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Wednesday, 16 March 2005
Page: 135

Senator FAULKNER (6:14 PM) —I move:

   That the following matter be referred to the Standing Committee of Privileges for inquiry and report by 15 June 2005:

Whether, and if so what, acts of unauthorised disclosure of parliamentary committee proceedings, evidence or draft reports should continue to be included among prohibited acts which may be treated by the Senate as contempts.

The Privileges Committee has had concerns for some time about the leaking of draft reports and private deliberations of committees. These matters have in fact become core business for the Privileges Committee. But the Privileges Committee is not a star chamber and it certainly does not want to become a star chamber.

To those senators who are interested in the history of unauthorised disclosure, I would commend an examination of the 74th report of the Standing Committee of Privileges, which documents the first such case since the formation of the Privileges Committee—in other words, the first such case on which the Privileges Committee reported, which occurred in 1971. The second case occurred in 1984. I can say to the Senate that there have been 22 cases of unauthorised disclosure involving 18 reports since the establishment of the Committee of Privileges, including the first report in 1971. Four reports on three cases were made to the Senate before the passage of the Parliamentary Privileges Act and resolutions in 1987-88.

These matters are being referred more and more to the Privileges Committee. It is true that a few maverick senators have lied in their responses to the Privileges Committee about the leaking of committee deliberations and reports. I thought that it would be valuable—I do not doubt that you would agree with this, Senator Ferguson—to share with the Senate the wise words of one committee chair. You would find these wise words at paragraph 45 of the 99th report of the Senate Committee of Privileges. I am pleased that Senator Ferguson is in the chamber, because he is the wise senator whose words ought to be remembered. Paragraph 45 of the report states:

The committee shares the views of an equally frustrated chair of a parliamentary committee, Senator Ferguson, who as Chairman of the Joint Foreign Affairs, Defence and Trade Committee stated in the Senate recently:

The only people with any motive to leak information about private committee meetings or the work of any … committee are those who have a political motive. In fact, those who have a political motive are generally the members of parliament who actually work on those committees.

I quote those words because they are fair and accurate. Senator Ferguson was right about that, and the committee was right to highlight those comments that were made at that time. We could, of course, address ourselves to the issue of journalists, because we ought to acknowledge in this chamber that journalists do not disclose their sources. We ought to acknowledge here that there is a clash of principles: the journalist’s ethic of not revealing sources versus the Senate’s right to protect the integrity of its committee processes. That is another problem that the Privileges Committee in the Senate has had to grapple with.

We also, of course, have the vexed question of what activity does actually substantially interfere with a committee’s work. There are any number of examples of different members of a committee holding different views about the impact of leaks on the same committee’s operations. One thing which ought to be made clear in moving this motion on behalf of the Privileges Committee relates to in camera evidence. The previous chairman of the committee, Senator Ray, and I both strongly believe that the disclosure of in camera evidence should be an automatic contempt of the Senate—equivalent, if you like, to the breach of a court order. I do not think that is a statement that would be controversial amongst members of the Committee of Privileges.

We also ought to say that it has been 17 years since the Parliamentary Privileges Act and privileges resolutions were agreed to by the Senate. It is now time to examine this particular element of their operation. We should acknowledge that unenforceable rules or provisions will eventually demean the Senate. So in these circumstances the Privileges Committee recommends to the Senate that we examine these issues to establish if standard leaks should continue to be an offence. The committee believes that it is appropriate that we examine this issue without the limitation that is imposed by involving such an examination with another case—that is, without the limitations imposed by any individual case.

I would say to the Senate that the process that the Privileges Committee recommends here is a good one. It proposes a reference to the Privileges Committee in the terms of the motion before the chair. It gives the Senate an opportunity to determine whether unauthorised disclosure of committee deliberations and draft reports should be regarded as constituting a substantial interference with the operations of a committee, thus constituting contempt of the Senate. In the first instance, the Privileges Committee, which of course has expressed concerns about these issues for some time now, will be able to fully and thoroughly examine this important issue. The Senate can then consider the committee’s report. All senators are going to have an opportunity to consider these matters fully in the period ahead. I commend this approach and this motion to the Senate.