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

[2023] HCATrans 139

[2023] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H1 of 2023

B e t w e e n -

ATTORNEY‑GENERAL FOR THE STATE OF TASMANIA

Applicant

and

GREGORY JOHN CASIMATY

First Respondent

HAZELL BROS GROUP PTY LTD (ACN 088 345 804 )

Second Respondent

Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 13 OCTOBER 2023, AT 2.00 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the Court’s protocol for remote hearings, I will announce the appearances of the parties.

MS S.K. KAY, SC, Solicitor‑General for the State of Tasmania, appears with MS E.A. WARNER for the Attorney‑General for the State of Tasmania.  (instructed by Solicitor‑General for the State of Tasmania)

MR B.R. McTAGGART, SC appears with MR G.M. O’RAFFERTY for the first respondent.  (instructed by Leonard Fernandez Barristers & Solicitors)

KIEFEL CJ:   There is a submitting appearance for the second respondent.  Yes, Ms Solicitor.

MS KAY:   May it please the Court.  This case raises 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.  The findings of the Full Court have potentially broad and significant ramifications for the carrying‑out of public works in Tasmania and, in addition, may impact upon similar regimes in other jurisdictions.

In our respectful submission, a grant of special leave is warranted to enable those matters of public importance to be addressed by this Court. Our application raises two primary issues. The first issue relates to the respective roles of the courts, Parliament and the Executive. It concerns the proper characterisation of the prohibition which is found in section 16 of the Public Works Committee Act.  According to subsection (1) of that provision, certain public works shall not be commenced without those works first having been referred to and considered by the Parliamentary Standing Committee on Public Works.

The prohibition in that provision is accompanied by an obligation on the part of the Governor to refer proposed works to the Committee, and that is found in subsection (2).  In our submission, the Full Court’s understanding of the provision as creating by implication a public obligation, which is enforceable by the courts, is, in our respectful submission, misplaced.

In our submission, such a construction inevitably leads to questions regarding the respective and proper roles of the courts, the Executive, and Parliament.  Your Honours, it may be tested by considering the following scenario:  if we assume, for the sake of argument, that the Supreme Court does proceed to hear the plaintiff’s action and determines to issue the injunction sought by him in order to restrain the commencement of the works, and we further assume that the Governor, acting in Council, is then minded to refer the works to the Committee, which I think would not necessarily happen, the Committee might, having received the referral, simply decline to consider the matter.

In our submission, it would be entitled to form the view that it has already considered and reported on the works and that it is not required to do so again. Alternatively, Parliament might choose to withdraw the works from the operation of the Act. It may do that by a resolution adopted by each House of Parliament, as allowed and envisaged by section 16(1).

In both those circumstances Parliament, either directly or through its Committee, has indicated it is content for the works to proceed, yet the proponent, or the government body, would seemingly be prevented from commencing the works by reason of the injunction.  The result may well be a stand‑off between Parliament, its Committee and the Court.  Questions may then arise as to whether the Committee may, in practical terms, come ‑ ‑ ‑

KIEFEL CJ:   Ms Solicitor, I am not exactly sure what point you are making here.  Are you saying that there is no utility to the plaintiff’s action which might proceed if the applicant was successful on appeal in this matter, or are you saying that there is a possibility that any injunction or order of this Court might not be complied with?

MS KAY:   It is a little bit of both.  There may be a question of utility, which I will touch on briefly, shortly.  But the point I am seeking to make is not so much that an order will not be complied with but that the effect of the order would be to trench upon the role of Parliament and interfere with the respective roles of the Court and the Parliament, and so that is why ‑ ‑ ‑

KIEFEL CJ:   But that is the issue for the Court to determine, is it not?  It is for the Court – and it is well established that it is for the Court to determine whether or not parliamentary privilege applies in a particular case.  It is not going to be a question that is left over for either the Committee or the Parliament to think about later on.  This Court will determine that question.

MS KAY:   I absolutely agree that it is a matter for the Court to determine the existence of the privilege.  The issue here is about whether the provision, being the prohibition upon the commencement of the works, is a public right enforceable by the Court.  So, it is a question of justiciability before it becomes a question of parliamentary privilege.  The point I am trying to make, your Honour, is that Parliament, in the face of this injunction, may be forced into a situation where it is required to consider the need for legislation to overcome the effect of the injunction.  That might be on the basis that the Committee considers that it has already considered the report, it does not agree with the view of the Court.

The point I am trying to make is that we may end up with a stand‑off, and that is the type of difficulty that the Chief Justice at first instance was alerting to.  He appreciated that difficulty, as set out in paragraphs 30 to 31 of his judgment, at appeal book 11, whereas, plainly, Justice Brett and Justice Pearce disagreed at 34 of their judgment, at appeal book 30.  Justice Brett said:

The fact that the Governor and the Committee may have a different view does not detract from the jurisdiction of the Court to grant injunctive relief –

He considered that the restraint imposed by the Court would continue until a referral was made, and if a referral is a proceeding in Parliament, which it seems to be, the Court order ought, in our submission, invite an interference with the referral process.  It was accepted, I think, by everyone at first instance and on appeal that the referral, or even an absence of referral, is a proceeding at Parliament.

Your Honours, the characterisation of section 16 offered by the Full Court, therefore, in our submission, not only invites conflict between the courts and Parliament, it does not adequately consider the context in which the provision is found. Relevantly, section 16 is found in a statute which is concerned to establish a Parliamentary Committee with a core function of informing or satisfying Parliament as to the expedience of carrying out public works by government bodies. On one level, there is a question of statutory interpretation, but on a more fundamental level, it concerns the relationship between the branches of government.

The question which we invite this Court to consider, if leave is granted, is whether enforcement of that prohibition is to be appropriately left to Parliament, or whether it is a matter for the courts.  As to that, we recall the words of the Privy Council in Prebble v Television New Zealand, which are referred to by Chief Justice Blow at application book 10, paragraph 23, and also by the Full Court at paragraph 11, application book 23.

The courts and Parliament are both astute to recognise their respective constitutional roles.  In our submission, by its very nature, that is a matter of some public importance, and it is one that has brought ramifications for the conduct of public works beyond just those carried out at the Hobart Airport Interchange.  In our submission, it paves the way . . . . . challenges by those who perceive there to be a failure on the part of the Executive to ensure compliance with the requirements of the Act.

KIEFEL CJ:   Just on that point, Ms Solicitor, the standing of the first respondent was never raised as a matter, below, was it?  A challenge.

MS KAY:   It was touched upon but – there was a challenge by Hazell Bros; they certainly raised it.  The Attorney‑General does not make a submission about it.  The interlocutory application and the following submissions have all been directed to the question of justiciability which – as highlighted in our application and the transcript extracts attached to it – were always considered to be separate issues.  We appreciate there is a degree of overlap between standing and justiciability, but we have been very careful to point to the distinction, and our concern is simply with justiciability.

KIEFEL CJ: The question is, principally, one of construction of the section 16, is it not? It goes without saying that, by reference to section 15, any work of the Committee would be taken to be that of and for the Parliament. The question really turns on the construction of section 16 and whether or not that is something which precedes the functions of the Committee under section 15. I understand that to be the approach of the Court of Appeal – that, if that is the case, it is for the courts to pronounce upon whether or not that operates as a condition precedent before parliamentary privilege actually arises.

Questions about how parliamentary privilege operates in this statutory context will, necessarily, have to be gone into, but the majority in the Full Court – and the issue before this Court – is whether or not it was correct to hold that it is a condition precedent to the operation of parliamentary privilege.  Is that not correct?

MS KAY:   I think that is right, Chief Justice.  That essential question of interpretation, which, in our submission, is met by the necessity to consider that provision in the context of the Act, and having regard to the full parliamentary supervision of the Executive through the processes established in the Act, we say the entire Act is about parliamentary supervision and that it, therefore, falls to the Parliament to supervise and enforce the requirements of the Act.  That goes to the substance of the argument. 

KIEFEL CJ:   Ms Solicitor, at what point do you say the Committee commences its functions? 

MS KAY:   The Committee would commence its functions after the matter being referred to it by the Governor acting in Council.

KIEFEL CJ:   Yes.

MS KAY:   Your Honours, the second issue is that question of parliamentary privilege, and, particularly, the ability of the courts to consider what has been reported on by a Parliamentary Committee without infringing Article 9.  As I said, I do not understand there to be any real issue between the parties that a report of the Committee is a parliamentary proceeding. 

The broad question is what is meant by “impeaching” or “questioning” the proceedings of Parliament.  The more specific question is whether it is open to a court to conduct a comparison between works which are the subject of a report from the Parliamentary Committee and the works which are proposed to be carried out.  The purpose of the comparison would be to assess whether the proposed works fall within the scope of the report, or whether the works are not the same as the works reported on, such that they have not been reported on as required by the Act.

KIEFEL CJ:   Is the question for the Court whether or not it has to examine, discuss or adjudicate upon the report or question its accuracy?  Is that a fair statement?

MS KAY:   That is exactly the point, your Honour.

KIEFEL CJ:   Do you say that the majority were wrong to conclude that that was not involved in this case, that it is not essential to the applicant’s cause of action for the Court to consider reliance on the Committee’s report?

MS KAY:   I am not sure that the Full Court took that approach.  They seemed to accept that there was a need for a comparison to be conducted, but they considered, as a matter of statutory construction, that Article 9 had been abrogated, in a sense, to allow that comparison to occur, which we take issue with.  In our submission, that would be questioning a proceeding of Parliament, and invite an infringement of Parliament.

KIEFEL CJ:   Is the comparison between the description of the works, or is the relevant comparison that you are talking about a description between the works, the subject of the report – that is, the works tendered to the Committee, or the works as decided by the Committee?

MS KAY:   It is the works – well, it is probably both, your Honour.  It is the works considered by and reported on, and that would encompass the submissions, the plans and specifications, all of the information that was before the Committee in its proceeding, and ultimately its report.  The comparison here would be with the works that actually proceeded.  The plaintiff’s case is that those works that were eventually commenced – and I note, have now actually been completed – are different to the works that were considered by and reported upon by the Committee.

KIEFEL CJ:   Well, that is to say that the plaintiff’s case turns on the works identified in the referrals, rather than what was actually considered and reported on by the Committee.

MS KAY:   I am not sure that that is quite right.

KIEFEL CJ:   Which brings into question the point at which the Committee and its functions become subject to parliamentary privilege.

MS KAY:   To some degree, your Honour, although we would say that the works comparison relates to works which were actually proposed to be conducted by Hazell Bros some time after the report had been provided to Parliament.  So, there is a distinction there.  There is a slight design change, which is Mr Casimaty’s concern.  He also highlights the difference in the cost referred to and considered by the Committee, compared to the eventual cost that was budgeted for.  In our submission, there is a clear divergence of opinion in the Supreme Court on those matters between the Chief Justice at first instance with Justice Geason effectively agreeing on appeal and the views of Justices Brett and Pearce.

In any event, if a comparison were to take place it just simply begs the question as to what test would apply.  Would a minor difference, a significant difference, a substantial difference be required in order to say that the works which did proceed are not the works that were reported on by the Committee?  Importantly, the Committee is not a planning body and it is not concerned with the fine sort of level of detail that a planning authority might be concerned with.  Its role is entirely directed to the scrutiny of, and appropriateness of, public expenditure relating to public works.

I should mention before I finish, your Honours, that it would be remiss not to mention that the works are, as I understand, now complete, which does obviously give rise to questions as to the utility of proceedings.  To that, we would say that the Full Court’s decision merits review on the basis that it does have the broader ramifications for future works and potential consequences for similar regimes in other jurisdictions as set out in our application.

Those matters aside, your Honours, we would rely on the arguments as set out in our application, if it please.

KIEFEL CJ:   Thank you, Ms Solicitor.  Yes, Mr McTaggart.

MR McTAGGART:   I seek to make three submissions:  firstly, there is no important principle of law of general application involved in the application; secondly, there is no difference of opinion between different courts or within the Supreme Court of Tasmania as to the law; thirdly, there are insufficient prospects of success to warrant a grant of leave.

KIEFEL CJ:   Before you proceed to develop those arguments, Mr McTaggart, if the respondents’ action proceeded to hearing, what relief would be sought, given that the works have been completed?

MR McTAGGART:   Declaratory relief is sought, your Honour.

KIEFEL CJ:   With no injunction?

MR McTAGGART:   If there is no evidence as for the completion of the works, except in that they are complete, it would be difficult for the Court to grant an injunction.

JAGOT J:   What would be the declaration, in terms or approximately?

MR McTAGGART: That the public works carried out were not reported on by the Committee, as required by section 16 of the Public Works Committee Act.  In relation to the first point – no important principle of law of general application – the only case which has considered the PWC Act of Tasmania is Bates v Attorney‑General of Tasmania.  There are no cases which have considered what the applicant claims is similar legislation at Commonwealth level in New South Wales and South Australia.  In Bates, the issues was identical to the issue in this case – that is, whether the public work in question had been subject of an earlier referral and report.  Justice Cox, as he was, considered the claim on its merits.  The question of parliamentary privilege does not appear to have been raised and considered by the judge.  Notwithstanding it was a 1995 case, Bates has not led to any subsequent cases on section 16 of the Act until this case.

In relation to the legislation at Commonwealth level, in South Australia and in New South Wales the legislation is distinguishable from Tasmanian legislation in many respects, including that there is a referral obligation residing solely in the Governor under the PWC Act for work above a certain monetary threshold, and the absence of any involvement by the House of Assembly in the process of reporting on the works until such time as the Committee reports.

So, both of those factors are unique to the Tasmanian legislation.  There are other differences:  the South Australian legislation does not contain any prohibition on the commencement of public works which have not been referred to and reported on by the Committee; under the New South Wales legislation, the Minister must respond to the Committee report in the House and has a statutory duty to introduce a Bill to sanction the carrying out of the work; and under the Commonwealth legislation, the Minister may declare certain work to be repetitive work if the Committee agrees.

The distinguishing features of each of the Acts means that the decision of the Full Court has little precedent value, and that other courts will have to determine and construe the text, context, and purpose of the legislation in question with little guidance from the Full Court decision.  It is also unlikely that the Full Court decision will affect many Tasmanians.  The decision, in fact, enhances the object of the PWC Act by providing a mechanism to ensure informed parliamentary oversight of public works.  The decision will facilitate rather than intrude upon the enquiries and reporting of the Committee.

In relation to the proposed ground 2, that involves the application, in my submission, of established principles relating to Article 9 to the essential factual issues raised by the first respondent’s claim.  The proposed ground 2 and the special leave question 2 both assume that adjudication by the Court is the question posed as a starting point.  That is the test.  Whereas Article 9 refers to:

impeached or questioned in any Court –

and the High Court have urged caution to ensure that use of expressions in other cases do not obscure the words of the Act.  It appears that adjudication has come from Blackstone’s Commentaries, and reference to “examined, discussed, and adjudged”, which has found its way into some of the English authorities, but that expression has been applied in a sense which does not prohibit the Court’s consideration of the 2017 report for the necessary comparison in this case.

In terms of special leave, I suggest that it is impossible for the Court to state in a consistent way generally applicable rules.  The application of Article 9 can only proceed, in my submission, by applying the words of Article 9, looking at its purpose, and the rulings in and facts of other leading cases, as well as the facts of the case in issue.  Turning to the second point, it is my submission that there is no difference of opinion within the Supreme Court of Tasmania or different courts as to the law.  The split in the Supreme Court of Tasmania only relates to the proposed ground 2, and not ground 1.

There is no difference of opinion in relation to ground 1. It is implicit in the Chief Justice’s reasons that he accepted that there was a public right provided by section 16, and he also found that it was arguable that Mr Casimaty had standing to enforce that right because of his position in location to the piece of highway in question. The differing opinions as to the application of Article 9, essentially, are not a disagreement about the state of the law. There is no apparent conflict as to the legal authorities. It is the application of the facts of the case to Article 9 where minds have disagreed.

If I could then turn to insufficient prospects of success to warrant a grant of leave. The majority – correctly, in my submission – construed section at 16(1) as being one of the PWC Act as creating a public right of enforcement and correctly applied Article 9 to the essential facts raised by the claim. The essential reasoning of the majority was that the purpose of the PWC legislation was intended to facilitate and ensure parliamentary oversight of the conduct of public works of the defined value by government; that it was important that the mandatory requirement of referral by the Governor was contained in section – sorry, it was not contained in section 15, but rather in section 16, the provision dealing with the condition precedent for the commencement of public works.

In relation to that argument, there is, with respect, a flaw in the Attorney‑General’s reasons in the special leave application at paragraph 30 about the works that are referred by the Governor under section 16, co‑existing with the works that must be considered by the Committee under section 15, because that overlooks section 17 – which provides that either House may, by resolution, refer public work below the monetary threshold to the Committee, and then the Committee can exercise the powers and provisions of this Act. So, it is important that, in terms of public works over the threshold amount, section 16 has carved‑out a specific regime which effectively leaves power to the Executive in terms of referral.

KIEFEL CJ:   Mr McTaggart, would you agree that, if this matter proceeds to appeal, the question involved is one of the scope of parliamentary privilege in light of the provisions of the Public Works Committee Act?

MR McTAGGART:   Yes, your Honour.

KIEFEL CJ:   Is that not a question of public importance?  This decision has ramifications, obviously, for the Parliament.

MR McTAGGART:   In terms of Parliament, it enhances, in my submission, the operation of parliamentary oversight of public works in Tasmania in respect of works over the threshold amount.

KIEFEL CJ:   That is to say that is good social policy.  What about the effect on Parliament in what it and its Committee can do?

MR McTAGGART:   Well, it has no effect on the Committee.  The Committee reports on the works that are referred to it and it must do that in a mandatory way in respect of moneys over the threshold amount.  All the effect of the decision is, it brings the Executive to account in respect of public works over the monetary threshold in requiring those works to be brought to the Committee for consideration and report, and then that report goes to Parliament and then Parliament can oversee the proposed works.  So, no direct impact on the Committee, enhances parliamentary responsibility and brings to account the Executive.

So, the public importance really, from that perspective, could only lie with the Executive getting guidance as to . . . . . revise works or when to recommend to the Governor to refer revised works to the Committee.  So, in my submission, there is no public importance in that question.  When you consider different legislation elsewhere which will need to be construed separately, this decision falls specifically in Tasmania.

Just in relation to the insufficient merit to justify referral, in the time I have left, if I could deal with the test case which was raised by the Solicitor‑General, the Court was asked to assume that the Supreme Court hears the plaintiff’s action, issues an injunction – it would be a declaration, now – the Government refers the works to the Committee and then the Committee might decline to consider the matter.  That cannot happen because section 15 mandates that the Committee must consider and report on works above the threshold amount.

This particular issue was dealt with specifically by Justice Brett in the Full Court at paragraph 34, where he referred to the practical effects being if the relief was granted by the court, the Governor then subsequently makes a referral, the Committee considers it, comes to the view that the works are very similar, it will issue a report to that effect, parliamentary oversight has been achieved and the purpose of the Act achieved.

It also came out in argument about what happens if the Committee report on the works and that is provided to Parliament. It is also significant that if the Committee does not approve the works, then there must be legislation under section 16(5). Going back very quickly to the reasoning – other reasons of the Full Court – Justice Brett focused upon the fact that section 16(1) was:

intended to apply to persons and organisations outside Parliament.

He thought that that was:

a critical aspect of the legislative scheme.

And noted that:

Despite this, there is nothing in the legislation which suggests that enforcement of the prohibition is a matter for Parliament.

He raised the situation where there had been no:

prior referral of relevant work to the Committee –

and pointed out that:

there is nothing prescribed in the legislation which would empower the Parliament to identify or require the referral of work . . . under s 16(2).

I would add to that, nor empower it to cause works to cease if they had commenced.  He pointed out that the scheme would “only have efficacy” if it could be:

lawfully enforced on applicable persons outside Parliament.

He pointed out:

to the extensive and prescription and regulation of the powers and procedure of the Committee –

and yet the absence of anything in the legislation which suggested that it was Parliament who was to decide who was to enforce compliance.  In relation to the merits of the Article 9 argument, it is my submission that it is clear that privilege will not prevent proof of parliamentary proceedings where the fact of the occurrence of those proceedings is relevant to the litigation.  That was considered by Justice Kirby in Egan v Willis and he followed Lord Browne‑Wilkinson, who delivered the judgment of the court in Prebble.

So, establishing the fact, content and scope of the report, being the facts sufficient to enable the Court to determine whether the proposed work was the subject of referral and report, does not offend, in my submission, the privilege on the authorities.  It does not involve using the report to establish the truth of any facts asserted in them . . . . . the validity of the report or questioning its accuracy, the word used by Justice Kirby.

They are my submissions.

KIEFEL CJ:   Yes, thank you.  Do you have any reply, Ms Solicitor?  I think you might be muted.

MS KAY: I apologise. The first point that we wish to make is that we do not accept that the Chief Justice accepted that there was a public right in section 16 that, in our view and our submission is not apparent from his judgment. Secondly, the other legislation referred to by my learned friend, particularly the Commonwealth Act, is, in our submission, a regime which may be affected by the Full Court’s decision. Relevantly, the provision in that Act, which is the Public Works Committee Act 1969, in section 18(5):

A public work that has been referred to the Committee –

so, there is a distinction, we accept.  The public work:

that has been referred to the Committee in accordance with this section shall not be commenced before a report of the Committee concerning the work has been presented to both Houses of the Parliament.

So, there remains the possibility – it is the . . . . . a referral that, prior to a report, there may be a challenge to the commencement of works as being contrary to that provision.  Thirdly, insofar as the Committee might reconsider its decision, as Justice Brett referred to in paragraph 34 – and reiterate its earlier recommendation – it is our submission that that it is not a function of the Committee to reiterate.  It is something that does not fall within its functions.  It does not revisit its decision; it starts again with a fresh referral.  So, there is some flaw in that argument. 

Those are the only matters I had in response.  If it please.

KIEFEL CJ:   Thank you.  The Court will adjourn to consider the course that it will take.

AT 2.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.48 PM

KIEFEL CJ:   Mr McTaggart, I take it that we have you by audio rather than visual.

MR McTAGGART:   Yes, I am sorry, Chief Justice.  I got disconnected.

KIEFEL CJ:   Yes, thank you.  There will be a grant of special leave in this matter.  Do we take it, Ms Solicitor, that it will take no more than a day?

MS KAY:   Yes, I anticipate up to one day, but no more.  Subject to the possibility, at least, that there may be applications from any other jurisdiction for leave to intervene.

KIEFEL CJ:   Yes, I understand.

MS KAY:   I think that that is not a constitutional matter.

KIEFEL CJ:   Do you agree with that assessment, Mr McTaggart?

MR McTAGGART:   Yes, I do.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn to 10.00 am on Monday 16 October.

AT 2.49 PM THE MATTER WAS CONCLUDED