Attorney-General for the State of Tasmania v Casimaty & Anor

[2024] HCATrans 20

[2024] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 2023

B e t w e e n -

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

Appellant

and

GREGORY JOHN CASIMATY

First Respondent

HAZELL BROS GROUP PTY LTD (ACN 088 345 804)

Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 APRIL 2024, AT 10.00 AM

Copyright in the High Court of Australia

MS S.K. KAY, SC, Solicitor‑General for the State of Tasmania:   If it please the Court, I appear with my learned friend MS E.A. WARNER for the appellant.  (instructed by Office of the Solicitor-General (Tas))

MR B.R. McTAGGART, SC:   If it please the Court, I appear with MR G.M. O’RAFFERTY for the first respondent, Mr Casimaty.  (instructed by Leonard Fernandez Barristers & Solicitors)

MR S.P. DONAGHUE, KC, Solicitor-General of the Commonwealth of Australia:   May it please your Honours, I appear with MS E.H.I. SMITH and MR M-Q. T. NGUYEN for the Commonwealth Attorney-General, intervening.  (instructed by Australian Government Solicitor)

MR M.J. WAIT, SC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear with MR J.F. METZER for the Attorney‑General for South Australia.  (instructed by Crown Solicitor’s Office (SA))

MR A.P. BERGER, KC:   May it please the Court, I appear with MS P.M. BINDON for the Attorney‑General for the Australian Capital Territory, intervening.  (instructed by ACT Government Solicitor)

GAGELER CJ:   Thank you, Mr Berger.  Ms Solicitor, before you begin, I note that in paragraph 9 of your submissions in-chief, you say that:

the road works did commence and are now complete.

When did they reach completion?

MS KAY:   It is my understanding, your Honour, that they reached completion in the middle of last year.  There was an announcement from the Minister to that effect.

GAGELER CJ:   The completion of the works may raise a question about mootness and the utility of these proceedings.  You might just take that on board and address it at some stage in your submissions.

MS KAY:   Yes, certainly, thank you.  Your Honours, this appeal concerns a number of important matters directed to the principles of responsible government and the relationships between and respective roles of the courts, the Executive and Parliament.

Those matters arise in the context of Parliament’s oversight of the Executive in relation to the conduct of significant public works, but here with a particular focus upon the purpose and operation of the Public WorksCommittee Act1914 (Tas) and the ability of a court to determine compliance with section 16 of that Act and, assuming that a court is able to so determine, whether it may do so here without breaching Article 9 of the Bill of Rights.

The structure of our submissions is as follows. We will provide a brief overview of the factual and procedural background before undertaking a review of the relevant provisions of the Act, having regard to its purposes. Following that, we will look at the first issue, where the focus is upon whether enforcement of the prohibition in section 16 is justiciable with regard to the respective roles of the court – courts generally – and Parliament. We will then turn to discuss the second issue which, assuming there is a justiciable controversy, will focus upon the extent to which the Supreme Court may consider the Public Works Committee’s Report in determining whether there has been compliance with section 16 but without infringing Article 9.

If I could turn to the factual and procedural background.  As your Honours are aware, this matter has come to the Court on appeal relating to a strike‑out application, and as the facts have therefore not been found, the factual background is drawn largely from the pleadings and the description provided by the primary judge and repeated by the Full Court in the decision of Justice Brett.

I will return to consider the pleadings in further detail in our submissions concerning the second issue, but for now I just wanted to note a few key matters, if I could.  If your Honours could take up the book of further materials, at tab 6 of that book you will find the amended writ.

GAGELER CJ:   What page?

MS KAY:   Page 27.  You will see there that the claim:

is for a declaration and an injunction as set out in the statement of claim –

The writ, you will see, is an amended writ, it was amended to add the Attorney‑General as the second defendant, and that followed an order on the Attorney’s application to be made a party.  That order is at tab 3 of the book.  If I could turn to the amended statement of claim, which is tab 1 in the same book, the amended statement of claim is dated 17 December 2020, so it predates the Attorney becoming a party.  A defence was filed in relation to that statement of claim by Hazel Bros.

GLEESON J:   I am sorry – pre-dates?

MS KAY:   Yes, pre-dates.

GLEESON J:   The amended writ is dated 18 September 2020 and the amended statement of claim is dated 17 December.

MS KAY:   So, the amended statement of claim pre-dates the Attorney becoming a party.  The amended statement of claim was filed in December 2020.

GLEESON J:   I still do not understand.  The amended writ has the Attorney-General as the second defendant.

MS KAY:   Yes, and that was filed on 16 March 2021.

GLEESON J:   I see.  So, what is the statement of claim that was annexed to the amended writ?

MS KAY:   I understand that it is the amended statement of claim that sits in page 4 of the amended book of materials.  The amended statement of claim, you will see, does not include the Attorney-General.  So, the relevant amendment has not been to add the Attorney – presumably, at some point, if necessary, that will occur.

GORDON J:   For the moment, there is no relief sought against the State.

MS KAY:   Well, the impact of the orders that are sought is directly upon works of the State.

EDELMAN J:   But the orders that are sought have no utility any more.

MS KAY:   I would agree that the injunction certainly has no utility, in that the road works are complete, and that was a matter that was noted in the special leave application, and it was also observed in the Full Court, that the road works, although nearing completion, perhaps had not yet reached completion at that point, but they were certainly well underway.

GORDON J:   Well, same with the injunction.  The injunction is an injunction in relation to proposed works.

MS KAY:   Yes, I understand that, your Honour.

GLEESON J:   Can I just come back to this question of what statement of claim was annexed to the amended writ.  Although it has a stamp which says received 16 March, on page 28 of the book there are the words “Filed 18 September 2020”.  Is it agreed between the parties that, notwithstanding that date, the statement of claim that was annexed is the one that is at page 4 of the book of materials?

MS KAY:   No, I do not think there is any issue as to that.  That is the only relevant statement of claim.  Perhaps, since it has been raised, the question of the road works being complete, it certainly does raise some questions about the utility of the proceedings.  However, from the Attorney’s point of view, we have live proceedings on foot in the Supreme Court which may result in a declaration that the road works are effectively unlawful, for having breached the prohibition in the Public Works Committee Act, and that in turn will place an onus on the Executive to refer works to the Governor and an onus potentially on the Governor to refer those works to the Committee with the result that the Committee will then be under some obligation to sort this out from their point of view.

STEWARD J:   Is the utility deterrence only?

MS KAY:   No, I think it has a more significant impact, potentially in that it will require the Executive to act in the face of a court order that its road works are ‑ ‑ ‑

STEWARD J:   And what will the Executive do in case the declaration is given?

MS KAY:   I assume the Executive would do the right thing, and abide by the effect of it ‑ ‑ ‑

STEWARD J:   But what would that mean practically, though?

MS KAY:   As I indicated earlier, I expect that that would mean that the Executive would feel pressure to refer or ensure that the works were referred by the Governor – bearing in mind that it is the Governor in Council – to the Parliamentary Committee.

GLEESON J:   Is the form of the declaration that you are addressing something like the one that is on page 9 of the book of further materials?

MS KAY:   I understand that is the nature of the declaration sought, although the reference to “proposed” would become obsolete.  In the special leave application, a question was raised about what orders might be sought, and my learned friend addressed that, and might raise that with your Honours in his own submissions.

JAGOT J:   Given that it is a strike‑out, and the proceedings remain on foot:  one, it would not take much for the plaintiff’s claim in B to be amended.  I mean, if something is unlawful it gives a foundation for orders that it be demolished or not be used, or whatever it be.  Alternatively, your strike‑out application, in effect, is – not in form but in substance – virtually seeking a reverse declaration that it is not justiciable.  Your point is that the proceedings remain on foot.  There is a live issue that will have to be resolved one way or another.

MS KAY:   Yes, that is right. 

JAGOT J:   Based on the found illegality of what has occurred that there has been non‑compliance with an enforceable public duty. 

MS KAY:   That is exactly the reason why we are here, because of the ongoing impact of the Full Court’s decision in overturning the orders of Chief Justice Blow, and effectively reinstating the statement of claim and the action itself. 

BEECH-JONES J:   I will not take you off your argument.  Just before you get to the Act itself, outside of the Act what was the lawful authority to build the road?  Was it an exercise of executive power or was there some other legislation that authorized it to occur?

MS KAY:   I have not turned my mind directly to that, but I assume it would be the Roads and Jetties Act 1935, under which roads are built by the Minister, I think it is, in Tasmania.  There are also references in the pleadings to planning permits, so ‑ ‑ ‑

JAGOT J:   Is it a State highway?  The Roads andJetties Act seems to relate to State highways?  That is what I was wondering.  State highway, question number one, and that would suggest that somehow the Roads and Jetties Act must be enlivened or had been engaged with the authority or alternative.  Question two was the Planning Act, which I have not looked at.  So, you do not have a Crown exemption; you had to get development consent to proceed.  Is that how it works?

MS KAY:   Yes, that is how it works, and the road is definitely a State highway, and furthermore the Roads and Jetties Act also encompasses what are called subsidiary roads, which are effectively all of the roads combined which the State is responsible for.

JAGOT J:   But we can take it:  it is a State highway within the meaning of the Act. 

MS KAY:   Yes, I am happy to put that to the Court. 

BEECH-JONES J:   The other question I had was whether there was an appropriation that is pleaded for this building of this road; that is pleaded in the defence that there was.  Was that common ground that there was an Appropriation Act that passed through the House that both Houses have allocated funds for the road? 

MS KAY:   The Attorney has not pleaded to the statement of claim at this point, but we do not take any issue with that.  So, yes, it is common ground in that sense.

GORDON J:   Take no issue because you accept that that which is pleaded in the defence is correct for the present purposes?

MS KAY:   Yes, and we have had our own enquiries.  We have not looked at the particular detail of those Appropriation Acts, but we have confirmed that there were appropriations that related to the road works.  There are budget papers that are associated with that which makes some other reference, but, of course, none of this is in evidence before the court because of the nature of the way in which it has meandered its way to this Court.  Your Honours, shortly after the Attorney was made a party, the Attorney not only filed a defence – proceeded to file an interlocutory application, and that is found at tab 7 of the book of further materials.

GAGELER CJ:   So, that came before Chief Justice Blow.

MS KAY:   Yes, that is right.

JAGOT J:   Is the Attorney’s defence in the further book of materials?

MS KAY:   Sorry, your Honour, the Attorney has not filed a defence.

JAGOT J:   You have not filed – sorry, it is only the first ‑ ‑ ‑

MS KAY:   So, the interlocutory application was made ‑ ‑ ‑

JAGOT J:   Instead of a defence, sorry, I thought you said there was a defence.  No problem.

MS KAY: That interlocutory application is found on page 29. It sought orders pursuant to rule 259 of the Supreme Court Rules 2000 which allows a judge to order that an action be dismissed, or a pleading be struck out with judgment, and is accordingly in circumstances in which a pleading does not disclose a reasonable cause of action, or shows that the cause of action is frivolous or vexatious. Your Honours will see from the terms of the application that orders were sought dismissing the action on account of the amended statement of claim not disclosing a reasonable cause of action, in that there was:

no justiciable issue before the Court –

Or:

In the alternative –

striking out certain paragraphs of the amended statement of claim as offending parliamentary privilege.

GAGELER CJ:   The Chief Justice appears to have understood the first of those grounds as going to standing rather than justiciability.

MS KAY:   It was argued as a justiciability point, but I think there may have been a degree of conflation in relation to some of the relevant principles at that point.  As I will expand upon later, it is our case that the Chief Justice at that point did decide it on a justiciability ground, regardless of his findings in regards to standing.

JAGOT J:   Just by the by, the Appropriation Acts seem to be referred to in the other defence at pages 14 and 15 – the dates of them.

MS KAY:   Yes, thank you, your Honour.

JAGOT J:   Of the bundle of further materials.

MS KAY:   If I could turn back to the amended statement of claim, which is tab 1 of the book.  You will see in paragraph 1 that the plaintiff claims:

an interest in land situate at 51 Cranston Parade –

That land sits more or less adjacent to the highway as it approaches the Hobart airport.  And at 2A, it is claimed that the Department of State Growth is a “government department” and a:

general govt sector body . . . for the purposes s.15 of the Public Works Committee Act –

And at 2B that the Department of:

State Growth proposed to develop and construct the Tasman Highway/Hobart International Airport Interchange on land at the junction of Tasman Highway.

The plaintiff describes those works as “the Public Works”, which is important in a moment.  It is then claimed at paragraph 3 that the Public Works Committee “considered and reported” on the proposed works.  At paragraphs 9 and 11, there is a reference to a development application.  There is a reference there to the tender process which was undertaken, and it is suggested at 11B that:

“an alternative tender design” –

was presented by Hazell Bros.  At paragraph 11C, it is claimed that Hazell Bros was engaged to construct the works which are then described as the “(Hazell’s Public Works)”, and that is in contrary distinction to the reference in paragraph 2B to “(the Public Works)”.  That is the comparison exercise that is relevant to these proceedings.  Then, at paragraph 12, it is claimed that a further planning permit “was granted”.  Importantly, at paragraph 14 it is claimed that:

Hazell’s Public Works are not the same as the Public Works.

At 15, that:

Hazell’s Public works have not been referred to, considered, and reported upon by the Committee.

At paragraphs 16, 17 and 18 it is claimed that the works:

have not been referred . . . and reported upon –

and therefore must not commence, such that Hazell Bros intends to unlawfully commence the works.  Now, your Honours are aware that the primary judge struck out the amended statement of claim and dismissed the action.  Those orders obviously appealed to the Full Court, which allowed the appeal and set aside the orders of the primary judge.  So that is a brief overview of the background to this matter.

If I could turn now to the first issue, which is justiciable controversy, it deals with the question of justiciability. You will see from our written submissions that we deal with three interrelated matters in regards to the first issue. The first being whether a failure to comply with section 16(1) can give rise to a legal controversy involving rights and obligations. Secondly, whether section 16(1) creates an obligation owed to the public at large or, rather, to the Parliament, and thirdly, the ability of the courts to resolve or quell the controversy in the context of the principles of exclusive cognisance.

If I can just dwell on the meaning of justiciable controversy for a moment, I invite your Honours to go to the joint book of authorities and the decision of AZC20, which is found at volume 6, tab 40.  It is a recent decision, so I am sure your Honours are familiar with it.  Although that case was primarily concerned with the existence of a matter in a federal sense, and whether the appeal had become moot, the judgments in that case provide a useful description of what is required in order for there to be a justiciable controversy.

If I could ask your Honours to turn first to paragraphs [31] and [32], and it is the second element of the meaning of “matter” with which we are concerned.  So, in [31] – I am sorry, this is the judgment of Chief Justice Kiefel, Justices Gordon and Steward:

“matter” has two elements:  “the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76] –

which, obviously, is not relevant here, but importantly:

and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy”.

That is what is described as the second element and is discussed in paragraph [32] where their Honours said:

As to the second element, as was most recently affirmed in Unions NSW . . . (No 3)”), “[e]xceptional categories aside, there can be no ‘matter’ within the meaning of Ch III . . . unless ‘there is some immediate right, duty or liability to be established by the determination of the Court’ in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief”.

Justice Edelman also provided a detailed analysis.  If I could ask your Honours to turn to paragraph [68], which is on page 692 of the decision.  His Honour noted the three cumulative aspects of a justiciable controversy.  At paragraph [68]:

The first element of a matter – a justiciable controversy – is commonly present in the exercise of judicial power.  But the focus of a matter is narrower than the concept of judicial power.  The element of a matter usually requiring a justiciable controversy has three aspects.  First, a justiciable controversy must concern legal rights.  Secondly, it must generally involve a dispute about those legal rights that can be resolved in a judicial manner by a court.  Thirdly, the parties before the court must have standing to agitate that dispute.  Each of these aspects is different although they are cumulative.

In the next paragraph:

A legal controversy is a dispute about rights, duties or liabilities.  The reference to “rights” is in a broad, and loose, sense which includes claim rights, powers, liberties and privileges, and immunities.  In this sense, the “only kinds of rights with which courts of justice are concerned are legal rights”.  But a controversy, in law, is limited to the consideration of these rights, duties and liabilities.

So, there is the need for the legal right.  At paragraph [75], his Honour then dealt with ‑ ‑ ‑

GLEESON J:   Ms Kay, can I interrupt you?  The declaration that is on page 9 of the book of further materials seems to be addressed to two issues.  One is:  are these works public works?  The second issue is:  are those works in relation to which cost exceeds the relevant monetary threshold?  Those are not the controversies between the parties, are they?

MS KAY: The controversy is whether or not the works have been commenced contrary to section 16(1) of the Public Works Committee Act.

GLEESON J:   Is there anywhere that we have identified the relief that Mr Casimaty is seeking in those terms?

MS KAY:   He seeks only an injunction, which he may no longer do, and a declaration.  But as far as we are aware, he does not seek any further relief.

STEWARD J:   Just on that, whilst you have not filed a defence, I take it that you would agree that the Hazell’s Public Works were public works as defined in the Act?

MS KAY:   That would be the position of the State, yes.

STEWARD J:   And whilst the developer has filed a defence in which they have agreed that the works exceed the threshold, the monetary threshold, is that something you put in issue at all?

MS KAY:   No, your Honour.

STEWARD J:   I take it, then, that in relation to the four square walls of the declaration sought, you agree with it?

MS KAY:   I am sorry?

STEWARD J:   I take it, then, that within the four square walls of the declaration that is sought, you agree with it?

JAGOT J:   There would be a utility – on your case, there would be a utility.  Why would you ever make a declaration if there cannot be a justiciable dispute?  Any kind of declaration.

MS KAY:   That is right.  We do not agree with the declaration sought that the works are effectively unlawful.

STEWARD J:   It does not say that, though.

MS KAY:   But it may, if there is a variation as suggested during the special leave application.   We, to know ‑ ‑ ‑

STEWARD J:   So, we should anticipate that if the proceeding proceeds, all this relief will get repleaded in some way?

MS KAY:   I expect so.

STEWARD J:   All right.

MS KAY:   A defence will need to be entered.  There is a real question about whether Hazell Bros will continue in any relevant respect.

GORDON J:   But at the moment there is nothing for you to plead to, because you are not a party to it – you are a party to it, but there is no pleading against you.  There is nothing against you.  There is no relief sought against you, there is no pleading against you – there is nothing.  Am I wrong?

MS KAY:   Well, the declaration that is sought is against the State in the sense that it declares that, or the effect of it would be to declare that the proposed works are to be undertaken by a general government sector body which is, in effect, the Department of State Growth.  So the State’s interests are fairly in issue.

BEECH-JONES J:   Ms Solicitor, just on the question of whether it is public works and exceeds the threshold, is your argument not that they are just matters for Parliament?  You might agree at this point that they were, but ultimately you say it is just not a question for the Court at all, is that right?

MS KAY:   I do not think there is any issue that the works are public works and exceed the threshold.  The question is whether they have already been referred to and reported upon by the Committee.  It is the State’s position that they have been, and it is the plaintiff’s position in the Supreme Court that they have not been, and that depends upon a comparison of the works that went to the Committee and were considered by it to those which ultimately took place.

GORDON J:   It really a question about chicken and egg, possibly, and maybe that is what, I think, the questions are directed at, and that the question is really – I wonder whether we start on the construction of the Act itself and actually work out what the scheme of the Act is and what its parameters are, because – and I am assuming you are going to come to this – that might then inform, really, the way in which you look at the statement of claim and the relief that is sought.

At the moment, we are sort of dealing with it in a vacuum, and I wonder whether or not, if you actually look at the way in which the Act is construed, that might at least, in a sense, that is your argument.  Your argument is, is it not, that the Act, properly construed, has no role for the Court to play?

MS KAY:   That is exactly right, and I am just about to move on to the statutory scheme, but I thought it important just to set out the basic meaning of justiciable controversy and to highlight the need for there to be a legal right.  I just wanted to point out that there has also been a degree of confusion in the courts below regarding some of those points in terms of the elements of a justiciable controversy so far as standing is concerned.

Our concern is only whether there is a justiciable controversy in relation to whether there is a relevant legal right in dispute that can be resolved by the Court.  We are not concerned with questions of standing, and that was made plain in the Supreme Court.  So, yes, I am now moving on to the statutory scheme, your Honour.  If I could take the Court to the Act, it is found at tab 3 in volume 1.

GAGELER CJ:   This is the Public Works Committee Act 1914?

MS KAY:   Yes, that is correct.  The first thing to notice is the long title, which is “An Act to provide for the establishment of a Parliamentary Standing Committee on Public Works”.  The Committee is constituted under section 3, and it is clear from section 3 that the Committee is:

a Joint Committee –

of five:

Members of the Legislative Council and the House of Assembly –

BEECH-JONES J:   Sorry, are you looking at the old Act or the current Act?

MS KAY:   This is the current Act.

BEECH-JONES J:   All right.  It that tab 4?

MS KAY:   Sorry, yes, that is right – the current version of the Act.  The original version was similar, but there are some significant differences in some respects, and we do not say it is necessarily relevant, apart from providing historic context.

GAGELER CJ:   And the context, I think, is that the progenitor of this sort of legislation was an Act introduced by Sir Henry Parkes into the New South Wales Parliament in 1888.  Am I right?

MS KAY:   There were several Acts brought in around the same time, I am not sure which ones were introduced first in time, but certainly, in that original version of the 1914 Tasmanian Act, you will see in the notes along the side that there are references to equivalent provisions in the Commonwealth at least, and I think another couple of jurisdictions.

GAGELER CJ:   I think it started in New South Wales, was picked up in Victoria, and then picked up at the Commonwealth level, and I think these sorts of provisions still exist in all of those jurisdictions, and perhaps others.

MS KAY:   Yes.  As well as in South Australia.   Sorry for taking you to the wrong Act, but if you now have the correct Act in front of you, you will see in section 3 that the Committee is constituted under that provision, where it is made clear that the Committee is:

a Joint Committee –

of five:

Members of the Legislative Council and the House of Assembly –

and that is appointed:

At the commencement of the first session of every Parliament –

Under section 3(3), Ministers of the Crown are excluded from membership.  And what follows in Part III are a number of procedural provisions regarding matters such as vacancies, the appointment of officers, being the chair and vice-chair and secretary, the necessary quorum, voting and keeping of minutes.

GORDON J:   Are we to draw the conclusion from section 3(3) that the exclusion of those officers, Ministers of the Crown and the like, is to remove the Executive?

MS KAY:   I assume that is the purpose.

GORDON J:   Thank you.

MS KAY:   But perhaps the more relevant part of the Act for present purposes is Part III, which is headed “Powers of the Committee”.  This Part is where some of the more substantive provisions are to be found.  There are powers here to enter land in section 13 and a power to summon witnesses in section 14.

BEECH-JONES J:   Just with section 13 – that could involve a court, could it not, in a trespass case?

MS KAY:   That is possible, and then there might be a justification by reason of the powers of the Committee.

BEECH-JONES J:   Yes.  Sorry, I cut you off.  You were at 13 and 14.

MS KAY:   I just note 13 and 14 in passing, but then we come to the central provisions in section 15 and section 16. The functions of the Committee are set out in section 15 and you will see there that in subsection (1):

The Committee shall, subject to the provisions of this Act, consider and report upon every public work that is proposed to be undertaken by a general government sector body –

And you will notice that in subsection (3) there is a definition of that term that picks up the Government department and State authorities but, in effect, it is bodies which are the Executive or fall within the Executive.  Then, going back to 15, it is the works:

proposed to be undertaken by a general government sector body, except –

works which are:

withdrawn from the operation of this Act by a resolution . . . adopted by each House –

so, Parliament has the choice to extract certain types of works from the operation of the Act.  Then it is clarified that the works extend to:

continuation, completion, repair, reconstruction, extension, or new work –

Then there is a further limitation in that it relates only to:

cases where the estimated cost of completing the work exceeds the relevant monetary threshold –

It is probably important just to flick back to section 2, just to understand the meaning of some of those terms.  In section 2 you will find a definition of “public work”, which is defined as:

(a)building or construction works; and

(b)road or bridges works –

Here, we are squarely within that definition.

GAGELER CJ:   It is a road or bridges work, is it?

MS KAY:   Sorry?

GAGELER CJ:   We are concerned with a road or bridges work in this case.

MS KAY:   Yes, that is right.  Then that, in turn, is defined to include:

roads, within the meaning of the Roads and Jetties Act –

So, there is no issue with any of that.  Then you will see that there is a “relevant monetary threshold” applicable for each type of work, being $8 million in respect of building or construction works and $15 million for road and bridges works.

If I could return to section 15, subsection (2) is important. It determines what the Committee is required to have regard to in considering and reporting on proposed public works. You will see there that it is provided for that:

In considering and reporting on any work, the Committee shall have regard to –

(a)the stated purpose thereof;

(b)the necessity or advisability of carrying it out; and where the work purports to be of a reproductive or revenue producing character, the amount of revenue which it may reasonably be expected to produce; and

(c)the present and prospective public value of the work –

and generally the Committee shall in all cases take such measures and procure such information as may enable them to inform or satisfy Parliament as to the expedience of carrying out the work.

Now, those words “inform or satisfy Parliament” are crucial, in our submission, to the understanding of the purpose of the Act.  It is apparent that the Committee is a parliamentary body, it is established by Members of Parliament, and it has a function of informing and satisfying Parliament as to the expedience of public works.  That is what it is all about.

STEWARD J:   Does it authorize or approve works?

MS KAY:   No, it simply makes a recommendation, your Honour.

STEWARD J:   Does it make a recommendation or simply provide information, or characterising information?

MS KAY:   It does both, and the reference to recommendation is seen in subsection (5):

If in a report . . . the Committee does not recommend the carrying out of the work . . . that work shall not be commenced unless . . . authorized –

I think it is implicit from that that it not only considers and reports, providing information to Parliament, but provides its views as to whether they should go ahead or not.

BEECH‑JONES J:   That says:

authorized by an Act.

I think a previous version appeared to suggest it was good enough if it was a resolution.

MS KAY:   That was the original version of the Act, that a recommendation was made and then Parliament had to resolve to approve the works, and for some reason – we were not able to get to the bottom of it, but presumably it was seen to be unnecessary by Parliament to resolve to do so, perhaps in light of appropriation and budget measures and other controls at its disposal.

BEECH‑JONES J:   So, it would be good enough if it was authorized by an Appropriation Act?

GORDON J:   Sorry, what did you say, Justice Beech‑Jones?

BEECH‑JONES J:   It would be good enough if it was authorized by an Appropriation Act.

MS KAY:   If there is an Appropriation Act that is sufficiently broad – I am worried about getting into Williams territory here – I expect that was not really the intent, that you might expect an Act to provide expressly for the conduct of the works rather than an appropriation, and that an Appropriation Act would perhaps be dealt with and passed separately.

STEWARD J: That gives rise to the meaning of the words in the brackets in section 16(1):

(except such works as have already been authorized by Parliament –

What would be the form of authorization that would satisfy those words?

MS KAY:   There might be a particular project that receives express parliamentary approval if it is a significant work and there is an Act.  Examples come to mind of a pulp mill, for instance, and other major projects that ‑ ‑ ‑

STEWARD J:   But an Appropriation Act would not be sufficient?

MS KAY:   Appropriation Acts do not, in my submission, approve works.

STEWARD J:   No.  All right.

MS KAY: They approve the removal of funds from the public account. If I could just focus now on section 16, remembering that it is found in that part of the Act that deals with the powers of the Committee, so it should be read in that context. I should also note that while it is entitled “Conditions precedent to commencing public works”, the section heading is not taken to be part of the Act, and that is by reason of section 6 of the Acts Interpretation Act 1931, or as the heading of the Part is relevantly taken to be part of the Act. According to section 16(1):

No public work to which section fifteen applies –

and that is important:

shall be commenced unless it has been first been referred to and reported upon by the Committee –

Your Honours will note that the prohibition is limited to public work to which section 15 applies, namely those proposed by a general government sector body. We would not say that that reference to public work there is intended to apply broadly beyond a general government sector body. It is limited by reason of the reference there to section 15.

GAGELER CJ: Is it the prohibition in section 16(1) that we are exclusively concerned with here? Or is it said that 16(5) is also engaged?

MS KAY: Section 16(5) is not relevant to the proceedings, your Honour.

GAGELER CJ:   While I have detained you, have you given any consideration to the decision of this Court in Australian Broadcasting Corporation v Redmore 166 CLR 454?

MS KAY:   That was the ABC and?

GAGELER CJ:   Redmore.

MS KAY:   No, we have not, your Honour.

GAGELER CJ: It may be relevant to the construction of section 16(1).

MS KAY: Thank you. We will have a look at it during the course of the day. Your Honours, you will also notice that section 16(1) is limited by reference to the monetary threshold, so that reflects that found in section 15. There are also exceptions for works which have already been authorized or withdrawn from the operation of the Act by the resolution of the Houses. The obligation on the Governor is found in section 16(2), and that is to refer the proposed works to the Committee. According to that provision:

The Governor –

must:

refer every proposed public work that exceeds the relevant monetary threshold –

for it to report on. Although that sounds broad, it is our submission that it must be read in the context of section 15, and by reference to the functions of the Committee as being limited to works exceeding the threshold and to be undertaken by a general government sector body. Then section 16(3) gives a description of those things which are to accompany the reference, including an estimate of the cost and certain plans and specifications. The Committee is then required in section 16(4) to deal with a matter and report to the House of Assembly or, if the House is not in session, to the Governor. We have touched on section 16(5) already.

GORDON J:   Before you leave section 16(4), can I just ask a couple of questions about the functions of the Committee by reference to 16(4). It is to be read, is it, as I understand your argument, with section 15(2), which talks about what it is to do in considering and regarding reporting on any work, including the fact that it is to:

to inform or satisfy Parliament as to the expedience of carrying out the work.

So, actually its focus is subject to those constraints.

MS KAY:   Yes, section 15 informs the Committee’s function, so the nature and importance of the proposed public works would go to the question of expedience and cost. Obviously, they need to consider what type of works they are and that may feed into matters of expedience and public value.

GORDON J:   Could then I ask the next question about 15(4).  What role does it have in regard to the fact that the Committee is to have regard “to the nature and importance of the proposed work” and to deal with the matter – “and shall as soon as conveniently practicable” deliver up the result of its inquiries.

MS KAY:   I am sorry, what relevance does ‑ ‑ ‑

GORDON J:   This is in 15(4) – 16(4), I am corrected by my colleagues.  In other words, one has 15(2) which we have just talked about which, as I understand your argument, identifies the purpose of the Act and the scope of the Act.  Then we come to 16, and you have taken us through 16(1) and the referral under (2) and the documentation under (3), and (4) has a role to play.  Is it a limit?  Is it to be seen as a limit?  Is it to be seen as informing or assisting in informing the task that is being undertaken?

MS KAY:   I think it is just reflective of those things which are listed in section 15(2); the nature of the works being the type of public works, whether they are road works or bridge works or building works, and what their importance is, which will be relevant to questions of public value and expedience as well as necessity and advisability. So, there is a policy decision, I suppose, to be exercised there by the Committee in formulating its advice to the House, or to the Parliament. I am not sure if that answers your question.

GORDON J:   Thank you.

MS KAY:   Section 17 is an expansion of the operation of the Act.  It allows the Houses to resolve effectively to allow works or require them to be referred to the Committee where those works fall below the relevant monetary threshold, and in that case all the powers and provisions and of the Act are picked up.  So, that is a deeming‑type provision which allows for the Act to be extended.  Then the remaining provisions deal primarily with witnesses and the taking of evidence.

You will see in section 19 there is a power in the Committee chair to issue a warrant for the apprehension of a witness who fails to appear and his detention until release by the chair.  That is an indication of parliamentary control over the Committee processes.  In addition, the Act creates several offences, including for disobeying a summons, preventing a witness giving evidence – that is in sections 20 and 21.  In 29 you will see that the proceedings for instituting offences are to be at the direction, or only by the Attorney.

In our submission, these offence provisions quite clearly invoke the support of the courts to enforce certain aspects of the Act by way of criminal proceedings, however that is the only way in which the Act envisages, in our submission, that the courts are enlisted to enforce the Act. The absence of any similar provision for the purposes of section 16 serves to support our argument that the conditions in that provision have the object of facilitating the work of the Committee by ensuring that its work is not frustrated by the Executive just going ahead and commencing the works without prior consideration by the Committee and parliamentary oversight more broadly.

BEECH‑JONES J:   Or someone was barring the Committee from entering land.  Could you envisage a court coming to that assistance, to declare that they are entitled to enter?

MS KAY:   Well, that trespass issue would arise under general law, but as I suggested earlier, there may be a question of justification in the same way as we have seen in some of the parliamentary privilege cases where a Member is thrown out of Parliament and the issue arises as a trespass issue, but there is a justification point as to whether or not the power is exercised as part of parliamentary privilege.

BEECH‑JONES J:   Well, yes, but that is even within Parliament, we are talking about someone’s land on the west coast or somewhere and the landowner says, no, Committee, you cannot come.  Would you go to a court to get relief or would you have the officers of Parliament turn up?

MS KAY:   I am not sure what happens in practice.  I would almost be surprised if that provision is exercised in reality in modern times, but that is a good point and perhaps we will give that some consideration.

EDELMAN J:   When you say you would be surprised if the provision were exercised, you mean that section 13 is not exercised?

MS KAY:   Forcibly, I do not actually know, your Honour.

EDELMAN J:   No, not forcibly, just as a matter of routine.

GLEESON J:   Do we have the prescribed notice that is referred to in section 13?

MS KAY:   There are no regulations attached to the Act, so there appear to be no prescriptions, your Honour.  In answer to Justice Edelman, yes, I would assume that the Committee may from time to time go and inspect certain properties for the purposes of the Act, but having regard to the fact that it is primarily involved in government works then I would expect in most cases they are looking at just entering Crown land.  I am just a little conscious ‑ ‑ ‑ 

EDELMAN J:   But your submission is not that section 13 is non‑justiciable?

MS KAY:   We do not take any points in relation to section 13, it does not arise in this case.

GAGELER CJ:   So, we are focused on section 16(1)?

MS KAY:   The focus is on section 16, yes. The general point we make about the statutory scheme is that the Act concerns parliamentary business in holding the Executive to account by introducing measures designed to keep Parliament informed about major works that the Executive is contemplating. Notably, the apparent purpose of the report is to inform or satisfy Parliament as to the expedience of proposed works.

Presumably, this is to ensure that Parliament is able to make informed decisions regarding the allocation of public money through its appropriation power, and to allow it to effectively perform its function in controlling public expenditure.  In that regard, we note our submissions in reply, relying on cases such as Auckland Harbour and Combet for the well‑accepted propositions that the ultimate control of public money, including scrutiny of expenditure, rests with Parliament.

That clear purpose of the Act in keeping Parliament informed was articulated when the Bill was introduced in 1914.  At that time, proceedings of Parliament were not reported in the Hansard, they were reported in The Mercury newspaper.  The Australian Capital Territory, in their submissions, have pointed that out.  You will see the extract from The Mercury in the joint book of authorities.  It is volume 10, tab 82.  It is not very legible, so I will not ask your Honours to go to it now, but it is probably sufficient for me to read an extract in which Mr Fullerton was reported as saying that:

members of the House often lacked information on public work proposals.  His object was to set up a Parliamentary committee, similar to those in existence in other States, to deal with all works over £5,000 in value . . . He was not introducing the bill because he lacked confidence in the Minister, but to ensure that members should have needful information on public works proposals.  The committee would have no right of veto, but would only be for the purpose of obtaining information.  The House would be at liberty to disregard the recommendations of the committee.

So, we would say the purpose of the Act is to have the Executive bring matters to the attention of Parliament to allow it to be informed about proposed works.  What Parliament chooses, then, to do with that information would seem to be entirely a matter for Parliament.

GAGELER CJ: Was subsection (5) of the section 16 in the original Act?

MS KAY:   No.  There was, I think, a subsection (5), but from memory – and I would have to turn up the particular original Act ‑ ‑ ‑

STEWARD J:   I think the original was of 16(5) said:

After the receipt of such report, the House of Assembly shall by resolution declare either that it is expedient to carry out the proposed work, or that it is not expedient –

MS KAY:   Yes, that is right.  And for some reason Parliament chose to remove its ability to make such a resolution which, I suggested earlier, may be because of time restraints, or by reason of the fact that it deals with these matters by way of appropriation.

BEECH‑JONES J:   So, it moved from “resolution” to “Act”.  I think that was Act No. 66 of 1964.

MS KAY:   I am not sure that that is quite right, your Honour.  The Parliament does not have to provide or pass an Act in order for the public works to commence, there merely has to be – I say “merely”, but there has to be a referral and report by the Committee to Parliament.  There is no further obligation for Parliament to do anything, perhaps other than appropriate funds to allow the works to take place.

BEECH‑JONES J:   Sorry, I was just referring to the changing of the wording of 16(5).

MS KAY:   Yes, yes, that is right.

GAGELER CJ:   When did that occur?

MS KAY:   There were various changes over the years, but I think in around 1965 or in the mid-1960s, and it may have followed from a Commonwealth amendment.  We are not entirely sure.  We were not able to find any extrinsic materials to explain the rationale.

GORDON J:   If you take, as I understand your case, that the purpose of this Act is to facilitate Parliament’s oversight and supervision of the Executive in relation to expenditure of money on public works, and you have taken us through the extrinsic – through not only the statute but also, to the extent relevant, extracts from The Mercury.

MS KAY:   Sorry, can you just repeat that, your Honour?  I missed that.

GORDON J:   Certainly.  If I take, as I understand your argument the purpose of the Act – I will not repeat – and one then has the statutory scheme, the ability for Parliament then itself to supervise noncompliance with the Act, is that something upon which you rely?  By that I mean, if you are worried about the purpose, then a lot, or significant, weight has to be put on the other mechanisms available for noncompliance.

MS KAY:   Yes.  We touch upon the question of enforcement and the mechanisms available to Parliament to allow that to occur, with a focus on responsible government.

GAGELER CJ:   So, what are the consequences of a breach of section 16(1) in your submission?

MS KAY:   They are political.  The Executive is accountable to the Parliament for explaining why it is that it has commenced works without ensuring that the parliamentary process has not been undertaken.

GAGELER CJ:   And would you give the same answer in relation to section 16(5), or is that different?

MS KAY:   That might be more problematic if there has then a requirement for an Act.  There is still an element of responsible government there, but Parliament would need to decide if it wants to authorize the Act.
But, in the face of the Committee not recommending the carrying out of the works, then I think there would be some significant clinical questions asked and, yes, ultimately, I think that would be enforced through responsible government principles.

GAGELER CJ:   So, you say it is the same answer for section 16(5) as for section 16(1)?

MS KAY:   I think it effectively is.  Yes, your Honour.

GORDON J:   Just so I understand them in a more concrete sense, when you talk about political processes, by that do you mean budget estimates, Auditor‑General, reports by Treasurer consistent with the Treasurer’s obligations in Tasmania?  I mean, there are concrete things that, you say, provide an answer to the questions posed by the Chief Justice?

MS KAY:   Yes.  There are all sorts of mechanisms, and we will go to enforcement a bit later, but we set them out in our reply.  Budget estimates hearings, question time, all of those sorts of processes in which the Executive is usually held to account by Parliament would be called upon.  So, it is a parliamentary enforcement process, not a legal enforcement process, if you would like.

GAGELER CJ:   So, the ultimate sanction is a no confidence motion?

MS KAY:   Well, it could be, and it could just be embarrassing the government in a political sense.

EDELMAN J:   If an Act were passed under subsection (5), the compliance with that Act would be justiciable, would it not, whether the Executive had complied with the terms of that Act?

MS KAY:   Yes.  If the Act authorizes certain works, then it is the Executive complying with a law, and I agree.

EDELMAN J:   But you say that if the Act were not passed at all, then the Executive’s conduct in carrying out work, either contrary to or without any recommendation of the Committee, is non‑justiciable.

MS KAY:   Yes, because the scheme of the Act is to allow parliamentary oversight and to inform Parliament.  If Parliament passes an express Act authorizing particular works, then I think the situation is distinct.

BEECH‑JONES J:   If this process has gone through and the Committee recommends – or the proposal is to build a road and there is an appropriation of money for a road, and the Executive applies that to build a school, is there any role for the court at that point?

MS KAY:   There might be a question about whether the money had been appropriated.

BEECH‑JONES J:   That is a Combet question.  Assume the answer was, Parliament said road and you are building a school.  Is there scope, then, for the courts?

MS KAY:   Yes – I think that is a different question, but yes, I think so.

EDELMAN J:   Then, just to complete that point, under subsection (5), if an Act is passed, then the conduct of the Executive under that Act is justiciable, but if Parliament debates whether to pass an Act and ultimately decides that an Act should not be passed – presumably, because a majority of the Parliament do not want the work to go ahead – but the work goes ahead anyway, then it is not justiciable.

MS KAY:   Yes, but there would be some serious questions for Ministers to answer in Parliament.  I might move ahead, your Honours, I am just conscious of the time and the split of time between the parties and interveners.  If I could move on to ‑ ‑ ‑

JAGOT J:   When you say – sorry, I know you want to move on – you only mean “not justiciable” under 16(5).  It may otherwise be justiciable because there may well be other Acts that apply.

MS KAY:   That is entirely possible, if ‑ ‑ ‑

JAGOT J:   Your point is just that 16(5) does not render it ‑ ‑ ‑

MS KAY:   Yes.

JAGOT J:   Yes.

MS KAY:   There might be planning laws and heritage laws and all sorts of other things that need to be complied with.

JAGOT J:   Or – who knows.  Yes.

MS KAY: If I could move on, your Honours, to the question of whether there is a public right. We are the outline at paragraph 4. I am effectively returning to the question as to what is relevant in order for there to be a justiciable controversy. There needs to be a legal right in existence. The respondent in these proceedings is not seeking to vindicate a private right. It is our submission that he needs to base his claim on a public right. It follows that the justiciability effectively depends upon whether or not section 16 creates a public right and a corresponding duty on the Executive, and relatedly whether it is capable of being enforced by the courts.

We have said something about what we think might fall within the meaning of a “public right” in our written submissions at paragraph 22.  However, I would invite your Honours to take up the joint book of authorities, volume 7 and the decision of this Court – another recent decision – in Hobart International Airport, which is at tab 58.  If I could take your Honours to paragraph [85] of Justices Edelman and Steward’s judgment, you will see at the bottom of page 257 there is a reference to what “private rights” are:

As to private rights, these are the rights that are distinctly owed to a particular legal person or persons, separately from the public at large.

And then, down at [87]: 

In contrast with private rights and other rights of action conferred by the statute, the enforcement of public rights, owed to the public at large, was usually by the Attorney-General –

Obviously, the law has moved on somewhat.  And then, at [88]: 

A public right is an expression that describes legal relations involving the public generally rather than any specific person or persons.  The best examples are persons who have statutory powers in relation to the public or sections of the public.  The general public have rights and liabilities corresponding to the duties owed by those persons in the exercise of the powers, and the extent of the powers.

The point being, your Honours, that if a public right is properly described as one owed to the public at large, the proposition we put forward is that on a purposive construction of the Act, section 16 and the duty not to commence works without the works first being referred to and reported upon by the Committee is, in essence, a duty owed not to the public at large but one owed to the Parliament as an aspect of responsible government.

BEECH-JONES J:   Can I ask who it is owed by?

MS KAY: The duty is owed by the Executive, being those departments and other instrumentalities that constitute general government sector bodies; because it is only works which are proposed to be undertaken by general government sector bodies to which the duty and obligation and the prohibition apply. If I could take your Honours to the Full Court’s decision, which is in the core appeal book at tab 4, page 27. At paragraph 24 you will see that the Full Court found that section 16(1), and possibly (2), the opening words are:

these provisions of s 16 –

Which, arguably, there encompasses (1) and (2), but the finding was that these provisions:

create public obligations which fall outside the scope of the parliamentary process, and hence the ambit of parliamentary privilege.

So, although the Court is seemingly referring there to subsections (1) and (2), we understand that the comment was directed to subsection (1), given the earlier statement at paragraph 22 that:

whether or not the Governor refers a proposed of work to the Committee under s 16(2) is not a matter that can be reviewed or enforced by the courts.

In our submission, the Full Court’s understanding of the provision as creating, by implication, a public obligation, is misplaced.  If the correct characterisation of a public right or an obligation is one that is owed to the public at large, we say the Act does not so provide.

It is not apparent that the prohibition on commencing works prior to ensuring parliamentary scrutiny is owed to anyone other than Parliament itself.  The Executive is not, in our submission, duty‑bound to the people in conforming with that obligation, it is duty‑bound to the Parliament.  The plain purpose of the obligation, in our submission, is to facilitate parliamentary oversight, ultimately with a view to allowing Parliament to decide upon appropriation and to scrutinise expenditure.  The obligation not to commence works is effectively a safeguard for that parliamentary process.  As such, it should be understood as an obligation to Parliament, and not to the Executive.

If I could then move on to the question of enforcement, which is another relevant aspect of the existence of a justiciable controversy. So, if the Court is against us and considers that section 16(1) does create a public right and a corresponding public obligation on the Executive, in our submission it is nevertheless one that is not for the courts to enforce. As earlier mentioned, in terms of what constitutes a justiciable controversy, the dispute must be capable of being resolved by a court, by the court putting an end to the question and controversy.

GLEESON J:   If that is correct, I think it would be useful for me to understand, if you accepted what Justice Jagot said earlier about the possibility of a reverse declaration, what would be the nature of that declaration, and what would be the court’s jurisdiction to make such a declaration.

MS KAY:   A declaration that the works have been referred and reported upon.  We would say that is not something for the courts to consider, it is a parliamentary matter.  If I could take your Honours to the Full Court’s decision, if you perhaps still have it open at page 27, it is paragraph 24, after noting that the prohibition:

is a critical aspect of the legislative scheme.

Justice Brett said that – and it is halfway through the paragraph:

Despite this, there is nothing in the legislation which suggests that enforcement of the prohibition is a matter for Parliament.  On the contrary, it is clear from the legislative scheme and the legislative text, that the enforcement of this prohibition is not a matter that falls within the parliamentary process, but rather is intended to be a public obligation enforceable under the general law.

By the courts.  Further down in paragraph 25, it is right down towards the end of the page, five lines up, his Honour wrote:

Having regard to the extensive prescription and regulation of the powers and procedure of the Committee once a referral is made, it is inconceivable that if Parliament had intended that it be part of the legislative scheme that it be solely responsible for enforcing compliance with the condition precedent on the performance of public works, that it would not have included in that scheme powers and procedures for such enforcement.

With respect, the conclusions in these paragraphs ignore the purpose of the Act, being to better provide Parliament with information about the expedience of public works.  The fact that the Act contains provisions regulating the powers and procedures of the Committee does not, in our submission, provide a legitimate basis for concluding that Parliament needed to include, expressly, parliamentary enforcement provisions in order to confer enforcement powers upon itself.

The reasoning of the Full Court in that passage, in our submission, does not pay any or any sufficient regard to responsible government and the existing range of powers and processes available to the Parliament to hold the Executive to account.  So, the powers and procedures that have been overlooked are those that already exist and are available to Parliament as incidents of responsible government.  We have mentioned some of those, as I have said, in our reply submissions.

We might just add a further example to that.  It became apparent to us in the last few days that the Public Accounts Committee regularly undertakes reviews of the reports of the Public Works Committee and follows up on outcomes of selected projects, including adherence to budgets, timeframes and meeting the stated purpose of the works.  There are a number of those reports found on the Parliament’s website.

MR DONAGHUE: It may or may not be a sufficient difference to mean that the condition precedent in section 16(1) has not been satisfied, depending on how one ‑ ‑ ‑

JAGOT J:   Correct.

MR DONAGHUE: So, we pointed out in our written submissions, and that is not something that has been taken up by the parties, that there is a constructional question about section 16(1) as to whether it requires exact correspondence or whether there is room for substantial compliance.

JAGOT J:   The answer might lie in what is the proposed public work, as a matter of fact.

MR DONAGHUE:   That is our submission, and one answers that by picking up the report and saying, what have you reported on?  And you read the report for that purpose.  Then one needs to see, what is the argument that is then to be made?  Justice Beech‑Jones gave the example of a goat track and a freeway and said, well, you do not need to interrogate the hearts and minds, and we respectfully adopt that.

There will be cases where a person’s argument in asserting non‑compliance with section 16(1) says, I am not allowed to and I do not need to say anything about the motives or reasoning of Parliament, I just say to you, this is what the report the Committee has issued says, this is what has been done, and they are so clearly not the same that, as a factual matter, the court can objectively conclude there is no report on the work that is being done.

EDELMAN J:   I think that part of the difficulty that I am having as well is that, as long as we are talking about motives and intentions in an objective sense, it is very difficult, even in the easiest cases, to say that you are not concerned with the motives or the intentions.  You are never really just looking at the words on the page.  The word “school” – you immediately interrogate that by reference to what does, objectively, the Committee mean by a school?

MR DONAGHUE:   This is, I think, part of the reason for a debate, and your Honour the Chief Justice asked a question about the relationship between interpretation and inferences, because it does get a bit – whenever one is interpreting written text, it could be said, well, I am interpreting, it could be said, well, I am drawing inferences as to the meaning of the speaker or the author in that kind of context.

But our submission is that to acknowledge, as the cases now for some decades at least have acknowledged, that proceedings in Parliament can be used to prove a fact must carry with it some level of content, because, to take the very easiest cases, people say, well, you can use proceedings in Parliament to prove whether a Member was present. You might need to do that for the purposes of knowing whether they have lost their seat under section 38 of the Constitution, because they have not attended consecutive sessions of Parliament.

But that use depends on the truth of the statement in Hansard that a person was there, and yet everybody accepts that that is a permissible use of proceedings in Parliament to establish a fact.  So, when parliamentary privilege prevents questioning of proceedings in Parliament, it is not so rigorous as to prevent receipt of the statement for the ‑ ‑ ‑

BEECH-JONES J:   You might be eliding the difference between Hansard and what has gone on in the sense of, that would be an example of the Leyonhjelm Case, would it not, that people might swear affidavits saying they were there – no, they were not there.

MR DONAGHUE:   Or they said this or, no, they did not say this.

BEECH-JONES J:   Yes, but not so much a reporting of Hansard, which is, theoretically, one person’s observation.

MR DONAGHUE:   The closest case we could see that actually grapples with these issues at all is the AMA Case (1992) 26 NSWLR 114 that my friend the Solicitor took your Honours to. Can I ask your Honours to go briefly back to that, because it is a good illustration of the point. It is volume 8, tab 64.

As my friend pointed out, this was a case where the New South Wales Government, or the New South Wales Minister, sought to tender the Parliamentary Report of the Public Accounts Committee, and expressly did so, as you can see at the bottom of 117, point B for two different purposes:

Firstly, as an event; and secondly, as evidence of the truth of the facts and correctness of the opinions –

What Justice Hungerford did is he allowed the first of those – the event, or the fact – but he did not permit the second.  The first, he explains at the bottom of 124 at G, and Mr Sperling, who was opposing the use of the report said that what you are really trying to do is show:

what had been inquired into and who gave evidence and made submissions –

Mr Kenzie, who was seeking to use the report, said that this first basis – so, the factual basis:

did not involve the receipt of what was effectively the “front cover” –

It was not limited to just that there was a report:

it did involve its reception to enable identification of what the committee was dealing with and the subject matter.

But it:

did not require any analysis of the accuracy of any of the facts or conclusions –

in the report.  Justice Hungerford allowed that, for reasons he explained at 126.  First at B:

I do not apprehend from the authorities that Hansard may be admitted into evidence for the purpose of simply showing the mere occurrence of something; if that were so, and I think it is not, the result would be a nonsense and the evidence simply burdened with pieces of paper.

Instead, at E, his Honour accepted that it could be used to:

disclose as relevant objective events.

And that there was no problem, because it did not concern:

the motives or intentions or reasoning of the committee –

So, that that was allowed.  The passage my friend read after that, from F, was dealing with:

the second and wider basis –

This is the only case that we could find that was grappling with the way you could use the report, but it was allowing it to be used – to go back and look at the language at 124 at G:

to enable identification of what the committee was dealing with and the subject matter.

That is what we say you can do here with the report of the Public Works Committee.  We do not say you can do more than that.  But then, in our submission, the question for your Honours becomes:  will there ever be a case, where, having received the report for that purpose, that is enough to show by comparison with what has actually happened that what has happened does not correspond to the subject matter of the report such that, within the language of 16(1), it cannot be said that the work that is actually being proposed has been reported on by the Committee.

Now, our submission is some arguments will be permissible, some arguments will not, and so the whole question is premature at this stage; it depends upon the kind of argument that is sought to be used.  If the argument questions the propriety of what occurred, it cannot be allowed to occur, but if it is just a goat track and a freeway then there is no parliamentary privilege problem.

GAGELER CJ:   If it were a legislative instrument that emerged from the parliamentary process, if it is an Act of Parliament, there could be no doubt that you could look at what was said in Parliament, and you are really looking at the intentions and motives of those who are speaking for the purpose of attributing some objective meaning to what has emerged from the process.  What is the difference between that kind of word product and the word product that we are concerned with here, which is just a report?

MR DONAGHUE: There may not be one, your Honour. The analysis is complicated by the fact that that kind of use, at least if it is an interpretative use, is expressly accepted or recognised in section 16(5) of the Commonwealth Act, at least, which might cut both ways in the sense that the fact that it is excluded perhaps recognises that you could not do it without the exclusion.

But, on the other hand, the United Kingdom, without that provision, have said it would be – in Pepper v Hart said you could use parliamentary proceedings for that purpose, and their Lordships said that the idea that that infringed parliamentary privilege was ridiculous. They said it gives effect to proceedings in Parliament, rather than questioning them, to use them in that way. So, if you do not need section 16(5), my answer would be that that is the kind of limited truth use that is permitted by ‑ ‑ ‑

GORDON J:   It is not really limited truth use, is it?  The attribution of the truth label is what complicates it, does it not?

MR DONAGHUE:   The problem is, if a Minister stands up in a second reading speech and says, we are introducing this Bill in order to address X problem, it is hard to say that that is not relying on the statement for – and if I then make a submission that the purpose of the legislation is the purpose that the Minister stated, in one sense I am relying on it for its truth.

EDELMAN J:   But it is not the Minister’s subjective purpose.  I mean, nor is it the subjective purpose or ideas behind any of the Members who vote on the legislation.  It is relying upon that as context for an attributed construct of a purpose.

MR DONAGHUE:   Well, to the Parliament in the end, yes.  I accept that, your Honour.  But the Acts Interpretation Act singles out second reading speeches, for example, as having particular interpretative significance, presumably on the basis that the government or the person introducing the Bill has a greater claim to explain what they are seeking to achieve.

EDELMAN J:   But all I am saying is that you cannot go behind and suggest that actually, maybe that particular Minister was thinking something else when they were saying their words.

MR DONAGHUE:   No.  Indeed, to do so would be to be impugning what was being said in a way that is impermissible.  I think I have complicated my answer to the Chief Justice, but, in my submission, the question illustrates that the danger of very broad formulations of the Blackstonian kind that says, well, you cannot discuss or judicially examine – there are a range of different formulations used, but they all tend, as a matter of language, to be broader than what the cases would support in terms of the things that you cannot actually do.

Two final points, your Honours – I have slightly exceeded my time.  First, the comparative exercise that seems to be at the heart of the complaint that Tasmania and South Australia and the Australian Capital Territory draw about the use that we are submitting is permitted is, it seems to us, not materially different from the kind of comparative exercise that is called for by a fair and accurate report defence.

One looks at what happened in Parliament, one looks at what happened outside Parliament, and one compares the two to see whether what happened outside Parliament sufficiently closely conforms to what happened inside Parliament.  That kind of comparison does not appear to be intrinsically objectionable.

Our friends, with respect, have not explained why the comparison here is across the line that they draw in circumstances where they have accepted that evidence of a fact is acceptable; they have accepted in answer to Justice Beech‑Jones that the school‑road example does not cross the line, so they must have accepted that you can read the report at least to the extent of knowing whether it is dealing with a school or a road; and once you are going down that path, that the principled basis for the line that is being drawn is, in our submission, not clear.

The final submission that I make relates to “utility” – the utility of resolving the appeal.  In brief, our submission is this.  At present, the Full Court of the Supreme Court of Tasmania has permitted a claim to proceed that Tasmania says should have been struck out.  The result of the Full Court’s order is that that proceeding is now on foot in the Supreme Court of Tasmania and presumably will proceed.

There may be a question for the Supreme Court of Tasmania as to whether the relief that is sought in that proceeding has – either on the present pleadings or on some amended state of the pleadings that might in

the future exist in that court have any utility.  It might rise AZC20‑type questions that would need to be resolved before that matter should be permitted to proceed to trial.

But our submission is that that question is not before your Honours.  The question that is before this Court is whether or not the proceedings should have been terminated on Tasmania’s application, either on the grounds that it is completely non‑justiciable or on the grounds that Article 9 makes it impossible for the case to proceed.

If it should not have been permitted to proceed, then this Court should allow the appeal and bring the proceeding to an end.  If the Full Court were correct to allow it to proceed, then, in our submission, your Honours should dismiss the appeal, and the question of the ongoing utility, if there is a question of that kind, is one to be raised by the parties in the Supreme Court.  So, for that reason, in our submission, the appeal does raise an issue that properly falls for determination.

Unless the Court has anything further, those are our submissions.

GAGELER CJ:   Thank you.  The Solicitor‑General for Tasmania.

MS KAY:   Thank you, your Honour.  I might just start by adopting the final statement made by the Solicitor‑General for the Commonwealth in relation to the “utility” point and the possibility of that being dealt with in the Supreme Court rather than, necessarily, in this Court.

I just have a couple of additional points to refer to.  Your Honour the Chief Justice mentioned the case of ABC v Redmore. We draw from that that section 16, like section 70 in that case, may be directory – to the Executive, in this case, rather than to the ABC – and non-compliance would not affect the validity of what follows. In the circumstances of this case; non-compliance would not result in invalidity of the road works.

A question arose regarding the operation and application of Article 9 in Tasmania, and it is not something that either party has addressed by reason of the adoption of that approach in the Supreme Court and in the Full Court.  However, I mentioned earlier the decision of R v Turnbull, which is contained within the joint book of authorities at volume 9, tab 73.  There is a discussion in that case, picking up page 83 – which, I think, is the point that your Honour the Chief Justice was making earlier about the colonial legislatures – but it is halfway through the second‑last paragraph:

But such local legislatures, constituted as they are by legislation, or, in some cases, by letters patent from the Crown, have every power reasonably necessary for the proper exercise of their functions and duties.

That is one aspect, or one way in which Article 9 – not necessarily directly, but its substance – is incorporated into the law of Tasmania.  What we are not presently in a position to address is whether Article 9 still directly applies, and in that regard, can I take you to Egan v Willis.  I am sorry, I do not have the volume number.

GORDON J:   It is tab 22.

MS KAY:   Thank you.  At paragraph 22, on page 444, reference is there made to Article 9 being:

relevant to the issues –

before the Court:

because the Bill of Rights is one of the Imperial Acts dealt with in the Imperial Acts Application Act –

and then there is reference there to the Australian Courts Act.  Then, on page 447, there is a reference to Kielley v Carson, which was picked up by the Justice Gibson in Turnbull, referring to the test being whether it is:

“necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute”.

What remains undetermined, I suppose, is whether there is a similar provision in Tasmania, or for Tasmanian purposes, akin to the Imperial Acts Application Act 1969 (NSW), and perhaps that is a matter the parties might be able to provide the Court a note on, just to clarify whether the Bill of Rights applies through a similar Act.

GAGELER CJ:   Yes.  That can be done within seven days.

MS KAY:   Yes, thank you. I just had a small point in relation to the impact of section 17 of the Act. It seemed to be suggested that if – and that is the provision about Parliament basically requiring that works be referred to the Committee where they are below the threshold. It seems to have been suggested that the prohibition would not apply in section 16(1). However, if you see the final words of that provision, it provides that:

all the powers and provisions of this Act shall be applicable to such work.

And it may therefore be that section 16(1) is picked up in that sense. Finally, the decision of Leyonhjelm was referred to by the Commonwealth.  In our submission, that can be distinguished, because what was in issue there was whether the words “all men are rapists” were actually said, and there was no need to draw inferences from it.  So, it is a matter of distinction from the matter before this Court.

Those are my reply submissions, if it please.

GAGELER CJ:   Thank you.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 3.59 PM THE MATTER WAS ADJOURNED