Commonwealth of Australia represented by the Department of Immigration and Border Protection v CPSU, the Community and Public Sector Union - [2017] FWCFB 4200

[2017] FWCFB 4200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.266 - Industrial action related workplace determination

Commonwealth of Australia represented by the Department of Immigration and Border Protection
v
CPSU, the Community and Public Sector Union
(B2016/1232)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS

SYDNEY, 11 AUGUST 2017

Objections to aspects of the submissions and evidentiary material relied upon on the grounds that those aspects are protected by Parliamentary privilege – Disputed material found to come within the definition of ‘proceedings in Parliament’ as set out in s.16(2) of the Parliamentary Privileges Act 1987 (PP Act) – Budget documents protected by privilege – further analysis required as to whether reference to disputed materials is relied upon for one or more of the purposes proscribed in s.16(3) of the PP Act – further conference to be convened.

[1] This decision concerns the issue of whether 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) are protected by Parliamentary privilege under the Parliamentary Privileges Act 1987 (Cth) (the PP Act) and whether the material can be received by the Fair Work Commission (the Commission).

[2] The issue was heard on 21 July 2017. At the hearing, Mr Paul O’Grady QC and Mr Tim Begbie of Counsel appeared for DIBP, Mr Tony Slevin of Counsel appeared for the CPSU, Mr Michael Bakhaazi appeared for the Australian Institute of Marine and Power Engineers (AIMPE), a bargaining representative for the proposed DIBP agreement (the proposed Agreement), and Ms Elizabeth Ryan, an employee bargaining representative for the proposed Agreement, appeared on her own behalf. Witness statements were provided by Mr Murali Venugopal, DIBP’s First Assistant Secretary, People, and Mr Sunil Kemppi, a Senior Industrial Officer with the CPSU, on behalf of DIBP and the CPSU respectively. Neither witness was required for cross examination.

[3] For the reasons set out below we consider all of the disputed material to come within the definition of ‘proceedings in Parliament’ as set out in s.16(2) of the PP Act. We further consider the Budget documents which DIBP seeks to tender are protected by privilege and therefore incapable of being received by the Commission. As to the other material which is disputed on the grounds of Parliamentary privilege, we consider it would be caught by Parliamentary privilege should any party seek to rely on it in a way that entails the tender or receipt by the Commission or the questioning, making of submissions or comment on those documents for any of the purposes set out in 16(3) of the PP Act. Determining the latter issue requires a forensic analysis by the parties of their respective submissions and evidentiary material to ensure that it is not relied upon for any of the purposes set out in 16(3) of the PP Act.

Background

[4] On 5 October 2016 Commissioner Wilson issued an Order 1 terminating protected industrial action for the proposed Agreement. The Commissioner issued reasons for his decision on 6 October 20162. In the light of the inability of the parties to conclude an agreement in the post-industrial action negotiating period, the President on 4 November 2016, constituted this Full Bench to make an industrial action related workplace determination. A number of directions were subsequently issued, most recently on 12 May 2017, regarding the substantive hearing of matter. The matter was listed for hearing over various dates in July, August and September 2017.

[5] On 8 June 2017 the matter was listed for a telephone hearing before Deputy President Kovacic to deal with objections to the witness statement of the Hon Wayne Swan MP and the process for dealing with objections more broadly. The hearing concluded on the basis that the parties would list and confer on their respective objections with the matter listed for conference on 12 July 2017 before Kovacic DP to deal with any remaining objections and to discuss the order of witnesses.

[6] On 10 July 2017 the Commission wrote to the parties requesting that they provide their proposed order for the appearances of witnesses and an outline of any objections to the evidence prior to that conference. DIBP responded later that day by way of an email to the Commission which included the following:

“… As requested before the conference before Deputy President Kovacic on Wednesday, 12 July 2017 please find attached:

1. A table outlining the Department’s objections with respect to the evidence proposed to be relied on by the CPSU and the other bargaining representatives as filed in these proceedings ... The attached table includes objections based on the operation of section 16 of the Parliamentary Privileges Act 1987 together with other objections that are based on evidentiary grounds ...

2. An outline of the Department’s submissions with respect to the objections based on the operation of s 16 of the Parliamentary Privileges Act 1987.”

[7] The CPSU on 11 July 2017 provided the Commission with a table outlining its objections to the evidence proposed to be relied upon by the DIBP. That table similarly objected to a number of elements of DIBP’s evidence on the ground of Parliamentary privilege.

[8] The Parliamentary privilege issue was discussed at the abovementioned conference on 12 July 2017 with the parties advised that the Full Bench would hear the issue on the hearing dates scheduled for the following week. Directions regarding the Parliamentary privilege issue were subsequently issued on 13 July 2017, with revised directions issued on 18 July 2017. As noted above, the matter was heard on 21 July 2017. At the hearing, all hearing dates in respect of the substantive matter until 14 August 2017 were vacated.

The disputed material

[9] As set in further detail below, the CPSU in its submissions accepted that some of the disputed material it sought to rely was covered by Parliamentary privilege and that it would not seek to tender material that offended s.16(3) of the PP Act. Against that background, DIBP in its submissions maintained its objections to the following CPSU materials:

1. an attachment to the witness statement of Professor O’Donnell which included a letter to the Minister for Employment which referred to comments made by her in a Senate estimates hearing;

2. paragraphs [186] to [192] of Mr Rupert Evans’ statement which referred to the Senate Committee enquiry into Commonwealth public sector bargaining; and

3. correspondence attached to Mr Evans’ witness statement which referred to statements made in Parliament by the Minister for Immigration and Border Protection.

[10] In its submissions the CPSU listed the following documents filed by DIBP as covered by Parliamentary privilege:

Budget Documents (Filed March 2017)

[1] Budget Paper No 1: Budget Strategy and Outlook 2016-17 (3 May 2016).

[2] Budget Related Paper No 1.11: Portfolio Budget Statements 2016-17, Immigration and Border Protection Portfolio (2016).

[3] Budget Paper No 4: Agency Resourcing 2016-17 (3 May 2016).

[4] Mid-Year Economic and Fiscal Outlook 2016-17 (December 2016).

[5] Portfolio Additional Estimates Statements 2016-17: Immigration and Border Protection Portfolio (2017).

Budget Documents (Filed June 2017)

[6] Budget Paper No 1: Budget Strategy and Outlook 2017-18 (9 May 2017).

[7] Budget Related Paper No 1.11: Portfolio Budget Statements 2017-18, Immigration and Border Protection Portfolio (2017).

[8] Budget Paper No 4: Agency Resourcing 2017-18 (9 May 2017).

[9] Mid-Year Economic and Fiscal Outlook 2016-17 (December 2016).

[10] Portfolio Additional Estimates Statements 2016-17: Immigration and Border Protection Portfolio (2017).

Other Documents

[11] Attachment JC-1 to the witness statement of Ms Jenet Connell – DIBP Annual Report 2015-16.

[11] At the hearing, DIBP submitted that items 1-5 above had been superseded or were duplicates and therefore items 6-10 were documents which remained in dispute (for the purposes of this decision, items 6-10 will be referred to as the Budget documents). The CPSU noted that items 1-5 were not pressed and that the documents which remained in dispute were the updated Budget documents 3. As to item 11, DIBP, having regard to s.46 of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), conceded that there was a reasonable argument that the purpose of preparing an annual report was a Parliamentary purpose. As such, DIBP submitted that the Commission should proceed on the basis that s.46 was controlling and that it would therefore be removing references to the DIBP Annual Report 2015-16 (the Annual Report) in the material it sought to rely on4.

[12] Also at the hearing, DIBP foreshadowed that it would seek to put supplementary material to the Commission which put the same information contained in aspects of its Annual Report, e.g. the annual performance information and DIBP’s financial statements, in a form which did not take the form of the Annual Report 5. The CPSU’s objections to that approach are discussed in further detail below.

The statutory framework

[13] Section 16 of the PP Act deals with the issue of Parliamentary privilege in court or tribunal proceedings and provides as follows:

“16 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) A court or tribunal shall not:

a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence;

unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

(5) In relation to proceedings in a court or tribunal so far as they relate to:

a) a question arising under section 57 of the Constitution; or

b) the interpretation of an Act;

neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.

(6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.

(7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.”

DIBP’s case

[14] In its submissions of 10 July 2017, DIBP contended that privilege is set out in s.16 of the PP Act and applied to all proceedings before a court or a tribunal, with the term tribunal defined in s.3(1) of the PP Act to include a person or body having power to examine witnesses on oath. DIBP noted that the Commission was such a body. DIBP also submitted that the relevant principles set out below regarding the issue of Parliamentary privilege were well-settled, including through numerous intermediate appellate decisions, and guided the result in the present matter:

(i) the PP Act is to be applied according to its terms;

(ii) privilege secures the fundamental principle of ‘non-intervention’;

(iii) privilege is absolute; and

(iv) whether something is ‘proceedings in Parliament’ is a question of fact, in respect of which Parliamentary material may be provisionally considered.

[15] DIBP further submitted that privilege attached to ‘proceedings in Parliament’ which were relevantly defined in s.16(2) of the PP Act. DIBP further submitted that in this case the Parliamentary material can be readily seen to fall within the very broad opening words ‘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’. Against that background, DIBP contended that statements made by parliamentarians to the Senate and the House, evidence to Parliamentary committees, submissions and documents for Parliament and committees, and Parliamentary records and reports (including tabled documents and their publication through Parliamentary processes), came within the terms of s.16(2) of the PP Act. DIBP further contended that the purpose to which the CPSU proposed to put the Parliamentary material referred to in its submissions and evidentiary material varied depending upon the material in question, but that in each case involved at a minimum the purpose prescribed by s.16(3)(c) of the PP Act and in most instances one or more of the purposes prohibited in ss.16(3)(a) and (b) of the PP Act.

[16] In its submissions of 20 July 2017, DIBP accepted that the Budget documents were used in and by Parliament and acknowledged that the use and treatment of the Budget documents attracted the protection of Parliamentary privilege. However DIBP also submitted that there were two reasons why the Budget documents may be relied upon in the present case:

1. the non-Parliamentary treatment of the Budget documents – the Budget documents were prepared and published in accordance with statutory requirements for purposes to do with government fiscal policy and public scrutiny, with the Parliament having expressly declared that these purposes did not involve Parliament and that such non-Parliamentary activities were not ‘proceedings in Parliament’; and

2. the use of Budget documents in the interpretation of the Appropriation Acts – the Budget documents came within the exception to Parliamentary privilege set out in s.16(5) of the PP Act which permitted proceedings in Parliament to be used in relation to the interpretation of an Act.

[17] DIBP submitted in respect of the non-Parliamentary treatment of the Budget documents that the facts, circumstances and statutory provisions relevant to the Budget documents pointed to them being prepared and published for purposes which were separate and distinct from any Parliamentary purpose for the following reasons:

● the fiscal information and policy outlined in the Budget was prepared and released in accordance with the Charter of Budget Honesty (the Charter) which is Schedule 1 to the Charter of Budget Honesty Act 1998 (the CBH Act) which governs the preparation and public release of fiscal strategy statements, budget economic and fiscal outlook reports and mid-year economic and fiscal outlook (MYEFO) report. Further, the Charter defined the purposes of those requirements as being to achieve public scrutiny and accountability in relation to the executive Government’s fiscal policy and performance, adding that those purposes were expressed without reference to any Parliamentary process and that while the Charter required the tabling of relevant Budget documents in each case it also included a separate requirement for their public release;

● the PGPA Act imposed extensive obligations with respect to governance, performance and accountability which involved recording and reporting on underlying information relevant to Budget processes. Importantly, according to DIBP, those obligations were expressed in legislation in ways which revealed that the obligations and purposes were independent of any Parliamentary process;

● Budget documents were publicly released in a way which was quite distinct from their tabling in Parliament, e.g. through the Budget media lock-up and publication on Government websites and via media statements, with in each case the public release being separate from and not drawing upon any Parliamentary source; and

● the Government invited the Commission to consider the Budget documents in the Annual Wage Review.

[18] As to point 2. above, DIBP submitted that to the extent any of the Budget documents, or parts of them, were considered to fall within ‘proceedings in Parliament’, by virtue of s.16(5) of the PP Act they may nonetheless be the subject of evidence, submissions and consideration in the present proceedings in so far as they relate to the interpretation of the Appropriation Acts. In this regard, DIBP highlighted that s.4 of each Appropriation Act declared portfolio statements (defined as either the Portfolio Budget Statements – PBS in Appropriation Acts No.1 and 2 or the PBS and Portfolio Additional Estimates Statements - PAES in Appropriation Acts No.3 and 4) to be extrinsic materials for the purposes of the Act and that s.8(2) of the Appropriation Act provided an example of how the portfolio statements may be used to give content to the otherwise general statements of appropriation. DIBP also noted that such provisions and documents were referred to in Combet v The Commonwealth 6 (Combet).

[19] Finally, DIBP highlighted two features regarding the operation of Parliamentary privilege. First, s.16(3) of the PP Act makes any prescribed use of Parliamentary material unlawful in and of itself and second s.16(3) is not limited to prescriptions on evidence but also prohibits the making of statements, submissions or comments.

In its oral submissions, DIBP largely reiterated its written submissions. However, DIBP also submitted among other that:

the annual performance information and DIBP financial statements should be available to be relied upon because it was not information prepared for submission to Parliament 7;

the fact of tabling in Parliament cannot in and of itself convert non-parliamentary activities into ‘proceedings in Parliament’ 8;
there was not one version of the Budget documents for public release and another version for tabling 9;
it would have no difficulty striking out the references “For the information of honourable members” on the cover of a number of the Budget documents, adding that it did not consider such a step necessary 10;

the portfolio budgets statements sit in a performance framework 11; and
the CPSU was wrong to suggest that there was any understanding of appropriations in this case, acknowledging as correct the CPSU’s characterisation of DIBP’s reliance on the Budget documents as a capacity to pay point and asking “what constrains the capacity to pay, if not ultimately, appropriations?” 12

[20] Beyond that DIBP provided an overview of a number of cases which had considered the issue Parliamentary privilege. Those cases were Amann Aviation v Commonwealth 13 (Amann), Carrigan v The Honourable Senator Michaelia Cash14 (Carrigan), the Full Federal Court decision in Carrigan v The Honourable Senator Michaelia Cash15 (Cash), McCloy v The Honourable Megan Latham16 (McCloy), Stewart v Ronalds17 (Stewart) and Szwarcbord v Gallop18 (Szwarcbord). DIBP also drew the Full Bench’s attention to the decisions in Combet and Victoria v the Commonwealth19 which respectively dealt with issue of whether expenditure was required to relate to an outcome specified in an appropriation statute and whether an appropriation was valid. DIBP further stated that it did not rely on either authority20. These cases are discussed in further detail below.

[21] Mr Venugopal deposed in his witness statement 21 that the Budget papers were published in a number of ways, including via the Budget media lock-up and the Treasury’s Budget website – Mr Venugopal further deposed inter alia that:

● PBS’s are available on the website of each Australian Government portfolio agency and that the Treasurer and various Ministers make public statements about the Budget and the content of the Budget papers;

● each year the Treasurer published a MYEFO report by the end of January, with the publication process the same as for Budget papers and that the PAES were also published by portfolio agencies on their website; and

● the PBS and PAES were regularly used by Australian Government agencies in setting their internal financial and staffing budgets and preparing strategic documents such as their corporate plans and functional or local business plans.

[22] In developments after the Bench had reserved its decision, DIBP sent an email to the Commission on 7 August 2017 which included the following:

“Limiting scope of Parliamentary privilege issues

We refer to paragraph 8 of the Commonwealth submissions on Parliamentary privilege dated 20 July 2017 and the transcript of the hearing on 21 July 2017 at PN101-PN134 and PN321-PN339.

We wish to clarify that DIBP does 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).

We understand from the hearing that the CPSU does not intend to rely on any such PGPA Act material.

In order to progress the matter efficiently without need for further contest as to parliamentary privilege, any further material proposed to be relied on by DIBP will be from sources other such [sic] PGPA Act material.

In the circumstances no issue as to the application of parliamentary privilege to such PGPA Act material needs to be adjudicated and there is no need for the Full Bench to express any views on issues arising from paragraph 8 of the Commonwealth submissions and the transcript of the hearing on 21 July 2017 at PN101-PN134 and PN321-PN339.

DIBP proposes to file its substitute evidence after the Full Bench’s ruling on the parliamentary privilege issue.” (Emphasis as per original)

The CPSU’s case

[23] In its submissions, the CPSU accepted that the CPSU material identified in the table to DIBP’s submissions was caught by the description ‘proceedings in Parliament’ in s.16(2) of the PP Act and stated that the CPSU would not seek to tender material that offended s.16(3) of the PP Act. The CPSU further submitted that not all the CPSU material identified by DIBP offended the prohibition in s.16(3), adding that some of the information described in the table would be admissible in another form and that it would seek leave to tender that material in such a form. At the hearing, the CPSU submitted that:

● it did not press the tender of the disputed passage in Professor O’Donnell’s witness statement referring to the Minister for Employment’s remarks in a Senate estimates hearing;

● paragraphs [186] to [192] of Mr Evans’ statement were part of describing the chronology of events associated with bargaining and merely set out what occurred, adding that the CPSU was not relying on the chronology to do otherwise than describe that there was a Senate Committee enquiry and that as such it did not consider the material to be caught by s.16(3) of the PP Act; and

● regarding the correspondence annexed to Mr Evans’ witness statement referring to statements in Parliament by the Minister for Immigration and Border Protection, it was not contentious and was not something which it was going to ask the Commission to draw any inference from; and

● Mr Suijendorp’s evidence could be reworked to address any contentious material. 22

[24] With regard to the Budget documents filed by DIBP and references to those documents in the statements filed by DIBP, the CPSU submitted that they were caught by the PP Act and could not be received by the Commission. The CPSU submitted that this was because all of the documents had been presented to Parliament and consequently fell within the meaning of ‘proceedings in Parliament’. The CPSU further submitted with regard to s.16(2)(c) of the PP Act that it was clear on the face of the documents that they were prepared for the purposes of, or incidental to the transacting of the business of Parliament. To emphasise that point the CPSU highlighted that the DIBP PBS for 2016-17 included correspondence from the Minister for Immigration and Border Protection to the President of the Senate and Speaker of the House of Representatives which stated “These statements have been developed, and are submitted to the Parliament, as a statement of the outcomes for the portfolio.”

[25] The CPSU contended that DIBP sought to rely upon its disputed material to establish the current budgetary setting, the nature of its funding, the Commonwealth’s budgetary strategy and its current and future fiscal position. According to the CPSU, DIBP was seeking to use the Parliamentary material for one or more of the purposes prohibited in s.16(3) of the PP Act, in particular those purposes set out in ss.16(3)(a) and (c).

[26] Finally, the CPSU submitted that privilege was absolute and that the Commission had no discretion to allow the tender of or to receive the material. Accordingly, it submitted that DIBP should not press its proposed reliance upon the Parliamentary material and if pressed the Commission should not receive it.

[27] At the hearing, the CPSU relied on its written outline of submissions. Beyond that, the CPSU submitted inter alia that:

● with regard to DIBP’s submissions regarding the consequences of the CPSU’s objections to the Budget documents, that was a matter for the Parliament as the Parliament could if it wished amend the PP Act to allow budget material to be considered by courts and tribunals 23;

● the Commonwealth had properly admitted in its written submissions of 20 July 2017 that the Budget documents were caught by s.16 of the PP Act 24;

● where a document was prepared for two or more purposes and one of those purposes was a Parliamentary purpose, then the document was caught by Parliamentary privilege 25;

● the decision in Szwarcbord referred to the inability for any waiver to the absolute privilege attached to the PP Act 26;

● with regard to DIBP’s two stream argument (i.e. the documents were prepared for the purposes of public release and tabling) which arose from the CBH Act, s.3 (2) of the CBH Act which stated “Nothing in the Charter of Budget Honesty creates rights or duties that are enforceable in judicial or other proceedings” was not intended to change rights, adding that as a result the Parliamentary privilege that applied to Budget documents prior to the enactment of the CBH Act continued to apply following its enactment 27;

● the Parliamentary Papers Act 1908 28 (the PPA Act) provides at s.2 that:

“(1) It shall be lawful for the Senate, the House of Representatives or a joint

sitting to authorize the publication of any document laid before it.

(1A) Where a document is dealt with in such a manner that, in accordance

with the rules or orders of a House of the Parliament, it is deemed to

have been presented to that House, the document shall, for the purposes

of the last preceding subsection, be deemed to have been laid before

that House.”;

● further, s.6 of the PPA Act provides that “Nothing in this Act shall derogate from any power or privilege of either House of the Parliament, or of members of Committees of either House, as existing at the commencement of this Act”;

● House of Representatives Standing Order 203 29 provides that “All documents presented to the House are authorised for publication”;

● DIBP’s argument that the CBH Act somehow created two streams of documents was not sustainable having regard to the provisions of PPA Act highlighted above and Standing Order 2013 30;

● nothing in the CBH Act either explicitly waived or undermined Parliamentary privilege 31;

● DIBP’s reference to the PGPA Act did not take the matter any further as the documents arising from the Annual Report and the Budget documents simply attracted privilege 32;

● DIBP’s argument regarding the Annual Wage Review were nothing more than a red herring, adding that the issue was a matter for the Expert Panel to consider if it was raised before it 33;

● this matter was not a case about the Appropriation Act, adding that DIBP wanted the Full Bench to know what its budget is and to draw conclusions and inferences from that which is impermissible under the PP Act 34; and

● with regard to s.4 of the Appropriation Acts, there was nothing in this case which gave rise to the need to interpret the provision of an Act or required s.15AB of the Acts Interpretations Act 1901 to be referred to 35.

[28] Mr Kemppi in his witness statement 36 referred to the list of Parliamentary papers for 2017 published on the Australian Parliament House website which listed Budget Papers No. 1-4 as Parliamentary papers and indicated that they were tabled in the House of Representatives on 9 May 201737. Mr Kemppi also cited material obtained from the Australian Parliament House website which indicated that the MYEFO report for 2016-17 had been tabled in both the Senate and House of Representatives on 7 February 2017 and that the DIBP PBS had been tabled in the Senate on 9 May 2017.

AIMPE’s case

[29] AIMPE noted in its submissions that to date the High Court of Australia had yet to rule on the validity of s.16(3) of the PP Act and that there had been cases where the courts had read down the provision as well as cases where the courts had held that such a view was not accurate and a broader approach was preferred. Specifically, AIMPE urged the Commission to adopt a sensible approach to this difficult area of the law. AIMPE submitted that hearing of the substantive matter ought to proceed as planned, adding that any delay would be an abuse of process. In its oral submissions, AIMPE submitted that the Commission had no need to go the Appropriation Acts to decide this matter 38.

Ms Ryan’s case

[30] Ms Ryan submitted that some of the evidence to be adduced by DIBP and the CPSU arguably fell within the very broad scope of s.16(2) of the PP Act and quite appropriately was the subject of Parliamentary privilege. Ms Ryan urged the Commission to resist delaying the commencement of the proceedings related to the workplace determination until the matter of Parliamentary privilege was fully settled on the basis that it was open to the Commission to readily determine in the first instance the evidence that should clearly not be received on the basis that Parliamentary privilege applied.

The case law regarding Parliamentary privilege

[31] In Amann the Applicant sought to tender an extract from the Senate Hansard, with the Respondent objecting on the ground that it was prohibited by s.16(3) of the PP Act. In his decision, Justice Beaumont stated as follows:

“…If what is involved in a tender of evidence from Hansard is simply not capable of being contentious, it is difficult to see how the right of free speech could be affected.

But what is sought to be done here is to use Hansard to justify an inference that Senator Evans was influenced by Sir Peter Abeles in the context of the respondent's decision to terminate the applicant's contract. This is a highly contentious matter. In my view, the present tender is by way of or for the purpose of questioning the motive, intention or good faith of the Senator and is thus proscribed by s 16(3)(b). Also, in my opinion, the tender is by way of, or for the purpose of, inviting the drawing of inferences or conclusions from what was said in the Senate and is thus made unlawful by s 16(3)(c). The tender must be rejected accordingly.” 39

[32] Beaumont J went on to determine as follows:

“In my opinion, the tender of this material should be rejected for two reasons. First, its reception would infringe the provisions of s 16(3) for the reasons given in dealing with the tender of the extract from Hansard, that is to say, the purpose of the tender is just as much a proscribed purpose as the tender of Hansard itself. The tender is thus made unlawful by virtue of s 16(3). Secondly, in any event, the material is bad in form, being hearsay only.” 40

[33] The decision Carrigan concerns an application by Ms Carrigan seeking orders in the nature of prohibition and certiorari, an injunction and a declaration that a report prepared by the Hon Peter Heerey AM QC was void and of no effect. By way of background, Mr Heerey was appointed by the then Minister for Employment to enquire into and report on complaints made by Ms Carrigan and related issues concerning a then member of the Commission, Vice President Lawler. The Respondents, i.e. the Minister and Mr Heerey, challenged aspects of Ms Carrigan’s evidence on the basis that it would require the court to receive evidence and to make assessments concerning, proceedings in the Commonwealth Parliament, those being matters proscribed by s.16(3) of the PP Act.

[34] As noted in Carrigan, Mr Heerey provided his report to the Minister on 15 February 2016 and on 15 March 2016 the Minister tabled a redacted copy of the report in the Senate of the Australian Parliament and caused copies of the report to be circulated.

[35] In his decision, Justice White considered Mr Heerey’s purpose in respect of his report having regard to his letter of appointment and his report. Against that background, White J concluded as follows:

“Conclusion on s 16(2)

[74] I conclude therefore that the conduct of Mr Heerey in preparing and providing the Heerey Report and the conduct of the Minister which Ms Carrigan wishes to impugn in these proceedings are both within the description of “proceedings in Parliament” as that expression is defined in s 16(2) of the PP Act. So also was the action of the Respondents in causing the publication of the redacted report, after its tabling in the Senate.

The s 16(3) prohibition

[75] The second question which arises on the strike out/summary judgment application is whether Ms Carrigan seeks to adduce evidence of the conduct of Mr Heerey and the Minister “by way of, or for the purpose” of a matter specified in s 16(3) of the PP Act.

[76] The conclusion that Ms Carrigan has such a purpose is inevitable. She intends that the Court should draw inferences or conclusions concerning Mr Heerey’s preparation of his report which would result in it being declared to be void and of no effect. Ms Carrigan intends that the Court should draw inferences or conclusions concerning the tabling of the Heerey Report by the Minister and, as noted earlier, seeks an order from the Court that the Minister correct the records of the Commonwealth and of the Parliament. Plainly, orders to this effect would infringe the principle of non-intervention.

[77] Accordingly, the prohibition contained in s 16(3) of the PP Act is engaged. In fairness to Ms Carrigan, she recognised that, if the conduct of Mr Heerey and of the Minister which she wishes to impugn is within the term “proceedings in Parliament”, this conclusion would follow.” 41

[36] In subsequent developments, Ms Carrigan sought leave to appeal the decision in Carrigan. The proposed grounds of appeal in so far as they related to the issue of Parliamentary privilege were set out in the Full Court’s decision in Cash and were:

“3. His Honour failed to consider, or to fully consider that parliamentary proceedings

as set out in s 16(2) Parliamentary Privileges Act 1987 are … 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 … the result of which led His Honour to misdirect himself in the weight given to the expression transacting of the business of the House.

4. His Honour failed to consider, or to properly consider the harm and/or unfairness invoked by engaging s 16(3) PPA to the facts of this matter and as a result failed to consider how the harm caused by s 16(3) may otherwise be ameliorated.

5. His Honour failed to acknowledge the Ministers’ breaches of the appellant’s privacy, breaches that were inconsistent with privacy laws in general and acts which were inconsistent with the protection due to the appellant whether it be under s 641A of the Fair Work Act 2009 and/or s 16 of the Parliamentary Privileges Act 1987.

6. His Honour erred when he accepted the Respondents’ argument that the appellant’s claim invoked the principle of non-intervention.” 42

[37] In refusing leave to appeal in Cash the Full Federal Court determined as follows:

“[31] As to ground 3 … We reject the claim that the primary judge misdirected himself as to the weight to be given to the expression “the transacting of the business of a House” within the meaning of s 16(2) of the Parliamentary Privileges Act.

[32] As to ground 4, in our opinion it was not a matter for the Court “to consider how the harm caused by s 16(3) may otherwise be ameliorated.” The primary judge found the facts in relation to purpose and, having correctly construed s 16, applied that provision to the facts as found by him.

[33] As to ground 5, in light of the conclusions of the primary judge it was neither necessary nor appropriate for him “to acknowledge the Ministers’ breaches of the appellant’s privacy”. To do so would be contrary to the terms of s 16(3) of the Parliamentary Privileges Act. It is not permissible to start with a view as to what protection was due to the appellant and thereafter to consider the terms of s 16: instead, the necessary and appropriate course for the Court is first to consider the applicant’s claims and then to consider any application of s 16. This was the course taken by the primary judge.…

[43] We do not accept the applicant’s submission that whether or not the Parliament accepted the Heerey report per se affected the purpose of either Mr Heerey or the Minister. In our opinion, the fact that a report is not accepted by a House does not mean that the report is not covered by parliamentary privilege: in a case such as the present, what happens or may happen later does not detract from the purpose for which the report is prepared.” 43

[38] The decision in McCloy considered the issue of Parliamentary privilege in respect of whether an affidavit sworn by the Applicant’s solicitor should be received. Attached to the solicitor’s affidavit was a copy of the report of the NSW Parliament’s Committee on the Independent Commission Against Corruption which included aspects of the transcript which the Defendant gave to the Committee’s enquiry. Specifically, the NSW Attorney-General submitted that tender and reception into evidence of the material would infringe the privileges of the NSW Parliament. The debate around this objection preceded by reference to s.16 of the PP Act, with Justice McDougall noting that the PP Act could not apply of its own force as it dealt with the privileges of the Commonwealth Parliament 44.

[39] The way in which the Plaintiff in McCloy sought to rely on the disputed material was outlined by McDougall J in his decision in the following way:

“[9] Paragraph 8C of the further amended summons seeks to summarise the effect, from Mr McCloy’s perspective, of the speech that the Commissioner gave to members of the Bar Association, her evidence to the parliamentary committee relating to that speech, and … Again, in my view, para 8C sets out inferences that the hypothetical fair-minded observer might (reasonably) draw, although (unlike paras 5 and 8, those “apprehensions” are not described as “inferences”). I set out para 8C.

8C A fair-minded observer might reasonably apprehend that those matters undermine the integrity of the Commissioner’s inquiry in Operation Spicer and that the Commissioner might, in her deliberations, conclusions and reports, seek to justify her publicly stated position rather than perform those duties impartially and fairly, and that her statements to the Bar Association at [4] above and the Parliamentary Committee at [6] and [7] above are indefensible.” 45

[40] In his decision, McDougall J identified the question before him as being:

“… is the evidence tended merely to prove what the Commissioner said to the Committee, or is it being tended for a purpose prohibited by subs (3)?” 46

[41] By way of background, the Commissioner referred to in the above extract was the Defendant, while the reference to “subs (3)” was a reference to s.16(3) of the PP Act.

[42] In outlining his reasons for rejecting the tender of the disputed material, McDougall J stated inter alia that:

“[24] As I have noted, the specific argument sought to be raised is that the words used could reasonably lead to the inferences set out in para 8 of the further amended summons. Although the language of reasonable apprehension rather than reasonable inference is used in para 8C, in my view exactly the same situation applies under that paragraph also.

[25] When one views the material in that way, it seems to me that a tender for the limited purpose of proving what the Commissioner said in Parliament could have no relevance other than the use sought to be made of it as articulated by the further amended summons. If it is not to be tendered for that purpose then it is irrelevant and should not be admitted. If it is to be tendered to support the argument advanced by those paragraphs of the further amended summons, then it seems to me to be directly inconsistent with the principles stated in s 16(3) of the Parliamentary Privileges Act; I repeat, not in its capacity as an enactment directly regulating the conduct of these proceedings, but in its capacity as declaratory of the general law applicable in this State and to proceedings in the Parliament of this State.

[26] Specifically, even if one were to eschew reliance on paras (a) and (b) of subs (3) (and I am by no means sure that the use sought to be made of the material could be said to be consistent with those paragraphs), the very way that the challenge is formulated, in those paragraphs of the further amended summons to which I have referred, makes it obvious that the material will be relied upon for the purpose of inviting the drawing of inferences or conclusions wholly or partly arising from what the Commissioner said to the Parliamentary Committee. In my view, that is a use directly prohibited by the principle declared by s 16(3)(c).” 47

[43] In Stewart Hodgson JA opined as follows when considering the issue of Parliamentary privilege in respect of a report commissioned by the then NSW Premier into allegations of misconduct against a Minister in his government which resulted in the Minister’s commission being withdrawn.

“[124] It was submitted for the defendants that the investigation report in this case was within s 16(2)(c) as being the preparation of a document for the purposes of or incidental to the transacting of any business of a House or committee; and that the relevant business here was the Legislative Assembly’s role in holding the Executive to account and overseeing its activities and composition, having regard to the need of the Executive to maintain the confidence of the Legislative Assembly. As at present advised, I am not able to hold that this is so: it seems arguable to me that this role of Parliament is not itself business of Parliament or a committee of Parliament, and that the tabling of a report prepared at the request of the Executive and provided to the Executive for the purposes of the Executive is not itself Parliamentary business that makes the report itself immune to criticism in the courts; and that if s 16(2)(c) were to be otherwise construed, it would not reflect the general law and would be irrelevant to the position in relation to the New South Wales Parliament.

[125] Again, I have expressed myself tentatively, for the same reasons as before.” 48

[44] Given that Hodgson JA’s views are expressed tentatively, we consider that little weight can be attached to those views.

[45] Finally, the decision in Szwarcbord concerned whether Parliamentary privilege prevented the tender of a report retained by the ACT Chief Minister for tabling in the ACT Legislative Assembly. In his decision Justice Crispin determined that:

“[21] Nonetheless, I am not satisfied that privilege has been established. The decisive question is, of course, whether the copy of the report tendered by Mr Rayment falls within the description "proceedings in Parliament" as defined in subs16(2) and that concept plainly extends to acts done for purposes of transacting the business of the Parliament including the preparation of documents for such purposes. However, the evidence does not establish that the report of the first defendant was prepared for any such purpose. On the contrary, it seems clear that the report was prepared in fulfilment of a statutory duty which the first defendant acquired upon accepting the appointment by the Executive pursuant to s5 of the Act.” 49

[46] Crispin J later observed as follows:

“[23] Furthermore, privilege may not prevent even documents that have been tabled from being admitted into evidence if they were not prepared for purposes of or incidental to business of the Parliament and their subsequent production would not reveal words used or acts done that might fairly be regarded as falling within the concept of "proceedings in Parliament". For example, a Member of Parliament sued for defamation in respect of the publication of a letter for purposes unrelated to Parliamentary business could not effectively prevent the maintenance of the proceedings against him by the simple expedient of tabling the only copy of the offending letter. Nor do I accept that a court would be precluded from relying upon figures published in the annual report of a statutory authority which had been tabled, though it would be precluded from receiving any evidence as to the use to which it had been put in Parliament. However, for present purposes it is unnecessary to determine the precise extent of the privilege.” 50

[47] Again, given that these observations are in the nature of obiter little weight can be attached to them.

[48] What emerges from the above decisions in terms of an approach to determining whether or not Parliamentary privilege applies is in essence a two-step approach. The first step involves determining whether the disputed material comes within the meaning of ‘proceedings in Parliament’ as defined in s.16(2) of the PP Act (see Carrigan at [74]). If so, the second step requires a court or tribunal to determine whether or not the disputed material is sought to be relied upon for any of the purposes specified in s.16(3) of the PP Act. If so, the disputed material is caught by Parliamentary privilege (see Amann; Carrington at [75]-[77]; McCloy at [24]-[26]).

[49] As previously noted, the decisions in Combet and Victoria respectively concern whether expenditure was required to relate to an outcome specified in an appropriation statute and whether an appropriation was valid.

[50] In Combet Chief Justice Gleeson stated the following in respect of the interpretation of Appropriation Acts:

“[4] Questions of construction of the Appropriation Act are to be resolved by reference to text and context. The language of the text is controlling, but the meaning of that language is to be understood in a context which includes the Constitution, parliamentary practice, accounting standards, and principles and methods of public administration. The most relevant provisions of the Constitution are ss 53, 54, 81 and 83. The matter of parliamentary appropriation goes to the essence of relations between the parliament and the executive, and of relations between the Senate and the House of Representatives. Parliamentary practice comprehends procedures relating to budget estimates, audit, expenditure review, and performance assessment. Such procedures operate in a dynamic, political environment. In public administration, theory and practice change and develop. The Constitution was designed to allow for a necessary degree of flexibility in administrative arrangements.
...

[11] The Appropriation Act, in s 4, refers to portfolio budget statements. This is a defined term, meaning the portfolio budget statements that were tabled in the Senate or the House of Representatives in relation to the Bill for the Appropriation Act: s 3. Those statements, prepared by ministers for the budget estimates process, contained information on proposed agency activities in support of spending proposed by the Appropriation Bill. Such statements explain and seek to justify the appropriations proposed. They are scrutinised as part of the budget process. They reflect government policy as it affects budgetary planning. Government policy, however, is not frozen over a given budget period. Policies constantly change and develop. Indeed, governments may change during a budget period. Nor is there a clear distinction between “new” policies and modifications of existing policy.
…

[19] As a note to s 4(1) indicates, s 4(1) is intended to relate specifically to s 15AB(2)(g) of the Acts Interpretation Act 1901 (Cth). The portfolio budget statements may be considered to confirm that the meaning of a provision is the ordinary meaning conveyed by the text, or to determine the meaning of a provision when the provision is ambiguous or obscure or where the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or is unreasonable.” 51 (Footnotes not included, underlining added)

[51] Also in Combet, the majority (Gummow, Hayne, Callinan and Heydon JJ) stated:

“[135] That the plaintiffs’ submissions in answer to the challenge to the validity of the premise underpinning their principal contention were not lengthy does not relieve the court of its obligation to construe the Appropriation Act (No 1) 2005–2006. And as has now been said so often, that requires close attention to the statutory text rather than secondary materials ...” (Footnotes not included, underlining added)

[52] In other words, Combet is authority for a focus on the text of an Appropriation Act when considering the construction of that Act, with reference to secondary material such as the portfolio budget statements limited to a relatively narrow range of circumstances.

[53] In Victoria, Justice Stephen described the special nature of an Appropriation Act in the following terms:

“It is, then, with this special type of Act of Parliament that the present proceedings are concerned. It is an Act which, while a necessary pre-condition to lawful disbursement of money by the Treasury, is not in any way directed to the citizens of the Commonwealth; it does not speak in the language of regulation, it neither confers rights or privileges nor imposes duties or obligations. It only permits of moneys held in the Treasury being paid out, upon the Governor-General's warrant, to departments of the government.” 52

[54] Justice Mason described an Appropriation Act in the following similar terms:

“An Appropriation Act, therefore, is something of a rara avis in the world of statutes; its effect is limited in the sense already explained; apart from this effect it does not create rights, nor does it impose duties.” 53

[55] While of broad general relevance, the decision in Victoria provides little direct guidance in respect of the matters before us.

Consideration of the issues

[56] As noted above, in Carrigan Justice White adopted a two-step approach to determining whether the disputed material in that case was caught by Parliamentary privilege 54. Those two steps involved White J first determining whether the disputed material came within the description of ‘proceedings in Parliament’ as defined in s.16(2) of the PP Act. Having determined that the disputed material came within that description, White J then turned to consider whether the applicant in that case sought to adduce evidence for any of the purposes specified in s.16(3) of the PP Act. We note that the decision in Carrington was upheld on appeal by the Full Federal Court in Cash55. We respectfully agree with the approach adopted in Carrington and follow it in this case.

[57] Accordingly, the first thing we need to decide is whether the disputed material comes within the description of ‘proceedings in Parliament’ as defined in s.16(2) of the PP Act. We deal firstly with the disputed material upon which the CPSU seeks to rely.

[58] DIBP objected to paragraphs 186-193 of Mr Evans’ witness statement which in broad terms deal with the Senate Education and Employment References Committee enquiry into Commonwealth public sector bargaining. We note that the disputed paragraphs relate to events which occurred after the termination of protected industrial action. We therefore question the relevance of the paragraphs, particularly as they do not appear to go to any of the factors which the Commission must take into account in deciding the terms of a workplace determination as set out in s.275 of the Fair Work Act 2009. Accordingly, we would first need to be convinced of the relevance of the material before agreeing to admit it. Despite our doubts concerning the material’s relevance, it nevertheless remains open to the CPSU to press the disputed paragraphs. In that we regard we note that the CPSU in its submissions did not contend that the disputed paragraphs fell outside the definition of ‘proceedings in Parliament’ in s.16(2) of the PP Act but rather submitted that the material could be tendered and received because it was not caught by s.16(3) of the PP Act. In our view, the disputed material clearly falls within the definition of ‘proceedings in Parliament’ as, drawing on the language of s.16(2) of the PP Act, the paragraphs refer to “acts done in the course of, or for the purposes of or incidental to, the transacting of the business … of a committee”. Should the CPSU wish to press the paragraphs, it would therefore need to satisfy the Commission that the paragraphs were relevant and were not relied on for any of the purposes set out in s.16(3) of the PP Act.

[59] DIBP also objected to Mr Evans’ witness statement in respect of various pieces of correspondence attached to the statement which referred to statements made to the Parliament by the Minister for Immigration and Border Protection regarding immigration and border protection workers. Again this material clearly falls within the definition of ‘proceedings in Parliament’ on the basis that the correspondence refers to “words spoken … in the course of, or for the purposes of or incidental to, the transacting of the business of a House” as per s.16(2) of the PP Act. Again, should the CPSU wish to press the disputed material it would need to satisfy the Commission that the material was not relied on for any of the purposes set out in s.16(3) of the PP Act.

[60] We turn now to consider the Budget documents.

[61] As previously mentioned DIBP accepted that the Budget documents were used in and by Parliament and acknowledged that the use and treatment of the Budget documents attracted the protection of Parliamentary privilege. However DIBP also submitted that there were two reasons why the Budget documents may be relied upon in the present case, those being the non-Parliamentary treatment of Budget documents and the use of Budget documents in interpretation of Appropriation Acts. The CPSU submitted that the Budget documents were caught by the PP Act and could not be received by the Commission because they fell within the meaning of ‘proceedings in Parliament’ and had been prepared for the purposes of, or incidental to the transacting of the business of Parliament.

[62] An examination of Budget Papers No.1, 2 and 3 indicates that that all carry the following on their front cover:

“Circulated by
The Honourable Scott Morrison MP
Treasurer of the Commonwealth of Australia
and
Senator the Honourable Mathias Cormann
Minister for Finance of the Commonwealth of Australia

For the information of honourable members
on the occasion of the Budget 2017-18

9 May 2017”
(Underlining added)

[63] Budget Paper No.4 differs slightly from the above in that it is only circulated by the Minister for Finance as can be seen below:

“Circulated by

Senator the Honourable Mathias Cormann
Minister for Finance of the Commonwealth of Australia

For the information of honourable members
on the occasion of the Budget 2017-18

9 May 2017”
(Underlining added)

[64] Similarly the MYEFO for 2016-17 has the following on its front cover:

“Statement by

The Honourable Scott Morrison MP
Treasurer of the Commonwealth of Australia
and
Senator the Honourable Mathias Cormann
Minister for Finance of the Commonwealth of Australia

For the information of honourable members”
(Underlining added)

[65] As noted above, the CBH Act requires the Treasurer to publicly release and table the budget economic and fiscal outlook reports and MYEFO. The relevant provisions of the CBH Act are as follows:

“Division 1 – Budget economic and fiscal outlook report

10. Public release and tabling of budget economic and fiscal outlook reports.

The Treasurer is to publicly release and table a budget economic and fiscal outlook report at the time of each budget.

11. Purpose of budget economic and fiscal outlook reports

The purpose of budget economic and fiscal outlook reports is to provide information to allow the assessment of the Government's fiscal performance against the fiscal strategy set out in its current fiscal strategy statement.

Division 2 – Mid-year economic and fiscal outlook report

14. Public release and tabling of mid-year economic and fiscal outlook reports

(1) The Treasurer is to publicly release and table a mid-year economic and fiscal outlook report by the end of January in each year, or within 6 months after the last budget, whichever is later.

(2) If:

(a) a mid-year economic and fiscal outlook report is publicly released by the end of the period specified in subclause (1); but

(b) a House of the Parliament is not sitting when the report is released;

the report does not have to be tabled in that House until it next sits (or as soon as practicable after then), even if that is after the end of the specified period.

15. Purpose of mid-year economic and fiscal outlook reports

The purpose of mid-year economic and fiscal outlook reports is to provide updated information to allow the assessment of the Government's fiscal performance against the fiscal strategy set out in its current fiscal strategy statement.” (Underlining added)

[66] The DIBP PBS for 2017-18 includes a transmittal letter from the Minister for Immigration and Border Protection to the President of the Senate and the Speaker of the House of Representatives which states among other things:

“I present these statements to provide accountability to the Parliament and, through it, the public.” (Underlining added)

[67] The DIBP PAES for 2016-2017 include the following slight variation to the transmittal letter from the Minister to the President and Speaker:

“I present these statements by virtue of my ministerial responsibility for accountability to the Parliament and, through it, the public.” (Underlining added)

[68] Further the explanation of the PBS set out on the Budget website states:

“The purpose of the Portfolio Budget Statements (PBS) is to inform Senators and Members of Parliament of the proposed allocation of resources to government outcomes by agencies within the relevant portfolio. Agencies receive resources from the annual appropriations acts, special appropriations (including standing appropriations and special accounts), and revenue from other sources.

A key role of the PBS is to facilitate the understanding of proposed annual appropriations in Appropriation Bills No. 1 and No. 2. In this sense the PBS are Budget related papers and are declared by the Appropriation Bills to be 'relevant documents' to the interpretation of the Acts according to section 15AB of the Acts Interpretation Act 1901.

The PBS provides information, explanation and justification to enable Parliament to understand the purpose of each outcome proposed in the Bills.” 56 (Underlining added)

[69] As to the PAES, the Budget website provides the following explanation:

“The purpose of the Portfolio Additional Estimates Statements (PAES), like that of the Portfolio Budget Statements, is to inform Senators and Members of Parliament and the public of the proposed allocation of resources to government outcomes by agencies within the relevant portfolio.

The focus of the PAES differs from the Portfolio Budget Statements in one important aspect. While the PAES include an Agency Resource Statement to inform Parliament of the revised estimate of the total resources available to an agency, the focus of the PAES is on explaining the changes in resourcing since the Budget. As such, the PAES provides information on new measures and their impact on the financial and non-financial planned performance of agencies.

The PAES facilitate understanding of the proposed appropriations in Appropriation Bills (No. 3 and No. 4). In this sense the PAES are declared by the Additional Estimates Appropriation Bills to be a 'relevant document' to the interpretation of the Bills according to section 15AB of the Acts Interpretation Act 1901.

Whereas the Mid-Year Economic and Fiscal Outlook is a mid-year budget report which provides updated information to allow the assessment of the Government's fiscal performance against its fiscal strategy, the PAES update the most recent budget appropriations for agencies within the relevant portfolio.

Timing: Tabled in Parliament when the Additional Estimates Bills are introduced (normally in early February).” 57 (Underlining added)

[70] In respect of the public release of the PBS, the Guide to preparing the 2017-18 Portfolio Budget Statements issued by the Department of Finance states:

“PB Statements should not be uploaded onto portfolio departments’ websites until they are tabled in the Senate (note, no PB Statements will be tabled in the Senate until the Appropriation Bills are tabled in the House of Representatives). 58 (Underlining as per original)

[71] Similarly the Department of Finance Guide to preparing the 2016-17 Portfolio Additional Estimates Statements states:

“PAES must only be uploaded to entity websites after they have been tabled in Parliament (i.e. the Appropriation Bills have been introduced into the Senate).” 59 (Underlining as per original)

[72] The underlined text in each of the above extracts clearly points to each of the Budget documents coming within the definition of ‘proceedings in Parliament’ set out in s.16(2) of the PP Act. In particular the documents are caught by ss.16(2)(b) and (c) of the PP Act. As noted above, DIBP contended that the CBH Act provided for the public release of documents such as the budget economic and fiscal outlook and MYEFO reports without reference to any Parliamentary process. While DIBP acknowledged that the CBH Act required that these documents be tabled, it pointed to them being prepared and published for purposes which were separate and distinct from any Parliamentary purpose and therefore not coming within the purview of s.16(2) of the PP Act. In that regard, DIBP emphasised that the purpose of these documents was to facilitate public scrutiny and “allow the assessment of the Government's fiscal performance against the fiscal strategy set out in its current fiscal strategy statement.” In our view, that scrutiny and assessment occurs both through the Parliament and broader community debate. As such, we do not accept DIBP’s contention that the public release of these documents in some way precludes the budget economic and fiscal outlook and MYEFO reports from coming within the definition of ‘proceedings in Parliament’. In circumstances where a document has a Parliamentary purpose, the fact it may also have other purposes does not alter its character for the purposes of the PP Act or mean that its Parliamentary purpose can be put to one side.

[73] DIBP further contended that the Budget documents were publicly released via the media lock-up. The Treasurer’s Media Release of 7 April 2017 regarding the 2017-18 Budget Media lock-up stated among other things that:

“On entering the lock-up, attendees are unable to leave until the Treasurer delivers the Budget in the House of Representatives at 7:30pm on 9 May 2017.

Budget information may not be broadcast, published or made available in any way until its official release at 7:30pm. The following restrictions will also apply:

● Contact with anyone outside the lock-up area prior to the Budget’s release is not permitted (with the exception of authorised communications to secure Budget sub lock-ups).

● Mobile phones, including smart watches are not permitted in the lock-up …” 60

[74] The Treasurer’s Media Release does not support a finding that the Budget documents are publicly released via the Budget Media lock-up.

[75] With regard to DIBP’s reference to the Budget documents in the context of the Annual Wage Review, we acknowledge the potential implications. While the matter is properly one for the Expert Panel to consider in the context of the 2017-18 Annual Wage Review, we note that the 11 May 2017 letter from the Treasurer and Minister for Employment to the President of the Commission 61:

● draws to the President’s attention the updates in the 2017-18 Budget which the Expert Panel may wish to take into account in making the 2016-17 Annual Wage Review; but

● does not appear to do so for any of the purposes set out in s.16(3) of the PP Act.

[76] Following the approach in Carrington would point to the material not necessarily being caught by Parliamentary privilege.

[77] As previously mentioned, DIBP advised the Commission by email on 7 August 2017 that it did not intend to rely on any material that was prepared in accordance with the PGPA Act and that it proposed to file substitute evidence after the Full Bench’s ruling on the Parliamentary privilege issue. Accordingly, we do not address issues related to the disputed PGPA Act material in this decision. Further, we note DIBP’s intention to file substitute evidence. DIBP’s intention in that regard was foreshadowed at the hearing. With a view to avoiding further argument in respect of the admissibility of the substitute evidence and in the absence of any insight into that substitute evidence, we would however observe that a mere repackaging of PGPA Act material which DIBP had previously sought to rely on may not automatically avoid the material coming within the description of ‘proceedings in Parliament’ set out in s.16(2) of the PP Act. For the Bench to be satisfied that this was not the case, DIBP would need to establish some non-PGPA Act basis for the preparation of any repackaged PGPA Act material.

[78] Beyond this, DIBP submitted that by virtue of s.16(5) of the PP Act the Budget documents may nonetheless be the subject of evidence, submissions and consideration in the present proceedings in so far as they relate to the interpretation of the Appropriation Acts. Also relevant in the regard is s.4 of the Appropriation Act (No. 1) 2017-2018 which provides as follows:

“4 Portfolio statements

The portfolio statements are declared to be relevant documents for the purposes of section 15AB of the Acts Interpretation Act 1901.

Note: See paragraph15AB(2)(g) of the Acts Interpretation Act 1901 which provides that the material it may be considered in the interpretation of a provision of an Act includes any document that is declared by the Act to be a relevant document.”

[79] The above provision also appears in identical terms in the Appropriation Act (No. 2) 2017-2018, the Appropriation Act (No. 3) 2016-2017 and the Appropriation Act (No. 4) 2016-2017.

[80] Both the CPSU and AIMPE submitted that this case was not about the Appropriation Acts.

[81] Section 4 of the abovementioned Appropriation Acts refers only to the portfolio statements, in this case the PBS and PAES. In other words, the other disputed Budget documents beyond the PBS and PAES are not caught by the provisions. As previously mentioned, in Combet Chief Justice Gleeson discussed the equivalent provision in the Appropriation Act (No. 1) 2005-2006 and observed as follows:

“As a note to indicates, s 4(1) is intended to relate specifically to s 15AB(2)(g) of the Acts Interpretation Act 1901 (Cth). The Portfolio Budget Statements may be considered to confirm that the meaning of a provision is the ordinary meaning conveyed by the text, or to determine the meaning of a provision when the provision is ambiguous or obscure or where the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or is unreasonable.” 62

[82] Drawing on that observation, suggests that s.16(5) of the PP Act is enlivened in the relatively narrow circumstances outlined by Gleeson CJ. However, s.16(5) is not in our view licence for a party to either invite the Commission to receive or for a party to question, make submissions or comment on either the PBS or PAES for any of the purposes set out in 16(3) of the PP Act. To enliven s.16(5) of the PP Act, a party would first need to establish the existence of one or more of the circumstances outlined by Gleeson CJ in Combet.

[83] Having found that the disputed documents come within the definition of ‘proceedings in Parliament’ in s.16(2) of the PP Act, were turn now to consider whether they are protected by privilege. Firstly, in that regard we observe that we find it difficult to envisage that the Budget documents could be tendered or relied upon for anything other than one or more of the purposes set out in s.16(3) of the PP Act. In other words, we consider the Budget documents are protected by privilege and therefore incapable of being received by the Commission. Second, we recognise that the Budget documents are referred to in the material which the parties seek to rely on in a number of ways. To determine whether those references are protected by privilege necessitates the second step in the two-step process followed in Carrington, i.e. determining whether that material is sought to be relied upon for any of the purposes set out in s.16(3) of the PP Act. Specifically, we consider that this second step requires a forensic analysis by the parties of their respective submissions and evidentiary material to ensure that any reference to the disputed material does not entail the tender or receipt by the Commission or the questioning, making of submissions or comment on those documents for any of the purposes set out in s.16(3) of the PP Act.

[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. First, the reference to the Government’s fiscal strategy in paragraph 29 of Mr Venugopal’s witness statement of 17 March 2017 in the substantive matter appears at first blush to enliven Parliamentary privilege on the basis that it implicitly invites the Full Bench to draw an inference or conclusion from a document which we have determined to be part of ‘proceedings in Parliament’. 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.

[85] Finally, we acknowledge that our decision has particular implications for the material which DIBP seeks to rely upon. However, in that regard we note the following comment by White J in Carrington:

“The Respondents acknowledged that the privilege may produce consequences which are regarded as unfair in court proceedings. So much has been recognised in a number of the authorities: Prebble at 336G; Rann v Olsen at [125], [190]. The responsibility for addressing such circumstances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething [2000] 97 FCR 9 at [49].” 63

[86] As noted by the CPSU in its submissions and by White J in Carrington, to the extent that the operation of the PP Act has unfair consequences it is open to the Parliament to amend the Act to address its operative effect.

Conclusion

[87] For all the reasons outlined above, we consider all of the disputed material to come within the definition of ‘proceedings in Parliament’ as set out in s.16(2) of the PP Act. We further consider the Budget documents which DIBP seeks to tender to be protected by Parliamentary privilege and therefore incapable of being received by the Commission. As to the other material which is disputed on the grounds of Parliamentary privilege, we consider it would be caught by Parliamentary privilege should any party seek to rely on that material in a way that entails 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 16(3) of the PP Act.

[88] We set out below their intentions in terms of how we propose to proceed in respect of this matter.

Next steps

[89] Given the potential implications of our decision for the material which the parties seek to rely on in the substantive matter, we foreshadow our intention to list the matter for mention and directions/conference before Kovacic DP in the week commencing 21 August 2017 to discuss the parties’ views regarding the implications of our decision for their respective submissions and evidentiary material and the dates currently set down to hear the matter. The parties are encouraged to confer in advance of that conference with a view to coming to an agreed position on any material which is disputed on the grounds of Parliamentary privilege or at least minimising the issues which remain in dispute in respect of Parliamentary privilege. To the extent that material remains in dispute, the Commission will determine the issue of whether or not those particular matters are covered by Parliamentary privilege with a view to minimising any further delays to the hearing of the substantive matter.

VICE PRESIDENT

Appearances:

Mr P. O’Grady QC with Mr T. Begbie of Counsel 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.

Mr M. Bakhaazi for the Australian Institute of Marine and Power Engineers.

Ms E. Ryan on her own behalf.

Hearing details:

2017
Canberra
21 July.

1 PR586132.

2 [2016] FWC 7184.

3 Transcript at PN323.

4 Ibid at PN101-104.

5 Ibid at PN104-131.

6 (2005) 224 CLR 494.

7 Transcript at PN113.

8 Ibid at PN140.

9 Ibid at PN153.

10 Ibid at PN185.

11 Ibid at PN228.

12 Ibid at PN456.

13 (1988) 19 FCR 223.

14 [2016] FCA 1466.

15 [2017] FCAFC 86.

16 [2015] NSWSC 1782.

17 (2009) 76 NSWLR 99.

18 (2002) 167 FLR 262.

19 (1975) 134 CLR 338.

20 Transcript at PN272.

21 Exhibit 1.

22 Transcript at PN310-320.

23 Ibid at PN344.

24 Ibid at PN346-349.

25 Ibid at PN358-361.

26 Ibid at PN363.

27 Ibid at PN366-368.

28 Exhibit C.

29 Exhibit B.

30 Transcript at PN392.

31 Ibid at PN396.

32 Ibid at PN397.

33 Ibid at PN402.

34 Ibid at PN414.

35 Ibid at PN419.

36 Exhibit A.

37 Ibid at SK-2.

38 Transcript at PN434.

39 (1988) 19 FCR 223 at 231.

40 Ibid at 232-233.

41 [2016] FCA 1466 at [74]-[77].

42 [2017] FCAFC 86 at [8].

43 Ibid at [31]-[43].

44 [2015] NSWSC 1782 at [11].

45 Ibid at [9].

46 Ibid at [13].

47 Ibid at [24]-[26].

48 [2015] NSWSC 1782 at [124]-[125].

49 (2002) 167 FLR 262 at [21].

50 Ibid at [23].

51 (2002) 167 FLR 262 at [4]-[19].

52 (1975) 134 CLR 338 at 386-387.

53 Ibid at 393.

54 [2016] FCA 1466 at 74-77.

55 [2017] FCAFC 86.

56 Exhibit 1 at Annexure MV-4.

57 Ibid at Annexure MV-7.

58 Ibid at Annexure MV-5 at page 38.

59 Ibid at Annexure MV-8 at page 117.

60 Ibid at Annexure MV-2.

61 Ibid at Annexure MV-9.

62 (2005) 224 CLR 494 at 19.

63 [2016] FCA 1466 at 13.

Printed by authority of the Commonwealth Government Printer