Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

I rise to speak in relation to this private members' bill, the Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022. I am speaking against it, but I want to make some very clear preliminary comments. The first is that I have the utmost and greatest respect for Senator Lambie in relation to her fearless advocacy on behalf of veterans and their families in relation to this subject matter. I've said that in this place before, I've said that outside of this place before and I will say it to people when I cease to be sitting in this place. Senator Lambie, you really should be congratulated, through you, Deputy President, for your fearless advocacy in this area.

The second point I want to make is, when reading the interim report from the commissioners, one can sense the palpable frustration that they have in relation to how the exercise of parliamentary privilege is, in their view, acting as an obstacle with respect to the discharge of their responsibilities. Indeed, in the letters patent which established the royal commission there is an obligation upon the royal commissioners to act expeditiously, to conduct the inquiry as quickly as they can. The particular document, or one of the documents they were seeking to interrogate in particular, was an Auditor-General report with respect to the culture in the Defence Force. They're frustrated as they feel as if they're being impeded by the operation of parliamentary privilege in that respect.

However, parliamentary privilege is an absolute foundational building block of the institution of the Australian parliament. It is a fundamental building block. And while I heard Senator Shoebridge, in his contribution, talk about a quick inquiry to see if there is a workaround et cetera, this is not something that should be abandoned quickly or changed quickly in the concern that we should try and assist the commissioner's report. This is a really important issue and we need to tread extremely carefully in relation to this matter, and I'm going to expand on that during the course of my remarks.

Yesterday in this place I actually dove into the development of parliamentary privilege in our Westminster system, the development of the Bill of Rights in 1689 and what actually led up to the Bill of Rights in 1689 in the United Kingdom, which forms the foundation for the principles of parliamentary privilege. The 17th century in England was a time when there was gross interference with the operation of parliament. Members of parliament were literally put in the Tower of London for expressing views with respect to the arbitrary treatment of citizens, with respect to taxation measures which they considered to be illegal and with respect to criticism of Crown, the monarch and how the monarch operated. Literally, they were arrested after giving speeches in parliament and put into the Tower of London.

That was the whole genesis of the Bill of Rights, which, in article 9, which is the foundation stone of our parliamentary privilege here in Australia, contains:

That the Freedome of Speech and Debates or Proceedings—

or proceedings—

in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

The fundamental purpose of that article 9 of the Bill of Rights, going back to 1689, is to make sure that all of us here in this place and in the House of Representatives, in the course of our committee work, in the course of documents and in the course of submissions which are prepared for the purposes of parliament, is to make sure that none of those proceedings, none of those processes, are capable of being impeached or questioned in any court or place outside of parliament, and, specifically, in terms of our law, under the Parliamentary Privileges Act, which I'll get to, that includes royal commissions. That has been a longstanding foundation stone in relation to our system.

Now, I just want to make a few comments in relation to the operation of the royal commission. I had a look at Odgers', and Senator Shoebridge quoted from Odgers' in relation to this matter, and there is very useful information in Odgers' Australian Senate Practice, the 14th edition, with respect to the development of parliamentary privilege. I want to quote from page 68:

In 1983 the Royal Commission on Australia's Security and Intelligence Agencies accepted, in the course of its proceedings, that it did not have the power to inquire into statements made in Parliament. The Royal Commissioner inquiring into the Oil-for-Food Program in 2006 went further in warning counsel to familiarise themselves with section 16 of the 1987 Act—

the Parliamentary Privileges Act—

before they tried to question Commonwealth ministers on their parliamentary statements.

It then continues, on page 4 of the latest supplement to Odgers', and this is the important point:

Numerous commissions of inquiry have traversed the same ground as parliamentary committees, and have done so without infringing privilege. For instance, in 2017 the Select Committee on Lending to Primary Production Customers recommended that the newly-established Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry consider the evidence published by the committee in the course of its inquiry. While the Royal Commission had access to the information published by the committee—

so the royal commission, in this case, has access to that Auditor-General's report, in particular—

parliamentary privilege limits its use so that, while people could not be directly questioned on their parliamentary evidence—

that is, the evidence in the course of producing the Auditor-General's report—

the commission could use the material—

could use the material—

to develop its own lines of inquiry.

That's the boundary, in terms of the limits on the use of what has been prepared for parliament. With respect to the Auditor-General's report in particular, I cite the article 'Can Parliamentary Privilege be Used to Shut Down Parliamentary Accountability?' by Anne Twomey, who is probably Australia's leading constitutional law professor, and I quote:

The Auditor-General is an officer of Parliament whose performance audit reports are prepared for the purpose of tabling and debate in Parliament and therefore attract parliamentary privilege. The information and analysis in these reports provide crucial support to the Parliament's role of scrutinising the executive in relation to its spending of public moneys.

That report that was referred to by the—