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Tuesday, March 09, 2010

Bill of Rights 1688 still handy for the Government; 21st Century charter another story

At a time when the Commonwealth Government is reported to have put the brakes on the charter of rights recommended by the Brennan Committee, and dire and often off - the - map predictions have been made about the repercussions of embracing such a radical idea, it is ironic that the Bill of Rights of 1688 came in handy when the Department of Broadband the Digital Economy and Communications was arguing successfully against production of documents sought in civil proceedings brought by the liquidators of Optel in the NSW Supreme Court.

It was a minor point in a matter that otherwise involved public interest immunity claims on the basis of legal privilege and cabinet documents. The decision also included a reminder [73-85] that in the courts at least such claims are not absolute and must be weighed against disclosure in the public interest for the purpose of the proper administration of justice.  Despite the views of commentators on the outside, government isn't interested in requiring that sort of balancing of interests under the Freedom of Information laws when  documents are claimed exempt on these grounds.

In this decision however when neither legal privilege nor cabinet process arguments were available to support a refusal to disclose one of a number of documents, Justice Austin "not without hesitation," concluded the 1688 Bill, 300 years later, served to protect from production Question Time briefs prepared for the Minister and Prime Minister, on the basis that disclosure would "impeach the proceedings  of Parliament."
The document was an e-mail from an Assistant Secretary in the Prime Minister's Department to various named people in two parts: the first disclosed a Question Time brief containing information for the Minister's possible use in Question Time in the Senate, the second part a Question Time brief for the Prime Minister in the House of Representatives. It was contended both parts were prepared for purposes of or incidental to the transacting of business in the Senate or House of Representatives, and therefore protected by s 16. of the Parliamentary Privileges Act 1987.

Justice Austin found accordingly and [at 115] went on to consider whether under article 9 of the Bill of Rights, the issue of impeachment of the procedures of Parliament arose. A Queensland Court of Appeal precedent held that article 9 and s 16 had the effect of protecting such documents from compulsory production under a court order, on the ground that a compulsory production order would "impeach" the proceedings of Parliament. In that decision Justice McPherson adopted a dictionary definition for the word "impeach", so that conduct that would impede, hinder or prevent, or hurt detrimentally or prejudicially, or impair (and therefore "impeach") the transaction of the business of a House would impeach the proceedings of the Parliament...

Justice Austin [at118] noted there was no specific evidence  that anyone would be
"impeached" (in the sense of impaired or deterred or prejudiced) by producing document 4, nor (apart from the question of legal professional privilege) document 1. Nevertheless, and not without hesitation, I have reached the conclusion that compulsory production of these documents would "impeach" (as explained in Rowley v O’Chee) "proceedings in Parliament" (as extensively defined in s 16(2)(c) of the Parliamentary Privileges Act). It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament. To take a step that would have that consequence would, I think, derogate from the force of the Bill of Rights and run contrary to the historical justification for that legislation, so ably sketched by McPherson JA (and see Mees v Road Corporation (2003) 128 FCR 418; [2003] FCA 306, at [75] -[79] per Gray J).

As to the current debate about a charter of rights I'm with Adam McBeth of the Castan Centre for Human Rights Law who commented in response to the "wave of misinformation" on the subject, and argued the case for action by government, but at least a nod to The Australian for giving him the space:
"Successive Australian governments have held out a promise to the world by ratifying international treaties, that our government at home would abide by internationally agreed human rights standards.However, almost uniquely among developed countries, Australians have had no way of holding their government to that promise. No other developed country besides Australia thinks human rights belong in the ``non-legal'' realm.

Australians shouldn't be relaxed and comfortable either that the Bill of 1688 also provides "no 'popish prince' could 'inherit, possess, or enjoy the crown."

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