Australian Workers' Union v Registered Organisations Commissioner (No 4)

[2019] FCA 187

FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Registered Organisations Commissioner (No 4) [2019] FCA 187

File number:

VID 1151 of 2017

Judge:

BROMBERG  J

Date of judgment:

11 February 2019

Catchwords:

PRIVILEGE – Parliamentary Privilege – Parliamentary Privileges Act 1987 (Cth) (“Act”) – whether questioning and reception of evidence is prohibited by s 16(3) of the Act – provisional reception of evidence for the purpose of determining objection – onus on party raising privilege to demonstrate interference with a privilege – objection overruled.

Legislation:

Parliamentary Privileges Act 1987 (Cth) ss 3, 16(2) and (3)

Cases cited:

Amann Aviation Pty Ltd v Commonwealth of Australia (1998) 19 FCR 223

Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466

Slipper v Magistrates Court of the ACT (2014) 285 FLR 78

Date of hearing:

11 February 2019

Registry:

Victoria

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

10

Counsel for the Applicant:

Mr H Borenstein QC with Ms C Van Proctor and Mr C Tran

Solicitor for the Applicant:

Maurice Blackburn

Counsel for the First Respondent:

Mr F Parry QC with Mr M Follett

Solicitor for the First Respondent:

Ashurst

Counsel for the Second Respondent:

The Second Respondent did not appear

Counsel for Senator the Honourable Michaelia Cash
(subpoena recipient)

Mr C Horan QC with Mr B Jellis

Solicitor for Senator the Honourable Michaelia Cash
(subpoena recipient)

MinterEllison

Counsel for Mr M Lee
(subpoena recipient)

Mr G Boas

Solicitor for Mr M Lee
(subpoena recipient)

Corrs Chambers Westgarth

Counsel for Mr B Davies
(subpoena recipient)

Mr R Dalton SC with Mr N Burmeister

Solicitor for Mr B Davies
(subpoena recipient)

Kennedys

Counsel for Mr D De Garis
(subpoena recipient)

Mr J MacLaurin

Solicitor for Mr D De Garis
(subpoena recipient)

Equitas Lawyers

REASONS FOR JUDGMENT

VID 1151 of 2017

BETWEEN:

THE AUSTRALIAN WORKERS' UNION

Applicant

AND:

REGISTERED ORGANISATIONS COMMISSIONER

First Respondent

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Second Respondent

BROMBERG J:

1. Senior counsel for the applicant, the Australian Workers Union (“AWU”), has asked a witness called by the AWU, Mr David De Garis, a former media advisor to Senator the Honourable Michaelia Cash, Minister for Small and Family Business, Skills and Vocational Education (“Minister”) , the following question: 

   When did you first become aware of the execution of the warrants? 

2. Objection has been taken to that question by counsel appearing for another witness – Mr Ben Davies, and that objection has been supported by counsel appearing for Mr De Garis.  The question and the objection are premised on the fact that search warrants upon the offices of the AWU were executed at or about 4.30 pm on 24 October 2017.  I will accept that to be so for the purposes of dealing with the objection. 

3. The basis of the objection is s 16(3) of the Parliamentary Privileges Act 1987 (Cth) (“Act”).  That provision provides:

   In proceedings in any court of tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

   (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

   (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

   (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

4. The term “proceedings in Parliament” used in s 16(3) is relevantly defined in s 16(2) of that Act to mean:

   ... all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee. 

5. The term “committee” is defined in s 3 of the Act to mean “a committee of a House or of both Houses” of Parliament.

6. In accordance with relevant authority (Amann Aviation Pty Ltd v Commonwealth of Australia (1998) 19 FCR 223 at 231-232 (Beaumont J) and Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 at [15] (White J)), I have provisionally received, for the purpose of dealing with the objection, a Hansard recording of proceedings before the Senate’s Education and Employment Legislation Committee (“Committee”) for Wednesday 25 October 2017 and Thursday 26 October 2017.  Counsel for Mr Davies referred me to various statements recorded to have been made by the Minister in the proceedings of the Committee.  Broadly speaking, the Minister was questioned about the execution of the warrants (referred to at [2] of these reasons) and the conduct of her staff in relation to the execution of those warrants.

7. Counsel for Mr Davies contended, relying upon the defined meaning of “proceedings in Parliament”, that the prohibition dealt with in s 16(3) of the Act relevantly extended to anything spoken by the Minister and members of her staff regarding the matters that the Minister was questioned about and gave answers to, as recorded in the passages from Hansard to which the Court was taken.

8. Senior counsel for the AWU contended that if something is said or done for a non-parliamentary purpose then it is not caught by s 16(2) of the Act and the definition of “proceedings in Parliament” there given. Furthermore, he contended that s 16(2) is designed to protect the workings of Parliament and not the Executive.

9. The party raising parliamentary privilege bears the onus of demonstrating an interference with it and that onus is not discharged “by speculation and hypothesis”: Slipper v Magistrates Court of the ACT (2014) 285 FLR 78 at [50].

10. I am not satisfied that it has been established that the particular question asked of Mr De Garis, namely when did he first become aware of the execution of the warrants and the answer that it may elicit, will deal with anything done in the course of, or for the purposes of, or incidental to, the transacting of the business of the Committee. I am also not satisfied, on the material before me, that the question being asked concerning the subject matter that is raised by it, is being asked for one or other of the purposes identified in s 16(3) of the Act. On that basis, I will allow the question subject to any objection as to relevance.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:       22 February 2019