CJC v Dick

[2000] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

CJC & Ors v. Dick [2000] QSC 272

PARTIES:        (1)

  (2)     

CRIMINAL JUSTICE COMMISSION
(Applicant)
v.
JULIE MAREE DICK
(Respondent)

MICHAEL ALLAN BARNES
(Applicant)
and
JOHN JOSEPH BARTON
(Applicant)
and
PIERRE MARK LE GRAND
(Applicant)
and
GEORGE ANTHONY NOLAN
(Applicant)
and
GAVIN JAMES RADFORD
v.
JULIE MAREE DICK
(Respondent)

FILE Nos:      (1)
  (2)

11504/99
6073/00

DIVISION:

Trial  Division

DELIVERED ON:

25 July 2000

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 July 2000

JUDGE:

Helman J.

ORDER:

Applications dismissed

CATCHWORDS:

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE CROWN – ROYAL COMMISSION, BOARDS OF INQUIRY AND LIKE INVESTIGATIONS – POWERS AND PRIVILEGES – GENERALLY – whether potential breach of parliamentary privilege – whether applications seeking to question parliamentary proceedings are justiciable

Bill of Rights 1689
Commissions of Inquiry Act 1950
Constitution Act 1867
Criminal Justice Act 1989
Imperial Acts Application Act 1984
Parliamentary Papers Act 1992

Ainsworth & Anor v. Criminal Justice Commission (1992) 175 C.L.R. 564

Bradlaugh v. Gossett (1884) 12 Q.B.D. 271
Criminal Justice Commission v. Nationwide News Pty Ltd [1996] 2 Qd. R. 444
Hamilton v. Al Fayed [2000] 2 W.L.R. 609
Laurance v. Katter [2000] 1 Qd. R. 147
R. v. Jackson (1987) 8 N.S.W.L.R. 116
R. v. Smith, ex parte Cooper [1992] 1 Qd. R. 423

COUNSEL:

W. Sofronoff Q.C. and G.C. Newton for the Applicants
A.J.H. Morris Q.C. and D.C. Rangiah for the Respondent
H.B. Fraser Q.C. amicus curiae at the request of the Speaker of the Legislative Assembly.

SOLICITORS:

R.A. Evans

Official Solicitor, Criminal Justice Commission, for the Applicants

1. HELMAN J: These applications, which were heard together, arise out of a report dated 30 August 1999 by the respondent, the Parliamentary Criminal Justice Commissioner, to the Criminal Justice Committee of the Queensland Legislative Assembly. The parliamentary commissioner is an officer of Parliament, as s. 118G(1) of the Criminal Justice Act 1989 provides, and the committee is a committee of the Legislative Assembly established under s. 115 of that Act. Among the functions of the parliamentary committee are those provided for in paragraphs (a) and (b) of s. 118(1):

(a)to monitor and review the discharge of the functions of the commission as a whole and of the official misconduct division in particular;

(b)to report to the Legislative Assembly, with such comments as it thinks fit, on any matters pertinent to the commission, the discharge of the commission’s functions or the exercise of the powers of the commission, a commissioner, or of officers of the commission, to which the attention of the Assembly should, in the committee’s opinion, be directed;

The ‘commission’ referred to is the applicant Criminal Justice Commission constituted by the Act, and ‘the official misconduct division’ is a division within the commission established under s. 19(1). Section 118R in part 4A (PARLIAMENTARY CRIMINAL JUSTICE COMMISSIONER, ss. 118G to 118ZA) provides for the functions of the parliamentary commissioner. Subsection (2) of that section provides that the commissioner has the functions, as required by the parliamentary committee, to do specified things. Among them is, as paragraph (c) provides, the independent investigation of allegations of possible unauthorized disclosure of information or other material that, under the Act, is treated as confidential.

1. That is what happened in this case:  the parliamentary committee requested the respondent to:

. . . investigate and report to the committee in relation to whether there was an unauthorised disclosure of information or other material from the Criminal Justice Commission (CJC) concerning the CJC’s investigation of allegations made by Mr Paff MLA at Government House on 28 September 1998, which information or other material:

·     under the Act is to be treated as confidential;  and

·     resulted in an article in The Courier-Mail newspaper on 30 October 1998, written by Mr Michael Ware, and entitled “One Nation MP quizzed over police comments”.

1. The commission seeks three declarations concerning the report:

1.A declaration that the report of the Parliamentary Criminal Justice Commissioner to the Parliamentary Criminal Justice Committee dated August 1999, concerning allegations made by Jack Kelvin Paff, was ultra vires.

2.A declaration that the Parliamentary Criminal Justice Commissioner, when investigating allegations of possible unauthorised disclosure pursuant to s. 118R(2)(c) of the Criminal Justice Act1989 (Q), and in reporting to the Parliamentary Criminal Justice Committee on the results of carrying out her investigation, is not entitled to make findings of guilt.

3.A declaration that in reporting adversely to the Criminal Justice Commission in her report dated August 1999, concerning the said allegations by Jack Kelvin Paff, the Parliamentary Criminal Justice Commissioner failed to observe the requirements of procedural fairness.

The other applicants seek declarations in the same terms as the first and second sought by the commission, and a third declaration as follows:

3.A declaration that in reporting adversely to the applicants in her report dated August 1999, concerning the said allegations by Jack Kelvin Paff, the Parliamentary Criminal Justice Commissioner failed to observe the requirements of procedural fairness.

1. On behalf of the respondent, Mr Morris Q.C. submitted that the applications are not justiciable because consideration of them by the Court would be a breach of the parliamentary privilege established by article 9 of the Bill of Rights 1689 (1 Will. & Mary, sess. 2, c.2), which is part of the law of Queensland:  Constitution Act 1867, s. 40A; Imperial Acts Application Act 1984, s. 5. Mr Hugh Fraser Q.C., who appeared by leave without objection from the parties as amicus curiae at the request of the Speaker of the Legislative Assembly, made submissions to the same effect.

1. Article 9 of the Bill of Rights provides that ‘the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament’;  but it is well established that article 9 does not of itself provide a comprehensive definition of parliamentary privilege:  Hamilton v. Al Fayed [2000] 2 W.L.R. 609, at p. 615 per Lord Browne-Wilkinson. In the Parliamentary Papers Act 1992, which commenced on 2 July 1992, the words ‘proceedings in Parliament’ in article 9 were defined:

3.(1)  This section applies for the purposes of –

(a)article 9 of the Bill of Rights (1688) as applying to the Queensland Parliament;  and       

(b)       this Act.

(2)All words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the House or a committee are “proceedings in Parliament”.

(3)Without limiting subsection (2), “proceedings in Parliament” include –

(a)giving evidence before the House, a committee or an inquiry;  and

(b)evidence given before the House, a committee or an inquiry;  and

(c)presenting or submitting a document to the House, a committee or an inquiry;  and

(d)a document laid before, or presented or submitted to, the House, a committee or an inquiry;  and

(e)preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c);  and

(f)preparing, making or publishing a document (including a report) under the authority of the House or a committee;  and

(g)a document (including a report) prepared, made or published under the authority of the House or a committee.

In the Parliamentary Papers Act ‘House’ means the Legislative Assembly, and ‘committee’ means a committee of the House:  s. 2.

1. Mr Paul Lucas, M.L.A., chairman of the parliamentary committee, has certified under s. 9 of the Parliamentary Papers Act  that the respondent’s report is a report prepared, made, and published under the authority of a committee of the Legislative Assembly, and is a report published under the authority of the Legislative Assembly. 

1. The preparation and making of the respondent’s report are protected by operation of s. 3(3)(f) of the Parliamentary Papers Act 1992 because, as Mr Lucas has certified, her report was prepared and made under the authority of a committee of the Legislative Assembly. That distinguishes the respondent’s report from the report of the applicant commission the subject of consideration in Ainsworth & Anor v. Criminal Justice Commission (1992) 175 C.L.R. 564, a decision handed down on 9 April 1992. The latter report concerned the poker machine industry and the appellants alleged breach of the rules of procedural fairness in its preparation. But that report was prepared and made at the request of the executive by the Deputy Premier of Queensland as chairman of a Cabinet sub-committee, not a committee of the Legislative Assembly.

1. A submission concerning parliamentary privilege was made in the Ainsworth case, but a much narrower one than that made in this case.  The commission’s report  was furnished, in accordance with the relevant provision of the Criminal Justice Act, to the Speaker of the Legislative Assembly.  The furnishing of the report enlivened the Speaker’s power, an incident of his duty, to invest the report with the immunities and privileges of a report tabled in and printed by order of the Legislative Assembly  (ibid, at p. 586 per Brennan J.).  A submission was made on behalf of the commission that a declaration that a report to which parliamentary privilege and immunity attached was void would impugn or interfere with the proceedings of Parliament, but counsel for the commission conceded, in response to a comment by Mason C. J., that the authorities showed that the Court could make a declaration that the findings in the report were the result of a process which involved a denial of natural justice.  Counsel added, however, that there had been no such denial in that case as there was no requirement to afford natural justice (ibid, at p. 569).  The only reference in the reasons of the judges to parliamentary privilege and immunity is in the passage I have referred to at p. 586 in the reasons of Brennan J.  That reference was made in the context of his Honour’s explaining that it was no obstacle to the jurisdiction in judicial review of the commission’s actions that the production and furnishing of the report enlivened no power for exercise either by the commission or by any other person.  His Honour added parenthetically that the enlivening of the Speaker’s power was ‘immaterial’.  The Court decided that the appellants were entitled to a declaration that in reporting adversely to the appellants in its report the commission failed to observe the requirements of procedural fairness.

1. The only issue concerning parliamentary privilege and immunity raised in the Ainsworth case appears to have been, then, as to whether a declaration that the report was void impugned or interfered with proceedings in Parliament. The declaration to which the appellants were found to be entitled was not such a declaration, but concerned acts and omissions of the commission in preparing and making the report. It was not argued - and so did not fall to be decided - that parliamentary privilege or immunity could successfully be claimed for those acts or omissions. Parliamentary privilege and immunity attached to the commission’s report only after it was tabled and printed, whereas the respondent’s acts or omissions in connexion with her report were protected, as follows from s. 3(3)(f), from the moment she began preparing it. I should add that none of the provisions of the Parliamentary Papers Act were considered in the Ainsworth case because of course that Act commenced after the decision was handed down.

1. It is quite plain that the applicants seek to question in this Court proceedings in Parliament by questioning the preparation, making, and publishing of a report by an officer of Parliament prepared, made, and published under the authority of a committee of the Legislative Assembly and published under the authority of the Legislative Assembly itself. That circumstance distinguishes this case from two recent Queensland cases in which it was not sought to impeach or question proceedings in Parliament:  Criminal Justice Commission v. Nationwide News Pty Ltd [1996] 2 Qd. R. 444 and Laurance v. Katter [2000] 1 Qd. R. 147; as to the former, see p. 450 per Fitzgerald P., and, as to the latter, see p. 204 per Davies J.A.

1. An argument was advanced on behalf of the applicants in reliance on s. 118ZA(1) of the Criminal Justice Act. That subsection provides that the parliamentary commissioner and officers or employees of the parliamentary service assigned to the commissioner and persons engaged to provide the commissioner with services, information, or advice are not liable to an action or other proceeding for damages for or in relation to anything done or omitted to be done in good faith and without negligence in the performance, or purported performance, of a function, or in the exercise, or purported exercise, of a power under part 4A of the Criminal Justice Act.  It was submitted that in providing that limited protection Parliament had shown it did not intend that the respondent should be otherwise protected.  It must be noticed at once that it is the protection of proceedings in Parliament that is in issue and not protection of the respondent.  Just as the privileges and rights of Parliament go beyond the interests of an individual member of Parliament (R. v. Jackson (1987) 8 N.S.W.L.R. 116 at p. 121), so too do they transcend the interests of an officer of Parliament.

1. Section 118ZA is not, however, the only provision of the Criminal Justice Act protecting the acts and omissions of the parliamentary commissioner. Section 118W provides that the Commissions of Inquiry Act 1950 applies to the parliamentary commissioner:

118W.   For an investigation under this part-

(a)the parliamentary commissioner has and may exercise all the powers, rights and privileges under the Commissions of Inquiry Act 1950, of a commission and the chairperson of a commission within the meaning of the Act;  and

(b)the Commissions of Inquiry Act 1950 applies to the parliamentary commissioner, the investigation and the subject matter of the investigation as if the matter were one into which a commission constituted by the parliamentary commissioner was appointed to make an inquiry under that Act.

Furthermore, it is reasonable to construe s. 118ZA as not excluding the protection of parliamentary privilege but as augmenting it; while it may be accepted that acts or omissions of the parliamentary commissioner protected under s. 118ZA may also be protected by parliamentary privilege, not all of the commissioner’s acts or omissions will necessarily have that dual protection. The commissioner’s parliamentary duties will no doubt be carried out in the main under s. 118R(2) of the Criminal Justice Act, but s. 118R(1) provides that the commissioner has the functions given to him or her under the Criminal Justice Act ‘or another Act’. 

1. More cogent perhaps than those considerations is, however, the implausibility of the proposition that Parliament should have intended by such an indirect means to surrender by implication part of the privilege attaching to its proceedings.  The proposition advanced on behalf of the applicants really comes down to an assertion that by providing for a limited immunity for acts and omissions of the parliamentary commissioner the Parliament intended substantially to derogate from its own privilege.  I do not accept that construction of the Act.  While it must be accepted  that an Act of Parliament can by necessary implication circumscribe parliamentary privilege, this is assuredly not such a case.  Altogether different is of course a case in which a statutory right is expressly created;  then it is necessarily implied that the privilege gives way:  R. v. Smith, ex parte Cooper [1992] 1 Qd. R. 423, at p. 430.

1. If the applicants have complaints concerning the preparation and making of the respondent’s report theirs is a case in which there is no legal remedy, a circumstance not without precedent in parliamentary annals: see Bradlaugh v.Gossett (1884) 12 Q.B.D. 271, especially p. 285 per Stephen J.

1. My conclusion is therefore that since the applicants seek to question proceedings in Parliament in this Court, their applications are not justiciable and must be dismissed.