. The provision is described in the EM to the bill at the time specifically as a declaration for the purposes of section 49 of the Constitution.

My second point is that the law of parliamentary privilege protects proceedings in parliament from being questioned or impeached in any place outside of parliament. This has a long history—so-called exclusive cognisance took its first statutory form in 1689 in the Bill of Rights, in article 9. It was inherited by the Commonwealth in 1901, by virtue of section 49 of the Constitution, and has been significantly, though not exhaustively, codified in section 16 of the Parliamentary Privileges Act, which is of course a declaration for the purposes of section 49 of the Constitution.

In my view, for the offence provisions in the tax bill to work, there would need to be an express limitation on the operation of section 16 and the law it partially codifies, otherwise I am not sure how you try an offence without having resort to proceedings in parliament, which the law of parliamentary privilege otherwise prohibits.

It also raises a major policy question for the parliament. If you do allow this kind of provision to go through, do you really want courts to be able to pore over a committee’s terms of reference, decide what questions are relevant, decide the scope of the terms of reference and to decide, in some very important senses, how committees would conduct inquiries? On what basis would courts make decisions about the kinds of matters that are enumerated in 355-55(2) of the bill, which go to the heart of committee operations? In my view, courts are not equipped to second-guess how committees of the parliament should conduct their inquiries, let alone to deal with the political dimension of any inquiry by a parliamentary committee. Courts are not elected to be the grand inquisition of the nation, you are.

Before I get to my third point, I might suggest that I do not agree with the Treasury submission that any doubt is resolved by the fact that this bill will be a later enactment than the Parliamentary Privileges Act and will therefore prevail. I go back to the point that an express legislative declaration is required to abrogate parliamentary privilege, and if 355-60(2) and 355-210(2) are supposed to be such a declaration then I sympathise and agree with Dr Twomey’s submission that she would feel sorry for a court which had to apply and interpret them. That is not to say that what is required cannot be done simply, and an example of that very thing is in 16(6) of the Parliamentary Privileges Act. But in my view, the offences in the bill are potentially useless without something similar.

That brings me to my third point—that is, the offences in the bill are useless anyway as a means of protecting sensitive information. There is nothing in the bill, and this has been confirmed in the explanatory material and previous evidence of Treasury officers, that prevents committees and the houses exercising their powers of compulsion. So this information could be acquired if the committee agreed to summon the witness and require the answering of questions. There is no limitation on use of compulsive powers. There is no restriction on committees publishing material they get, so even if they followed the procedures in the bill, took the evidence in camera, there is nothing to prevent them publishing that information once they have taken it. So this suggests to me that it is not the sensitive information per se that is important, because this bill does not prevent sensitive information being disclosed to parliamentary committees. It seems to me the focus is not in the right place because what the bill does is place limits on tax officers and others in their dealings with parliamentary committees.

This also raises a very significant policy issue. Looked at through the parliamentary end of the telescope, this bill is asking you to sanction behaviour that you would otherwise treat as a contempt. It is proposing to punish witnesses on account of evidence they give to parliamentary committees, and the very existence of an offence provision of this nature may operate as a threat and a deterrent to potential witnesses, and this is something the parliament has hitherto taken very seriously indeed. In my view, the offence provisions are obnoxious in principle. Why would any parliament allow these sorts of provisions without compelling justification? But if parliament is going to limit itself in the way in which it approaches this kind of information, wouldn’t it be better to do it from another angle and to focus on the sensitive information itself and to say something like, ‘A person cannot be required to disclose the information’. This is what the provision in the Auditor-General Act does and also there are some other provisions in the Migration Act which are framed in that way. The big difference is that they are not offence provisions. To me it is quite bizarre that a proposed limitation on the capacity of parliament to carry out its function should take the form of an offence that can be committed by a witness.

In this context I would like to remind the committee that in its 49th report, which was on the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill, it specifically rejected the idea of individual public servants carrying the can for what were, in effect, disputes between the parliament and the executive over access to information. It also rejected the idea of the courts having a role at the adjudication of disputes with the executive. I am not advocating that you agree to a limitation in another form, because my fourth point is that there is no justification that has been put forward for these provisions. In my view they are unnecessary. They are addressing a problem that does not exist. Committees have not needed individual taxpayer information to conduct the kinds of inquiries they undertake, which tend to be into systemic issues. Historically, committees have not asked for this kind of information. If they did, however, there are well-established procedures formalised in various Senate resolutions to deal with these requests. For example, a claim of public interest immunity would be the obvious solution in such cases should they ever arise, and there are clear procedures to deal with these. Moreover, potential harm to the privacy of an individual is a well-established ground of public interest immunity.

My fifth and final point is the floodgate argument: if this bill goes through unamended, who will be the next to try to slap statutory restrictions on the evidence-gathering capacity of parliamentary committees? I believe it is a slippery slope and I would not be doing my job as Clerk of the Senate if I did not counsel against such provisions. So in conclusion, in my view the provisions are ineffectual. I think they have been insufficiently thought out and therefore badly drafted. They address a problem that does not exist and they are offensive to the separation of powers. Thank you.

Dr Twomey —Thank you for inviting me to participate. My main concern, as you probably have ascertained from my submission, was more focused on the technicalities of the provision rather than the philosophy of it. I do have some concerns about—

CHAIR —Before you go on, Dr Twomey, I want to give you the opportunity, as well as saying what you have come to say, to address the broader in principle issues that Dr Laing has addressed herself to if you wish to.

Dr Twomey —Certainly. In fact, one of the points that Dr Laing makes is one that concerns me as well—that is, the position of the taxation officer upon whom an evidential burden is placed in relation to establishing the conditions upon which evidence is given to a parliamentary committee under section 355-55(2), under which the defendant, being the taxation officer, would somehow need to establish an evidential burden in relation to the fact that the information was requested and that it falls within the purpose of the committee’s functions and powers. As Dr Laing said, there are real and substantial issues of parliamentary privilege that arise there. There would be issues about whether you are questioning the proceedings of parliament. You would be having to look at the terms of reference, the types of questions that were asked, and I do not think that that is an appropriate burden to be placed on a taxation officer.

My other real concern is that both from the point of view of the taxation officer and the courts, I think the provisions are very, very unclear in the way that they operate. I note that the Clerk mentioned then that it is not intended at all to limit the powers of the houses or committees to compel evidence. The difficulty though is that the provisions themselves are not abundantly clear in relation to that point. The way the provisions work is that you start off with a basic offence, saying you cannot disclose information, and then you move to section 355-55(2) which says that the offence does not apply if the taxation officer is giving information to the parliamentary committee in response to a request, for the purpose of the committee’s functions and powers and the evidence disclosed in camera. But then you move to section 355-60 and it says the only exceptions to the original offence provision in relation to giving information to the parliament are those in section 355-55(2) above, which is the one I just mentioned, or if the information has already been made public.

So that is all right. You can understand that. But then you get to section 355-60(2), which says that subsection (1) has effect despite parliamentary privilege except to the extent that the powers, privileges or immunities can be invoked to compel the disclosure of protected information. That is where things become very difficult, because the problem is that you have had an express offence; an express exception—something that says the exceptions are completely exclusive—and then something that says they are exclusive unless you compel evidence, but it does not say that the compulsion of evidence is itself an exception to the original offence. So you have to imply that, and that is where everything starts becoming confusing and, I would imagine, (a) difficult for a taxation officer who has to work out whether they are obliged to give information or not and (b) very difficult for a court that needs to interpret what parliament intended.

From my point of view, I think it is important for the parliament to make very clear what it is proposing to do in relation to privilege. If the parliament intends that its committees and its houses shall still have the power to compel the disclosure of these documents and that any disclosure made pursuant to such compulsion not be an offence then that needs to be clearly stated, and not as an exception to an exception as it arises under section 355-60(2).

It gets worse when you get to section 355-60(3), because it then says that parliamentary privilege is not affected regarding the recording of a disclosure if it is disclosed in accordance with section 355-45 or 355-55. That is all very well and good; they are the ones where it was either already made public or you disclose it in relation to a request. But it does not tell you what happens if you disclose it in relation to compulsion, as, presumably, you are allowed to do under section 355-60(2).

So it reads to me like a very big mess, and I would not want to be a taxation officer or court facing those sorts of issues. If you are going to allow committees and houses to compel the production of this sort of evidence and you are then going to allow that evidence to be published or to be used in parliament freely by members of parliament, then you really rather need to make that clear. That is really all I have to say on that point.

Mr McCullough —I appreciate the point you made earlier on, Chair, that Treasury officers might be a little restricted in the comments that they are making, and I do not for a moment presume to be here to bandy about the law with any of the witnesses. Having said that, I am struggling to see some of the difficulties, and I want to go back a step. This is not a bill that has been produced overnight. It is not something that has been done in a hasty way. In fact, the disclosure concept was one of the former government’s concepts. A discussion paper went out in August 2006, and one of the key points made in that discussion paper was about disclosure to ministers. The section deals with parliamentary committees, and I know the focus of this committee is on parliamentary committees, but the comment that was in the discussion paper was about enabling the Commissioner of Taxation to provide information to parliamentary committees, where requested, provided that disclosure is made in camera. We understood that to be a practice of committees when requesting protected information. Perhaps I will just spend a moment on protected information. There we are talking about taxpayer—

CHAIR —Do you mean protected information in the sense defined by this bill?

Mr McCullough —In the sense defined by this bill. We are really talking about information that a tax officer has come across in the course of their duties, something under a taxation law, either by an audit or because they have access to the tax system, but it is information that has been provided to the tax office in that capacity. The question at the moment is—

CHAIR —Can I just interrupt you, Mr McCullough. The definition of protected information at proposed section 355-30(1) would extend to information that was not of a confidential character. What the definition operates upon is the character in which the information was acquired by the officer rather than the nature of the information itself; would you agree? It is disclosed or obtained under a taxation law, relates to the affairs of an entity and identifies or is capable of identifying the entity. If, for example, information were obtained from a taxpayer which was in fact information perfectly well in the public domain but happened to be among information obtained from a taxpayer during the course of the discharge of a taxation officer’s functions, that would be protected information under that definition, wouldn’t it?

Mr McCullough —Yes, it would. In fact, the point that was made by Dr Laing and, I think, the other witness as well was that tax officers need to have a degree of confidence that what they are doing is not wrong. One of the problems with the existing framework is that they are not particularly sure. There have been various legal opinions about the ways that things can be disclosed.

CHAIR —Let me give you an example. Let us say that the tax office were investigating the affairs of a company and, in the course of investigating the affairs of the company, the officer obtained books and records of the company including books and records that included financial statements which in fact had been lodged with the Australian securities commission or the appropriate body and were searchable in the public domain. Couldn’t it be said that there was a federal limitation on the use of those otherwise publicly available documents by a parliamentary committee because of the circumstances in which they were obtained, notwithstanding their public character?

Mr McCullough —The example you have used is perhaps not really a good one because there is an exception for the disclosure of publicly available information.

CHAIR —Is there?

Mr McCullough —If we are talking about publicly available information I draw your attention to proposed section 355-45.

CHAIR —I see. All right.

Mr McCullough —I think the example is valid, if I can put it more generally, if perhaps in the course of a tax officer’s work they come across something that is not particularly confidential—

CHAIR —That is not public either.

Mr McCullough —but it is not public. It might be—I do not know; I am not trying to trivialise it—that the person lives in a red brick house or something. One of the problems with the previous framework is that it has been really unclear whether these things are able to be disclosed or not. This basically starts from the proposition that if you acquire it in the course of your work you may not disclose it unless you are authorised to disclose it. Then we move along. There are different ways that things can be disclosed to ministers or can be disclosed in other places. For committees, all this bill says, as I am advised—I am not putting forward my own legal opinion; we did get legal opinion on this. To the extent that the drafting may not be absolutely crystal clear, I cannot really venture a view, but let me just proceed to this other thought before I come back to that. Disclosure to committees in practice of that sort of information is made in camera if it is made at all. All this does is say, ‘Well, let’s make that clear, not relying on something outside the act, not asking a tax officer to understand the legal niceties that Dr Laing went through, bringing in parliamentary privilege and other notions, but to be able to look on the face of the act that they deal with and say, “Right, I cannot disclose this to a committee unless it is in camera.”‘

CHAIR —What is the provision that says—to put the proposition in its reverse—that protected information may be compelled by a parliamentary committee if it is in camera?

Mr McCullough —I think that is dealt with by the section that Dr Twomey found confusing. I think that would be 355-60(2). Looking at it now, I do think—

CHAIR —I have to say, Mr McCullough, that subsection (2) does not make any sense to me at all. What do you think it means? What is it meant to mean?

Mr McCullough —I think it is meant to mean that those restrictions that are dealt with in the previous sections do not apply if the committee invokes its power to compel, and I think that is perhaps where the drafting—if I can be critical of the drafting with hindsight—might be wrong. If I look at the words ‘can be invoked’, hearing the discussion now, I think it might be a lot clearer if those words were ‘are invoked’, so that the provision read ‘subsection (1) has effect despite any power or privilege of either house’—et cetera—‘except to the extent that those powers are invoked to compel the disclosure’. If that were the way it read, it would be really clear that when people are volunteering information, appearing before Senate estimates or whatever, protected information cannot be disclosed to a hearing that is not in camera. However, if the committee compels the tax officer to provide the information, then it can be provided—and that makes it clear for the tax officer et cetera.

CHAIR —I agree with you, Mr McCullough, that the words chosen by the draughtsman in subsection (2) of section 355-60 do not apparently say that, even if that is what they were meant to say.

Mr McCullough —The qualification I would put to that is that we did actually take this provision and submit it for legal opinion as to whether it achieved the desired result.

CHAIR —From whom?

Mr McCullough —The Australian Government Solicitor.

CHAIR —From whom, though—from just a solicitor, or from counsel or senior counsel? I am not asking for the name of the person.

Mr McCullough —I just do not have the information, but because it was important I would presume it would be senior counsel if not the general counsel.

CHAIR —You do not know whether it was?

Mr McCullough —I do not have the opinion in front of me and I cannot recall it. This was done some time ago. I am sorry, Senator.

CHAIR —Just cutting to the chase here, dealing with both Dr Laing’s concerns in principle and Dr Twomey’s concerns about the drafting of the bill, are you saying that all you want to achieve in relation to disclosure of protected information to parliamentary committees is a section that says protected information shall only be disclosed in camera? Is that effectively what you are saying?

Mr McCullough —Yes, and—

CHAIR —If the legislation said that, Dr Laing, wouldn’t that meet your concern?

Dr Laing —If it were not framed as an offence then that would remove a great deal of the problem. If it were framed along the lines of the Auditor-General Act and the Migration Act, a person cannot be required to disclose that particular information unless the committee agrees to take it in camera—

CHAIR —Yes.

Dr Laing —but even then I am hesitant about binding committees in the way they operate, because once you put it in legislation you make it potentially justiciable in some ways.

CHAIR —Just before you jump in, Mr McCullough: Dr Twomey, what do you think about that?

Dr Twomey —I think it would certainly be an improvement, but I agree with what the Clerk is saying. My other concern is that if you look at the note under clause 355-55(2) it says:

A defendant bears an evidential burden in relation to the matters in this subsection …

So, because it is an offence and because this is an exemption to an offence, the poor old taxation officer is the one who actually has to go around at least meeting an evidential burden as to all these elements—elements that the committee is doing it for the purposes of performing its functions and exercising its powers and all that sort of thing. It is the poor taxation guy who has to establish that. That part still spooks me a bit. I think that is a bit unfair.—With respect, Dr Twomey, I think the way these things tend to unfold during parliamentary committee hearings is that you do not have to really establish these things in the way that you would have to formally prove them in a court of law. It can be accepted by the committee.

Dr Twomey —But the evidentiary burden there is if you are being prosecuted. That is the problem. If you are prosecuted before a court you, the taxation officer, have to establish that this was for the purposes of the parliamentary committee. That is the unfair bit.

CHAIR —True. But of course that could be avoided entirely by removing the offence provision at all—

Dr Twomey —Absolutely. If you did that—

Mr McCullough —So—

CHAIR —which is what you want to do, Dr Laing?

Dr Laing —Yes.

CHAIR —Sorry, Mr McCulloch, as I cut you off.

Mr McCullough —I am a little concerned that I am not really presenting this clearly enough to make the point properly. At the moment it is really clear that a tax officer should not reveal protected information except if in camera or except if compelled.

CHAIR —Yes.

Mr McCullough —Apart from the couple of words that I have pointed out to the committee, I would suggest that is what our legal advice says this section achieves. Now it may not achieve it in the most elegant way.

CHAIR —I can tell you. I will give you some legal advice: it does not.

Mr McCullough —I cannot say any more then.

CHAIR —That is my view anyway.

Dr Laing —Mr Chairman, can I jump in and suggest, with respect, that the Treasury officers are perpetuating a basic misunderstanding, and that is this. The law of parliamentary privilege means that parliament can compel the production of information. As I said in my first point, statutory secrecy provisions are irrelevant to the operation and application of the powers of committees. It does not leave the taxation officer in a very happy position but it is clear that when a taxation officer comes before a parliamentary committee the parliamentary committee has the power to require that taxation officer to present anything. They cannot hide behind the statutory secrecy provision, because it has no application in this forum.

Mr McCullough —Except it has been a custom of the Senate not to require that except where it is in camera.

Dr Laing —Indeed. That is right. We are in furious agreement on that. Senate committees do not ask for this kind of information at all.

Mr McCullough —I submit that what this bill is doing is codifying the existing accepted practice all in one spot so that, frankly, any person who has been wrestling with the previous 20 bills—there were 20 different acts that dealt with these sorts of things all in a slightly different way—can see it in one place.

CHAIR —Sure. But what does trouble me is that it seems to me that this runs right up against section 12 of the Parliamentary Privileges Act of 1987, in particular subsection (2), which says:

(2)   A person shall not inflict any penalty or injury upon, or deprive of any benefit, another person on account of:

(a)   the giving or proposed giving of any evidence; or

(b)   any evidence given or to be given; before a House or a committee.

And then there is a penalty. Now you have got one statute saying a person cannot be punished for giving evidence to the parliament or one of its committees and then this statute says a person shall be punished if they do give a defined category of evidence if requested or compelled by the parliament or one of its committees. With all due respect to the written Treasury submission, it is absolutely not an adequate response to say that this act impliedly repeals or impliedly amends the Parliamentary Privileges Act to that extent. The Parliamentary Privileges Act, which itself gives effect to and continues the provisions captured by section 49 of the Constitution, although technically merely another act of the Commonwealth parliament, is a fundamental constitutional statute. Now you do not impliedly amend a fundamental constitutional statute like that. It is unheard of. I think that a court would struggle to say that a statute like the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 effects an implied amendment to a fundamental constitutional statute. The court would at least expect that there was an express amendment to section 12 of the Parliamentary Privileges Act, and it may be that that is necessary.

Mr McCullough —It may be. The point though that I would make is that if there is a deficiency in the bill it is as to the direction that you are describing, that perhaps it needs to have a more specific exclusion rather than to end up in the default position where we currently are under the existing bills. Perhaps that would be an improvement to the bill overall to make it clearer.

CHAIR —Except in one very important respect. It seems to me that all the witnesses and I, all those who have participated in the discussion so far, are pretty much of a common mind about what ought to happen. The important exception, as I think at least Dr Laing would say, is that there should be no statutory obligation imposed upon the Senate to take any category of evidence in camera—and I see Dr Laing nodding in a very emphatic manner—whereas others may have different views. I am sorry, Colleagues, that I have dominated this discussion. Let me let others have a go.

Senator O’BRIEN —That is fair comment. Let us at this point invite Treasury to comment. It has been the occasion that a witness has asked to give evidence in camera and has given that evidence in camera but that the committee has resolved the evidence should then be published. Would that witness be protected?

Mr McCullough —The witness would be protected because the evidence was given in camera but there is no attempt to restrict what the committee does with it afterwards.

CHAIR —Sorry, I do not understand that answer. Why would the witness be protected if the evidence were given in camera? It is still disclosed to a third party: the members of the committee and, for that matter, the secretariat in camera.

Mr McCullough —There is an exception in section 355-55(2) that says section 355-25, the operative provision that we have been talking about, does not apply if the disclosure is made to a committee et cetera in the case of—

CHAIR —Okay, thank you for that. Sorry, Senator O’Brien.

Senator O’BRIEN —If that were challenged, the officer would have to establish that the disclosure was for the purpose of the committee performing any of its functions or exercising any of its powers, which would be another test that the witness would have to satisfy. What I am saying is that the court would say that may be true, but was the committee doing something else. Sorry, does 355-55(2)(c) also apply?

Mr McCullough —I am struggling to imagine a circumstance where a committee—

Senator O’BRIEN —What I am getting too is this. If the committee had a term of reference, would that enable the court to examine whether the question put or the information which came before the committee fell within the terms of reference? That would be a bit of a slippery slope for a witness, I would think, if there were some question mark as to whether the evidence fell within the terms of reference of the committee.

Mr McCullough —Again, I defer to other legal opinions around the table. But I would not have thought that a term of reference—

CHAIR —This might allow greater measures under section 16 of the Parliamentary Privileges Act too.

Mr McCullough —I would not have thought that operating outside a term of reference could actually affect the purpose of the committee performing any of its functions or exercising any of its powers.

Senator O’BRIEN —It may not be empowered to inquire into a matter. The court might find that the matter it was inquiring into with that particular question was not strictly speaking germane to the terms of reference before the committee and therefore it might not be a matter which complies with 355-55(2)(c) and therefore, whatever else happens, the witness may not have that defence. Is that a reasonable proposition?

Mr McCullough —I am sorry, we are out of my depth here. I would have to take legal advice on the question of whether, if a committee was operating outside its power, the witness was protected if the witness gave it in camera.

Senator O’BRIEN —It does seem to me that it is self-evident that that matter would have to be entertained by the court if it were looking at these provisions as a defence.

CHAIR —I think, Mr McCullough, the answer to that concern you just expressed is that evidence given before a parliamentary committee is subject to parliamentary privilege, and a court would not entertain an argument as to whether or not the committee was trespassing beyond its terms of reference so as to produce the conclusion that the evidence in fact was not protected by parliamentary privilege. A witness before a Senate committee is not at the hazard of losing that immunity merely because there is a controversy as to the ambit of the terms of reference.

Dr Twomey —Can I just clarify something in relation to that. I would agree with that, except that the problem is the opening words in section 355-60(2), which says:

Subsection (1) has effect despite any power, privilege or immunity of either House of the Parliament, of the members of either House of the Parliament or the committees of either or both Houses …

That applies to subsection (1). Subsection (1) says that the exemptions from the offence in section 355-55(2) are exclusive. I feel sorry for Hansard at this point! What I am trying to say is that, with those conditions in section 355-55(2), including that bit about how the parliamentary committee has to be performing its functions and exercising its powers—presumably within the scope of its reference—first of all, the note under there says that the defendant bears the evidential burden of establishing that. Secondly, subsection (2) of section 355-60 says that that applies despite any power, privilege or immunity of either house, which would seem to be legislatively trying to override section 16 of the Parliamentary Privileges Act.

CHAIR —Perhaps, but nevertheless let us say for argument’s sake there is a hearing of a Senate standing committee—let us say the economics committee, to pull one out of the air—into a particular bill and a witness gets asked questions and the questions stray beyond the terms of the particular bill and in fact they stray so far beyond questions about the terms of the particular bill that they have got nothing to do with it. There is still, in character and in form, a witness giving evidence to the Senate economics committee. For that reason alone, it would seem to me, their evidence, being evidence before the Senate economics committee, is protected by parliamentary privilege.

Dr Twomey —That should be right, but it really depends upon the interpretation a court would place upon 355-60(2). This comes to the nub of the whole complaint that I have—that this legislation really is not clear.

CHAIR —You have made that point very clear yourself.

Dr Laing —I would like to point out one other thing. There are two offence provisions here that are of concern. The ones in 355-B that we have been talking about this afternoon apply to tax officers, and it is tax officers who, according to this scheme, may provide certain things in camera. If you are not a tax officer and you provide information to a committee, that is an offence.

CHAIR —Only if it is protected information.

Dr Laing —Yes. I am shorthand referring to protected information.

CHAIR —If you look again at the definition of protected information, isn’t it limited to information obtained by tax officers?

Mr McCullough —And information disclosed by tax officers on to others.

Dr Laing —The Ombudsman’s submission, for example, refers to that situation.

CHAIR —So if a tax officer disclosed information to a person who was not a tax officer, whether the disclosure was authorised or unauthorised, and that information was protected information because at source it was obtained by a taxation officer in the exercise of his powers, then the disclosure in turn by that person to a Senate committee of that information could be obnoxious to the legislation. Is that right?

Mr McCullough —I would make the one qualification that we are talking about authorised disclosures only there. The way it is set up is authorised disclosures by tax officers who come into the information, and then where they disclose to people who are authorised to receive it, the restriction applies to them as it had applied to the tax officer.

CHAIR —But it would apply to unauthorised disclosures too. Let us say a tax officer has protected information and he disclosed it to a third party in an unauthorised manner. That is of itself a breach of this bill.

Mr McCullough —Yes, it is.

CHAIR —Then that third party, possessed now of the information that was disclosed to him in an unauthorised manner, ends up before a parliamentary committee and discloses that to the committee, it is still protected information under that definition, whether it has fallen into the hands of that person in an authorised or unauthorised way, isn’t it?

Mr McCullough —We have a separate area that deals with disclosure of protected information that has been unlawfully acquired.

CHAIR —And I suppose there are no circumstances in which an unauthorised disclosure would be other than an unlawful disclosure.

Mr McCullough —That is essentially the size of it. That is 355-D.

Senator McGAURAN —I agree with everything you have said to date. Maybe this might be a bit off track, but we are all talking about the Privileges Act: wasn’t there a case tested, the Bill O’Chee case, where he received—

CHAIR —Rowley and O’Chee, it was called.

Senator McGAURAN —unauthorised material—

CHAIR —I once gave a paper about it at a legal conference.

Senator McGAURAN —Yes, he received information directly to his office and the case I believe found that it was protected.

CHAIR —It did, you are quite right. In fact, Mr Justice McPherson in the Queensland Court of Appeal gave a very strong judgement defending parliamentary privilege.

Senator McGAURAN —So, again, this act challenges that ruling.

Mr McCullough —Not in the area that we are talking about here.

CHAIR —With respect, I think Senator McGauran is on to something here because certainly the Rowley and O’Chee decision takes a very expansive view of the reach of the Parliamentary Privileges Act in relation to anything done in parliament that might subsequently come before the court.

Mr McCullough —If we come back to the basic point, because here we are talking about exceptions. Perhaps we should have set this discussion up in a more structured way, but here we have been talking about exceptions to the offence provision for disclosing protected information. So far, until we just introduced the idea of unauthorised disclosures, we have been talking about the exception that applies for disclosures to ministers and to parliamentary committees. So that is when we come to limits on disclosure to ministers and parliament. The only way that it could be authorised for a tax officer to disclose then would be through those exceptions. It would be unlawful for the tax officer to disclose to the member of parliament in that way, but the member of parliament, if they did anything with it, would be subject to the normal rules I believe.

CHAIR —Well, that is right, as long as what they did they did in parliament.

Mr McCullough —The whole thrust of this is only really to address what the tax officer does with it, not to—

CHAIR —See Rowley and O’Chee was about notes given to former Senator O’Chee, which he then used for the purpose of preparing a parliamentary question, I think it was. Do you remember, Dr Laing?

Dr Laing —Yes, I remember. He gave a speech on the adjournment debate as well; there was a series of parliamentary actions on the basis of the information that had been supplied to him.

Mr McCullough —But nothing in here says that a member will be at risk by using information that they have acquired, even if it is unauthorised.

CHAIR —No, but what we are concerned about is inhibition on the opportunity or the right of the parliament to obtain information because tax officers may feel constrained by this legislation. That is the point. It is not about inhibitions on members of parliament.

Mr McCullough —With respect, this proceeds on the basis that information is protected, it is not to be disclosed except where authorised, and then the particular—one of the provisions we have been talking about attempts to, and perhaps it does not succeed, specify that it overrides privilege as far as the disclosure to members is concerned.

CHAIR —I think the real problem here, and Dr Twomey is on to this, is the very Delphic and Kafkaesque drafting of section 355-60(2). With the exception I mentioned before, that Dr Laing is uncomfortable with the idea that there should be any statutory limitation on the right of parliamentary committees to obtain information in any form, wouldn’t it serve your purpose if the bill just said disclosure, if required by a parliamentary committee, in camera is an exception to all of these offence provisions? And then we could have another discussion about whether there should be such a limitation on the powers of the parliament to demand information in open session.

Mr McCullough —That would be a reasonable substitute for 355-25, the description that you have outlined, but we would still need the restrictions as far as parliamentary privilege is concerned on disclosures to ministers that are in the other parts of the bill.

CHAIR —Perhaps we do, but we would have come a long way though this afternoon, wouldn’t we, if we all agreed that nothing in this bill should inhibit or prejudice an officer from disclosing information required by a parliamentary committee in camera?

Mr McCullough —And with the greatest respect, Senator, that is exactly what 355-25 attempts to achieve. If it does not achieve that, I defer to legal opinion. It may not have every element correctly, but it is probably (c) that people are focusing on, where the record or disclosure is for the purpose of the committee, to take Senator O’Brien’s point. I confess, as a lay person, I had read that in terms of the tax officer’s purpose, not the purpose for which the committee was established, and perhaps that latter is the better view.

CHAIR —I am not sure that it is, but at heart here is an argument about whether or not the power of the parliament to compel information from officers before it ought to be inhibited and constrained in any way. And there is the purist view that the answer to that question is ‘no’, and there is the less absolute view that it would be a fair thing to say that, given that there are privacy considerations in operation here as well, there ought to be a provision that says what cannot be disclosed, there is nothing wrong with disclosing it, but it should only ever be disclosed in camera.

Mr McCullough —That is the nub of the policy point; that is exactly what the policy was to achieve. Now whether the words have done that well enough, I leave that to—

CHAIR —I do not think that it has.

Dr Laing —I do not quite agree with your characterisation of my views.

CHAIR —I am sorry; let me invite you to express them in your own words.

Dr Laing —I can say simply this way: no case has been made to change the existing law as it affects provision of information to parliament and its committees.

CHAIR —Except, Dr Laing, and I am saying this not as a questioner but as a participant in this discussion who has experienced these parliamentary committees as a member of parliament and as the chairman of one for some years, I have always felt a bit uncomfortable, frankly, that the custom and practice of the committees, that the rights and the privacy of individuals, depend on an uncomfortable mixture of the Senate privilege resolutions and the customs and practice of the committees, which are like, if you like, the common law of the Senate committees.

There is absolutely nothing in the privilege resolutions or the standing orders of the Senate that actually says, ‘A taxpayer’s affairs shall not be inquired into by a committee in public session.’ It is the custom and practice of the committees not to do that but, strictly speaking, if a majority of senators constituting a quorate committee wanted to do that and demand an answer, they could and, if the witness declined to answer, technically he would be in contempt of parliament. I have always felt uncomfortable that those customs and practices were not codified in a more comprehensive privilege resolution. I see you nodding. I assume you are nodding in agreement.

Dr Laing —I am not nodding in agreement. I am nodding in empathy and showing you I am listening.

Dr Twomey —I would like to say something. I really just wanted to say I agree that it would be preferable if the element about treating evidence in camera were in a standing order rather than the legislation. From my point of view, you would be much better off with this legislation simply saying that the offence is not intended to affect the powers of the houses or their committees to compel or request evidence and then leaving it to a standing order to deal with the issue about doing it in camera.

CHAIR —Something just occurs to me. I am thinking aloud. I invite my colleagues and the secretary who will be drafting this report to consider whether one useful recommendation of this inquiry might be for the Senate procedure committee to look at this question and consider including confidential taxpayers’ information in the express exemptions for information to be taken in camera only—basically having the issue dealt with by either a standing order or a privilege resolution. If there were congruent amendments to this bill, that might well meet the mischief here.

Senator FARRELL —One of the points that Dr Laing has made is that no case has been made out to answer for the change. Can you give us some practical examples of where this has been raised as an issue in respect of a tax officer?

Mr McCullough —The difficulty that a tax officer feels in providing—

Senator FARRELL —Any example where this occurs. You are seeking to codify what occurs when a tax officer gives information to a committee. You are seeking to require that to be in camera. Dr Laing is saying no case has been made out for this change. Can you respond to that criticism?

Mr McCullough —If she will let me fall back on personal experience 20 or 30 years ago, when I was a tax officer, I appeared before the Senate and there were awkward moments where they appeared to ask questions which went to revealing tax information. There is always the awkward feeling from the tax officer’s side. I have not felt it in the last 15 years, but you sort of tiptoe around. You do not want to appear to be uncooperative to the committee and obviously you do not want to end up in the clink either, but it is ingrained from the time that you are recruited in the tax office that taxpayer information ought not to be disclosed in any way that can be outside your duties or could get into the public arena. I have certainly felt that awkwardness. I have also attended from the Treasury side on a number of occasions where there has been a discussion between the committee and, in particular, the commissioner or a second commissioner, who have said, ‘That might involve some taxpayer information.’ Then usually the chair or somebody has been very clear and said: ‘No, that is not what we are after. We are not seeking to get that, but can you tell us in a more general way?’ There are often—typically at Senate estimates—discussions with this sort of uncomfortable feeling.

Senator FARRELL —The legislation does not stop the tax officer from providing the information. There is no suggestion that that is—

Mr McCullough —No, it just says that if he is doing that it should be in camera, so it gives an opportunity for the commissioner or any officer to say, ‘Well, I’m happy to provide that’—

Senator FARRELL —To get back to the point that Dr Laing is making, she is saying that no case has been made out for this. The example you are giving, I think, is where a tax officer is reluctant to provide the information at all. There is no suggestion here that the tax officer is going to be prohibited from providing the information. The only restriction is that it be in camera. Presumably, then, you have had circumstances where the information has been required in circumstances where it has not been in camera?

Mr McCullough —No, not that I can recall where it has been required by the committee not in camera.

Senator FARRELL —So, when Dr Laing says that no case has been made out for change, she is correct?

Mr McCullough —Sorry, I think I am with you now. I was a bit slow on the uptake. If you are making the point that the existing practice seems to work and therefore the case has not been made out, I only counter that with the point that was made by Senator Brandis before that the existing practice does put the—

Senator FARRELL —He can put his own—

Mr McCullough —Well, it does put the tax officer under some degree of uncertainty. This was started from the point of view of trying to make it clear for the people who have these very serious obligations put on them, so that they would know what they are supposed to do.

Senator FARRELL —Can you give us an example where a tax officer has been required by a committee to give evidence about an individual’s tax circumstances and that has not been in camera?

Mr McCullough —No, I cannot, but I have given you what I thought were—

Senator FARRELL —Okay, can you stop at that point. Is that the point you are making, Dr Laing?

Dr Laing —Yes, Senator, and I think you could also say that the evidence of the Treasury officer shows that the existing system works. I would also implore you not to legislate for awkwardness. Think how many sitting days there would be then.

CHAIR —It occurs to me, Mr McCullough, that, although ordinarily the custom that taxpayers’ affairs are not disclosed, at least publicly, to a Senate committee is a good practice, there may be occasions in which that is warranted. What I have in mind is if there were to be a Senate committee, perhaps a select committee, set up for the very purpose of investigating allegations of misconduct by a public official, by a Commonwealth officer, which extended to their taxation affairs. Let me give you a hypothetical case. In about 1985 or 1986 there was a Senate select committee on allegations concerning a judge. One of the reasons that committee was established was to see if there was a case under section 72 of the Constitution for the removal of that particular judge. As far as I can recall, none of the allegations made against that particular federal judge related to their tax affairs. But let us say as a hypothetical case that there were a federal judicial officer in relation to whom there had been serious and credible allegations of tax fraud made and the parliament decided to establish a select committee like the 1985 precedent to examine those allegations concerning the judge, and the committee was required in order to fulfil its function to go into his or her tax affairs to see if there were grounds for removal—or, to change the example, if there were a minister or a member of parliament or some other Commonwealth officer answerable to the parliament. It may very well be that, in an unusual case like that, it is perfectly appropriate and indeed at the core of the functions of the committee to examine publicly the tax affairs of a person.

Mr McCullough —Yes, Senator, and if that is the case then the committee can compel the production of protected information under 355-60(2).

CHAIR —Which rather supports Dr Laing’s position that the parliament should not tie its hands in saying that this can only ever be done in camera.

Mr McCullough —Except that that is not what the bill does. It allows the committee to decide, ‘No, we want to have this publicly, so we can compel it.’ It just, again, puts the witness, the person who is providing the information, in a clear position. They know they have been compelled, so they are no longer under the other restriction.

CHAIR —All right.

Senator McLUCAS —That would be done by the committee, not by your bill.

Dr Laing —Exactly.

Senator McLUCAS —That is what would be happening.

Mr McCullough —If it were not for this bill, without a compulsion a witness might be appearing and would have the difficulty in a public hearing of not providing it. They would have to—

Senator McLUCAS —I do not necessarily think so, because the practice would be that the committee would deliberate and decide to compel the witness to appear. The witness could request that the material be provided in camera. The committee can make a decision about that one way or the other.

Mr McCullough —To that extent, I would submit that the bill supports that existing practice.

Senator McLUCAS —Which is the point from the Clerk. That is the point I think the Clerk is making, that the committee will decide its destiny. The fact that you have a piece of legislation is pretty well irrelevant. Have I got that right?

Dr Laing —I think that is right, Senator McLucas. The bill is not necessary to do what you say is its purpose.

CHAIR —At least insofar as concerns the parliament.

Dr Laing —Yes. The rest of it I do not have any comment on, obviously, but where it concerns the parliament I do not think it is the right approach.

Mr McCullough —The other thing I want to say in relation to that is that, because of the structure of the bill, unfortunately I am just struggling to think whether it would be a very simple way—it would not be simple to do it any other way. There is an absolute prohibition, then there is an exception to the prohibition if it is made in camera, so you cannot just get rid of the exception to the prohibition; we would have to create another way of giving effect to parliamentary privilege that was not remaining silent, because of the problems with remaining silent.

Senator McLUCAS —Mr McCullough, I come back to Senator Farrell’s point. I still do not understand the motivation or the need for these elements of the bill. I understand your point that officers appearing in front of committees who have protected information that they carry are nervous about talking about that or being compelled to talk about that, but isn’t that an internal training issue? You just tell people: ‘You are allowed to say these things to a Senate committee. If they ask you, “What’s Jan McLucas’s tax file number?” you can say, “I’m sorry; that’s protected information.”‘ I think that is an issue for your training of your officers to appear in front of a committee rather than a very, very big stick to break this nut.

Dr Laing —There are also government guidelines for witnesses that cover this ground.

Mr McCullough —How would they know that they can do that, Senator, other than by somebody saying to them, ‘Well, it’s currently the custom of the Senate not to compel you even though technically you could be in contempt’?

Senator McLUCAS —I think Senator Brandis’s scenario is right. In the circumstances where someone is asking for somebody’s very personal tax information, it would be in a very high profile example, and you would be sending the Commissioner of Taxation. I do not think you would be sending a fairly inexperienced officer.

CHAIR —I think Senator McLucas is right. There is a simple way of doing this within the structure of the existing bill, by the way, and that is to get rid of section 355-55(2) and, so far as concerns parliament or the committees of parliament, section 355-60 and merely list the parliament or a committee of the parliament in the schedule to section 355-50. So section 355-50 says, ‘Section 355-25 does not apply if the entity is a taxation officer and the record or disclosure is made in performing the entity’s duties as a taxation officer,’ and then item 10 is added to the schedule: ‘A record is made or the disclosure is to the parliament or a committee of the parliament and the record or disclosure is for the purpose of satisfying a proper inquiry or requirement of the parliament or a committee of the parliament.’ Why couldn’t you do it that way?

Mr McCullough —That is a different policy to the one presented by the bill, because there is no requirement for the presentation in camera. I am not arguing—

CHAIR —Somebody made the point that you then leave it to the Senate standing orders or the sessional orders or possibly even the customs and practices of the committee to decide what is in camera and what is not in camera. We could do it that way.

Mr McCullough —Certainly it could be done that way. I was simply making the point that it is not the policy that is reflected in the bill as presented by this government or the proposal presented by the previous government. So if there is a new policy to be developed, that is a matter for the parliament, of course.

Senator McGAURAN —I add to the point on why custom works in this instance. It may seem quaint that we would want to stick with custom because it works. Are you are suggesting that we could reach the not-so-absurd situation, which could end up absurd, where the tax department drags not only an individual but also a Senate committee into a court? It would become farcical. That would be the result of this.

Mr McCullough —I am not suggesting that. I have a difficulty—

Senator McGAURAN —Who would give evidence on behalf of the committee that the terms of reference were required? I do not think you have thought this through to the end. That is why custom is good. I am just making the point that custom is good and it works because you are telling us that one day, most likely, someone is going to have to walk into the court to represent the committee before a judge to get a precedent judgement. The first judgement is going to be the most important one. Rosemary will probably be there.

Mr McCullough —I am trying to understand the scenario that you are proposing.

Senator McGAURAN —It is one of the tax department versus the parliament.

Mr McCullough —Are you proposing the scenario that somebody appears before a committee, they give evidence to a committee and then they are charged for breaching the requirement that they did not ask for it to be in camera? Is that your proposal? I am just trying to understand the proposition that you are putting. I cannot even get—

Senator McGAURAN —I am talking about whatever the breaches are that you are looking for that can be sorted out here. I am asking if you are asking for the court to make a precedent ruling on privilege and the act.

Mr McCullough —Both this government’s policy and the previous government’s policy is, as presented by the bill and the discussion paper before it, that it was appropriate to restrict disclosure to in camera. I cannot defend the merits of that before the committee; I am just stating it as a fact.

CHAIR —It is a separation of powers issue, isn’t it? It is for the parliament not for the executive of government to decide what should be the prerogatives of parliament.

Mr McCullough —I am not arguing that point either; I am just saying that I cannot enter into the policy debate on the merits of that. I am making the point that—

Senator O’BRIEN —So the policy is satisfied to the extent that the officer requests that any such evidence be given in camera?

Mr McCullough —Do you mean so that the committee made a decision as to whether—

Senator O’BRIEN —Yes.

Mr McCullough —Yes.

Senator O’BRIEN —So it is satisfied?

Mr McCullough —All that has been done here is to attempt to put that in a bill that is in front of tax officers rather than leave it in a position where they do not know that by looking at the act that they are dealing with. This is going to be in the tax act. They will know this and be clear on that. That is really the basis on which—

CHAIR —My point is that it is not for the executive government to instruct committees of parliament what their powers are to be; it is for the parliament to establish its own committees, which is done by resolution rather than by act of parliament.

Mr McCullough —When I referred to it having been the policy of both the previous governments, I meant that I am sure that it was subject to the parliament agreeing.

CHAIR —That may be, but the policies of the previous government are of historical interest only. My view, for what it is worth, is that we ought to include the disclosure to parliamentary committees in one of the schedules to section—

Senator O’BRIEN —It is section 355-1—these schedules.

CHAIR —It is the performing duties one, section 355-50, or perhaps section 355-55, in one of those two schedules. Probably, as Senator O’Brien rightly points out to me, it is more logical to do it in section 355-55—get rid of subsection (2) of section 355-55. That way it is within the logic of the legislation that it acknowledges that the fulfilment of a duty by the taxation officer is a circumstance of exemption and it merely acknowledges that being responsive to the requirements of a parliamentary committee is a relevant duty.

Mr McCullough —I am not trying to draft on the run, but my colleague has just pointed out to me an alternative way of achieving that policy—if that were to be the policy—might just be to delete subsections (b), (c), (d) and (e) of the existing subsection (2) of section 355-25 so it says that 355-25 does not apply if the record is made for, or the disclosure is to, a committee of one or both of the houses of the parliament.

CHAIR —The problem with doing it that way is that there is a general prohibition and then 355-50 and 355-55 create an exception to that prohibition. Why wouldn’t you deal with all the exceptions to the general proposition in a similar manner?

Mr McCullough —There may be some elegance in keeping disclosure to ministers and committees in the same section of the act.

CHAIR —Indeed, but just speaking for myself I am rather persuaded by Dr Laing’s view that whether it is to be in camera or not is ultimately a question for the parliament, not for the executive.

Senator McLUCAS —There might be some value in separating the sections relating to dealing with a member of the executive and dealing with the parliament too.

Mr McCullough —Yes. Just for the purposes of discussion—again, I do not offer this as anything more than information for the committee—my colleague has just pointed out that all of those things in the table are ‘for the purpose of’ and it would probably therefore be necessary to frame it in the same way without falling foul of the concern that Senator O’Brien had.

CHAIR —You could do that easily by simply saying, ‘for the purpose of providing information sought by a committee of the parliament’.

Dr Laing —I think it is important to avoid the perception that you need statutory permission to provide information to parliament—going back to my first point that statutory secrecy provisions have no application to parliament unless there are express words to that effect. You do not want to have the impression amongst the Public Service that they need to see in an act somewhere that it says, ‘You are permitted to talk to parliament.’

CHAIR —I understand your point, but if you have got an act of general application saying, ‘Disclosure of taxpayers’ information is prohibited except in defined circumstances,’ I do not really think that it creates some kind of expectation that is prejudicial to the privilege of the parliament merely to have the privilege restated as one of the exceptions to that general prohibition.

Dr Laing —You would hope not, because if you look at the ALRC report on secrecy provisions there are hundreds of them throughout the Commonwealth statute books and, if you had to do that with every one of those acts, that would not be tenable, in my view.

Dr Twomey —In terms of dealing with the Clerk’s concern there, it would depend upon how you phrased the provision. You could just say something like, ‘Nothing in this act is intended to affect the power of the house or the committee to compel or request the disclosure of evidence,’ or something.

Dr Laing —But you should not have to say that.

Dr Twomey —You should not have to, but if you said, ‘Nothing in this thing does that,’ then it would just clarify the position in the bill, as opposed to making it an express exemption from a criminal offence, which is then more a statutory exemption as opposed to a clarification that the bill does not intend to do that. It is a slightly different emphasis.

CHAIR —That way you just rely on section 12 of the Parliamentary Privileges Act, don’t you?

Dr Twomey —Yes, but you need to make it clear. My real concern about this—and I can see the Clerk coming from a different direction—is that, on the face of the legislation, it should be made clear that it is not intended to effect the powers or capacities of the parliament to (a) compel or (b) request this sort of evidence.

Dr Laing —The problem with that is, if you have an act with a secrecy provision that does not have that kind of provision, do people then conclude that it is intended to limit—

CHAIR —It is not unusual for there to be these clarifying provisions routinely across a very large number of acts, stating ‘nothing in this act shall be taken to limit or effect’ something or other. In judicial procedure it is quite common to see, ‘Nothing in this act shall be taken to limit the right of silence’—or whatever—‘or other traditional procedural rights.’  I think the purity of your point of view, Dr Laing, is impressive but I think it does not do a great deal of harm, given that it is the practice of the parliament, anyway. Do other colleagues have any other questions or do participants want to raise any other matters?

Senator McGAURAN —Just for the record, I seek the purity that the doctor does. But I suppose that is something for the committee to—

CHAIR —What you do then, Senator McGauran, is you take out all reference in this act to parliament or parliamentary committees and, if it ever became controversial, you would rely on section 12 of the Parliamentary Privileges Act, which is your position, Dr Laing? Is that right?

Dr Laing —More or less, Mr Chairman.

CHAIR —Any other contributions? Dr Twomey.

Dr Twomey —Only that if you were going to do that it would probably be wise, at least, to mention in the second reading speech that it was not intended to effect parliamentary privilege so that there is something that a court can go back to to see.

CHAIR —Indeed.

Dr Laing —Can I just point out that we do have standing order 37, which deals with handling in camera evidence.

CHAIR —But standing order 37 does not define the circumstance in which evidence will be taken in camera.

Dr Laing —No. It deals with the use of in camera evidence in reports—that is, publishing it.

CHAIR —Indeed. Thank you very much, Dr Twomey, Dr Laing and Treasury officers. That discussion was extremely illuminating.

Committee adjourned at 5.32 pm