Freedom of Information legislation meets 1688 Bill of Rights in Supreme Court battle over access to information. Rex Patrick reports.
On December 4, an argument will be had in the South Australian Court of Appeal as to how freedom of information laws and parliamentary freedom of speech laws work when they come together. Do they work in harmony (my proposition), or does one freedom kill the other, which is the South Australian government’s proposition?
And how much weight should be put on a law first enacted in 1688, albeit included in both Federal and State Constitutions? Perhaps South Australia’s Solicitor-General, Mike Wait, can carry his musket. Perhaps my King’s Counsel, Chad Jacobi, can brandish his flintlock. And perhaps the three judges can revert to their traditional dress and don their 17th-century wigs.
To tell this story, I’m going to have to look back to the reign of King Charles I and its aftermath.
Dying for Privilege
In 1629, King Charles, desperate for funds, had invited his Parliament to approve certain financial measures. Instead, nine members of the House of Commons proceeded to debate three resolutions pointedly aimed at the King’s counsellors (it would have been treason to direct them at the King).
Despite the efforts of the Speaker of the House to shut down the debate, on instruction from the King, the doors of the chamber were locked and debate ensured, while the King’s soldiers hammered loudly on the outer doors. This most dramatic defiance of the sovereign’s will and the sovereign’s armed officials was reported in news sheets and debated at taverns and meeting places throughout the land.
In response, the King rounded the MPs up, put them in the Tower of London and invited them to apologise. Four of the MPs refused to apologise and were formally charged and brought before the King’s Bench. The MPs argued they were entitled to freedom of speech on account of ‘parliamentary privilege’, but, with a bit of pressure on the judges from Charles, they were convicted and heavily fined and returned to the Tower.
Eliot died in the Tower from consumption in 1632, the Parliament’s first martyr. King Charles was later tried for tyranny and treason, convicted and beheaded in 1649.
Bill Of Rights 1688
Eliot’s martyrdom was rewarded in 1688 when William of Orange, in exchange for being invited to take the throne, signed the Bill of Rights, which acknowledged that their power came from the legislature rather than from any concept of the ‘divine right of kings’.
The Bill established key democratic rights; that parliaments were supreme, that there shall be free elections, that there shall be no cruel and unusual punishment, that taxes shall not be levied without the permission of Parliament, etc.
Article 9 of the Bill of Rights states,
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.
The ‘other place’ is normally considered to be a tribunal or commissioner where impeaching or questioning what was said in parliament might result in a legal consequence.
The purpose of this privilege is to ensure the independence and integrity of the legislative process, allowing for open debate and scrutiny of government without fear of external interference or legal challenge.
It’s our privilege
Despite being 100 years older than Captain Arthur Philip’s English colonisation of Australia, the privilege enters into Australian law through Section 49 of the Australian Constitution and various other states’ constitutions and Acts.
Many people think it’s a privilege that belongs to ‘bloody politicians’, but that’s incorrect. In the 1988 High Court case of Hearne v Street, Chief Justice Gleeson stated:
Parliamentary privilege exists for the benefit of the people who are governed by laws made by the Parliament concerned.
Indeed, the privileges of a Parliament are closely interconnected with the historical privileges of the people. Just like legal privilege belongs to the client, parliamentary privilege belongs to citizens. It allows MPs and senators to say in parliament what they can’t say outside it without the risk of being sued in court.
FOI implications
If you try to use Freedom of Information Laws to get access to the briefs officials prepare to take to Senate Estimates, you will almost certainly be successful. They are generally released, and they normally contain a trove of information about what’s going on inside a department or agency of government.
But in all of the states, they’ll refuse access to similar briefs, saying that releasing the briefs under FOI will infringe the privilege of the Parliament. Same 1688 provision, same FOI exemption, different outcome.
So, I thought I’d take on the states, starting in my home state of SA.
Legal argument
The legal argument is pretty straightforward. How can mere disclosure of what an official is prepared to inform their appearance before a parliamentary committee involve any ‘questioning or impeaching in a court or other place (tribunal/commission)’?
The Hansard transcript of parliamentary proceedings attracts parliamentary privilege, but can be used everywhere except in a court or other place (tribunal/commission). Disclosure is not the legal test.
The question was dealt with by SA Supreme Court Justice Hughes. Immediately before taking the bench, Justice Hughes worked in the South Australian Crown Solicitor’s office, the office that takes on FOI cases for the Government to defend government secrecy. I generally have a pretty good FOI win record in tribunals, but I have lost five FOI cases from six before Justice Hughes.
That includes the parliamentary privileges case now subject to appeal, where she determined:
“I consider that the FOI Act creates a statutory circumstance by which the executive arm of Government, in the fulfilment of its statutory obligation to administer the freedom of information laws, is endowed with the status of “other place”.
How terrible it would be if governments could use our privilege to keep information from us.
Appeal
The appeal is important because Justice Hughes’ decision could be used by the Feds to stop the ongoing release of Senate Estimates briefs.
I’m feeling confident, though. Chad Jacobi KC’s flintlock is loaded, and he’s very skilled at using it. And I’m pretty sure Solicitor-General Mike Wait SC only has limited musket balls in his bandolier. We’ll just have to wait and see how the judges feel about things.
Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."