Stephen Parry (President) Share this | Link to this | Hansard source

Since late June, I have received correspondence from senators on two occasions raising matters of privilege under standing order 81. Both of them relate to unauthorised disclosure of draft committee reports.

As all senators are aware, the unauthorised disclosure of committee proceedings may be dealt with by the Senate as a contempt and, as such, is a very serious matter. The Privileges Committee has inquired into numerous instances of possible unauthorised disclosure. As a result of the committee’s work the Senate agreed to resolutions in both 1996 and 2007. These resolutions were to provide committees with a process to follow in inquiring into unauthorised disclosures and, secondly, to ensure that the Senate’s contempt jurisdiction was exercised only in relation to those matters where it was necessary to provide reasonable protection for the Senate and its committees and for senators against improper acts tending substantially to obstruct them in the performance of their functions.

The first matter raised with me was raised by Senators McKenzie, Peris and Siewert. That related to the unauthorised disclosure of the draft final report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, as revealed by an article by Sarah Martin, published in The Australian newspaper on the day the report was tabled. As the committee ceased to exist on tabling of the final report, it was not possible for the committee to undertake the preliminary investigations required by the resolutions that I have mentioned with a view to establishing whether the unauthorised disclosure was of a type that should have been raised as a matter of privilege following consultations with the Privileges Committee. Nor was it possible for me to conclude at that stage that precedence should or should not be granted to a motion to refer the matter to the Privileges Committee.

In view of the apparent gap in the resolutions and the observations made by the Privileges Committee in its 152nd report involving the unauthorised disclosure of the draft final report of the Select Committee on Electricity Prices, I considered that the spirit of the resolutions could be best adhered to if I asked the Privileges Committee whether it would agree to undertake the preliminary investigations envisaged by those resolutions and form a conclusion about whether the matter was one that warranted being raised as a matter of privilege.

After making the request, I received correspondence from the editor of The Australiannewspaper, Mr Clive Mathieson, acknowledging that an error had been made by Ms Martin, apologising for any inconvenience and distress caused to the reconciliation committee and assuring me that there was no intention to undermine or obstruct its work. I thanked Mr Mathieson for his assurances and forwarded the correspondence to the Privileges Committee.

I have now received a response from the Chair of the Privileges Committee, Senator Collins, in which the committee outlines the steps it took to inquire into the matter and the reasoning by which it arrived at the conclusion that the unauthorised disclosure of the draft final report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was not one that it would assess as warranting further investigation in accordance with the principles set out in the relevant Senate resolutions. The committee also made some pertinent observations about the operation of the 2007 resolution and recommended that I draw the 1996 and 2007 resolutions to the attention of all senators and committees.

I am happy to accept this recommendation and will be writing to all committees shortly. I will also ask the Deputy President to raise this matter at the next chairs’ committee meeting. In the meantime, I draw the attention of all senators to the resolutions and to the report of the Privileges Committee and related correspondence, which I now table.

In particular, I draw senators' attention to the following comments by the Privileges Committee:

It is important to note that any unauthorised disclosure is contrary to the standing orders of the Senate and poses a risk of interference with the work of committees. The Privileges Committee has always been highly critical of breaches of confidentiality in committee processes, and of the betrayal of trust among committee members this often involves. Whatever effect an unauthorised disclosure has on the work of a particular committee, it also has the potential to inflict broader damage on the integrity of committee processes and the authority and credibility of committees more generally. An assessment that a particular disclosure does not warrant further investigation as a contempt does not absolve senators, members and media representatives from observing the confidentiality requirements attaching to the work of parliamentary committees.

Finally, I did refer to a second matter in my opening remarks. The second matter was raised by Senator Edwards and concerned the unauthorised disclosure of the draft interim report of the Economics References Committee on corporate tax avoidance. As the Economics References Committee had not yet undertaken the preliminary inquiries required by the resolutions, I have indicated to Senator Edwards that I could not at this stage grant precedence to a motion to refer it to the Privileges Committee. I thank senators.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

by leave—As Chair of the Senate Privileges Committee, I thank you for reminding senators and others about the Senate's resolutions on unauthorised disclosure. Under those resolutions, the question whether an unauthorised disclosure should be investigated as a possible contempt turns on an assessment of the harm which might flow from it. They seek primarily to reserve the Senate's contempt powers for matters involving substantial obstruction to Senate and committee processes.

Regardless of whether this threshold is met, however—as you have stressed—unauthorised disclosures are contrary to standing orders. They undermine the authority and integrity of the Senate committee system, which have traditionally been amongst its strengths. An assessment that a particular disclosure does not warrant further investigation does not absolve senators, members and media representatives from observing the confidentiality requirements attached to the work of parliamentary committees.

The harm that can flow from leaking confidential material will not always be apparent to those who publish it. The consequences may seem trivial in some instances, involving embarrassment or frustration among committee members, but they can also be severe. This is particularly the case where committees have decided to take evidence in camera for the protection of witnesses or others, or where disclosure would be harmful to the national interest. If the Senate cannot protect its sources in such circumstances, there is no doubt this will also have a chilling effect on the work of its committees. The Privileges Committee examined these matters in detail in its 122nd report.

Turning to the matter on which you sought the committee's views, the committee acknowledges the frustrations of members of the former joint select committee and their disappointment that the apparent disclosure undercut the consensus that they had achieved. However, their assessment of the harm occasioned by the apparent unauthorised disclosure does not approach the threshold of substantial interference provided in the 2007 resolution. The committee also notes the apology provided by the journalist concerned and by her editor. In those circumstances, for the reasons set out in the document you have just tabled, the committee concluded that the matter did not warrant further investigation.

But I draw senators' attention to the discussion in that document about the Senate's current approach to unauthorised disclosure. It is for individual committees in the first instance to investigate their concerns and, where necessary, to instil discipline upon their members. Those committees are invariably best placed to assess the circumstances of, and the harm occasioned by, such disclosures. Moreover, it is for individual senators to ensure and account for the integrity of their own actions. To that end, I encourage all senators to familiarise themselves with the requirements and rationale of the relevant Senate resolutions.

Stephen Parry (President) Share this | Link to this | Hansard source

Thank you, Senator Collins. Thank you for your assistance in relation to that matter. I do commend your remarks to all senators and trust they will read the Hansard recording of that.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

by leave—As Deputy Chair of the Privileges Committee, I really just wanted to say what you have already just said—that is, I do thank Senator Collins for the assiduous work she put into this particular issue, as she does with most things dealing with the Privileges Committee, which she chairs. Thank you, Mr President, for your report. I might just say what is obvious to any of those of us who have been around this place for a long time. Most of us who have been here for a while have a fair idea of where leaks to the media of information from the committee are coming from. There is sort of a rule of thumb that you can work out whom those leaks might benefit, so senators who do indulge in that disclosure of committee reports are well-known to their Senate colleagues. That, in itself, should be a reason why this practice does not continue. As you have done, Mr President, I want to acknowledge the chair's work on the Privileges Committee.