Crime and Corruption Commission v Carne

[2023] HCATrans 75

[2023] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B66 of 2022

B e t w e e n -

CRIME AND CORRUPTION COMMISSION

Appellant

and

PETER DAMIEN CARNE

Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 JUNE 2023, AT 10.00 AM

(Continued from 6/6/23)

Copyright in the High Court of Australia

KIEFEL CJ:   Before you proceed, Mr Begbie, I have some questions for Mr Walker, if you would be so kind.  Judges make use of overnight, as well, Mr Walker.

MR WALKER:   I have no doubt, your Honour.

KIEFEL CJ:   Mr Walker, it is just to take up the point which was touched on yesterday but not gone into, I think, in any detail.  It has to do with what is the purposes of the business of the committee.

MR WALKER:   Yes.

KIEFEL CJ:   I think it is accepted that whatever is done regarding the document which is called the report, it needs to be for the purposes of the business of the committee to qualify as proceedings of the ‑ ‑ ‑

MR WALKER:   Of transacting the business of the committee.

KIEFEL CJ:   Yes.  But, unlike the Assembly, where the business might be regarded as wider and more general, here the business of the committee would be found in its statutory function – it being a statutory committee.

MR WALKER:   Yes.

KIEFEL CJ:   So, the question then is what the document called the report has to do with its functions.  It has an oversight function under the Crime and Corruption Act.

MR WALKER: Yes. Can I draw to attention at the outset subsection (5) of section 9. What your Honour has said about a comparison between the Assembly and the committee is, with respect, plainly correct, subject from time to time to legislative delineation of a committee’s work but, for the purposes of privilege, there is that rather striking subsection (5), with that arresting phrase:

it does not matter –

So, the nature of the business transacted apparently does not matter “for this section”.  I do not suggest that the evident intention of those words is impossible to see; it is very possible to see.  It is to remove from what I might call liminal function, setting boundaries, an examination, obviously, in a court of what the committee thinks it is doing.

KIEFEL CJ:   Yes.  No, I understand.

MR WALKER:   And being a committee of the Assembly, one can imagine – bearing in mind that the committee can always be, as it were, pulled back by the shepherd’s crook of the Assembly itself, or, for that matter, ask the Assembly to endorse or not what has happened in the committee – bearing in mind that it is a subset of the whole; bearing in mind that it is a parliamentary chamber, one can see why, for the purposes of examining the extent of definitions in subsection (2), the Court has to bear in mind subsection (5).  Following that, then ‑ ‑ ‑

KIEFEL CJ:   But that would not affect the central point that the business of the committee is its statutory functions.

MR WALKER:   Absolutely.  Well, statutory functions plus those things which are inherent in being a committee of the Assembly, of course.

KIEFEL CJ:   Yes.  I do not think we are in that territory here, though.

MR WALKER:   No, no.  In this case, the Speaker stands back from an argument concerning the CCA.  But, to try to address your Honour’s questions ‑ ‑ ‑

KIEFEL CJ:   We have not quite got there yet.

MR WALKER:   I am sorry.  I thought your Honour had asked me whether you had to look at ‑ ‑ ‑

KIEFEL CJ:   I was heading in the general direction ‑ ‑ ‑

MR WALKER:   Of transacting business, your Honour.

KIEFEL CJ:   ‑ ‑ ‑ of transacting business and functions.  But the question which might arise is, given its oversight functions, what have those functions got to do with an involvement in complaints about corrupt conduct themselves?  It is a question of whether or not, in the first place, it is any business of the committee to involve itself in a complaint and what the Commissioner has done about a complaint or the Commission’s view about the complaint.  That is one question.

Relatedly, in telling the Commission, as it did, that it would treat the document as a report for the purposes of section 69, are we in an area where it might be said it is purported to authorise the document as a report?  That is relatedly, but probably a separate question.

MR WALKER:   Could I start with the last one?

KIEFEL CJ:   Yes.

MR WALKER:   The Speaker has no intent to argue ‑ ‑ ‑

KIEFEL CJ:   I realise there might be limitations on how far you wish to get into the facts of this.

MR WALKER:   Yes.  But for the Speaker, we have no intent to argue that the effect of section 292 of the CCA is to enlarge what would otherwise be the power of the Commission.

KIEFEL CJ:   Commission.  So, if we start from the premise – if we start from the hypothetical premise that the Commission is not authorised to make ‑ ‑ ‑

MR WALKER:   Thank you.

KIEFEL CJ:   ‑ ‑ ‑ the document or the report, it is accepted that it is no part of the function of the committee to extend the authority of the Commission.

MR WALKER:   Absolutely.  That is, neither adjudicatively, which is unthinkable given the constitutional separation which is in fact the reason for the tension that parliamentary privilege polices, but also because legislatively that is not how Parliament legislates by resolution of a committee.  So, I accept all of that, the Speaker accepts all of that.  On the other hand, the functions of the committee, which can be generally summarised as supervisory, do include being sufficiently informed of what the Commission is doing, perhaps even proposes to do, and to pass that on as it sees fit to the Assembly, see, for example, section 292, paragraph (c).

KIEFEL CJ:   It depends on what one regards as an oversight role and what is found in the words of section 292.  There is nothing there which suggests that its oversight – I mean, it is oversight said to monitor and review the performance of the Commission’s functions, not to relay what the Commission might think about a particular complaint or its concerns beyond those which are expressed in the Commission’s powers or functions to report.  I mean, here in what factually has occurred it would seem that the committee and the Commission discussed before the preparation of the report the possibility of something in the nature of a report being prepared.

MR WALKER:   Yes.

KIEFEL CJ:   The committee encouraged, if not – encouraged, I think would be a fair word, the preparation ‑ ‑ ‑

MR WALKER:   Consented is an appropriate word, given the statute’s use of consent.

KIEFEL CJ:   ‑ ‑ ‑ and it more or less said that it would treat the report – it would treat the document as a report for the purpose of section 69.  Now, the question is, one, is that part of its function, and the related question, does that amount to the committee purporting to authorise the report?

MR WALKER:   It is certainly not the latter.

KIEFEL CJ:   Why?

MR WALKER:   The committee may be wrong as to legal character, just as a chamber of Parliament may be wrong as to the legal character of something before it.  That does not in either case disable the committee or the Assembly from considering the substance of the matter, including as affected by any such error.

KIEFEL CJ:   But the question is whether or not this Court can have a look at what the committee has purported to authorise, and I think that was ‑ ‑ ‑

MR WALKER:   I entirely accept that.

KIEFEL CJ:   That was the exception that Justice McPherson referred to in CJC.

MR WALKER: I entirely accept that the question that arises under section 8 as extended by section 9 is the role of a court, and now, at this point in this case, this Court. I accept that completely. May I stress, however, that the functions of the committee under section 292, in our submission, would plainly extend – see paragraph (b), paragraph (c), and for that matter, the general task in paragraph (f) – would plainly include considering what the Commission proffers to the committee under the guise of being, that is, said to be, a report capable of being the subject of direction under section 69.

The fact on the hypothesis that is the proper one for me to address, namely, that it was not such a report, for whatever reason, is not one, however, which would deprive the committee of considering it and the committee perhaps making an error for itself as to whether it is.  And when you consider the way in which an error may be committed, say, by reason of a breach of section 71(a) of the CCA, so some anterior failure properly to apprise somebody, an affected person, of an adverse finding, one can see that it is not, on its face, obvious to a committee that that which purports to be a report to which the duty in 71(a) attached, in fact, cannot be because that mandatory duty under 71(a) had, it turns out, not been complied with.

It is for those reasons, in our submission, that this Court would never say that the availability of privilege depends upon whether the committee is correct in its understanding of the legal status of that which comes to it by way of being – and now we turn to the language of section 9(2)(d) – simply, a document.

KIEFEL CJ:   But if one takes a step back before it considers its – the question is not factually whether or not it has authorised the preparation of the report by the encouragement it gave to put it before it and for the purposes of the Commission, not the committee.

MR WALKER:   Yes.

KIEFEL CJ:   All of those are involved in the question of whether or not it is to do with the business of the committee.

MR WALKER: Yes. Now, if the business – sorry, not “if” – the way we put it yesterday involves critical attention to the breadth of the language in paragraphs (c) and (e) of subsection (2) of section 9. There is no question that the document purporting to be a report concerning which there might be a section 69 direction was presented to the committee.

There is no call – particularly bearing in mind the hint that comes in subsection (5) of section 9 – I stress, only a hint – there is no call for that to be interpreted as if, interstitially, one has the (4), and qualifying the word “document”, a document which is truly that which it purports to be. That would be to intrude a test that, in our submission, is entirely contrary to the obvious intendment of subsection (2) of section 9 which is that upon there being the presentation of a document to a committee, that presentation is proceedings in the Assembly.

KIEFEL CJ: Not entirely. It does not conclude the question. Subsection (2) of section 9 says that the proceedings may include particular acts.

MR WALKER:   No, quite.

KIEFEL CJ:   But it does not answer the question ‑ ‑ ‑

MR WALKER:   “For the purposes of” ‑ ‑ ‑ 

KIEFEL CJ:   ‑ ‑ ‑ for the purposes of the business of the Assembly.

MR WALKER:   “Incidental to” them.  I do not resile from what I said yesterday.  Yes, we accept what your Honour raised yesterday – that “for the purposes of or incidental to, transacting business” of the committee is absolutely necessary.  But if there be document submitted to the committee, here it is clear the committee has, among other things, see 292 – the provisions I have referred to – it, obviously, has the function and capacity to consider for itself whether something which has presented it to it by way of a supposed report to which there might be a section 69 direction, the committee has the right to examine that.  Indeed, one would have thought that it is in the public interest that there be absolutely inhibition in then being able to say, we think this is or is not a report concerning which we might make a section 69 direction.

KIEFEL CJ:   Would it have the same power with respect to anything it received?

MR WALKER:   Yes, it does.  The question is, does a court have the capacity to interfere by way, ultimately, of injunction – a prohibition against such a direction?  And those are ‑ ‑ ‑ 

GORDON J:   “Interferes” is an unusual word, is it not?  Because it is really three questions.  The question is, does the privilege exist?  And there is no dispute that the Court can determine whether or not – that question.  The second question is, are we impeaching or questioning the exercise of that privilege?  And the answer is that is not an issue here.  Then the third question is the question which the Chief Justice is asking about and that is the prior question, what do we do about the question of power in respect of the provision of the document itself, and, as you describe it, whether or not it has complied with the relevant statutory provisions, i.e., in its preparation.  And those two questions may not overlap.

MR WALKER:   No.  And there may be more than two there.

GORDON J:   I think there was three, actually – I apologise.

MR WALKER:   If we look at power, one of the aspects of power – and there are two, at least, distinct elements of power here.  There is the power of the committee to receive and do what it will, not what this Court would permit it to do, but what it will, with anything it receives.  That is the first thing.  The second thing is the power of the Commission to submit, correlatively, the power of the committee to consent to receive any information including in documentary form.  Now, section 71 of the CCA answers that.  There is such a power.

EDELMAN J:   But why is that power not a power that is being exercised for the purposes of the Commission itself and not for the purposes of the committee?

MR WALKER:   So long as those are not regarded as mutually exclusive, the short answer is, how could I possibly on the face of the material you have seen, say that it is not one of the purposes of the Commission to have the committee consider whether there should be a section 69 direction?  It is palpable, yes.  Factually that is true, but that not only does not say it was not a purpose of the committee, it actually bespeaks that it was, because there was a submitter, a submittee and the submittee only had the power to consider.  And it is clear from the anterior dealings, it is clear from the way in which the committee expressed itself in holding its hand, pending the resolution of these proceedings, that the committee had on its agenda consideration whether to give the direction.

So that receiving and having the document is for the purposes of transacting its business, including the future contingent possibility of a direction under section 69.  Now, the business of the committee communicating formally by way of a process that involves, to my client, the prospect of tabling, with all its consequences of publicity, that is at the very heart of parliamentary business.  It is both the business of the committee, who has a role under section 69, of course, obviously.  It affects directly the business of the Assembly to whose presiding officer the section 69 direction leads this document.

Now, it is for all of those reasons that we did use – I am sorry, we did use the word “interfering” because that is the right word to use concerning parliamentary privilege and the relation of chambers and their committees to courts.  But the whole struggle that produced the not so settled understanding of article 9 – that whole struggle involves keeping the court out of the processes of Parliament.  That is so – it is for Parliament.

There are exceptions to that, we know, under our Constitution – the Commonwealth.  But, by and large, because of article 9, it still remains the case that it will be for Parliament to decide whether or not, for example, a standing order has been breached without being dispensed with.

GAGELER J:   The point about the standing order is that it is not law in the sense of the law that is administered by the courts.

MR WALKER:   Would your Honour forgive me, appearing as I do for a Speaker, saying, yes, it is law in the sense captured in the Latin translated as the law and usages of Parliament:  lex et consuetudo parliamenti.  So, it is law in that sense, and it is constitutionally significant to accept reflected in the Commonwealth level by section 49 that there is a body of norms that are

not enforceable in courts of law.  Indeed, that is one of the tenets that one advances if you are appearing for presiding officer in arguing about article 9.

GAGELER J:   Going to the core of article 9, there is a sentence in Lord Diplock’s reasons in Rediffusion [1970] AC 1136 at 1155 that I just wanted to put to you. Here, he is referring to Barton v Taylor and he says that:

the Judicial Committee –

in that case –

treated it as axiomatic that the court had jurisdiction to inquire into . . . unlawful conduct by members of a legislative assembly in the course of legislative proceedings in the chamber.

MR WALKER:   That is wrong.

GAGELER J:   You say that it is wrong?

MR WALKER:   In this country, that is wrong.  That is imbued with what in this country is false learning concerning inferior colonial legislatures, and it is entirely at odds with the cases which discriminate between those matter‑informed provisions in our Constitution which can be litigated and those which cannot be.  There would be none that cannot be, were that dictum to be taken for its apparent effect.  In particular, it is at odds with the division representing the resolution of the tension exemplified by the statement in Fitzpatrick v Browne.

So that there is no call for an examination of how there has been an exercise of parliamentary power within the walls – and this case is about what is the effect of that on justiciability of things which would otherwise be – and call out for justiciability – when the definition of the walls has been moved out by section 9. But, that approach by Lord Diplock is, with respect, impossible to sustain without such heavy qualification as to render its articulation of no utility.

GAGELER J:   Thank you.

KIEFEL CJ:   Thank you, Mr Walker.  Mr Begbie.

MR DUNNING:   Sorry, your Honour, just before my learned friend starts, Mr Horton has kindly indicated there would be no objection, if the Court

wanted it, to the provision of the 23 April letter.  I have copies and if your Honours wish, I can have them circulated at a convenient time.

KIEFEL CJ:   Yes, I think that would be preferable for the Court to have it.  Thank you, Mr Dunning.

MR DUNNING:   Of course, your Honour.  How many copies would be convenient?

KIEFEL CJ:   Enough for the Court and a few over.

MR DUNNING:   Very good.  Thank you, your Honour.

MR BEGBIE: Your Honours, the Attorney‑General says that the issues in this appeal fall to be resolved by the ordinary construction and application of sections 8 and 9 of the Parliament Act. That does not make them easy, but that is the way in which they fall to be resolved. The Attorney’s interest in these issues, of course, stems initially from the fact that those provisions are modelled on the Parliamentary Privileges Act (Cth), particularly subsections (1) and (2) of section 16 which, respectively, are the underpinning or the model for sections 8 and 9.

Section 16(3) of the Commonwealth Act goes further than anything you see in the Parliament Act because what it does is, so to speak, explain or codify what it means to impeach or question, and it proscribes a wide array of conduct as impeaching or questioning. I will come back to why that difference has some significance.

The other reason the Commonwealth has an interest in this is that the Commonwealth itself of course has a range of statutes which, in a broad sense, can be compared with the Crime and Corruption Act in that they establish statutory offices or office holders that have a statutory relationship with a statutory joint committee of Parliament which, so to speak, superintends their activities and engages with the Houses about that.  So, the Commonwealth is concerned that, of course, whatever the Court says in this case will have a significant bearing upon that body of Commonwealth law.

Given the way argument has developed, and issues have been exposed in questions from your Honours, we propose to approach our oral outline in a slightly different order from what is in the written oral outline. I would like to start, first, with section 8 and the purposive understanding of that by looking at article 9 cases and the broader principles that article 9 manifests. Doing that involves presupposing that we are talking about proceedings in Parliament, and it speaks to what happens, what must courts do or not do when we are talking about proceedings in Parliament. That is the part of our oral outline that we deal with in paragraphs 9 to 12.

Secondly, I would like to turn, then, to the section 9 question: what is proceedings in Parliament? We apprehend that is where much of the difficulty in this case lies, and we join with the Speaker in saying those difficulties are resolved, ultimately, as a matter of textual construction. But it is important, again, to see how those textual matters work in practice, and I will develop in that part of the submissions the principles that guide that process and the way courts – and I emphasise courts – determine whether something is proceedings in Parliament.

Finally, I will just turn to, briefly, to the majority judgment and explain where, we say, having regard to those matters, the majority went wrong.  Could I start with the most difficult aspect of article 9, and it is the aspect that is crystallised in this case, which is what happens when a court is confronted with a prayer for relief to deal with a claimed unlawfulness, and it is said that that is in the exclusive cognisance of Parliament.

Your Honour Justice Gageler has raised the question whether there are authorities that look at that conflict in a universe where what the Court is asked to adjudicate on is, in fact, the application of statutory provisions.  The case we want to start with is the case of Bradlaugh v Gossett.  And your Honours will recall that is the case – one of the cases – that dealt with that long controversy where Charles Bradlaugh, a Member of the House of Commons, was initially wanting to take an affirmation, not an oath; was then confronted with the problem that if you did not take an oath and you voted, you were liable to penalties of $500 for every time you voted.

All of that was regulated by a statute, the Parliamentary Oaths Act.  Under that statute, the courts had the exclusive role in determining the question of fines, but there were provisions which regulated when you could take the oath and what you could do about that.  What happened was that after some three years of this struggle, Mr Bradlaugh asserted a right to take the oath and that right was refused by the House and, following further contretemps, he was ordered to be removed by the Serjeant‑at‑Arms.  He sought relief in the Queen’s Bench for what he said was a breach of the Parliamentary Oaths Act and restraint of the Serjeant‑at‑Arms.

Now, you will see immediately from those facts that we are talking about something factually very different from the present case.  We are talking about something that is unambiguously proceedings in Parliament – and I have deliberately put down the track that question about what is proceedings in Parliament.  But, accepting that what we are talking about here is proceedings in Parliament, what is instructive is how the court dealt with this particular clash between the Parliament’s view of the Oaths Act and what Mr Bradlaugh wanted the court to say about the Oaths Act.

If your Honours would go to tab 44, I will start at page 278 of the report, which is the decision of Justice Stephen which gives the more detailed description of the circumstances and approach taken, but Lord Justice Coleridge came to the same conclusion and all three members of the court agreed on these propositions.  If you look, first of all, in the middle of the page, “The legal question”, you will see there ‑ ‑ ‑

EDELMAN J:   Which page?

MR BEGBIE:   Page 278 of the report, your Honour.  You will see there put very starkly the problem, and the conclusion pre‑empted is:

the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute‑law which has relation to its own internal proceedings –

Reading on, you will that this is not viewed as a controversial proposition but at that time many authorities were said to support it.  Two are cited, one is the quote there from Blackstone at the bottom of the page and the other are the four enumerated passages from the judgments in the famous case of Stockdale v Hansard.

Justice Stephen did not shy away from the problem that what might have happened in the House was frankly unlawful in the sense that it was frankly contrary to the statute, and so you will see his Honour highlights that towards the middle of the second paragraph on 279:

Grant, for the purposes of argument, that the resolution of the House and the Parliamentary Oaths Act contradict each other; how can we interfere without violating the principle just referred to?

GORDON J:   Where is that, sorry, Mr Begbie?

MR BEGBIE:   On page 279, your Honour sees the second paragraph, it is about point 7 on the page.

GORDON J:   Thank you.

MR BEGBIE:   “Grant, for the purposes”.  Justice Stephen went to some pains to repeat this point, and he does so at later places in the judgment, as well.  If you go over the page to 280, second sentence of the second paragraph, at about point 4:

In order to raise the question now before us, it is necessary to assume that the House of Commons has come to a resolution inconsistent with the Act . . . We must of course face this supposition and give our decision upon the hypothesis of its truth.

GORDON J:   There is no inconsistency here alleged.  We are not in that territory, because the act that is being concerned with here is an act of taking of the oath in the House itself.

MR BEGBIE:   That is so.  I am not ‑ ‑ ‑

GORDON J:   I recognise that you accept they are factually different, but there is no inconsistency between the two pieces of legislation here.  Not been put in those terms.

MR BEGBIE:   What has been put below is that there was non-compliance with the CC Act, and that in those circumstances privilege does not stand in the way of the courts adjudicating and declaring that non‑compliance.  At a level of principle, we say not identical – and we absolutely recognise the factual differences – but at a level of principle, we say this decision comes close to the problem Justice Gageler was raising yesterday about authority as to this point.

GAGELER J:   Do you say that this decision stands for the proposition that article 9 of the Bill of Rights goes to the jurisdiction of the Court to enquire into legality as distinct from what might be done by way of enquiry or grant of relief in the exercise of that jurisdiction?  That distinction is not clearly drawn here.  In fact, the language used of interfere, control, is somewhat ambiguous.  But is a distinction that is drawn quite clearly in 20th‑century cases.  And my understanding of those 20th century cases is that they say that article 9 goes to the exercise of jurisdiction, not to the existence of jurisdiction to enquire into legality.  Do you dispute that?

MR BEGBIE:   I do not dispute it, your Honour.  Can I, in a sense, take it on notice a little bit?  I have not sought to analyse it through that prism.  Certainly, everything I will be developing today is consistent with what your Honour says in that what article 9 manifests – and I will come to a case that deals with this – is a broader principle of mutual respect, which is less a jurisdictional idea than an idea that courts will not cut across what Parliament is doing, or might do, or has done, in an exercise of restraint that is consistent with the system of government – the representative democracy that we work in.  So, with that small caveat, could I, perhaps, leave the answer there?

GAGELER J:   Yes.

MR BEGBIE:   So, your Honours will see the consequence of this reasoning at the bottom of 280, going over to 281.  If your Honours go to 284 – and I will not step through this for time reasons and because your Honours can, obviously, do this – but very powerful arguments were raised by Mr Bradlaugh about where the court was heading and to the effect that, does this mean that Parliament, in effect, becomes a court?  Is the constitutional arrangement confounded to that degree?  How can it be that there is a power that is wholly unreviewable and that the decision of Parliament, itself, remains final and that is the end of it?

Again, Justice Stephen does not shy away from that problem.  He does not say that Parliament becomes the court for the purposes of such a provision but that, if there is a remedy, it is not with the courts.  So, the distinction between Parliament’s decision and the decision of a court from which there is no appeal becomes small in practice.  But such is ‑ ‑ ‑

GORDON J:   Just so ‑ ‑ ‑

MR BEGBIE:   ‑ ‑ ‑ the importance of the principle.  I am sorry, your Honour.

GORDON J:   No, it is all right.  I did not mean to interrupt.  Do you step away from what Chief Justice Dixon said in Fitzpatrick v Browne?

MR BEGBIE: No, no. I will come to that in the second part of our submissions, because this is what we say is the important balance that is struck here. The Court will decide whether the privilege exists in a particular factual setting. Here, it does that by reference to the provision, section 9, and the way it tells you what is proceedings in Parliament. But once the conclusion is reached that you are dealing with proceedings in Parliament – a big question and I will come to it – but once that conclusion is reached, you are in the Bradlaugh territory.  That is when courts do not intrude upon Parliament’s decisions, Parliament’s own assessment of its evidence, of its information.

So, I deliberately started this fairly stark point and that is because we do not want to shy away from the fact that this is a stark line that is drawn – it has been called a bulwark of representative democracy and it is recognised that if you have it, it will operate in some cases in ways that cause courts not to be able to administer justice in the way they otherwise would.  That is understood.  This is, with respect, a very clear example of that.

GAGELER J:   Mr Begbie if, in the course of proceedings in Parliament, the Serjeant-at-Arms is authorised to physically escort a Member from the chamber, the question can be adjudicated upon by a court as to whether the Serjeant-at-Arms was properly authorised to do so.  That is where the question of the privilege of Parliament arises.  But it arises by reason of the court adjudicating the question of whether an assault has occurred.

So, the starting point is the adjudication of a legal right, and then the question is whether there was a privilege of the Parliament that was exercised to allow that to occur.  Just because it is a proceeding in Parliament does not mean that the court cannot inquire.

MR BEGBIE:   The facts that your Honour puts – can I suggest two issues that throws up?  The first your Honour puts is the court can inquire into the assault in order to ask the question, did the privilege apply.  We agree it can.  Your Honour might have put it, can adjudicate on the assault.  We do not agree with that.  So, the court has a provisional initial look at the parliamentary circumstances for one purpose, which is adjudicating whether or not the privilege applies.

We have sent through a case of Amann Aviation which your Honour will be familiar with. It was the first case decided under section 16 of the Parliamentary Privileges Act. One of the issues that came up in that was the potential circular problem of the court looking at Hansard in order to determine whether the privilege applied.  What Justice Beaumont said, and what has been accepted ever since – and this is consistent with previous practice as well, of course – is that the court can look at the proceedings in Parliament, it can look at what occurred in Parliament on a de bene esse basis to say, when I look at this and all the other facts, is these proceedings in Parliament?  So, in your Honour’s case, that is what would happen with the assault.  If the conclusion is as it ‑ ‑ ‑

EDELMAN J:   That is really no more than saying the court can inquire into the existence and the boundaries of the privilege itself.  But that is where the inquiry ends, because the correlative of the privilege is that there are no rights.  And if there are no rights, there is nothing to be adjudicated upon.

MR BEGBIE:   We accept that, with this slight proviso, to the extent there are rights, they are matters for Parliament, not matters for the court.

EDELMAN J:   Yes.

GORDON J:   After you determine the existence of the privilege.

MR BEGBIE:   Quite so.  And concluded it exists.

GORDON J:   That is why I do not understand why – I mean, that is exactly what Chief Justice Dixon said, did he not, in Fitzpatrick and Browne?

MR BEGBIE:   It is for the court to adjudicate the existence of the privilege, indeed. And that is what we will be saying in the second part of our argument, it is the court and only the court that will adjudicate the existence of the privilege in a case like this. And it will do so in the ordinary fact-finding ways that courts are uniquely positioned to undertake. We start with section 8 and article 9 in this case and the cases I will just come to, to put in focus what happens when the court is dealing with proceedings in Parliament.

Before I leave this case, can I draw to your Honours’ attention page 275, and this is the part of the decision of the Chief Justice which is cited time and again.  At about point 3:

What is said or done within the walls of Parliament cannot be inquired into in a court of law.  On this point all the judges in the two great cases . . . are agreed, and are emphatic.

Et cetera.  That passage has been cited in many of the cases your Honours have already been taken to – Egan v Willis, Chaytor, CJC v PCJC, and is also cited in the case I am about to come to.  So, the principle as articulated there and as explained in detail by Justice Stephen is not an archaic one confined to the English context.  It is a live one which explains how article 9 and the principles that it represents are understood and have been understood for a very long time.

GORDON J:   The next paragraph is interesting, is it not, by the Chief Justice.  He does not answer it, but he identifies the difficulties of reaching this idea that the Court is not involved.

MR BEGBIE:   Yes.  When your Honours examine this case in more detail – and it is for time reasons that I have not done this – but I draw to your attention there are passages that on the face of them also seem to create difficulty because of the way Stockdale v Hansard is discussed and the other aspect of Stockdale v Hansard which is, if you like, the first limb of the Fitzpatrick statement, and I would say two things about that without going to authorities on it.  The first is that, to the extent Stockdale v Hansard stands for the proposition that it is for the courts, not Parliament, to be the adjudicator of whether the privilege exists, that is emphatically the law and that is what we advance.

On the facts of Stockdale, though, the situation becomes murky, but it is because the law at that time permitted a publication after the dealings in the Assembly to be the subject of defamation proceedings.  That was corrected within a year of Stockdale being decided by legislation and that has not been the law in Australia.  So, the relevant part of Stockdale for this case is the part that is summarised and picked up by all the judges in this case.

One thing that is striking about what their Honours did in that case is that they exercised extraordinary restraint.  They did not, as it were, come to a provisional view about lawfulness.  They did not seek to examine the facts of what Mr Bradlaugh had done or why the House might have decided he should not take the oath.  They did that initial inquiry into whether or not the privilege applied, and once it did, you have seen how starkly it stayed away from it.

The same phenomenon you see in the case of British Railways Board v Pickin, which is at tab 45.  This is not a statute case in the way Bradlaugh was.  What happened here was that Pickin had a claim to land and the Railways Board, in its defence, pleaded a statutory provision which it said had vested the land in the Board.  And in reply, it was said that that statutory provision had been, in effect, procured by the Board by misleading Parliament.

Again, we are very directly in the terrain of something that is unambiguously proceedings in Parliament, but what is instructive is what the courts did insofar as staying away from that examination that inquiry is concerned.  If I can just go to the passages, very briefly, and really draw attention to them to illustrate this point.  On page 787 of the report, it is obscured by the red number 1753, at line G:

The function of the court –

This is from the judgment of Lord Reid.  You will see:

Any attempt –

And it is an “attempt”, there, not – that is all that is required:

to prove that they were misled by fraud or otherwise would necessarily involve an inquiry –

And Lord Reid goes on over the page, and you would read down to the end of the paragraph that begins:

For a century or more –

In the judgement of Lord Morris, on page 790, starting at line C, what is set out is the kind of inquiry that the Court would become embroiled in were it to embark upon adjudicating the allegation in the reply.  Lord Morris then goes on to consider cases that say that, emphatically, cannot be done, and at the top of page 792 concludes:

there cannot be a triable issue in the courts whether an Act of Parliament was improperly obtained.

Lord Wilberforce at the very top of 793:

The remedy for a Parliamentary wrong, if one has been committed, must be sought from Parliament, and cannot be gained from the courts.

Your Honours would also read on 797 at line G the allegations made in the reply and then, at the top of the next page:

The whole of this is upon the clearest authority which I have stated impermissible, and unless capable of amendment must be struck out.

Lord Simon’s speech from about H, this is on the same page, your Honours:

A second concomitant of the sovereignty of Parliament –

speaks to the privileges – you will there, citing the oft‑cited passage from Erskine May and the part of the judgment of the Chief Justice in Bradlaugh.  And your Honours would read on down to the end of the paragraph just above G – and I do not need to take your Honours to Lord Cross other than to say that there is agreement.  So, that represents the position which we say exists under article 9 and its related principles.

Now, I will not go back to this case because it has been carefully scrutinised already, but we do say that the decision of the Queensland Court of Appeal in CJC v PCJC is an example of a situation in which a court is asked to adjudicate upon compliance with a statute and refuses to do so because of the operation of parliamentary privilege.  That is obscured a little bit, perhaps, by some of the focus on the procedural fairness aspect of that case, but the first declaration sought – you will recall – was that the action was ultra vires – the statutory provisions – and that is discussed at some length – perhaps unfortunate length – by Justice McPherson having regard to the privilege.  Indeed, his Honour acknowledged that very point at paragraph [19] when he said in saying what I have said thus far, I may have already said too much because of the privilege.  We would say, with respect, he was right about that.

We also draw attention to the fact that Bradlaugh and Pickin – those two cases we have just looked at – were cited and followed by Justice Chesterman at [45] – and Justice Chesterman at [47], with respect, neatly draws out the problem of courts even starting down the track of this inquiry because the making of a bare allegation – whether substantiated or not – then becomes the trigger for the court to start examining what happened in Parliament.  While this case might not, on its facts, throw up the problem particularly starkly – dealing as it does more with barren sounding questions of technical compliance – if the allegation had been, for example, that one of the key participants for the Commission or the committee had acted in bad faith, or malice, or with actual bias, to start inquiring into that, that question of lawfulness is to immediately start questioning – in the broad sense in which that is used – proceedings in Parliament – if it be proceedings in Parliament – I do not want to jump the gun on that.

KIEFEL CJ:   Mr Begbie, Justice McPherson at paragraph [25], however, stated the exception which I alluded to earlier in my conversation with – discussion with Mr Walker.  His Honour did not doubt that there might be questions which the court can properly answer which relate to whether something constituted proceedings in Parliament, and his Honour there referred to the example of whether something was properly authorised.

MR BEGBIE:   Quite, and ‑ ‑ ‑

KIEFEL CJ:   So, there are limits.  I mean, the question itself, whether something is proceedings in Parliament, is obviously one for the court.

MR BEGBIE:   Quite so, and can I add to that what Justice Chesterman said in paragraph [48], which is a good illustration of how – and I will come back to this – when you inquire into whether something is proceedings in Parliament, it might be relevant in that initial inquiry phase to look at the Act, and to look at the facts about what was done purportedly under the Act.  There might be cases where – and I am, of course, not straying into the facts of this case as an intervener, but there might be cases in which what was done were so extraordinarily distant from the statutory function or from the task that had been set that you would readily conclude by reference to the statutory provisions that this was not being done for the purposes of the transacting of parliamentary business.

KIEFEL CJ:   The business of the Assembly or the committee.

MR BEGBIE:   Yes.  I will develop that further, if I might, your Honour.  Before finishing this point, which is one of my two largest points, can I say there are other examples of courts staying their hand when being asked to examine the lawfulness of conduct.  We embrace what was submitted for the Speaker, that for this purpose there are not categories of lawfulness that can be identified as attracting the privilege or disapplying the privilege.

So, what was said in Bradlaugh about compliance with statute law is the same principle that is followed in relation to, for example, procedural fairness in a non‑statutory context, and that is case of Carrigan v Cash that I will come back to in a moment as well.  It is the same principle that applies in all the defamation cases.  A defamation is an actionable tort; it is unlawful in that sense.

GAGELER J:   What about cases like Trethowan and Cormack v Cope?  Cases that raise questions about whether the product of a parliamentary process is one that is compliant with legal requirements as to what is to occur within that process.  It becomes a little more complex in those cases, does it not?

MR BEGBIE:   It does become more complex, and it becomes a complex factual inquiry in those cases.  I will come in due course to a case that is in the joint bundle called Szwarcbord v Gallop which looks at the distinction between a document prepared for one purpose but then picked up and published, and what one does in that case.  So, if I might deal with your Honour’s question in that way.

GAGELER J:   Thank you.

MR BEGBIE: If that will deal with your Honour’s question. I, perhaps, may not have understood it. So, what that tells us so far, we think, your Honours, is that one function of article 9, which is to prevent courts ruling on the lawfulness of proceedings in Parliament, is clear and is apparent from the cases and must be part of what is intended in section 8.

Can I turn to the next purpose of article 9 and that principle of exclusive cognisance that we draw attention to?  These are all, of course, completely interrelated.  It is only for the purposes of, so to speak, presentation that we tease them apart.  This is the purpose of ensuring that Parliament is able to arm itself with everything it needs to hold the Executive to account.  The best description of that, we think, is that given by Justice McHugh in Egan v Willis.

If your Honours go to tab 28, would your Honours go first to paragraph 68, which is page 945 of the joint bundle?  You will see there that his Honour picked up the passage of Lord Coleridge in Bradlaugh and also some of the passages of Justice Stephen.  At 69, is the explanation of why I have been using the expression “article 9 and related principles” or “article 9 principles”.  Your Honours might have seen that article 9, itself, was not actually the focus of Bradlaugh and in the case of Prebble – which I will come to in just moment – it is described as a manifestation of this wider principle of mutual respect and exclusive cognisance.

So, I identify that because it is important to recognise that although Bradlaugh does not, in terms, speak to article 9, what Justice McHugh recognises – and what all the other authorities that pick up Bradlaugh recognise – is that it is speaking to the very principle that is embodied in article 9.  His Honour Justice McHugh makes that pellucid in 70, saying:

If the law laid down in Bradlaugh correctly states the relationship between the Supreme Court of New South Wales and the Houses of Parliament of that State –

that being a State in which that relationship is set by article 9.

EDELMAN J:   Do you accept Justice McHugh’s statement at 69 that these principles of parliamentary law are jurisdictional?

MR BEGBIE:   As I read what his Honour is saying, the courts are not precluded – I am sorry, exercising their jurisdiction.  No, I am not sure that that would cause me to change the answer because that is not saying the court does not have jurisdiction, it is saying that the court ‑ ‑ ‑

KIEFEL CJ:   Without relief.

MR BEGBIE:   Yes, the court does not exercise it in its decision.  As I read it, your Honour – and I may well get notes in the course of these submissions or over the break which cause me to come back to your Honour on that.  Can I just say something about timing ‑ ‑ ‑

GORDON J:   Can I just say something about 70.  Justice McHugh draws a distinction between – and this comes back to the matters that are being put to you about existence versus exercise.  So, consistent with Fitzpatrick and Browne, Justice McHugh draws a distinction where he says, well, it is not open to the court:

to make a formal declaration which is binding on the parties for all purposes including their conduct in the House –

as distinct from relief of the kind that was considered, for example, in Ainsworth and other cases where one is not making a declaration which is binding on the Parliament.  Do you accept that is a distinction that is open?

MR BEGBIE:   I accept there is a distinction, but I will need to ‑ ‑ ‑

GORDON J:   If you want to come back to it later.

MR BEGBIE:   ‑ ‑ ‑ come back to it, because what cases like Egan and Fitzpatrick, perhaps Halden v Marks in Western Australia throw up – in fact Halden explains this point very well.  Broadly speaking, the authorities divide into two streams.  One is the stream in which courts are being asked to review what Parliament is doing in the exercise of its privilege and that is one privilege.  It is not this privilege, it is not the article 9 privilege.  So, Fitzpatrick speaks in that context.

A lot of the cases we are looking at, of course, are cases in which article 9 is the privilege that is relevant or the statutory declaration of article 9, and they talk about when a court can examine things that are proceedings in Parliament, but not for the purposes of seeking to control Parliament, just whether they have to stay out of the arena altogether.  So, it is not a bright line distinction and, in some ways, this case straddles them, but it is important just to be careful about some of those statements for that reason.  And, as I say, that distinction is explained, we think helpfully, in Halden v Marks. 

Before leaving Egan v Willis, I had better come to the actual passage that I was centrally concerned to emphasise, which is at paragraphs 100 to 102, which addresses that fundamental role – and it does not need to be laboured – of Parliament and, of course, its committees, to undertake the critical function of examining and criticising the Executive, and the need for them to have access to all the information necessary to do that.  And your Honours can immediately, perhaps, see where we are going with that in this case.

What we have called in our oral outline a third purpose of the article 9 principles is one that has already been adverted to in the context of Rowley v O’Chee.  It is the principle that people need, when they are speaking in and for proceedings in Parliament, to do so with the complete freedom that comes from knowing at the time they speak what they say and do will not be examined later in a court.  It is to avoid the chilling effect, if you like.  The way that purpose is advanced is through the recognition of the exclusive cognisance.  The case that develops that very, we say with respect, clearly – and it has been cited many, many times in the Australian jurisprudence – is the case of Prebble v Television New Zealand, which is at tab 55.

This was a defamation case, so it now factually some distance from the present case, and we rely on it as an explanation of the principle that courts will respect.  This was a somewhat unusual defamation case because, in this case, it was the member that had brought the action, and the defendant wished to use parliamentary materials in a truth defence to establish that the plaintiff and other Ministers made statements in the House which were misleading and also to allege or prove that a conspiracy was thereby entered into which resulted in the passing of legislation.

What the Privy Council considered was first whether article 9 prevented that from happening, and secondly, whether that created an unfairness of the kind that Mr Walker spoke to yesterday which might require a stay of proceedings altogether.  So, it is a case that recognises sometimes this principle can operate in such a stark way that courts cannot administer justice.  As it happens, this was not such a case, but that is the reality.

If your Honours go to 332 and consider from article 9 itself at point B, and then you will see at C that looking at article 9 alone just in its terms would lead to the conclusion that the matters sought to be proved by proceedings in Parliament would question or impeach freedom of speech.  It is what follows that I have adverted to as the broader principle.  Your Honours will see that these cases we have already gone to – Stockdale, Bradlaugh, Pickin – are all cited in that context.  Then, at F, the Privy Council ‑ ‑ ‑

GAGELER J:   If you are looking at the respective constitutional roles that are referred to, the respective constitutional roles ‑ ‑ ‑

MR BEGBIE:   Yes.

GAGELER J:   I am probably just repeating a question I have asked many times, but is it not the role of the court to declare what the law means?

MR BEGBIE:   No doubt.  And his Honour comes – and I will take you to this – to the rub:  what happens when those roles clash?  That is what we are dealing with here in every one of these cases.  At one level or another, even if it is just the court’s role to consider evidence relevant to a case, that is still a role of the court and when they clash something has to give, and what gives is the court’s role, not the Parliament’s role, the court having done the very, very important task of determining whether the privilege exists.

Your Honours, I will not step through this, but you will get assistance, we submit, from the discussion that goes over the entirety of the next page. It is a discussion that picks up section 16(3) of the Commonwealth Act. I said to your Honours at the start that is a provision in the widest terms, and it explains what questioning and impeaching is for the purposes of article 9. It means, for example, making any:

statements, submissions or comments . . . questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament –

Even more wide, subparagraph (c):

drawing, or inviting the drawing of, inferences or conclusions . . . from . . . proceedings in Parliament.

GAGELER J:   That is all about the exercise of jurisdiction.

MR BEGBIE:   Yes, quite.  I agree, your Honour.  And what his Honour said ‑ ‑ ‑

GAGELER J:   How it is exercised.

MR BEGBIE:   Yes, or if you like, the decision not to exercise.

GAGELER J:   No, it is about how it is exercised.  It is about drawing inferences from evidence.

MR BEGBIE:   I see.  Quite so.

KIEFEL CJ:   I see the time, Mr Begbie.

MR BEGBIE:   Yes.

KIEFEL CJ:   Might I inquire at this point what allocations of time have been made to allow the respondent – I am conscious of the interveners having taken some time – to enable the respondent to respond, and how we are travelling.  Are we within the timeframes, or not?

MR BEGBIE:   We are, your Honour, and I should have started by telling your Honour that we have spoken, and my learned friend does not anticipate – subject to anything that happens in my own submissions, does not anticipate being longer than an hour.  I would – if your Honours would indulge it, I would expect I would take half an hour after we come back.

KIEFEL CJ:   Then reply?

MR BEGBIE:   Yes, of course, that will not be long.

KIEFEL CJ:   So, we are comfortably within the timeframe of finishing today?

MR BEGBIE:   Yes, your Honour.

KIEFEL CJ:   All right.  The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Mr Begbie.

MR BEGBIE:   Continuing with Prebble, your Honours, we stopped at the point of talking about section 16(3) of the Commonwealth Act. Before I pick up again, can I just say in answer to your Honour Justice Gageler’s questions about jurisdiction that we, so to speak, agree with your Honour and my provisional answer I firm up on, and draw your attention to, I think it is paragraph 5 of the plurality in Egan v Willis, which does not, perhaps, decide it finally, but it certainly lends some support to that being the approach.  And as we have just seen, that is the approach that is described in Prebble.

Returning, then, to section 16(3), which of course does not apply in this case, but what is noteworthy is two things that are picked up by the Privy Council. First, the reason for its enactment, which was to remedy what was seen to be a terrible trampling of the privilege in the Murphy trials by cross-examining witnesses as to the truth of their evidence in parliamentary committees. But secondly, and this is the point I am coming to, just below E, is the conclusion that that Act, and section 16(3), contains the principle to be applied under article 9.

When your Honours consider the meaning of “impeach” and “question”, they are not narrow expressions intended to cover only particular categories of ways in which courts might intrude upon parliamentary activity.  They are, as all the cases we have looked at to date illustrate, words that seek to prevent any intrusion into that parliamentary sphere, after the initial question of the application of the privilege has been decided.

Would your Honours go over the page?  The need for parliamentarians and witnesses and people who are engaging with Parliament to be able to speak freely is addressed from A down to D.  Then, on page 336, at point G, you will see the three interests at play in this case.  Of course, they are not identical to the interests in play in the case before your Honours, but in the context here being discussed, the Privy Council held that where there is a clash, it is the parliamentary interest that prevails – which is just another way of stating, starkly, what the cases have illustrated that we have already looked at.

Where that takes us, perhaps, is – I am sorry, before I wrap that up, your Honours have Alley v Gillespie, at tab 23 in the joint bundle.  I will not take your Honours to it, but you will recall that that question of exclusive cognisance loomed to some degree, in that case.  Your Honour Justice Gageler recognised that principle in paragraph 76, and your Honour Justice Gordon, with Justice Nettle, discussed and recognised that principle in paragraphs 105 to 108.  So, it is not just that Prebble, itself, has been picked up and applied in a lot of Australian authority, this Court, only relatively recently has emphasised that part of the decision that I have taken your Honours to.

So, where that leaves us in construing section 8, your Honours, is this: first, it hardly needs to be said that as a fundamental bulwark of our system, this is a principle which engages the constructional approach reflected in the principle of legality, and we have cited authorities for that, and I do not need to take your Honours to them. What I do wish to underscore, though, is that this is not green fields exercise here. This approach has been well‑recognised across the Australian jurisdictions with respect to article 9 and with respect to the construing of provisions like section 8 and section 16.

We have looked at Egan.  I have referred already to Halden v Marks, which are New South Wales and Western Australia.  Your Honours have seen the decision in CJC which reflects all of these same principles in Queensland, and – your Honours have not been taken in much detail to this case, and I will draw one point out – it is the case of Rann v Olsen, which is South Australia – a five‑member bench in South Australia which considered these issues very carefully and extensively.  I will go only to one of the issues in the decision of Chief Justice Doyle, which is the leading judgment and other judges, save for some differences as to the approach on the particular facts in the defamation case, the other four judges agree with these principles.  The passage I would pause on begins on at 110 ‑ ‑ ‑

KIEFEL CJ:   Which tab is that, Mr Begbie?

MR BEGBIE:   I am so sorry, your Honour.  It is tab 58.  While your Honours are pulling that up, I can remind you of a case before the Queensland Court of Appeal of Laurance v Katter, which was one of the early cases to start considering the constitutional validity of section 16(3). One of the judges in that case, Justice Davies, upheld its constitutional validity by construing the idea of impeaching and questioning in a purposive sense, and what his Honour said was, it is for the court to determine whether or not a particular use of proceedings in Parliament in a court proceeding would in fact impeach or derogate from the operation of the House or the Parliament, and if it concluded that it would not, then parliamentary privilege did not cover that use.

From 110, Chief Justice Doyle analyses that argument, and it was only an argument because it was not – in fact, in law, it was only one of the three judges that had considered it – and says the privilege just cannot operate that way, in doing so in the context of section 16, but by reference, as he goes on, to the wider principles such as in Prebble.  Justice Mullighan agrees generally at 283.  Justice Perry expressly agrees on this point at 255.  Justice Lander again expressly agrees at 393.  To round out the jurisdictions, the Court of Criminal Appeal in Victoria in the case of Theophanous has approached section 16 in this way, including particularly with reference to the rejection of that idea of treating, questioning and impeaching in a purposive way, as Justice Davies had done in Laurance v Katter.

Theophanous is a case that we sent through, and I will not take your Honours to it, but that is what it stands for.  I will not spend more time on Rann v Olsen, save to say that it is a very careful and, we say, valuable exposition of the privilege as it stands in section 16 of the Commonwealth Act. So, that is what we wish to say about section 8.

If I can turn, then, to the second part of our submissions, which is to look at the question of proceedings in Parliament and how that is determined and by whom. Now, the way I wish to do this is obviously not to repeat what the Speaker has said about this, which I might say we embrace, but rather to go to the propositions that the respondent relies upon to – we say improperly – narrow section 9. The first of those propositions, which is in the respondent’s submissions at 95(a) is to this effect: the majority was right below to conclude that parliamentary privilege cannot apply to acts which are ultra vires because, invoking Kable, that which is beyond a statutory function is a nullity and cannot have legal consequences.

That question of fact is to be assessed by the evidence relevant to the discernment of its purpose.  In a sense, one needs to be careful not to conflate that with other areas of the law where subjective and objective intention might or might not be permissible in that factual inquiry.  Here, the factual inquiry is for the purpose of the document.  If one proceeds on that basis and therefore the relevant question is what is relevant – what is probatively relevant or persuasive in respect of that question – it will turn on the facts of the individual case as to those matters.  The objective background will always be important, but it may well be that the human actors involved, and what they did, and what they said ‑ ‑ ‑

EDELMAN J:   But, Mr Dunning, documents do not have purposes.  I mean, here the statute is not attributing a purpose to a document, it is attributing purposes to an assembly or a committee, which is comprised of human actors, but is a collective.  It is an attributed purpose.

MR DUNNING:   That is correct.  We accept exactly that.  So, when one looks in 9(2)(e):

preparing a document for the purposes of –

one is looking for what was the purpose for the preparation of that document.  The point I was seeking to make was that enquiry is answered by looking at what matters evidentially are relevant to that question.  They will almost always – in fact, it is hard to conceive circumstances where the objective circumstances surrounding the preparation of the document would not bear upon that factual inquiry.

It may be – and indeed often will be – that the actions of the human actors will – and perhaps on occasions be subjective intentions – and perhaps I can illustrate the distinction this way.  The Member of Parliament who requests the staffer to produce a document for asking a question in the House – now, the subjective intention will not matter; one will be able to determine the purpose of the preparation simply by knowing, as a fact, this request was made by a person as a Member of Parliament, and as a fact, in response to that, a document was prepared.  But it will obviously turn on its own facts.

That is the point we seek to make in the last sentence of paragraphs 7 and 11 of our propositions.  I will not trouble your Honours to take them out.  But, effectively, it is the statutory framework here that is an important consideration as to what the purpose of the preparation of this document was.

Your Honours, in relation to the arguments around what was and was not decided, can I simply give your Honours these additional references to those your Honours have already been given.  Can I take your Honours, first of all, please, to the section 55 certificate for two purposes.  It is the respondent’s further materials.  May I ask your Honours to please go to page 93.  Your Honours will note, please, paragraph 2:

A document, attached as “Attachment 1”, is an extract from a transcript of a private meeting between the Parliamentary Crime and Corruption Committee and the Crime and Corruption Commission –

That is the first of the transcripts your Honours were taken to – and again in paragraph 3.  So, there is a suggestion that this was some, in effect, private exchange between the two commissioners.  The certificate was that it was, in fact, a meeting of the committee.

I do not want to go further into the parsing what was said in the transcript any more than necessary, but can I just for clarity – I hope for clarity – may I simply ask your Honours, please, to notice this.  If I can ask your Honours to go to page 95, that is the first of the meetings that the certificate refers to, and what one sees is the chair saying:

Did you say you are proposing to prepare a report in relation to this matter –

I think it is now uncontroversial, this matter is referable to the investigation that produced this report.  The response from the chair of the Commission is:

We have not decided finally, but for the reasons you are articulating I think –

one should be.  Then, when we go to – if I may ask your Honours, please, to go to the next meeting, which is a couple of months later:  11 September 2020, page 96 of that bundle.  It is right, as our learned friend was taught and directed your Honours’ attention, that the first reference, the chair:

You will be seeking a direction under section 69 for tabling of that report?

Is not related to this report.  But it is important for two reasons.  The first of them is it, as is what follows – makes clear that what follows relates to a discussion about the prospect of a section 69 report.  Secondly, that the tenor of the conversation is about the presentation of such a report to the committee for consideration.  One sees that it is right to say the first two sentences next to Mr MacSporran:

Yes.  That is where that is.

is a reference to the other report.  From then on, we move to the circumstances relevant to this report:

In the Public Trustee matter –

which is why . . . . . with here:

we –

being the Commission:

were in the same position.

That position is the position that one sees in relation to the discussion of the previous report:

CHAIR:   You will be seeking a direction under section 69 for the tabling of that report?

Mr MacSporran:   Yes.

Then Mr MacSporran goes on to say, in relation to the Public Trustee matter:

we were in the same position.

The reason he says that is apparent from what follows:

We were trying to get that to you today –

but then certain matters needed to be accommodated to achieve that.  Now, any fair reading of it is consistent, in our submission, with matters that the Chief Justice had suggested in relation to these exchanges.  On 19 June, the committee raise with the Commission – or the Commissioner of the Commission – whether such a report should be prepared, and nominates a reason why the Commission might consider it:

because it seems like, again, a cultural issue, as we have discussed in relation to the earlier matter?

And that when one gets to the exchange on 20 September, the only reason that the section 69 report – or what purported to be a section 69 report – is not, in fact, discussed is for the reasons that it delayed its production, as set out there.

In any event, your Honours, in our submission these were matters dealt with by Justice Davis at first instance, at paragraph [121], page 46 of the core appeal book – I have taken your Honours to them previously, I was not going to take you to them – and [141], at page 50 of the core appeal book.  Justice Freeburn, in dissent in the Court of Appeal, deals with them at paragraphs [178] to [179], at page 108 of the core appeal book.

Your Honours, finally, in our respectful submission, the consequence of the majority’s decision, were it to be upheld in this Court, has broader application than simply this report because, at its heart, it seems that if that be accepted in relation to section 9(2) of the Parliament of Queensland Act, it means that 9(2)(e) and, therefore, (c), will only operate in relation to a document that is prepared where its creation was not ultra vires or unlawful.

If that is accepted as a proposition, in our submission – given a document is just a communication or act – what is set out in section 9(2) – as is plain from its terms – is a non‑encyclopedic list of the, quote, “words spoken and acts done”, referred to in section 9(1) of the Parliament of Queensland Act.  We note that subsection 9(1) speaks of all words spoken and acts done and the notion of purposes is deployed in both sections.

Yet, in our submission, if the majority below were correct, only those words spoken or acts done that were not ultra vires or unlawful would attract the privilege.  Now, take ourselves the four walls of the Assembly and, in relation to those matters that Members of the Assembly would do in the ordinary discharge of the wide definition in 9(1) of proceedings in the Assembly, it would give a basis for challenge not only to somebody in the position of the CCC but, potentially, corrosive of a Member of the Assembly, certainly in relation to communications outside Parliament.

Does the member have to be satisfied that the words spoken and acts done that the member is engaged with in the community were not unlawful or were not being provided in relation to something that was ultra vires, the person providing them, or dealing with departmental officers.  Now, in our respectful submission, it has that effect.  One should not see it just in terms of the impact it is apt to have on an agency such as the Commission, because if it is correct, then this notion of ultra vires or unlawfulness inhibiting otherwise the operation of subsection 9(2), would seem to have a like effect in relation to 9(1) and will involve anybody who is involved in those communications, certainly outside the chamber itself.

Can I ask if I can assist your Honours any further?  Excuse me, your Honours.  Sorry, there was one matter, your Honours, that I forgot to mention that we referenced a little earlier back in this and I can deal with it very briefly.  If the submissions in relation to section 49 being the only reporting functions the Commission has in relation to a corruption investigation, it means there is no capacity for the Commission to present a report under section 64 and seek its tabling pursuant to section 69 that completely exonerates somebody.  And it is not fanciful.  If someone is the subject of significant and highly damaging allegations in the public sphere, a public servant, let us say, the allegations are referred to the Commission, as they properly should.

The investigation is taken and completed, and the Commission wishes to produce a report to say we investigated and there was nothing in this.  The processes in that Department were in fact adequate to deal with it.  Now, on the majority’s construction, no such report could be issued, and one only has to look at the Warsama decision I took your Honours to yesterday to see that the illustration I give is not a fanciful one because, in material respects, that was that case.

Unless I can assist your Honours any further, they are our submissions.  Thank you, your Honours.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 3.43 PM THE MATTER WAS ADJOURNED