Amann Aviation Pty Ltd v Commonwealth of Australia

[1988] FCA 435

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CATCHWORDS	!
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Parliamentary Privilege - Right of free speech - Bill of Rights

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1688, s.1, art. 9	- tender of Hansard seeking to impugn conduct	!
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of Minister - Parliamentary	Prlvileges	Act	1987,	s.16(3).	1 :
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Evidence - Tender of newspaper report of proceedings in

Parliament - whether breach of Parliamentary privilege - whether

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inadmissible as hearsay.	I	'
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AMANN AVIATION PTY. LIMITED (Applicant)	v. COMMONWEALTH OF
AUSTRALIA (Respondent)

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No. G667 of 1987	_ .
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Beaumont 3. Sydney
12 August 1988

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IN THE FEDERAL COURT	OF AUSTRALIA	)
)

NEW SOUTH WALES DISTRICT REGISTRY	) NO. G667 Of 1987 )
GENERAL DIVISION	1

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BETWEEN:	AMANN AVIATION PTY. LIMITED	t :
Applicant

AND: COMMONWEALTH OF AUSTRALIA

?:.

Respondent

CORAM :	BEAUMONT J
PLACE:	SYDNEY
DATE :	12  AUGUST 1988

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MINUTES OF ORDER i -

THE COURT RULES that the tender of documents, M.F.I.	" 2 6 " and
"27" be rejected.

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IN THE FEDERAL COURT OF AUSTRALIA	) 1
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G 6 6 1 Of 1987
)

DIVISION GENERAL 1

BETWEEN:	A W N AVIATION PTY. LIMITED
Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

CORAM :	EEAUMONT J
PLACE :	SYDNEY

DATE : 12 AUGUST 1988

REASONS FOR JUDGMENT .

(ON ADMISSIBILITY OF EXTRACT FROM HANSARD)

The applicant seeks to tender an extract from Hansard.

The respondent objects to the tender on the ground that it is

prohibited by s.16(3) of the Parliamentary Privileges Act 1987.

In order to understand the arguments advanced in support

of, and in opposition to, the tender, some background matters

should be mentioned. The applicant has sued the respondent for

damages for breach of contract for the alleged unlawful

termination of the "Coastwatch" contract. In its Defence, the

respondent says that its termination was justified on several

grounds. In its Reply, the applicant says that the respondent

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was not entitled to terminate because the respondent was not ' ,

itself then ready and willing to perform the agreement (see

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Carter, Breach of Contract (1984) at pp.347-350). The applicant

gives further particulars of its Reply to the effect that, prior

to	its termination of the "Coastwatch" contract, the respondent
had entered into	an agreement with Skywest Aviation Pty. Ltd.
("Skywest") that Skywest would provide the services agreed to	be

provided by the applicant; that, shortly prior to the

termination of the applicant's contract, Sir Peter Abeles, a

director of Skywest, suggested to Senator Evans, the Minister

administering the Department responsible for the coastwatch

arrangements, that the respondent should grant no concessions to

the applicant in the performance	of its contract; and that the	' i
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Minister then decided to insist upon full compliance	by the
applicant with every requirement of its contract.

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The applicant seeks to tender part of a question put to

the Minister in the Senate on 16 December 1981 together with part

of the Minister's answer. Hansard records the following (the

material sought to be tendered has been emphasised):

"COASTWATCH CONTRACT

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conversation?

Senator GARETH EVANS I simply cannot recall. I did

have one conversation which touched on that in the

aftermath of the acquisition by Ansett Airlines of

Australia of Skywest Aviation Pty Ltd, the substance

of which was that Ansett had no particular interest

in the matter one way or another and that I should

resolve it as I saw fit, based on the contractual

merits of the occasion, without the need to be

concerned that here would be any litigation

initiated of the kind that I think was being

threatened in a roundabout way, or more directly by

the Skywest management at the time. I have no

recollection of when that conversation was. I	think
that it was the only conversation	I have ever had on

the subject. Certainly It was one that does not give

any encouragement to those conspiracy theorists

around the place who have seen all along some

mysterious third party or some other hand lying i I

behind the course of events. That is absolute nonsense. It is particular nonsense in the context

of Ansett's interest in this, which was	minimal."
As has been noted, the tender is said	by the respondent

to be prohibited by s.16(3) of the Parliamentary Privileges Act

1987.   In order to understand the mischief sought to be remedled

by its provisions some reference should be made to the case law

which preceded it.

In - R v. Turnbull [l9581 Tas. S.R. 80, on the trial of

charges of official corruption, the Crown sought to lead evidence

of statements made in the Tasmanian House of Assembly by the

prisoner in his capacity as Treasurer of the State of Tasmania.

Gibson J. upheld an objection to the tender. He referred	(at	! '
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p.84) to the declaration in the Bill of Rights 1688 (s.1, art. 9)

that "the freedom of speech and debates on proceedings in

Parliament ought not to be impeached or questioned in any Court

or place out of Parliament". He then said that "[tlhe necessity

with particular force to those of the responsible Ministers of	for protection in relation to statements in Parliament applies
the Crown." (See also the discussion by Professor Enid Campbell,
Parliamentary Privilege in Australia (1966) at pp.36-7).

In Turnbull, the Crown also sought to lead evidence of

the times of certain proceedings in the House. Gibson J.

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disallowed the objection, saying (at p . 8 4 ) that there was no need

to protect this information from disclosure.

In Dingle v. Associated Newspapers Ltd. 119601 2 Q.B.

405, in an action for damages for libel, questions of

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parliamentary privilege arose as a result of an indication that	' ,
the plaintiff would attack	a report of a select committee of the
House of Commons. Pearson	J. held that no such attempt could

properly be made outside Parliament. He relied on the reasoning

in Bradlaugh v. Gossett [l8841 12 Q.B.D. 271, per Stephen J. at

pp.278-9, that what is said or done	within the walls of the House
of Commons cannot be inquired into in	a court of law.

In Church of Scientology of Californip v. Johnson-Smith

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[l9721 1 Q.B. 522, another libel action, the plaintiffs sought to

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refute the defendant's plea of fair comment by reading extracts	I
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from Hansard in order to establish malice. Excluding the

evidence, Browne 3. stated (at pp.529-530) that what is sald or

done in the House "cannot be examined outside Parliament for the
purpose of supporting a cause of action even though the cause of

action itself arises out of something done outside the House."

Browne J. also accepted, as another basis for the privilege, that	1 :
a member of Parliament must have a complete right of free speech in the House "without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter" (at
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p.530). Referring to a submission put by the Attorney-General

that Hansard could be read only for a limited purpose, Browne J.

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stated (at p.531):

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"[The Attorney-General] said [Hansard] could be read

simply as evidence of fact, what was in fact said in

the House, on a particular day by a particular

person. But, he said, the use of Hansard must stop

there and that counsel was not entitled to comment
upon what had been said in Hansard or to ask the jury

to draw any inferences from it .... But the general

prlnciple is qulte clear, I think, and that 1s that

these extracts from Hansard. ..must not be used in any

way which	might involve questioning, in a wide sense,
what was	said in the House..."

Art. 9 of the Bill of Rights was considered by Gibbs

A.C.J. in Sankey v. Whitlam (1978) 142 C.L.R. 1 at pp.35-7. The

Acting Chief Justice sald (at p.37) that the English authorities established that -

"...a member of Parliament, even if he has not

obtained the permission of the House, cannot object

to giving evidence of facts that occurred in the

course of a sitting of Parliament, such as that a

particular member spoke (without disclosing what he	! ,
said) or	was present and acted in' a particular
capacity (for example as Speaker, or as a	peer). The

fact that documents were tabled (without disclosing

who tabled	them) seems to be evidence of the same
kind, i.e.,	merely of an event which happened, and

must be divulged by a member called as a witness,

even without the consent of the House."

In Finnane v. Australian Consolidated Press Ltd. [l9781

2 N.S.W.L.R.	435, an	action to restrain the further publication
of material said to be confidential, counsel for	a	defendant

sought to cross-examine the plaintiff concerning statements made

in the Federal Parliament. Needham 3. rejected the question,

saying ( a t p.438-9) that, although Hansard could be used for the

limited purpose of proving what was ald, "[ilf anything further

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were to be adventured, for example, comments on the materlal by	?	.
counsel or, no doubt, by the court, that would be a matter in which it would be likely that the House would exercise its privileges.. ."	I	'

In Uren v. John Fairfax E, Sons Ltd. [l9791 2 N.S.W.L.R.

287, the defendant sought to interrogate the plaintiff with a

view to seeking admissions that the plalntiff, then a Minister,

made certain speeches in the Commonwealth Parliament. Begg	J.
allowed the interrogatories on the footing (at	p.289) that by
this means the defendant was "merely seek[ing] to prove, as	a

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matter of fact, that	the plaintiff and others had made certain	!
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speeches in the House - not in any way to criticise th m,. nor to '. ,

call them in question in these proceedings, but to prove them as	b .
facts upon which the defendants allege comments were made in the

publication now sued upon by the plaintiff." I

In Mundey v. Askin [l9821 2 N.S.W.L.R. 369, a defamation I

action arising from an election speech, Hansard was admitted into

evidence to prove, as a fact, that certain things had been said

in the course of a debate in the Legislative Assembly. The Court -

of Appeal said (at p.373) that "[tlhere was no question of any

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further examination of the circumstances in which the debate	h d
taken place or	the motives of the participants, or of anything
else which might infringe the privilege	..."

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Mundey v. Askin was followed by Hunt J. in Henninq v.

Australian Consolidated Press Ltd. [l9821 2 N.S.W.L.R. 374. It I .

was held that Hansard could be used to prove what	was stated in
Parliament but it was accepted	(at p.375) that the "privilege is

properly invoked to prevent any inquiry into the motives and
intentions of Members of Parliament in relation to anything they
said or did in Parliament."

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Mundey v. Askin was also followed In Comalco Ltd. v.

Australian Broadcasting Corporatlon (1983) 50 A.C.T.R. 1 where,

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in an action for defamation, Blackburn	C.J. allowed the tender of
Hansard. Dlsagreeing with the decision in Finnane's Case,	the
Chief Justice said	(at p.5):

"...the way In which the court complies with Art g.... II '>

and with the law of the privileges of Parliament, is	,-
not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any

submission or inference. The court upholds the

privileges of Parliament, not by	a rule as to the
admissibility of evidence, but	by its control over

the pleadings and the proceedings in court."

The Church of Scientology Case was followed in	R v.
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Secretary of State for Trade; Ex parte Anderson Strathclyde

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plc [l9831 2 All E . R . 233. In an application for judicial

review, it was held that the report in Hansard could not be
used to seek relief in respect of something which occurred

outside Parliament. Dunn L.J. said (at p.239):

"...there is no distinction between using a report in

Hansard for the purpose of supporting a cause of

action arising out of something which occurred

outside the House, and using a report for the purpose

of supporting a ground for relief in proceedings for
judicial	review in respect of something which

occurred outside the House. In both cases the court

would have to do more than take note of the fact that

a certain statement was made in the House on a

certain date. It would have to consider the

statement or statements with a view to determining

what was the true meaning of them, and what were the

proper inferences to be drawn from them. This, in my

ludgment, would be contrary to art 9 of the Bill of

Rights. It would be doing what Blackstone said was

not to be done, namely to examine, discuss and

adjudge on a matter which was being considered	in
Parliament. Moreover, it would be	an invasion by the
court of the rlght of every member	of Parliament to

free speech in the House with the possible adverse

effects referred to by Browne J."

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In - R v. Murphy (1986) 5 N.S.W.L.R. 18 a question arose

as to the use which could be made of evidence given before a

Select Committee to the Senate. It was accepted by the parties

that the proceedings of such a committee are included within the

phrase "proceedings in parliament" in art. 9 of the Bill of

Rights. Hunt J. ruled, in advance of the trial, that, without

breach of privilege, witnesses could be cross-examined in

relation to the evidence which they had given before a Senate

Select Committee; and that this evidence could be the subject of

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comment or used to draw inferences or conclusions. Hunt J., I

following Cantor J., who gave a similar ruling at the first

trial, held (at p.38) that the only protection given by art. 9 is

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to prevent court or similar proceedings having legal consequences

against member a of parliament or a witness before a i

parliamentary committee where those legal consequences have the .

effect of preventing that member (or committee -witness)

exercising his freedom	of speech in parliament (or before a
committee) or of punishing him for having done	so.

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Finally, in - R v. Jackson (1987) 8 N.S.W.L.R. 116,

Carruthers J., following the English authorities and not

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following	Hunt J.,	rejected	the	tender	of	Hansard	by	the	L -
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prosecution in a criminal trial. In support of the tender, the prosecution had argued that the evidence was admissible in that the statements made by the accused, then a Minister, in the House	_ ,
related to material issues in the trial and were,	by reference to

the other evidence in the trial, "patently untrue" (at p.117).

After referring to Anderson Strathclyde, supra, Carruthers	J.
said (at p.120):

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"I am in general agreement with the views expressed by

Dunn L.J. with regard to the purpose for which

Hansard may be used in court, whilst at the same time

acknowredging the difficulty of defining with

precision the amblt of art 9 .

The present case is clearly distinguishable from

Munde . Here the prosecution sought to do far more

-l+ t an merely prove what Jackson said in the House. It

sought in support of its case to establish that

Jackson told lies in the House in relation to matters

which were material issues in the trial, namely the I j

nature of his relationship with his co-accused Harris i.

and the circumstances under which certain

identifiable prisoners were released under licences

granted pursuant to	the	Crimes Act 1900,	s . 4 6 3 .	L	'
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The prosecution sought to prove, as I have said, that

the sole motive for such alleged lies was a

realisation of guilt by Jackson and	a	fear of	the
truth.

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If I were to have allowed the tender of Hansard for	jl'
these purposes against Jackson this would necessarily

have involved an inquiry into his motives and

intentions in that which he said in the House.

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Such an inquiry would, in my	view, contravene art 9.
It would necessarilv have involved an imoeachina or	~~

questioning in this- Court of debates or -procee&ngs

in Parliament ."

By s .49 of the Constitution, it is provided that the i

powers, privileges, and immunities of the Senate and of the House

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of Representatives, and of the members and the committees	of ach
House, shall be such	as are declared by the Parliament, and until

declared shall be those of the Commons House of Parliament of the

United Kingdom, and of its members and committees, at the

establishment of the Commonwealth. (See R v. Richards; Ex parte -

Fitzpatrick and Browne (1955) 92 C.L.R. 157.)

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The Parliamentary Privileges Act 1987 ("the Act") IS, as

its long title indicates, a statute declaring the powers,

privileges and immunities of each House of Parliament and of	the
members and committees of	each House, and for related purposes.

Except to the extent that the Act expressly provides otherwise, the powers, privlleges and immunities of each House, and of the

members and the committees of each House, as in force under

section 49 of the Constitution immediately before the

commencement of the Act, continue in force. Parliamentary

privilege in court proceedings is dealt with by s.16: "[flor the

avoidance of doubt, it is...declared and enacted that the

provisions of art. 9 of the Bill of Rights, 1688 apply in

relation to the Parliament of the Commonwealth and, as so

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applying, are to be taken to have, in addition to any other

operation, the effect of the subsequent provisions of [s.16]"

(s.16(1)). "Proceedings in Parliament" includes "all words

spoken and acts done in the course of, or for purposes of or

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incidental to, the transacting	of the business of	a House"
(s.16(2)).	Section 16(3), the provision	now relied on by the

respondent, is as follows:

"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, conce'rning proceedings in Parliament,	L
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by way of, or 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) otherwise questioning or establishing the

credibility, motive, intention	or good faith
of any person; or

(C) drawing, or inviting the drawing of,

inferences or conclusions wholly or partly

from anything forming part of those

proceedings in Parliament."

In relation to proceedings in a court so far as they

relate to the interpretation of an Act, neither s.16 nor the Bill

of Rights, shall be taken to prevent or restrict the admission in

evidence of a record of proceedings in Parliament published by or

with the authority of a House or a committee or the making of

statements,	submissions	or	comments	based	on	that	record
(s.16(5)).

In explaining the Bill for the Act in his second reading

speech, the President of the Senate said (Hansard, proceedings in

the Senate, 7 October 1986 at p.892):

"The main purpose of thls Bill is to avoid the

consequences of the very narrow interpretation and

reading down of article 9 of the Bill of Rights 1688

in its application to the Australian Parliament in

the judgments of Mr Justice Cantor and Mr Justice

Hunt of the Supreme Court of New South Wales in each

trial in	R v Murphy."
After discussing . some of the	aut~orities, including

Jackson, the President said (at pp.894-5):

"The narrow reading down of article 9 contained in the

judgments of Hunt, J would, if followed, pose a

serious threat to the freedom f speech of members of

parliament, to whom it applies, as well as to

witnesses before parliamentary committees....~f a

member were called as a witness in a civil or

criminal action it would be open to counsel to

cross-examine the member on the member's contribution

to parliamentary proceedings for the purpose of

discrediting the memberIs evidence.	It is clear, therefore, that the judgment of Hunt, J
proceedings to be used against the member in court proceedings in a way not thought possible hitherto. Such a situation is clearly a serious inroad on the freedom of speech in Parliament and ought not to be countenanced....
The Bill proceeds from the starting point that
article 9 is part of the law of Australia under
section 49 of the Constitutlon. and then indicates
that it is to be given the broad and previously-
established interpretation. There are two reasons
for framing the B111 in this fashion: First, because
the Bill must start with a general declaration of the
immunity of parliamentary proceedings from question or examination, and the language of article 9 is difficult to improve upon; and secondly, to make
clear the Parliament's belief that article 9 should
properly be interpreted, as the Bill provides, and always should have been interpreted that way."

would allow a member's participation in parliamentary

A similar explanation was given to the House of

Representatives by the Speaker in the second reading speech in

that House (See Hansard proceedings in the House of

Representatives, 19 March 1987 at pp.1154-6).

In the explanatory memorandum accompanying the Bill,

there is an explanation of the oblectives sought to be achieved

by c1.16 of the Bill. There is a discussion of the English and

Australian cases. It is said	(at p.9)	that the purpose of the
clause "is to avoid the consequences of	the,sinterpretation	of

article 9 of the Bill of Rights 1688 by the ludgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales."

Referring to sub-cl. 3 of c1.16, the memorandum contains

the following statements (at pp.12-14):

"The following is a further exposition of those

paragraphs:

(a) calling into question parliamentary

proceedings

This is the most obvious and clear

prohibition contained in article 9. It

prevents, for example, a statement in debate

by a member of Parliament or the evidence of

parliamentary a witness being directly

attacked for the purpose court of

proceedings, or the motives of the member or

the witness in speaking in Parliament or

giving evidence being attacked. Thus, it

cannot be submitted that member's

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statements in Parliament were not true, or reckless, to support a submission that the

member is an untruthful, or eckless,

person.

(b)	attacking the credibllity, motlves, etc. of
a person on the basis of proceedings in

Parliament

This would prevent, for example, a member's

speech in debate or a parliamentary 1 -

witness's evidence being used to establish
their motives or intention for the purpose
of supporting a criminal or civil action

against them, or against another person.

Thus a member's statements outside

Parliament cannot be shown to be motivated by malice by reference to alleged malice in the member's statements in Parliament.

(C)	drawing inferences or conclusions to support a criminal or civil action
This would prevent, for example, a jury
being invited to infer matters from speeches
in debate by members of Parliament or from
evidence of parliamentary witnesses in the course of a criminal or civi1,action against
them or another person. Thus a member's I - '
speech in Parliament cannot be used to
support an inference that he member's
conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament
which establishes that fact, e.g., the
tendering of the Journals of the Senate to
prove that a Senator was present in the
Senate on particular a day. These
prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier

prevent is proceedings in Parliament being

court judgments. Basically, what they

"used a ainst" a person in the broad sense;

y l n o - t being made the subject of

a criminal or civil action, such as where a

member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person."

On behalf of the applicant it is submitted that the

tender of the extract from Hansard does not offend s.16(3)

because it is for the limited purpose of proving that the Senator

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made a statement in Parliament in which he admitted having the
conversation alleged. It is true that, before the enactment of

s.16, it was permissible to use Hansard for the limited, but non-

contentious, purpose of proving that a member of Parliament was

present in the House on a particular day. According to the

memorandum explaining the operation of s.l6(3)(c), this is still

a	legitimate approach. This would accord with the language of
5.16 and with its apparent purpose, that is	to say, that a member

of Parliament should be able to speak in Parliament "with

impunity and without any fear of the consequences" (per Gibbs

A.C.J. in Sankey v. Whitlam, supra, at p.35).	Where, as here,
the subject matter of the passage from Hansard is contentious	in

that it is sought to be used to impugn the conduct of the

Senator, in the context of a denial by the respondent of any

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impropriety, it is almost inevitable that the' tender of Hansard

would lead to an examination of the circumstances in which the Senator came to make the statement and that this would further lead to an attempt to assess the credibility of this evidence

and to compare it with other evidence already given. Such an

examination, in a contentious area, cannot	be reconciled with the
complete freedom of	speech envisaged by the Bill of Rights and

the Act. It would be otherwise if the tender were for a

non-contentious purpose, for instance, to prove that certain

documents were tabled in Parliament, without disclosing who

tabled them (see Sankey v. Whitlam, supra, at pp.35-37); or, as

in Turnbull, to prove the time of proceedings. If what is

involved in a tender of evidence from Hansard	is	simply not
capable of being contentious, it	is difficult to see how	the

right of free speech could be affected.

But what is sought to be done here is to use Hansard to

~ustify an inference that Senator Evans was Influenced by Sir

Peter Abeles in the context of the respondent's decislon to

I	terminate the applicant's contract. This is a highly contentious
matter. In my view, the present tender is by way of or for the
!	purpose of questioning the motive, intention or good faith of the
Senator and is thus proscribed by s.l6(3)(b). Also, in my
opinion, the tender is by way of, r for the purpose of, inviting the drawing of inferences or conclusions from what was said in
the Senate and is thus made unlawful by s.l6(3)(c). The tender
must be rejected accordingly.

It was further submitted on behalf of the applicant that

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s.16(3) was beyond power and unconstitutional because it involved
an impermissible interference with the judicial function. In my

view, subject to one possible qualification, to which reference

will be made shortly, there is no substance in the argument.

Section 49 of the Constitution contemplates that the Parliament

shall have the power to declare the powers, privileges and

immunities of the Senate and of the House of Representatives (see

- R v. Richards; Ex parte Fitzpatrick and Browne, supra). The

purpose and effect of s.16 of the Act is, as s.16(1) states, to

avoid any doubts which might otherwise have arisen. The

provisions of s.16(3), in my view, are, in substance, declaratory

of the position both in England and in Australia before	the
enactment of the Act. Since s.16 has	as its intended operation
the	clarification of doubts which may have arisen from the

decision in - R v. Murphy, supra, it is, I think, impossible to

suggest that this provision travels beyond s.49. Further, in my

view, it cannot be said that the Act involves any impermissible interference with the judicial function. In - R v. Richards; Ex

parte Fitzpatrick and Browne, supra, it was held that it is for

the courts to judge of the existence in either House of

Parliament of a privilege but, given an undoubted privilege, ~t is for the 14W5e to judge of the occasion and of the manner of

its exercise (see at pp. 162, 166). There is nothing in s.16, in

its terms or by any process of implication, which purports to

take away the power of the courts in these respects. The Act

proceeds upon the footing that it is open to, and no doubt, the

duty of, the courts to construe the provisions of the Act and to

apply them in a partlcular case. The actual occasion for

exercise of a privilege is another matter.	In my opinion,	s.16
is a valid provision.

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When senior counsel for the applicant sought to tender	.
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the extract from Hansard, senior counsel for the respondent

opposed the production of the material to the court on the ground _.

that even to read it would be a breach of s.16(3). In my view,

it is open to the court, without any breach of	s.16(3), to look
at the extract from Hansard on a de bene esse basis, that is	to

say, to receive it provisionally for the purpose of a temporary

and conditional examination in order to enable the court to

inquire whether the reception of the extract into evidence is, or

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is not, prohibited by	s.16(3)	as properly construed. In thls
way, there can	be no suggestion of	any impalrment of the judicial

function. The document can be looked at by the court for the
purpose of ascertaining whether its reception into evidence would

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or would not amount to a breach of Parliamentary privilege. rf,

on the other hand, 5.16 should be construed in the manner

contended for by senior counsel for the respondent, that is to

say, if the court were not able to even look at the extract on	a
provisional basis without offending s.16(3), then a question of
constitutional invalidity might have arisen. However, as has	I .
been said, in my	view, s.16(3) should not be construed in thls

way. It is open to the court to consider the document de bene

esse as was done in the Anderson Strathclyde Case, supra, at

p.239. In my view, the provision is within power.

The applicant also seeks to tender part of a newspaper

report of proceedings in the Senate. The report, in the "Sydney

Morning	Herald"	dated	17 December 1987, is	as	follows	(the
*

portion sought to be tendered is emphasised):'

"NO PRESSURE IN ABELES'S AMANN CALL, SAYS EVANS

CANBERRA:  Minister The Transport for and

Communications, Senator Evans, confirmed yesterda

that prominent businessman Sir Peter Abeles ha

phoned him about the contract	for surveillance of
Australia's northern coastline.

But Senator Evans [said] there was nothing improper

about the call and stood by his statement to the	'
Senate in September that neither Sir Peter nor anyone
on the Government to cancel the contract to -ann

acting on his behalf had exerted pressure of any kind

Aviation.

i
I

Skywest lost the contract	to Amann in march. But it
was asked to continue the operation after the	-ann
contract was terminated.
Under Opposition questioning, Senator Evans sald	he

did have one conversation with Sir Peter "which

. touched upon that in the aftermath of the acquisition

by Ansett of Skywest".

The substance was that Ansett had no particular

interest in the matter one way or the other, and that

I should resolve it as I saw fit..."he told

Parliament.

. '

i '

, . ..

Sir Peter had assured him that he could consider	the	.	L	.
matter "without need	to	be	concerned" that there	i

would be any legal action by Skywest.

The Opposition Leader in the Senate, Senator Chaney,

i	said Skywest had threatened to withdraw its services
from the coastwatch program. He tabled a report to

i

the	minister from the associate secretary in the
Transport Department,	Mr Roger Beale, which warned

that the Government would be forced to bear "much of

the odium" if the threat was carried out.

- ROSS DUNN"

' J

In my opinion, the tender of this material should be

rejected for two reasons. First, its reception would infringe

the provisions of	s.16(3)	for the reasons given in dealing with	, ,
i

the tender of the extract from Hansard, that is to say, the i

purpose of the tender is just as much a proscribed purpose as the

tender of Hansard itself. The tender is thus made unlawful by

L

virtue of s.16(3). Secondly, in any event, the material is bad

in form, being hearsay only. It is tendered to prove that a

statement was made in the Senate by Senator Evans. Even ~f it

were permissible to treat this as an admission of fact made by

the Senator as the responsible Minister, thus falling within one

of the exceptions to the hearsay rule, it is not possible to

prove the fact of this alleged admission by the tender of a

newspaper report of proceedings I certify that this and the

in the Senate.

i

precedlng SE\rENT€EW ( 1 % )

pages are a true copy of the

Reasons for Judgment herein of

Mr. Justice Beaumont.	!
Associate Dated: 12 August 1988

Counsel and Solicitors L.C. Gruzman P.C., D.A. Cowdroy

for Appllcants:	and A.M. Gruzman instructed by Qwen D. Hodge & Son.
Counsel and Solicltors	D.E. Grieve Q.C., P. Comans
for Respondent:	instructed by Australian Government Solicitor
Date of Hearing:	2 , 3 , 4 , 9  August, 1988

Date Judgment Delivered: 12 August 1988

I