Commonwealth of Australia represented by the Department of Immigration and Border Protection
[2017] FWCFB 5214
•10 OCTOBER 2017
| [2017] FWCFB 5214 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.266—Industrial action related workplace determination
(B2016/1232)
VICE PRESIDENT CATANZARITI | SYDNEY, 10 OCTOBER 2017 |
Objections to aspects of the DIBP witness statements of Mr Murali Venougopal and Mr Steven Groves on the grounds that elements are protected by Parliamentary privilege and on the basis of hearsay and relevance – objections dismissed.
[1] The Full Bench has handed down two decisions dealing with objections to aspects of the submissions and evidentiary material filed in this matter by the Commonwealth of Australia represented by the Department of Immigration and Border Protection (DIBP) and the Community and Public Sector Union (CPSU).
[2] The first decision, 1 handed down on 11 August 2017, determined that all of the disputed material came within the definition of “proceedings in Parliament”as set out in s.16(2) of the Parliamentary Privileges Act 1987 (Cth)(PP Act) and that the Budget documents which the DIBP sought to tender were protected by Parliamentary privilege and, therefore, incapable of being received by the Fair Work Commission (Commission). As to the other material which was disputed on the grounds of Parliamentary privilege, the Full Bench indicated in its decision that the material would be caught by Parliamentary privilege if any party sought to rely on that material in a way that entailed the tender or receipt by the Commission or a party to these proceeding questioning, making of submissions or commenting on those documents for any of the purposes set out in s.16(3) of the PP Act. As a result of further discussions between the parties and conferences convened by the Commission following the Full Bench’s first decision, agreement was reached on all but one of the disputed issues relating to Parliamentary privilege.
[3] In its second decision, 2 handed down on 4 September 2017, which dealt with the one disputed issue which the parties were unable to reach agreement on, the Full Bench determined not to admit a number of paragraphs from CPSU witness, Mr Rupert Evans’ witness statement, on the basis that the paragraphs were not relevant. The Full Bench did, however, admit one of the disputed paragraphs from Mr Evans’ witness statement.
[4] In other developments, the Full Bench issued revised Directions on 1 September 2017 regarding the submission of evidentiary material revised in the light of the Full Bench’s first decision regarding Parliamentary privilege. In accordance with those revised Directions, the DIBP, on 4 September 2017, filed further witness statements by Mr Murali Venugopal and Mr Steven Groves, with the CPSU and Ms Ryan subsequently raising a number of objections to those witness statements (the objections are set out below).
[5] Against that background, the Commission listed the matter for mention and directions on 21 September 2017, with the objections to Mr Venugopal’s and Mr Groves’ witness statements listed for substantive hearing on 28 September 2017 before Deputy President Kovacic on the basis that other members of the Full Bench would have regard to the transcript of the hearing and the parties’ written submissions in the Full Bench determining the objections.
[6] At the hearing, Mr Paul O’Grady QC appeared for the DIBP, Mr Tony Slevin of Counsel appeared for the CPSU, and Ms Elizabeth Ryan, an employee bargaining representative for the proposed Agreement, appeared on her own behalf.
[7] Following the hearing the Commission sent an email to the parties on 3 October 2017 in the following terms:
“A comparison of the material at Attachment SG-3 to Mr Groves’ third witness statement with the Department of Immigration and Border Protections’ (DIBP) Portfolio Budget Statement (PBS) 2017-18 indicates that while the CBMS material at SG-3 is presented in a slightly different format, the key figures are identical to those shown in the PBS (see pages 55-58 of the PBS). This raises the question as to whether the data entered into the CBMS is initially drawn from the PBS and expenditure is monitored against that baseline data.
Similarly, a comparison of the material at Attachment SG-4 to Mr Groves’ third witness statement with the audited financial statements in DIBP’s Annual Report 2015-16 (see pages 169 and 171 of the Annual Report) indicates a high degree of correlation between the figures in the two documents, albeit that SG-4 is presented in a different format and there are variations between the documents (perhaps due to the presumably unaudited nature of the information at SG-4). This raises the question as to whether the data at Attachment SG-4 is in essence an early version of the financial statements which appear in the DIBP Annual Report 2015-16.
Given that neither of these issues were raised by the Commission at last Thursday’s hearing, it would be appreciated if the parties could provide any comments you may wish to regarding the above observations by no later than close of business on 4 October 2017. As the parties would recall, DIBP advised the Full Bench on 7 August 2017 that it did not intend to rely on any material that was prepared in accordance with the requirements of Public Governance, Performance and Accountability Act 2013 (which included the DIBP Annual Report) and the Full Bench’s decision of 11 August 2017 determined that the DIBP PBS was protected by Parliamentary privilege.”
[8] The DIBP, the CPSU, Ms Ryan and the Australian Institute of Marine and Power Engineers (AIMPE), a bargaining representative for the proposed DIBP agreement, responded to the Commission’s email, with the substance of their responses outlined below.
[9] For the reasons set out below we dismiss the objections made by the CPSU and Ms Ryan to the evidentiary material filed by the DIBP and will therefore admit Mr Groves’ third witness statement in its entirety and Attachment MV-20 to Mr Venugopal’s third witness statement.
The Disputed Material
[10] The CPSU objected to Mr Groves’ third witness statement in its entirety. Among other things, the CPSU objected to those aspects of Mr Groves’ witness statement concerning the Central Budget Management System (CBMS) (primarily at Attachment SG-3) and an extract from the DIBP’s SAP financial management information system (primarily at Attachment SG-4) on the basis that the material was protected by Parliamentary privilege. The CPSU also objected to the copy of the Treasurer’s address to the Australian Business Economists on 27 April 2017 which was attached to Mr Groves’ witness statement (Attachment SG-5) on the basis that it was hearsay and not relevant.
[11] Ms Ryan, on the other hand, objected to a number of attachments to Mr Venugopal’s third witness statement. However, at the mention and directions hearing on 21 September 2017, Ms Ryan advised the Commission that she no longer pressed her objections in respect of Attachments MV-12, MV-13, MV-19, MV-21 and MV-22 to Mr Venugopal’s third witness statement, but that she maintained her objection to Attachment MV-20. As a result, the Commission suggested that Ms Ryan and the DIBP confer in an attempt to resolve that objection.
[12] Ms Ryan also disputed paragraphs 4-8 and Attachment SG-5 of Mr Groves’ third witness statement on the grounds that those aspects were protected by Parliamentary privilege. By way of background, paragraphs 4-8 of Mr Groves’ witness statement read as follows:
“4. In my First Witness Statement at [25] and [57] to [59] I describe the CBMS, which is the core system administered by the Department of Finance used to:
a. manage the flow of information between the Department of Finance, the Department of Treasury and other Commonwealth entities (including DIBP);
b. facilitate cash and appropriation management;
c. deliver financial reporting to the Government, both monthly and end of year;
d. facilitate preparation of budget documentation, such as financial estimates;
e. record agency funding and related Government decisions which affect that funding;
f. track all changes to agency funding levels that have been agreed by Government;
g. control access to the Consolidated Revenue Fund; and
h. provide a facility for the creation of each new rolling Forward Estimate.
5. The data on the CBMS is available, and can be accessed, for a broad range of purposes which extend beyond those related specifically to the Commonwealth Budget and Forward Estimates. It is a repository of historical (i.e actual as distinct from estimated) financial data, and is also used by the Department of Finance (DoF) to prepare monthly financial accounts for the Commonwealth as well as to create a consolidated set of financial statements each year. The Government’s financial statements record ‘actual’ data. In contrast the Budget papers largely comprise financial ‘estimates’.
6. Information on the CBMS is also used by agencies, including DIBP:
a. for cash management purposes;
b. to manage Programme allocations;
c. to prepare Budget Forward Estimates (see paragraph [60] of My First Witness Statement) including the tracking of agreed measures;
d. to prepare Portfolio Budget Statements;
e. to prepare Portfolio Additional Estimates Statements;
f. to prepare DIBP’s appropriation bill input; and
g. to provide to DoF information on DIBP’s financial performance through the provision of monthly and annual financial statements.
7. DIBP (like other agencies) prepares and submits budget estimates in accordance with section 36 of the Public Governance, Performance and Accountability Act 2013 (Cth)(PGPA Act). The budget estimates provide a fiscal ‘baseline’ against which policy decisions are made by the Government. The estimates are often referred to as ‘budget baseline estimates’. Generally speaking agencies including DIBP are responsible for the expenditure estimates that are used in the Government’s budget estimates. The DIBP budget baseline estimates take the form of budgeted financial statements which are periodically updated by way of budget adjustments and uploaded by members of my team onto the CBMS. I am required to certify that the budget baseline estimates submitted by DIBP are complete, accurate and prepared in compliance with the Government’s budgetary and legal requirements, including the PGPA Act, the Charter of Budget Honesty Act 1998 (C’th), Finance Minister’s Orders, Australian Accounting Standards and Finance Estimates Memoranda. The DoF, which is the custodian of CBMS, oversees the validation and integrity of the data that agencies upload to CMBS. As I indicated in my First Witness Statement at paragraphs [31] and [60], estimates are also produced for the forward years. These rolling Forward Estimates are reflected in CBMS and are also varied if and when Government policy changes.
8. In relation to DIBP’s budgeted financial statements, appropriation revenue is set by reference to the Appropriations that are anticipated to be made to DIBP from Consolidated Revenue over the forward estimates based on the decision of Government. After the completion of each Commonwealth Budget estimate round (for example the May Budget, and the February additional estimates process), if new measures (decisions) are made by Government, or existing measures lapse, adjustments are made to the budgeted financial statements on the CBMS so that they will reflect the budgetary impact of the decisions made by Government.”
The CPSU’s submissions
[13] In its written submissions of 11 September 2017, the CPSU contended that the CBMS material referred to in Mr Groves’ third witness statement was caught by the description of Parliamentary material in s.16(2)(c) of the PP Act. The CPSU further contended that the data fell within the definition of document in s.2B of the Acts Interpretation Act 1901 (Cth) (AI Act) and that the PP Act at s.3(1) defined a document as including a part of a document. In view of paragraph 17 of Mr Groves’ witness statement which referred to the financial pressures confronting the DIBP, the CPSU submitted that the DIBP was seeking to tender the CBMS material for the purpose of “drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament” as per s.16(3)(c) of the PP Act. In support of its submissions in this regard, the CPSU drew on those aspects of Mr Groves’ witness statement which described the purpose of the CBMS as including the facilitation of “the preparation of budget documentation such as financial estimates” and which indicated that the CBMS data was available “for a broad range of purposes which extend beyond those related specifically to the Commonwealth Budget and Forward Estimates.”
[14] The CPSU in its written submissions also objected to the SAP financial management information system data set out in Mr Groves’ witness statement based on Mr Groves’ statement that the information derived from the system was “ultimately used for the preparation of the DIBP’s Financial Statements” with those financial statements “used to provide CBMS with financial information for the purposes of monthly and annual whole of Government reporting.” The CPSU submitted that the material appeared to be lead for the same purpose as the CBMS data and was therefore contrary to s.16(3) of the PP Act. As such, the CPSU contended the material could not be admitted.
[15] As to the Treasurer’s address attached to Mr Groves’ witness statement, the CPSU submitted that:
• It could not be relevant to these proceedings as there was nothing specific to the DIBP in the address and, furthermore, the address was given in April 2017 which was well after bargaining for the proposed agreement had ceased;
• It was hearsay; and
• Introducing the address by attaching it to Mr Groves’ witness statement denied the CPSU the opportunity to cross-examine in respect of whatever aspects of the address the DIBP might seek to rely on.
[16] At the hearing, the CPSU relied upon its written submissions. Beyond that, key aspects of the CPSU’s oral submissions were that:
• The uses of the CBMS as outlined in paragraph 4(c)-(h) of Mr Groves’ third witness statement all related to the Budget with the material gathered in the cause of or for the purposes or incidental to the Budget process;
• The material continued to have the character defined in s.16(2) of the PP Act of being proceedings in Parliament;
• Simply taking the material from the database and packaging it in a different way did not avoid or change its character from being material that was incidental to the abovementioned proceedings in Parliament;
• The circumstances in Slipper v Magistrates Court of the Act 3 (Slipper) (which was relied upon by the DIBP) were completely different to those involved in this case and, as such, that case should be distinguished for that reason;
• The distinction made by the DIBP about the use of the CBMS material by the Executive in addition to the use of the material for Parliamentary purposes was a dichotomy which should not be accepted by the Full Bench;
• The Commonwealth’s contention that acceptance of the Treasurer’s address as a business record did not defeat the CPSU’s objection to the address being admitted;
• Paragraph 59 of Mr Groves’ witness statement made it clear that the purpose of entering data into the CBMS was a budgetary purpose;
• The Parliament may make decisions regarding the allocation of funds but it was not the Commission’s role to then be influenced by those decisions when applying the test in s.275 of the Fair Work Act 2009 (Cth) (Act);
• The CBMS was a document and the extract that was sought to be tendered in these proceedings was part of that document; and
• The Treasurer’s address, which was commentary on the budgetary position taken by the Parliament, was made after the termination of the industrial action and was therefore not relevant to these proceedings.
[17] In its response to the abovementioned email of 3 October 2017 from the Commission to the parties, the CPSU submitted, inter alia, that the material in the Attachments SG-3 and SG-4 to Mr Groves’ third witness statement had the same source as the material that was previously excluded on the basis of Parliamentary privilege. The CPSU further submitted that given the earlier material was caught by s.16(2) of the PP Act, so too was the later iteration of the same material.
Ms Elizabeth Ryan’s submissions
[18] Key aspects of Ms Ryan’s written submissions of 11 September 2017 were that:
• The authority for the material contained in Attachment MV-20 to Mr Venugopal’s third witness statement was not evident on the information provided. She was therefore unable to substantiate the authenticity of the information and that clarity was required;
• Paragraphs 4-8 of Mr Groves’ third witness statement offended the Full Bench’s first decision regarding Parliamentary privilege and should therefore be redacted, adding that this would not impact on the admissibility of the CBMS data at Attachment SG-3 of the statement; and
• The Treasurer’s address also offended the Full Bench’s first decision regarding Parliamentary privilege and was therefore not admissible.
[19] At the hearing, Ms Ryan accepted and concurred with the CPSU’s submissions in respect of Parliamentary privilege. Ms Ryan also pointed to the DIBP’s 7 August 2017 advice to the Full Bench in which it stated that it did “not intend to rely on any material that is prepared in accordance with the requirements of Public Governance, Performance and Accountability 2013 [sic] (PGPA Act) and that is tabled in Parliament in accordance with the requirements of that Act (see ss 39, 42, 46 or 49 of the PGPA Act)” 4, adding that the CBMS material was repackaged PGPA Act material which came within the description of proceedings in Parliament. Ms Ryan further submitted that:
• While the Treasurer’s address may not have been directly prepared for the purpose of transacting the business of a House or committee, the words were spoken in the course of or incidental to the transacting of such business and therefore came within the description of proceedings in Parliament in s.16(2)(c) of the PP Act;
• The DIBP sought to narrow the application and scope of s.16 of the PP Act; and
• In circumstances where a document may have more than one purpose, the Parliamentary character of the document did not change because the document was also used for another purpose.
[20] In her response to the Commission’s email of 3 October 2017, Ms Ryan submitted that it was open to conclude that the data entered onto the CBMS was drawn from the DIBP’s PBS, with expenditure monitored against that baseline data, and that the data at Attachment SG-4 was in essence an early version of the financial statements which appeared in the DIBP Annual Report 2015-16. Ms Ryan further submitted that it therefore followed that the material would be caught by Parliamentary privilege.
AIMPE’s response to the Commission’s email of 3 October 2017
[21] AIMPE submitted that there was a strong argument that Attachment SG-3 was drawn from the DIBP’s PBS 2017-18 and that Attachment SG-4 was drawn from the DIBP’s Annual Report 2015-16. Accordingly, AIMPE submitted that the material was protected by Parliamentary privilege.
DIBP’s submissions
[22] In its written submissions of 18 September 2017, the DIBP accepted that, if the disputed material relating to the CBMS and the DIBP’s SAP financial management information system in Mr Groves’ third witness statement were determined to relate to proceedings in Parliament, the material would be tendered for a purpose proscribed by s.16(3) of the PP Act. However, the DIBP submitted that none of this material came within s.16(2) of the PP Act.
[23] Relying on the decisions in British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing 5 and Slipper, theDIBP contended that there was a line to be drawn which identified that which was done for the purposes of or incidental to the transacting of Parliamentary business. The DIBP further contended that the assessment of whether relevant acts had a Parliamentary purpose was ascertained at the time the acts were done with privilege not attaching to a document until the Parliamentary member or his or her agent did something with respect to it for the purposes of transacting the business of the Parliament. Accordingly, the act of the Commonwealth executive through the relevant agency in extracting material from the CBMS to prepare a Portfolio Budget Statement (PBS) would be the earliest act of that agency which could be found to have been done for purposes of or incidental to the transacting of Parliamentary business constituted by the tabling of the PBS, with anything prior to this outside the reach of Parliamentary privilege. The DIBP further submitted that information from a primary source may be extracted, analysed and discussed in ways separate from an earlier Parliamentary treatment of the same information.
[24] The DIBP further submitted that:
• Entry of data into the CBMS was not done for a Parliamentary purpose, but was done by agencies in the performance of their statutory duty;
• The retention and validation of data on the CBMS was not done for the Parliamentary purpose of tabling the Budget papers; and
• Mr Groves sought to use a specifically created extract of data from the CBMS for a non-Parliamentary purpose.
[25] Against that background, the DIBP submitted that the CPSU’s objection to the tender of the CBMS data should be dismissed.
[26] As to Ms Ryan’s objection to paragraphs 4-8 of Mr Groves’ third witness statement, the DIBP submitted that the paragraphs were descriptive of the process of the creation and content of the CBMS and were of the same nature as paragraph 49 of Mr Groves’ first witness statement as described in the Full Bench’s first decision.
[27] With regard to the DIBP SAP financial management information system data, the DIBP contended that the material had no connection with the tabling of the Budget papers in Parliament or the extraction of data from the CBMS to prepare the Budget papers for tabling in Parliament, adding that the financial information on its SAP financial management information system preceded and was in no relevant way connected to the preparation of the Budget papers. Accordingly, the DIBP submitted that the CPSU’s objection to the tender of the material should be dismissed.
[28] The DIBP submitted that the CPSU’s hearsay objection to the Treasurer’s address attached to Mr Groves’ witness statement should be dismissed because the address came within the business records exception to the hearsay rule as per s.69 of the Evidence Act 1995 (Cth) (Evidence Act). The DIBP also submitted that the fact that the Treasurer in publishing the document was undertaking an activity in the performance of the functions of his office was apparent from Mr Groves’ evidence.
[29] In respect of Ms Ryan’s objection to the receipt of the Treasurer’s address on the ground that it was protected by Parliamentary privilege, the DIBP contended, inter alia, that there was nothing in the Treasurer’s address which could be identified as an act done in the course of, or for the purposes of or incidental to, the tabling of the Budget papers.
[30] As to Ms Ryan’s objection to Attachment MV-20 to Mr Venugopal’s third witness statement, the DIBP contended that the material provided the Full Bench with guidance as to the structure of the DIBP’s operations.
[31] At the hearing, the DIBP submitted, among other things, that:
• It relied on the decision in Slipper not for the result, but for the statement of principle, i.e. it must be demonstrated that there is a conflict between the need to ensure that the legislature can exercise its power freely, the need to protect freedom of speech generally and the interests of justice in ensuring that all relevant evidence is available to the courts;
• The relevant point in time for identifying the conflict was the time at which the acts were done;
• It is not enough to say that the material is later used in the Budget, one has to go to the purpose of the document itself;
• The information contained in the CBMS was available to be used for a range of purposes, one of which is the preparation of the Budget papers;
• It is the tabling of the Budget papers which is the relevant proceeding in Parliament, adding that the CBMS was not created for the purpose of the tabling of the Budget papers;
• The entry of data onto the CBMS and the maintenance of that data is not material deserved of protection by privilege because there is no relevant conflict identified between that material and the Parliamentary process;
• The material on the DIBP’s SAP financial management information system is a step further removed and for that reason is beyond the reach of the protection afforded by s.16(2) of the PP Act;
• The material drawn from the DIBP’s SAP financial management information system lacks a Parliamentary purpose;
• Neither Attachment SG-3 or Attachment SG-4 to Mr Groves’ witness statement had been tabled in Parliament, nor were they a repackaging of material from Parliamentary documents; and
• With regard to the factors set out at s.275 of the Act, the Treasurer’s address was relevant to the interests of the employer [s.275(c)] and the public interest [s.275(d)], with affordability as one of the central issues in both of those factors. To that end, the DIBP drew on the decision in Parks Victoria v The Australian Workers’ Union and others 6 (Parks Victoria) as relevant in that regard.
[32] Finally, the DIBP outlined those aspects of the Treasurer’s address upon which it proposed to draw on in its submissions 7.
[33] In its response to the Commission’s email of 3 October 2017, the DIBP submitted that Attachment SG-3 was not drawn from the PBS when entered onto the CBMS and that Attachment SG-4 was not a version (earlier or otherwise) of the financial statements produced in the DIBP’s Annual Report 2015-16. The DIBP further submitted that through both attachments Mr Groves had sought to put in evidence relevant material at the relevant point in time in a form which was not the subject of Parliamentary privilege.
The Statutory Framework
[34] For reference purposes, we set out below the relevant aspects of s.16 of the PP Act deals with the issue of Parliamentary privilege in court or tribunal proceedings.
“Parliamentary privilege in court proceedings
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, 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) …”
Consideration of the Issues
[35] We will deal with each aspect of the disputed material separately.
The CBMS material (Mr Groves’ third witness statement)
[36] As noted above, the DIBP in its submissions relied on the decision in Slipper. Specifically, the DIBP drew the Full Bench’s attention to paragraphs [40] and [50] of the decision in Slipper which read as follows:
“[40] The history and purpose of Art 9 [of the Bill of Rights 1688] was also considered by McPherson JA (with whom Moynihan J agreed) in Rowley v O’Chee [2000] 1 Qd R at 218-219; (1997) 142 FLR 1 at 10:
‘The enactment of the Bill of Rights was the culmination of a long struggle with the executive over the right to freedom of speech in parliament in England. Its primary purpose was to ensure that members were not subjected to pains or penalties for what they said in the course of debate or other proceedings in either of the Houses. To that extent, it has always been considered a bulwark of representative government in English-speaking societies: see R v Jackson (1987) 8 NSWLR 116 at 118, 121. At the same time, however, the parliamentary privilege it confers has a direct impact on the exercise of the right of freedom of speech in the community. In commenting on some of the decided cases on the subject, the Judicial Committee in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 327, recently said they:
… illustrate how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its power freely on behalf of its electors, with access to all relevant information; secondly, the need to protect freedom of speech generally; thirdly, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled, that, of these three public interests, the first must prevail. But the other two public interests cannot be ignored and their Lordships will revert to them in considering the question of a stay of proceedings.’
…
[50]Both a purposive and textual approach to the interpretation of s 16 lead to the conclusion that the section is not intended to apply to all activities engaged in by a parliamentarian. The section is, at its heart, designed to protect freedom of speech in Parliament. No court can draw a bright line separating those activities that fall within the phrase “proceedings in Parliament”, and those that do not, but where a court is faced with the suggestion that evidence, material or questions proposed to be lead in proceedings come within the ambit of “proceedings in Parliament”, the court should bear in mind the conflicting interests identified in Prebble v Television New Zealand Ltd (at 336) which, in my opinion, although directed towards Article 9 of the Bill of Rights, apply equally to the application of s 16, see [40] above. Where there is a conflict between these interests, the public interest in ensuring that the legislature can exercise its powers freely on behalf of its electors, and with access to all relevant information, must take precedence over all other interests. Before sublimating those other interests, however, it must first be demonstrated that there is, in truth, a conflict. The onus falls on the plaintiffs, in these proceedings, to establish that the evidence to be led by the third defendant, or the questions to be asked by the plaintiff or evidence to be led by him, will result in such a conflict and, as such, engage the provisions of s 16(3). That onus is not satisfied by speculation and hypothesis: see Rann v Olsen at [212]-[213].”
[37] The DIBP further contended that the assessment of whether relevant acts had a Parliamentary purpose was ascertained at the time the acts were done with privilege not attaching to a document until the Parliamentary member or his or her agent did something with respect to it for the purposes of transacting the business of the Parliament.
[38] The CPSU in essence contended that the CBMS was captured by s.16(2)(c) of the PP Act on the basis that the data contained in the CBMS fell within the definition of document in s.2B of the AI Act. By way of background, s.2B of the AI Act defines document in the following terms:
“‘document’ means any record of information, and includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d) a map, plan, drawing or photograph.”
[39] Further, s.3(1) of the PP Act provides that a “document includes a part of a document”. In Carrigan v The Honourable Senator Michaelia Cash 8(Carrigan), Justice White observed as follows:
“[44] The question of whether words were spoken, or acts were done, for a specified purpose is a question of fact. Prima facie, it requires an assessment of the subjective purpose of the actor in question: O’Chee v Rowley (1997) 150 ALR 199 at 208. However, as with so many areas of the law, the ascertainment of that purpose is informed by an objective consideration of the circumstances, that is, by consideration of those matters which stand independently of any statement by the actor of his or her purpose, especially statements made in retrospect.
…
[46]As noted, in relation to Mr Heerey, the issue is whether, at the time he prepared his report, he did so for purposes of or incidental to the transacting of the business of either House of Parliament: O’Chee v Rowley at 208. It is Mr Heerey’s purpose in preparing the report which is to be considered …”
[40] As noted in our first decision, leave to appeal the decision in Carrigan was refused by the Full Federal Court. 9
[41] Drawing on the decision in Carrigan, the question to be considered in this case is Mr Groves’ purpose in preparing the report at Attachment SG-3 to his third witness statement. While based on the material before the Commission, the CBMS clearly has a number of uses related to the preparation of Budget material, e.g. to prepare an agency’s PBS. That does not mean that any document or report which draws on the data contained in the CBMS automatically comes within the definition of proceedings in Parliament in s.16(2) of the PP Act. Despite the key figures in Attachment SG-3 being identical to those set out in the DIBP’s PBS 2017-18, Attachment SG-3 presents the material in a more disaggregated and detailed form. For instance, whereas the comprehensive income statement set out in the DIBP PBS 2017-18 identifies an amount for “Employee benefits” 10, Attachment SG-3 identifies a number of expenses, i.e. Wages & Salaries, Superannuation Paid, Leave and Other entitlements, FBT Employee expenses, Separation and redundancy payments and Other employee expenses, which when added together provide a subtotal titled “Employees”. The amounts for “Employee benefits” in the PBS and the subtotal for “Employees” in Attachment SG-3 are, however, identical. Further, there is no material before the Commission indicating that the more detailed material set out in Attachment SG-3 has been or will be tabled or presented to the Parliament. In those circumstances, it appears that the report was specifically run for the purposes of these proceedings. This does not support a finding that the report at Attachment SG-3 was produced “in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee” as per s.16(2) of the PP Act. At one level, the similarity between the key numbers set out in Attachment SG-3 and the DIBP’s PBS 2017-18 is not surprising given that both documents are drawn from the same data set. However, one document was clearly for prepared tabling in the Parliament, i.e. the DIBP’s PBS 2017-18, whereas Attachment SG-3 has not, in our view, been prepared for that purpose.
[42] The above analysis supports a finding that those aspects of Mr Groves’ third witness statement which draw on CBMS data are not protected by Parliamentary privilege and therefore can be admitted.
[43] As to Ms Ryan’s objection to paragraphs 4-8 of Mr Groves’ third witness statement, on any reading of those paragraphs, they are nothing more than a factual description of the uses to which the CBMS is put and how the data on the CBMS is maintained and updated. In our view, there is nothing in the paragraphs that relates to proceedings in Parliament which would enliven Parliamentary privilege. We also reiterate the observation made in our first decision regarding the equivalent material in Mr Groves’ first witness statement to paragraphs 4-8 of his third witness statement:
“[84] To assist the parties in their analysis of the material that they currently seek to rely on we provide two examples based on some of the disputed material referred to in Table 2 to the CPSU’s Outline of Submissions on Parliamentary Privilege … Conversely, paragraph 49 of Mr Steven Groves’ witness statement of 17 March 2017 which sets out the purpose of the range of documents produced as part of the Budget process does not appear to be directed at any of the purposes referred to in s.16(3) of the PP Act and therefore would be unlikely to enliven Parliamentary privilege.” 11
The DIBP SAP Financial Management Information System material (including Attachment MV-20 to Mr Venugopal’s third witness statement)
[44] Again, consistent with the decision in Carrigan, regard must be had to Mr Groves’ purpose in preparing the report at Attachment SG-4 to his third witness statement.
[45] The CPSU objected to the SAP financial management information system data set out in Mr Groves’ witness statement, given Mr Groves’ statement that the information derived from the system was used for the preparation of the DIBP’s Financial Statements. On the other hand, the DIBP contended that the material had no connection with the tabling of the Budget papers in Parliament or the extraction of data from the CBMS to prepare the Budget papers for tabling in Parliament.
[46] Firstly, we note that s.41 of the PGPA Act, which deals with accounts and records for Commonwealth entities, requires Commonwealth entities to, among other things, keep accounts and records. Specifically s.41 provides as follows:
“Accounts and records for Commonwealth entities
(1) The accountable authority of a Commonwealth entity must cause accounts and records to be kept that properly record and explain the entity’s transactions and financial position.
(2) The accountable authority must ensure that the accounts and records are kept in a way that:
(a) complies with any requirements prescribed by the rules; and
(b) enables the preparation of the annual financial statements required by sections 42 and 48; and
(c) allows those financial statements to be conveniently and properly audited in accordance with this Act.
Note: The Auditor-General audits the financial statements of Commonwealth entities (see section 43).
…”
[47] In other words, the DIBP maintains its SAP financial management information system in accordance with its statutory obligation to do so. Further, both s.41 of the PGPA Act and the material before the Commission point to the DIBP’s SAP financial management information system being used for a number of purposes, including the recording and tracking of expenditure and receipts and the preparation of financial statements with those audited financial statements included in the DIBP’s annual report which is tabled in the Parliament. While Attachment SG-4 draws on the same system/data relied upon to produce the DIBP’s financial statements, as with the CBMS, that does not mean that any document or report which draws on that system/data automatically comes within the definition of proceedings in Parliament in s.16(2) of the PP Act. As noted in the Commission’s previously mentioned email of 3 October 2017 to the parties, a comparison of the material at Attachment SG-4 with the audited financial statements in the DIBP’s Annual Report 2015-16 12 indicates a high degree of correlation between the figures in the two documents, albeit that Attachment SG-4 is presented in a different format and there are variations between the documents. However, unlike Attachment SG-3, Attachment SG-4 presents financial information in a more aggregated form than is presented in the financial statements as published in the DIBP Annual Report 2015-16. For instance, at Attachment SG-4 “Own-Source Revenue” is a single line entry whereas in the DIBP’s published financial statements it is comprised of six line entries (i.e. Sale of goods and rendering of services, Recovery of costs, Electronic travel authority fees, Rental income, Software royalties and Other revenue). Such differences are, in our view, material and point to the report at Attachment SG-4 having been specifically run for the purposes of these proceedings. This does not support a finding that the report at Attachment SG-4 was produced “in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee” as per s.16(2) of the PP Act.
[48] The above analysis supports a finding that those aspects of Mr Groves’ third witness statement, which draw on the DIBP’s SAP financial management information system, are not protected by Parliamentary privilege and therefore can be admitted.
[49] With regard to Ms Ryan’s objection to Attachment MV-20 to Mr Venugopal’s third witness statement, at the hearing, the DIBP advised the Commission that the information included in the attachment was derived from its SAP system and therefore fell into the same category of material as Attachment SG-4. In that regard, an examination of the Budget papers, the DIBP PBS 2017-18 and the DIBP Annual Report 2015-16 does not indicate the DIBP staffing data being presented in the detailed form provided in Attachment MV-20. For that reason and the reasons set out above in respect of Attachment SG-4, we do not consider the material to be protected by Parliamentary privilege.
The Treasurer’s Address to the Australian Business Economists (Attachment SG-5 to Mr Groves’ third witness statement)
[50] Section 69 of the Evidence Act which is relied upon by the DIBP provides that:
“Exception: business records
(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
…”
[51] The DIBP also submitted that the Treasurer’s address was relevant to the interests of the employer and the public interest as per ss.275(c) and (d) of the Act, referring to the decision in Parks Victoria. In Parks Victoria, the Full Bench observed as follows regarding the relevance in that case of the Victorian Government’s wages policy:
“[206] No party contended that the government’s wages policy is binding on the Commission. Nor does there appear to be any debate that the government’s wages policy is relevant, but not determinative …
[207] In our view, the Victorian Government’s wages policy is relevant to our consideration of the level of wage increases to be included within the workplace determination. The policy is, of course, not determinative of that issue, however, given the size of the state government sector and the role of the government in allocating scarce resources to various public services (such as health, education and justice) it is appropriate to accord the policy more weight than one would to the negotiating position of parties without such responsibilities. Of course, such a policy cannot displace the Commission’s consideration of the range of statutory factors to which it must have regard.”
[52] Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure. However, as noted by the Full Bench of the then Australian Industrial Relations Commission in King v Freshmore (Vic) Pty Ltd: 13
“[60] We note at the outset that the Commission is not bound by the rules of evidence. In this regard s.110 of the Act relevantly provides …
[61] But s.110(2)(a) does not mean that the rules of evidence are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then WA Act:
‘However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R. v War Pensions Entitlement Appeal Tribunal: ex parte Bott [1933] 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence.’” (footnotes omitted)
[53] While we acknowledge the CPSU’s point regarding its inability to cross-examine in respect of those aspects of the Treasurer’s address upon which the DIBP intends to draw on in its submissions, we are prepared to admit the address on the basis that we consider that it comes within the definition of business record set out in s.69 of the Evidence Act and having regard to the observations set out above that were made in Parks Victoria and Freshmore. It remains of course open to the CPSU and other parties to make submissions as to what weight, if any, should be attached to those elements of the Treasurer’s address which the DIBP seeks to rely on.
[54] As to Ms Ryan’s objection to the admission of the Treasurer’s address on the basis that it is caught by Parliamentary privilege, we note that the address was given outside the Parliament, and was given in advance of the 2017 Budget and provides a general overview of a number of Government initiatives and priorities, as well as touching on the economic outlook. In our view, there is nothing in the address such that it could be construed as coming within the definition of proceedings in Parliament in s.16(2) of the PP Act. Accordingly, we do not consider the address to be protected by Parliamentary privilege.
Conclusion
[55] For all the above reasons, we dismiss the objections made by the CPSU and Ms Ryan to the evidentiary material filed by the DIBP and will therefore admit Mr Groves’ third witness statement in its entirety and Attachment MV-20 to Mr Venugopal’s third witness statement.
VICE PRESIDENT
Appearances:
Mr P. O’Grady QC for the Commonwealth of Australia represented by the Department of Immigration and Border Protection.
Mr A. Slevin of Counsel for the Community and Public Sector Union.
Ms E. Ryan on her own behalf.
Hearing details:
2017
Canberra via video link to Sydney:
28 September.
1 [2017] FWCFB 4200.
2 [2017] FWCFB 4577.
3 (2014) 285 FLR 78.
4 [2017] FWCFB 4200, [22].
5 (2011) 195 FCR 123.
6 [2013] FWCFB 950.
7 Transcript at PN126-131.
8 [2016] FCA 1466.
9 [2017] FWCFB 4200, [36] and [37].
10 Portfolio Budget Statements 2017-18 Immigration and Border Protection Portfolio at p.55.
11 [2017] FWCFB 4200, [84].
12 See pages 169 and 171.
13 Print S4213.
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