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Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022

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2022

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

PARLIAMENTARY PRIVILEGES AMENDMENT (ROYAL COMMISSION RESPONSE) BILL 2022

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senators Lambie and Tyrrell)

 



 

PARLIAMENTARY PRIVILEGES AMENDMENT (ROYAL COMMISSION RESPONSE) BILL 2022

 

OUTLINE

 

The provisions in this bill enact Recommendation 7 of the Royal Commission into Defence and Veteran Suicide interim report, which is as follows:

 

Recommendation 7: Provide exemption from parliamentary privilege

 

Where their terms of reference require an examination of government, Royal Commissions should be made exempt from section 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth). [1]

 

According to its interim report, parliamentary privilege has “seriously, adversely constrained” the Royal Commission’s ability to “inquire into and receive the necessary evidence from prior inquiries conducted by and for parliament and examine government decision-making”. [2]

 

Veterans and their families campaigned for this Royal Commission for a decade. They expect the Royal Commission to ask hard questions of government and government officials. Parliamentary privilege has shielded officials in the Australian Government, the Department of Veterans’ Affairs, and the Department of Defence from having to answer those hard questions.

 

The Royal Commission finds that parliamentary privilege “extends to inviting the drawing of any inferences or conclusions from part of a report or inquiry, even if that inference would not impinge on parliament or any of its members”. [3]

 

This leaves the Royal Commission unable to inquire into the work and outcomes of prior critical reports, despite its terms of reference requiring it to consider “the findings and recommendations of previous relevant reports and inquiries … including any assessment of the adequacy and extent of implementation of those recommendations”. [4]

 

The Royal Commission has therefore been unable to investigate the actions and inactions taken by government officials in relation to reports such as the Auditor-General’s 2021 audit report, Defence’s Implementation of Cultural Reform . The audit made a number of recommendations which are relevant to the Royal Commission’s work, including with regards to the effectiveness of the implementation of cultural changes that impact the health, wellbeing, and safety of ADF members. The final report is public and available on the Auditor-General’s website. However, parliamentary privilege prevents the Royal Commission from questioning Defence representatives about the report for the purpose of ‘drawing a conclusion or inference’ - the actions and inactions of the executive in relation to the report are blocked from the Royal Commission’s view. [5]

 

In contrast, the Royal Commission was able to inquire into the Australian Government’s actions in response to the 2017 Senate inquiry report, The Constant Battle: Suicide by veterans . In this case, the Counsel Assisting found an official document (published outside parliament) that reproduced the recommendations of the inquiry report and outlined the government actions taken in response to them. The Royal Commission was able to investigate this document, and question Australian Government officials about the response to the reported recommendations.

 

This approach relied on a Federal Court ruling that “neither Art 9 of the Bill of Rights

nor s 16(3) of the Parliamentary Privileges Act prohibit a party from adducing evidence

to establish, as a matter of fact, that something was said in Parliament”. In observing privilege in this case, the Royal Commission ruled that the official document could be tendered on a limited basis “that no inferences or conclusions will be drawn or invited to be drawn from the recommendations themselves.” [6]

 

However, the Royal Commission’s interim report finds that “this way forward is largely unhelpful in practice” as it does not provide clear visibility of “which recommendations from prior critical reports have been actioned, who key decision-makers are and where implementation has deviated from the recommendations and why.” [7]

 

This bill seeks to remedy this issue for the Royal Commission into Defence and Veteran Suicide and other Royal Commissions with terms of reference that require an examination of the actions and inactions of government. It does this by providing an exemption from paragraph 16(3)(c) of the Parliamentary Privileges Act 1987 . The exemption would allow exempted Royal Commissions to draw, or invite the drawing of, inferences or conclusions wholly or partly from anything forming part of proceedings in Parliament.

 

The effect of this would be that Royal Commissions such as the Royal Commission into Defence and Veteran Suicide could analyse evidence that is subject to parliamentary privilege and draw conclusions from it, allowing for a fuller investigation of the actions and inactions of officials in the Australian Government.

 

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.         Clause 2 provides a table setting out the commencement date of the new Act. This table provides that the provisions of the bill will commence on the day after the new Act receives Royal Assent.

Clause 3: Schedules

3.           Clause 3 provides that legislation that is specified in a Schedule to this new Act is

              amended or repealed as set out in that Schedule, and any other item in a Schedule

              has effect according to its terms.

Schedule 1—Amendments

Parliamentary Privileges Act 1987

Item 1 - After subsection 16(6)

6.              This item adds a provision to the Parliamentary Privileges Act 1987 to provide that neither paragraph 16(3)(c) nor the Bill of Rights 1688 shall be taken to prevent or restrict the admission of evidence before a Royal Commission with terms of reference that require an examination of government, for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of proceedings in Parliament.

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

PARLIAMENTARY PRIVILEGES AMENDMENT (ROYAL COMMISSION RESPONSE) BILL 2022

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The bill enacts Recommendation 7 of the Royal Commission into Defence and Veteran Suicide interim report, to provide an exemption from paragraph 16(3)(c) of the Parliamentary Privileges Act 1987 for Royal Commissions with terms of reference that require an examination of government.

 

Human rights implications

Australians have a right to a well-functioning parliamentary democracy.

According to the UN’s Human Rights Handbook for Parliamentarians, parliamentary privilege ensures Parliament can fulfil its role by allowing members to enjoy the freedom of expression necessary to speak out on behalf of constituents. The Handbook states that members of parliament “must be free to seek, receive and impart information and ideas without fear of reprisal”. [8] Parliamentary privilege is intended to provide members of parliament with the requisite independence to do so.

Professor Anne Twomey states that “parliamentary privilege was established for the purposes of protecting Members of Parliament from being prosecuted or penalised for what they debated in Parliament or from being controlled by the executive in what they were permitted to debate”. [9]

However, parliamentary privilege has been used to the opposite effect in relation to the Royal Commission into Defence and Veteran Suicide. According to the Royal Commission’s interim report, parliamentary privilege has ‘unreasonably constrained’ its ability to question the actions and inactions of officials in the Australian Government, the Department of Veterans’ Affairs, and the Department of Defence. [10] In this case, privilege has protected the executive government from accountability, and hinders the ability for the Royal Commission to fulfil its terms of reference.

To the extent the bill may limit human rights, the limitation is justified in that ensures parliamentary privilege cannot be used to shield executive government from scrutiny.

 

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Senators Lambie and Tyrrell




[1] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report .

[2] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report , p.265.

[3] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report , p.267.

[4] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report , p.267.

[5] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report , p.267.

[6] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report , p.267.

[7] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report , p.267.

[8] Nowak, M., 2005, Human Rights Handbook for Parliamentarians , p.64.

[9] Twomey, A., 2020, Can Parliamentary Privilege be Used to Shut Down Parliamentary Accountability?

[10] Royal Commission into Defence and Veteran Suicide, 2022, Interim Report , p. xxix.