Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

The Royal Commission into Defence and Veteran Suicide was forced to extend its inquiry by 12 months in April, partly because it had trouble getting important information out of the Department of Veterans' Affairs and the Department of Defence. Commissioner Nick Kaldas was asked about it in an ABC interview with Patricia Karvelas last month, and it's worth documenting his response. Patricia referenced the DVA and Defence delays and asked, 'Has information been more forthcoming over the past few months since the inquiry was extended?' Commissioner Kaldas replied: 'Not as yet. We're still waiting for some things to be resolved.' Patricia Karvelas said: 'I consider that—please correct me if I'm wrong—quite alarming. You're a royal commission. Does it concern you that you're a royal commission with royal commission powers and that you've found it so difficult?' The commissioner told it to her straight: 'Yes, it does.'

The Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022 addresses one of the biggest barriers stopping the royal commission from doing its job: parliamentary privilege. I don't move it lightly. Parliamentary privilege has protected the same witnesses and whistleblowers who fought so hard to get this royal commission established in the first place. It protects people who have come to me and told me the most horrific things going on in Defence. It gave me the power to fight for them. But the Parliamentary Privileges Act isn't working well when it comes to the royal commissions. It gets in the way when those royal commissions need to examine the actions of government. Instead of protecting people with no power, it's shielding people in power from scrutiny. That's why the veteran suicide royal commissions hit road blocks. They royal commission wants to ask the hard questions. They want to bring in Defence officials and officials from the Department of Veterans' Affairs and drill down on them. And so they should. That is why we are having a royal commission: to find answers. It's what we set them up to do, but they don't do it. Don't take it from me; take it from the royal commission itself. The interim report says that privilege:

… impedes transparency surrounding government decisions and acts as a shield for the executive from accountability for their commitments and actions taken to implement matters subject to privilege.

That's because parliamentary privilege prevents courts and tribunals, including royal commissions, from drawing inferences or conclusions from a report or inquiry that is subject to its protection. That's why the royal commission says it can't inquire into work and outcomes of prior Senate inquiries and Auditor-General reports—of all things!—even though its terms of reference require it to do so.

The royal commission can't tender documents subject to privilege and draw conclusions from them. This is ridiculous. It can't ask witnesses who worked on audits of Defence and DVA programs to give evidence about their investigation—not if it wants to use that evidence to make any meaningful findings, anyway. If it wants to use evidence that's subject to privilege in its findings, the only way to do that is to redraw that evidence from witnesses. It has to redo the work that is already done, and it has to rerun the inquiry. That is absolutely pointless. Why would we put people through this again and again? It has to tiptoe around everything we've done in parliament up to this point. All that work that's come before, all the work we did in the Senate—the royal commission can't use it to come to any conclusion about what the government has been up to all these years. It's such a terrible waste.

Take what happened with the 2021 Auditor-General report into the successes and failures of culture reform strategies in Defence. The report matters to the royal commission. It made a number of recommendations on how to improve the health, wellbeing and safety of Australian Defence Force members. Defence's response to the audit is relevant to the terms of reference of the royal commission's inquiry. It's publicly available on ANAO's website and has probably been downloaded thousands and thousands of times. But the royal commission, of all things, hasn't been able to use the report in any meaningful way. Counsel assisting the royal commission found that parliamentary privilege prevents them from asking Defence representatives questions about the report, because they can't make any kind of finding or conclusion from evidence that's subject to privilege. They wanted to show parts of the report on screens at one of the royal commission's public hearings. They wanted to tender it and refer to it in questioning, but parliamentary privilege prevented them from doing so. The risk of being accused of making findings from protected information was too great. They had to make clear that the royal commissioners should not make any conclusions or findings based on the Auditor-General's work—all that work, and it's absolutely useless to them. The counsel assisting the royal commission make it through by looking for official documents that were published outside the parliament and that reference the findings and outcomes of inquiry reports. How ridiculous. What a waste of time, when the reports are sitting there ready to go in their hot little hands.

In one case, they were lucky enough to find an official document outlining the recommendations and government responses to the 2017 Senate inquiry report The constant battle: Suicide by veterans. They use this document instead of the report itself. They had to, to get people into the witness box and to look at what the Australian Government did in response to the inquiry's recommendations. It worked then, but it's not sustainable—not by a long shot. We've had 17 reviews in 17 years in the Department of Veterans' Affairs itself. I don't know how many times Defence has been through the audit office on different things associated with their personnel. This is absolutely ridiculous. All this work has been done up here, and they are prevented from using it. It is as simple as that. Instead, they've got to go through it paper by paper to see what's in that. That is not a good way of doing an investigation and it is not sustainable—not by a long shot. We can't have a situation where it comes down to pure luck as to whether the royal commission can get to the evidence it needs to meet its terms of reference.

This royal commission has been a hard won by thousands of veterans and their families. They knew it was our only shot to call out the terrible phase of government that led to hundreds of veterans taking their lives. There is nothing higher than a royal commission. We have nowhere else to go. This is the pinnacle for us. Even here, in an inquiry with the strongest investigative powers you can imagine, we see how far executive government will go to avoid transparency and accountability. It just goes to show how hard it is to get to the bottom of the terrible problems at Defence and Veterans' Affairs.

That's why we are moving to enact recommendation 7 of the royal commission's interim report. The provisions of this bill follow the royal commission's recommendation precisely to exempt royal commissions from section 16(3)(c) of the Parliamentary Privileges Act where their terms of reference require examination of government—exactly what the royal commission asked for. I know it's a serious thing to open up an exemption to privilege, but, seriously, there is no other way around this. Trust me, we are pulling our hair out in my office. If royal commissions say they have a problem, then they have a problem, and we need to fix it so they can get on with the job. I thought that's what we're here to do, not to stand here as obstructionists so they can't get their job done. We certainly can't ignore what they are telling us. We have got to find a way to make sure Commissioner Kaldas and the other commissioners can turn over every stone, every rock, and get to the bottom of what is going so terribly wrong in Defence and Veterans' Affairs, and why we have so many suicides in our military. It's not a hard ask.

Senator Tyrrell and I will talk to anyone and everyone about how to fix the problems the royal commission has found. This is why I hope to send this bill to an inquiry. It will be a quick inquiry because it will need the best legal minds out there to be there so we can thrash out the issues the royal commission has raised. We've got to act now and we've got to act fast. Time is not on a veteran's side, I can assure you, when it comes to the royal commission. The sooner the royal commission can get its job done, the sooner we can get it wrapped up and the sooner, hopefully, we will have fewer people out there who have served their country trying to take their lives. That is the whole purpose of having the royal commission.

The royal commission has been too hard won for us to stuff it up now. All those people who rocked up on cold mornings to protest; the mums who came to parliament to tell the PM about their sons they had lost; the brave soldiers and veterans who have stood up and given evidence, even though it hurts and even though it takes them back to a dark place; everyone we have lost; our veterans and our Defence personnel are relying on making this royal commission a success and to find the answers that we need. This has to be our last inquiry into veteran suicides. It has to be. Like I said, after 17 inquiries in 17 years, we can't go through any more. We can't keep reliving our stories and watching the failure of future governments to fix these issues.

I call on Labor today to take this seriously. Come to the table and help us figure this out. You helped us win this fight, and veterans haven't forgotten that, but now you're in government and you're responsible for making sure this inquiry, hopefully the last inquiry we will ever have, works. You are now in government. Yes, that means hard decisions, and yes, that means upsetting some of the applecart here. I am asking you to be brave because sometimes we have to be that way in life to get things done. It is up to Labor now to make this happen, but, like I said, it is extremely time sensitive. There is nothing else I have up my sleeve and nothing anybody else can tell me that is higher than a royal commission to slow down these veteran suicides. I am very clear that we can never stop veteran suicides. But, sincerely, from the bottom of my heart, if we do this properly we can sure as hell reduce them. We have one chance at this. This is our last one. I'm asking you: give the royal commission everything it needs, because I need somebody else to come up with the answers because I've run out.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I, too, rise today to speak to the Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022. This bill before us today raises issues fundamental to our parliamentary democracy. In the first instance, can I recognise the passion shown by Senator Lambie and her commitment to veterans throughout Australia.

The amendment arises from the recommendations of the Royal Commission into Defence and Veteran Suicide interim report. You will recall that the royal commission was set up by the former coalition government in 2021. Its clear intent was to reduce deaths by suicide within our veterans community. I think, without a doubt, we'd all agree the death of any ADF member or veteran is tragic and is deeply felt by the entire community.

In the 2021-22 budget the former coalition government provided $174 million to fund the royal commission and examine the systemic issues surrounding death by suicide of veterans. There is no doubt the royal commission provided very clear acknowledgement of the issues involved. I think it was an extremely important process for the families of our defence veterans and, indeed, part of the healing process for some families. That process, to share their stories and experiences, while extremely distressing, will be of enormous value to all future members of our defence forces. I pay tribute to those who were involved in this way. We know this is a highly sensitive and complex issue, and that there are deep emotional scars that relate to these issues.

The interim royal commission report was tough reading but the coalition was prepared for this. Our commitment to serving Australian Defence Force members and veterans was sacrosanct and required no stone left unturned to address defence and veteran suicide. Our support for Australian veterans and their families was in recognition of the service and sacrifice they have made to keep our nation safe and secure.

The bill before us deals with the issue of parliamentary privilege, arising from one of the recommendations in the royal commission interim report. As we know, in this place parliamentary privilege refers to special legal rights and immunities which apply to each house of parliament, its committees and members, and is a fundamental part and process of what we do here. We are given a special legal status because it is recognised there are tasks performed here that require additional powers and protections. Special rights and immunities are necessary because of the functions in this place. For example, we need to be able to debate matters of importance freely, to discuss grievances and to conduct investigations effectively without interference.

Section 49 of the Commonwealth Constitution provides that, until declared by the parliament, the powers, privileges and immunities of the Senate and the House of Representatives, and the members and committees of each house, shall be those of the British House of Commons at the time of Federation—being 1901. It was not until 1987, following a thorough review of the whole subject by a joint select committee, that the Commonwealth parliament passed comprehensive legislation in this area. The Parliamentary Privileges Act described the proceedings in parliament to which privilege will apply as:

… all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee …

It includes but is not limited to:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

The act prevents this royal commission from receiving or tendering evidence of the nature that I have just described for the purpose of: (a) questioning or relying on the truth, motive intention or good faith of anything forming part of those proceedings in parliament; (b) questioning or establishing the credibility, motive, intention or good faith of any person; (c) drawing, or inviting the drawing of, interferences or conclusions wholly or partly from anything forming part of those proceedings in parliament; or (d) going beyond providing an occurrence of events in parliament, including what was said in the course of parliamentary proceedings.

The privilege of freedom of speech is often described as the most important of all privileges. Its origins date from the British Bill of Rights of 1689. Article 9 of the bill of rights provides:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

As this was one of the privileges of the House of Commons in 1901 it was inherited by the House and the Senate under the terms of the Commonwealth Constitution.

Section 16 of the Parliamentary Privileges Act preserves the application of the traditional expression of this privilege but spells out in some detail just what may be covered by the term 'proceedings in parliament'. The practical effect of this is that those taking part in proceedings in parliament enjoy absolute privilege. It is well known that members may not be sued if they make defamatory statements when taking part in debates in a house. But the privilege is wider than that and, for instance, protects members from being prosecuted if, in a debate, they make a statement that would otherwise be a criminal offence. The privilege of freedom of speech has been described as a privilege of necessity. It enables members and senators to raise matters they would not otherwise be able to bring forward, at least not without fear of the legal consequences. The privilege is thus a very, very great one, and it is recognised that it carries with it a corresponding obligation that it should always be used responsibly.

The privilege of freedom of speech is not limited to members and senators in the parliament. It also applies to others taking part in proceedings in parliament. The most obvious examples of others who may enjoy absolute privilege are witnesses who give evidence to committees.

Parliamentary privilege provides parliamentarians in both houses of parliament with freedom of speech in debates or proceedings in parliament. It does so by preventing courts and tribunals from interfering in these matters. As such, it upholds the separation of powers doctrine within the Australian Constitution.

Parliamentary privilege extends to royal commissions because they are included in the definition of tribunals. The proposed amendment to the Parliamentary Privileges Act 1987 would mean royal commissions and other tribunals could have evidence tendered or received; ask questions of statements, submissionsor comments made concerning proceedings in parliament for the purpose of drawing, or inviting the drawing of inferences, or conclusions wholly or partly from anything forming part of those proceedings in the parliament. Royal commissions already have extraordinary powers which go far beyond the powers of a criminal court. The ancient rights of parliamentary privilege must be preserved so proceedings of the parliament can be carried out without hesitation.

Members of parliament, witnesses before committees and the reports of committees are subject to parliamentary privilege to ensure the parliament can access all information required for its deliberation and processes. This protection is important to ensure that those participating in parliamentary processes can engage without hesitation, and it ensures the primacy of the parliament in our democracy. On that basis, the coalition will not be supporting the bill.

Malarndirri McCarthy (NT, Australian Labor Party, Assistant Minister for Indigenous Australians) Share this | Link to this | Hansard source

I'm pleased to speak to the Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022 on behalf of the Labor government. I too would like to acknowledge Senator Lambie's deep commitment to the scourge of suicide in the ADF and the veterans community and her advocacy and support for that community. The death by suicide of any Australian is a tragedy, and it is a sorry fact that the rate of suicide among veterans of the Australian Defence Force is significantly higher than that across the broader Australian community. This country has lost more serving and former ADF personnel to suicide than it has in operations over 20 years of conflict in Afghanistan and Iraq.

ADF members, veterans and their families are right to demand that this crisis be addressed. That is why, when in opposition, Labor joined with families who had lost loved ones to this crisis to call for the establishment of the Royal Commission into Defence and Veteran Suicide. The former government resisted taking that step for quite some time, but Labor thought the need for this commission was obvious and absolutely compelling. We strongly supported its establishment, and we continue to support its work.

Labor welcomed the royal commission's interim report, and we released that report on 11 August 2022, immediately after we received it from the commission. We wanted the commission's recommendations to be able to be considered publicly at the earliest opportunity. The government has been closely considering the recommendations made by the royal commission in its interim report. We will, this very afternoon, release its formal response to each and every one of those recommendations to the parliament and to the public and indicate how the government proposes to address those recommendations. The defence and veterans communities, the royal commission, the parliament and the Australian public are entitled to see the government respond to the full swathe of recommendations made by the royal commission.

At this moment, I will not pre-empt that formal response by the government. However, I would like to make some brief observations about the bill that Senator Lambie has brought before the Senate. This bill deals with one particular recommendation in the royal commission's interim report. Recommendation 7 of the interim report recommends:

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).

Parliamentary privilege is a fundamental feature of our democratic system and of our parliamentary tradition. Section 16 of the modern Parliamentary Privileges Act descends from article 9 of the UK Bill of Rights 1689, which declares:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

This principle is important not because it's very old but because it is essential, even today. None of us in this place could do our work, represent our communities or serve the country as parliamentarians without the proper and appropriate protection that is provided by parliamentary privilege.

As Senator Lambie noted in her second reading speech on this bill on 7 September 2022, it is parliamentary privilege that protects whistleblowers who wish to raise matters, including those that are the subject of this royal commission. It is parliamentary privilege that ultimately protects us, as parliamentarians, when we seek to advocate on behalf of the vulnerable, to take on powerful vested interests and to shine a light in some very dark places. Senator Lambie also says that parliamentary privilege should not stand in the way of the proper role of a royal commission. And I agree. I want to note, in respect of that, that the particular protection given to proceedings in parliament, the subject of section 16(3)(c) of the Parliamentary Privileges Act and of this bill, is quite confined, and that provision reads:

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

…   …   …

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

The Australian Law Reform Commission has considered the effect this provision may have on a royal commission. The Law Reform Commission noted in a 2009 report:

The privilege of freedom of speech may prevent Royal Commissions or the—

recommended—

Official Inquiries from investigating allegations of misconduct made in Parliament. In practice, however, a number of inquiries have investigated such claims or conducted investigations touching on the proceedings of Parliament. Although courts have differed on this issue, it appears that Royal Commissions or Official Inquiries will infringe parliamentary privilege if they inquire into the motives, intentions or truthfulness of a speaker in Parliament, or allow witnesses to be cross-examined in relation to words spoken or documents tabled in Parliament.

In considering this present bill it is important to note, again, as Senator Lambie has already done in her second reading speech, that privilege does not prevent a royal commission from using the proceedings of parliament for other purposes that might be, for example, as background material or to establish matters of fact. Importantly, again, as Senator Lambie noted, it does not prevent a royal commission from obtaining its own evidence on matters put before parliament, for instance, by seeking evidence from witnesses who have previously given evidence to parliamentary inquiries.

Royal commissions are very serious affairs, and this royal commission, in particular, is conducting an inquiry into an issue of the utmost seriousness for our country. We must make sure that both royal commissions and the parliament are able to do their work. As I've said, this government will be formally responding to the recommendations made by the royal commission and its interim report this afternoon. We will work with Senator Lambie, and indeed all senators, in addressing those recommendations and doing what we must to tackle the crisis of suicide in the defence and veterans community. Deputy President, I seek leave to continue my remarks.

Leave granted.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise to speak to Senator Lambie's Parliamentary Privileges Amendment (Royal Commissions Response) Bill 2022.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Sorry, Senator, leave was sought to continue the remarks, therefore it becomes a technical adjournment. That's why, with respect, I looked at you. My apologies for not explaining.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

My apologies. I would just seek to make a brief contribution on the bill. I seek leave to do so.

Leave granted.

I rise to speak briefly to the Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022 and I thank Senator Lambie for bringing this bill to the Senate in such a timely fashion. All of us in this chamber, in our work with constituents, particularly veterans, have seen the impact of veteran suicides not only on the Defence Force but on other veterans, on their families and on the broader defence community. It has been genuinely shocking for me to see the lack of care and the systemic failures in dealing with veterans in the short time that I have been the Greens spokesperson for veterans affairs.

I have said before and I will say again: I don't hold the current government responsible for the mess that the system is in but I do hold the government responsible for navigating the way through and fixing the system, and for doing it with the degree of urgency that the interim report has shown is needed. One of the key problems, though, that we saw from the interim report has been the way in which the royal commission under very effective leadership has not had the ability to look in detail and then draw inferences and conclusions from a series of parliamentary committee reports, Auditor-General reports, government reports and government responses. It is in response to those very real practical concerns that we saw recommendation 7 of the interim report released to the parliament. Recommendation 7 reads:

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).

The royal commission made this recommendation because parliamentary privilege in the broader sense had been prohibiting the royal commission from drawing the conclusions or inferences from previous reports created by parliamentary committees tabled in parliament, or as part of the broader parliamentary business. The royal commission said:

A number of other reports prepared by the Auditor-General as well as the Senate Standing Committee on Foreign Affairs, Defence and Trade are directly relevant to our work. These reports are subject to privilege, meaning we cannot draw inferences or conclusions from them.

The royal commission went on to say how this directly impeded its work. saying:

This leaves us unable to inquire into the work and outcomes of prior critical reports—it hampers our ability to learn from that which came before. This risks an unnecessary duplication of effort. It impedes transparency surrounding government decisions and acts as a shield for the executive from accountability for their commitments and actions taken to implement matters subject to privilege.

I stop there to remind the Senate that the royal commission is inquiring into defence and veteran suicide. As has been commented on in this debate and outside, our defence forces have lost more personnel through suicide than in all of the armed conflicts they have been involved in, from Iraq to Afghanistan and onward. That is a chilling reminder of the importance of this work. And to see that the royal commission has been hampered in that work places an obligation on us to see what we can do to remedy that.

This bill seeks to amend the Parliamentary Privileges Act but in a very broad way, by adopting the wording of the recommendations, and I acknowledge Senator Lambie has done that. It does it by removing the limitation in 16(3)(c) of the act that prohibits the drawing inferences from 'anything forming proceedings in parliament'. That is potentially broader than is needed to deal with the concerns raised in the interim report, which are really limited to reports, to responses and those kinds of formal exchanges of documentation.

There is a series of reports, not least the DLA Piper report, as we were discussing earlier, Auditor-General reports, committee reports that should be in front of this royal commission, not just to note but to have a look at some of the structural failures—and not just structural failures in defence but structural failures in this place—that have seen these reports tabled but no action taken. That has been one of the core limitations, if you read in detail chapter 6 of the interim report. Addressing that is important to veterans, but doing it in a way that respects and promotes parliamentary privilege is the real challenge. There is area to explore in narrowing the scope of this bill, potentially a short, sharp inquiry to take relevant submissions to get the balance right. On balance, I will finish by reading the two sides of the argument. I read again from the interim report, paragraph 41 onwards:

We acknowledge the customary importance of parliamentary privilege to ensure that the parliament can debate and investigate matters of public importance effectively and without interference. But for a Royal Commission tasked with investigating systemic issues contributing to suicide—the origins of which may be the action or inaction of government and departments which have been subject to numerous prior reviews—privilege has hindered our work.Our terms of reference require us 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'. In this Royal Commission, parliamentary privilege extends to a number of reports prepared for, or by, parliamentary committees which consider the same matters or matters directly relevant to our terms of reference.

We are concerned that parliamentary privilege is not limited to tendering documents or asking questions that might make or imply a conclusion about a decision of parliament. 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.

That is what is frustrating the royal commission, and you can understand why.

Again, we come back to this, the importance of parliamentary privilege, and I say this from the position of a party that does not have majority. I acknowledge, as well, independents. Parliamentary privilege is essential for whistleblowers to know they have protection when they come to us. It's important for us to be able to hold powerful corporations and interests to account. It's important and essential for us to do the work, and Odgers' indicates that. Odgers', in its Australian Senate Practice, says this in relation to privilege, and particularly focusing on the Senate:

The law of parliamentary privilege is particularly important so far as the Senate is concerned, because it is the foundation of the Senate's ability to perform its legislative functions with the appropriate degree of independence of the House of Representatives and of the executive government which usually controls that House.

Parliamentary privilege exists for the purpose of enabling the Senate effectively to carry out its functions. The primary functions of the Senate are to inquire, to debate and to legislate, and any analysis of parliamentary privilege must be related to the way in which it assists and protects those functions. Although the relevant law is the same for both Houses, and is analysed accordingly in this chapter, its particular significance for the Senate must constantly be borne in mind.

Our party is very aware of how essential parliamentary privilege is, and adopts in whole that observation in Odgers'. We do, however, commend Senator Lambie for bringing on this bill, and we do think that there is a powerful argument to explore it in detail, in a brief committee inquiry, in order to check if we can get that balance right. And we don't have forever to wait. This royal commission's time is running out. Veterans can't wait. If we are going to do this, we should act with some haste.

Paul Scarr (Queensland, Liberal Party) Share this | Link to 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—

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The debate is interrupted. Senator Scarr, you'll be in continuance. The Senate will now proceed to the consideration of government business.