16.186 In response to IP 34, the Clerk of the Senate, Harry Evans, provided a submission to draw to the ALRC’s attention an issue that arises from the relationship between secrecy provisions and the operation of parliamentary privilege:
From time to time executive government officials suggest that statutory secrecy provisions prevent them providing information to either House of the Parliament or its committees and/or render them liable under such provisions for supplying relevant information.
16.187 Evans suggested further that secrecy provisions ‘may also inhibit the provision of information to the Houses and their committees by prospective witnesses without the inhibition becoming known’.
What is parliamentary privilege?
16.188 ‘Parliamentary privilege’ refers to the privileges or immunities of the Houses of Parliament and the powers of the Houses of Parliament to protect the integrity of their processes. Section 49 of the Australian Constitution gives the Australian Parliament power to declare the ‘powers, privileges and immunities’ of the Houses of Parliament and provides that, in the absence of any declaration by the Parliament, the powers, privileges and immunities held by the United Kingdom’s House of Commons at the time of the establishment of the Commonwealth shall apply.
16.189 The importance of parliamentary privilege is clearly set out in the Human Rights Handbook for Parliamentarians prepared for the United Nations by Manfred Nowak:
Parliament can fulfil its role only if its members enjoy the freedom of expression necessary in order to be able to speak out on behalf of constituents. Members of parliament must be free to seek, receive and impart information and ideas without fear of reprisal. They are therefore generally granted a special status, intended to provide them with the requisite independence: they enjoy parliamentary privilege or parliamentary immunities.
16.190 There are two aspects of parliamentary privilege. The first is set out in art 9 of the Bill of Rights 1688 (UK) (applied in Australia by virtue of s 49 of the Australian Constitution), which states that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament’. Article 9 confers an immunity from civil or criminal action, and examination in legal proceedings, on members of the Houses, witnesses and others taking part in proceedings in parliament. The Parliamentary Privileges Act 1987 (Cth) clarifies that giving evidence or submitting a document to a House or committee amount to ‘proceedings in parliament’ covered by the immunity. The second aspect of parliamentary privilege is the parliament’s power to conduct inquiries, including the ability to compel witnesses to give evidence or produce documents.
16.191 On this basis, the Parliament, or a parliamentary committee, generally has the power to compel the giving of evidence or the production of documents that otherwise would be covered by a secrecy provision. In this context, a person who discloses information will be immune from liability under any secrecy provision.
Express abrogation of parliamentary privilege
16.192 Parliament may choose to abrogate parliamentary privilege expressly and prevent the disclosure of information to the Parliament or its committees. For example, s 37(3) of the Auditor-General Act 1997 (Cth) provides that the Auditor-General ‘cannot be required, and is not permitted, to disclose’ certain information to a House of Parliament, a member of a House of the Parliament, or a parliamentary committee. The Explanatory Memorandum to the Act makes clear that ‘the effect of [this subclause] is to act as a declaration for the purposes of section 49 of the Constitution’.
16.193 A far more detailed regime for dealing with disclosures to ministers and parliament is included in the Exposure Draft of the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) (Tax Laws Exposure Draft Bill). The draft Bill sets out an exhaustive list of permissible disclosures to ministers and parliamentary committees. These include, for example, disclosure to any minister to enable him or her to exercise a power or perform a function under a taxation law; and disclosure to the Treasurer for the purpose of enabling him or her to respond to an entity’s representation.
16.194 The Tax Laws Exposure Draft Bill makes clear that the disclosures listed in the Bill are the only permissible disclosures that an officer can make to ministers and parliament, ‘despite any power, privilege or immunity of either House of the Parliament or members or committees of either House of Parliament’. However, the Bill retains the Parliament’s powers of compulsion, and authorises an officer to disclose taxation information where disclosure has been compelled.
Implied abrogation of parliamentary privilege
16.195 A more controversial question is whether a secrecy provision may override parliamentary privilege by ‘necessary implication’.
16.196 In 1991, the Commonwealth Solicitor-General, Dr Gavan Griffith QC, provided advice on the application of secrecy provisions to officials appearing before parliamentary committees, as follows:
Although express words are not required, a sufficiently clear intention that the provision is a declaration under section 49 [of the Australian Constitution] must be discernible. Accordingly, a general and almost unqualified prohibition upon disclosure is, in my view, insufficient to embrace disclosure to committees. The nature of section 49 requires something more specific.
16.197 In 2000, Bret Walker SC provided advice to the NSW Legislative Council about whether a secrecy provision applied to prohibit certain witnesses from disclosing information to the budget estimates committee of the NSW Legislative Council. Walker advised that, in order for a secrecy provision to prevent the disclosure of information to a parliamentary committee, there must be either an express reference to the Houses, or that the statutory scheme would be rendered ‘fatally defective’ unless such an application were implied.
16.198 The view that parliamentary privilege can be abrogated by ‘necessary implication’ has been criticised by Evans; and no definitive view or court ruling has emerged.
Parliamentary processes to protect information
16.199 Where a secrecy provision does not operate to abrogate parliamentary privilege, information may be protected through other means. One such example is public interest immunity claims—that is, a claim that information should be withheld from a parliamentary committee on grounds of public interest. The Government Guidelines for Official Witnesses Before Parliamentary Committees and Related Matters advise that considerations that may affect a decision about whether to make documents or information available may include—in addition to whether disclosure of the information could cause harm to specified public interests—whether the information is covered by a secrecy provision. Another practical way to afford some protection to sensitive information is to have this adduced in camera—that is, in a closed session.
16.200 Parliamentary privilege will normally override secrecy provisions, permitting the disclosure of protected information to Parliament or a parliamentary committee. This override will be supported by the exception for disclosures in the course of an officer’s duties in the recommended general secrecy offence and most specific secrecy offences. In a small number of situations, however, the disclosure of certain information to Parliament or parliamentary committees may not be the desired outcome. Here, any legislative intent to abrogate parliamentary privilege should be clearly stated in the provision and supporting documents, as for example in the Tax Laws Exposure Draft Bill.
 Clerk of the Senate, Submission SR 03, 23 January 2009. See also H Evans (ed), Odgers’ Australian Senate Practice (12th ed, 2008), 51–55 for a discussion of the application of secrecy provisions to parliamentary inquiries.
 Clerk of the Senate, Submission SR 03, 23 January 2009.
 H Evans (ed), Odgers’ Australian Senate Practice (12th ed, 2008), Ch 2.
 M Nowak, Human Rights Handbook for Parliamentarians (2005), 64.
 An intention to abrogate parliamentary privilege requires express statutory words: H Evans (ed), Odgers’ Australian Senate Practice (12th ed, 2008), 53; G Griffith, Parliamentary Privilege: Major Developments and Current Issues, NSW Parliamentary Library Research Service Background Paper No 1/07 (2007),
 Explanatory Memorandum, Auditor General Bill 1996 (Cth), . See also Migration Act 1958 (Cth) s 503A.
 Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 pt 1 cl 355-55.
 Ibid sch 1 pt 1 cl 355–60(3).
 Ibid. For more information about the intended operation of this provisions see Explanatory Material, Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth), [4.19]–[4.26].
 Explanatory Memorandum, Parliamentary Privileges Amendment (Effect of Other Laws) Bill 1991 (Cth).
 J Evans, ‘Orders for Papers and Executive Privilege: Committee Inquiries and Statutory Secrecy Provisions’ (2002) 17(2) Australian Parliamentary Review 198, 210.
 H Evans (ed), Odgers’ Australian Senate Practice (12th ed, 2008).
 Parliament of Australia—Senate, Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters (1989), [2.33].
 Ibid, [2.35]–[2.38].
 Exposure Draft, Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2009 (Cth) sch 1 pt 1 cl 355-60(3).