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Parliament: tabling of Westpac documents and use of in-camera evidence by committees

JENNY HUTCHISON: Another busy week in Parliament; two MPs suspended in the House of Representatives, and a Senator pursuing his quest - still unsuccessful - to table documents about Westpac. And there was a lot of discussion about the plight of primary producers. Australia's great and powerful military allies are also our major trading rivals, not averse to undercutting and dumping of products such as wheat and wool, and so taking away some of Australia's traditional markets.

I'm Jenny Hutchison and this is Ring the Bells. Parliamentary privilege, and especially the relative position of Parliament and the courts. For two years, Australian Democrat, Senator Paul McLean, has been investigating allegations about mistreatment of bank customers. When last week he sought to table documents on this matter, Senator President Kerry Sibraa ruled:

KERRY SIBRAA: This is a difficult and delicate issue on which it is clearly possible for different views to be strongly held. But I do not think, on balance, that it is appropriate for Senator McLean to reveal in the Senate the contents of the two documents he seeks to disclose, at least while the legal proceedings specifically involving these two documents are still current. While the subject matter of the documents may raise public interest issues, as Senator McLean strongly argues, there is equally a very clear public interest in judicial proceedings being able, and being seen to be able, to be bought to conclusion without being aborted by the Senate.

JENNY HUTCHISON: On Wednesday of this week, Mr Speaker informed the House of Representatives that he'd retained council to appear before the New South Wales Supreme Court, to make submissions on the matter of parliamentary privilege. A former Speaker, Gordon Scholes, was concerned that this could be misinterpreted.

GORDON SCHOLES: The appearance of a QC, to argue a case for the Parliament, submits the Parliament's rights to the judgement of the court. It's a concern that I have in this matter. The Bill of Rights is absolutely clear. The courts cannot, under any circumstances, prevent the Parliament from conducting its duties including the examination of public issues, and that is what is at issue here.

LEO MCLEAY: That I think the fears that the Honourable Member for Corio may have are groundless in this case, that I am very much aware of the rights that the Parliament has, and will go to the barrier to insist that those rights are upheld. The reason that I am seeking leave to intervene in this case, today, is to specifically put the case before the court, about what I feel on behalf of the House, about the rights of people who appear before parliamentary committees as witnesses, or who may be considering being witnesses. The court will and cannot have any jurisdiction over what this House or it's committees do, and I'm sure that the judge who will be hearing this matter would understand that. I think it is sufficiently important, however, in this matter, that we should publicly say that, and the reason that we are seeking leave to intervene is only for the purpose of us, on behalf of the Parliament, publicly making that point.

JENNY HUTCHISON: Speaker of the House of Representatives, Leo McLeay, responding to a former Speaker, Gordon Scholes. In the Upper House, Senator Chris Schacht noted:

CHRIS SCHACHT: Today Senator McLeay has circulated, I understand, the same documents through the mailing system within the Senate to all Senators, and it arrived in my office just before, or around lunchtime. After reading the documents, I suppose I can understand why they are sensitive to the legal case in particular, but after speaking to Senator McLean, he advised me that he is able, under the Privileges Act, to circulate such material to Senators and have some sort of privileged protection, but is not able to table them or incorporate them in Hansard. If that is correct, I would like that clarification made clear to all Senators so that, in the future if any of us run into the same problems of wanting to table matter that may be ruled sub judice, we know our rights about circulating to other Senators.

JENNY HUTCHISON: Acting Deputy President, Senator Calvert, replied on behalf of the President on Wednesday evening.

PAUL CALVERT: The circulation of documents by a Senator to other Senators is not a matter over which I, or the Senate itself, have any control. It is a matter entirely within the responsibility of individual Senators.

JENNY HUTCHISON: Acting Deputy President, Paul Calvert. As the parliamentary week ended, Senate President Sibraa continued to refuse to allow tabling of the Westpac documents, in spite of their having been read into the Hansard of the South Australian Legislative Council. He's waiting on a ruling from the New South Wales Supreme Court on injunctions against media publication of the documents. However, in response to another question from Senator Schacht, a Labor Senator who's supporting Senator McLean, President Sibraa agreed that a parliamentary committee could decide to publish the documents in defiance of his ruling. As Senator McLean noted on Wednesday evening, one of the many issues involved is the protection of witnesses before parliamentary committees.

PAUL MCLEAN: I would suggest to Honourable Senators that John McLennan has been subjected to extraordinary intimidation as a result of this process. I spoke to the man this morning, I speak to him often, but this morning he said to me, and he allows me to say this to the Senate, that if he had known what was involved in appearing before a parliamentary inquiry, he wouldn't have appeared before it in a fit. He's paid $10,000 of his own money in the last 48 hours to cope with the implications of the court orders that were placed upon him at the request of Westpac. Now that's intimidation of an enormous order. Not only that, he believes, and is absolutely confident that his telephone is tapped, he knows that he's been surveilled. He's twice been served with the same court orders because the first time they were served, they were served on a Sunday, and this is one of the humorous dimensions of it, and you're not able to legally serve such court orders on a Sunday, so he was subjected to the similar process twice. Now John McLennan believes and has been intimidated. He believes he has been. Intimidation, Madam Acting Deputy President, is a psychological thing, it's not a legal thing, it's a psychological thing.

Now the significant thing is, of course, that this intimidation has a secondary spin-off to other people that may have been considering appearing before this inquiry, or any other inquiry. And indeed, I would argue, Madam Acting Deputy President, that by undertaking these legal processes, not only have Westpac been in contempt of the Parliament, but they have, in fact, put in place processes which are profoundly threatening of the parliamentary processes hereafter, if they are supported by the courts; that it will be possible hereafter, to follow this example and to bring down injunctions against potential witnesses, intimidate them massively by virtue of doing that - and as a result of that, whether those injunctions are ultimately effective or not - they have dramatically interfered with the processes of the Parliament, and therefore this very process is, in itself, in contempt of the parliamentary process.

JENNY HUTCHISON: The Senate has also been debating the status of in-camera evidence. Here's Senator David MacGibbon.

DAVID MACGIBBON: The way the committees work is that we always prefer to take evidence in public on the public record, and witnesses appearing before committees are always advised that that's the preference to be followed. But there are times where the wishes of the witness, and where the interests of the committee, are best served by preserving some degree of confidentiality on the evidence given, and that then becomes in-camera evidence. Now the witnesses have never had the right to demand that the in-camera evidence stays in-camera or secret. And on all the committees I've served on, witnesses have always been advised, by the Chairman, that there is no absolute control over the evidence once it has been given, but that every process will be taken to try to guarantee that it remains confidential. The difficulty for the committee arises, though, when the report has to be written up. And while Senate committees tend to be apolitical, they aren't always apolitical and objective, but apart from that, there is the possibility of a genuine dissent amongst the members of the committee. Now if a member of a committee feels that he can't agree with the majority of the report, he puts in a dissenting report which he's quite allowed to do under Standing Orders. And that dissenting report isn't subjected to the investigation or approval, in any way at all, by the committee chairman or the rest of the committee. It is this right of the dissenting member to make that report and to have it attached to the report of the committee. Now if he is dissenting, it may be a central part of his dissent, or it may be a supporting part of the argument which leads him to dissent, that is based on in-camera evidence. And if he cannot refer to it, then the argument looks week, it looks hypothetical, it looks unconvincing.

JENNY HUTCHISON: From Senator MacGibbon to Senator Stephen Loosley.

STEPHEN LOOSLEY: Currently we have a circumstance, Mr Deputy President, which committees do take evidence in-camera, but the procedure is far from satisfactory. Indeed, I go so far as to say it's most unsatisfactory. No guarantee maybe given on behalf of the committee, to the witness involved, that confidentiality will be respected. No guarantee can be given to the witness before the committee, that the material being furnished to the committee in it's deliberations, supposedly classified as in-camera, will not appear at some future stage, in a majority or dissenting report. Now that obviously leads to a conclusion whereby people will feel inhibited about the material which they're able to give the committee. Within the Westminster system, there is a long and honourable tradition of whistle blowers, of people who've identified problems in administration - from time to time, maladministration. We won't have the whistle blowers coming forward if this situation of confusion about in-camera evidence is allowed to continue.

We now have, as a Senate, the worst of all worlds. It is unfair to witnesses, it is confusing for witnesses and for committee personnel, and as a matter of fact, Mr Deputy President, it reduces the procedures of Senate committees, indeed of joint committees to something akin to farce. How can bodies take in-camera evidence and then find a day, a week, or a month later, that the material has found its way onto the public record, for whatever reason. If the Procedures Committee recommendations are adopted though, Mr Acting Deputy President, witnesses will indeed know precisely the basis on which they are giving evidence. The will know precisely where they stand, and that is a dramatic change from the present.

JENNY HUTCHISON: Senator and former New South Wales Labor official, Stephen Loosley. The Senate has now adopted new guidelines on the circumstances in which evidence taken in camera might later be revealed. Before giving in-camera evidence, witnesses must be informed that circumstances might later arise which lead to a desire to make their evidence public. And witnesses should, if possible, be warned in advance and be given a chance to object if that is proposed.