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Thursday, 25 August 1994
Page: 379

Senator GARETH EVANS (Leader of the Government in the Senate) —by leave—I refer to Senator Alston's notice of motion for the production of legal opinions on the powers of a house of the parliament or a parliamentary committee to order production of documents. That motion was agreed to on 23 August, two days ago. The motion sought either:

(a) a copy of the legal advice prepared by the Office of General Counsel for the Treasury, and referred to by the Attorney-General in the House of Representatives on 2 March 1994, . . .

or, alternatively:

(b) a considered legal opinion by the Office of General Counsel on the question whether, and if so to what extent, a House of the Parliament or a committee has power to order production of documents and enforce such an order if it is disobeyed.

As to (a), the government, consistent with extensive past practice, has no intention—Senator Alston will be unsurprised to hear—of producing the advice prepared by the Attorney-General's Department for the Treasury. As the Attorney-General said in the House:

The advice was given in a solicitor-client relationship, and it is not for me, or my department to make that advice available. Indeed, I would assert a claim of confidentiality of that relationship in that case.

As to the second half of Senator Alston's motion, however, I am prepared to table some material that may assist Senator Alston in his endeavours to come to grips with what is not really a terribly complicated issue.

  The documents are, firstly, the submission I made on behalf of the government in the Privileges Committee for its examination of Senator Kernot's Parliamentary Privileges Amendment Bill and the transcript of the evidence which followed in which I acknowledged that, as a matter of law as distinct from convention, there is no doubt about the parliament possessing such powers; secondly, an information paper circulated by the Attorney-General's Department to the rest of the Public Service entitled `Providing information to parliamentary committees', prepared last year in response to a resolution of the Senate following a recommendation of the Privileges Committee in its 42nd report on the Possible adverse treatment of a witness before the Corporations and Securities Committee. I acknowledge that these are not new documents, but the government is not in the business of having new work undertaken solely to satisfy opposition curiosity.

  Let me take this opportunity, however, to say that there is no lack of certainty about the formal constitutional powers of parliament to order the production of documents, nor about the ability of a house to enforce its orders or those of its committees. What is in issue is whether such powers should be exercised when there is a conflict on whether particular documents should be produced, and that is ultimately a matter of politics, not of law.

  Let me briefly go through the main points. Firstly, section 49 of the constitution enables this parliament to declare its privileges, but subject to such declaration—for example, as in the Parliamentary Privileges Act 1987—that the privileges of this parliament are those that applied in the House of Commons in 1901. Secondly, those privileges clearly included the right to institute inquiries and to require the attendance of witnesses and the production of documents.

  Thirdly, they also included the right to regulate its own internal affairs and procedures free of interference of the courts and the right to punish by committal persons guilty of breaches of its privileges or other contempts. Fourthly, although in this parliament we have made some variations to the 1901 regime—for example, by abolishing contempts by defamation in section 6 of the 1987 act and the power to expel a member from membership of the house in section 8 of that act—and while we have required specification of the `cause' or the reason for any penalty of imprisonment imposed by a house and made provision for the consequent review of that by the courts, the legal powers of the parliament to order the production of documents and to enforce such an order, ultimately by imprisonment, remain in all their glory.

  The second last point is that those legal luminaries, Attorney-General Senator Ivor Greenwood QC and Solicitor-General Bob Ellicott QC, dealt with this issue very well in their paper tabled in October 1972. They said:

The power of the Commons to order all documents to be laid before it which were necessary for its information was unquestioned . . .

And again:

. . . although the power was absolute, the House of Commons did recognise by its practice that it should not require the production of documents in all cases . . .

Then again:

Because the power of Parliament to require the production of documents and the giving of evidence is, for practical purposes, unlimited, the extent to which a House requires the giving or production of executive information will necessarily rest on convention.

That is the Greenwood and Ellicott paper of October 1972. In that paper, Greenwood and Ellicott addressed the issues raised by the case of Conway v. Rimmer; but, in the end, concluded:

On this matter it is not easy to express a view which will satisfy the varying points of view on the question of the desirability of making executive information available. However, against the background of a system which is based on party Government and the responsibility of Ministers to parliament, we think the preferable course is to continue the practice of treating the Minister's certificate as conclusive.

They noted that, in making such decisions, ministers would have regard to `the two aspects of public interest involved, that is to say, the public interest in withholding certain information and the public interest in Parliament and its Houses being adequately informed'. Although the Greenwood and Ellicott paper predated Sankey v. Whitlam—that well-known court case addressing the issue of the court's willingness to look at this kind of case—that does not take away from their conclusions, in particular the conclusion that the issues we are dealing with relate to convention, not law.

  Last of all I want to mention the definitive report on this whole subject—the final report of the Joint Select Committee on Parliamentary Privilege tabled in October 1984 which, I emphasise, was very much a bipartisan effort. We—and I say `we' because I was a member of that committee—looked hard at the implications of the case of Sankey v. Whitlam, in which the High Court asserted its rights to examine documents in dispute in litigation. We looked at the mechanisms adopted in some other parliaments and concluded that they were unacceptable. We considered the government guidelines for official witnesses but, in the end, concluded in the following terms—as I recall, it is paragraph 9.15:

However ingenious, guidelines can only reduce the areas of contention: they can never be eliminated. This follows from the different functions, the inherent characteristics, and the differing interests of Parliament and the Executive. In the nature of things it is impossible to devise any means of eliminating contention between the two without one making major and unacceptable concessions to the other. It is theoretically possible that some third body could be appointed to adjudicate between the two. But the political reality is that neither would find this acceptable. We therefore think that the wiser course is to leave to Parliament and the Executive the resolution of clashes in this quintessentially political field.

I table the documents I have referred to.