Law Society Northern Territory v Legal Practitioners Disciplinary Tribunal (NT)

[2020] NTSC 79

CITATION:Law Society Northern Territory v Legal Practitioners Disciplinary Tribunal (NT) & Anor [2020] NTSC 79

PARTIES:LAW SOCIETY NORTHERN TERRITORY

v

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL (NT)

and

ALISTAIR WYVILL SC

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:2020-03306-SC

DELIVERED:  11 December 2020

HEARING DATE:  3 December 2020

JUDGMENT OF:  Mildren AJ

CATCHWORDS:

CONSTITUTIONAL LAW – Parliamentary privilege – scope of “purposes of or things incidental to the transacting of the business of the Assembly” – whether legal practitioner’s advice regarding statements to be made in parliament protected by parliamentary privilege – whether privilege attaches to communications from a legal practitioner to a Parliamentarian – whether absence of correlation between advice sought by Parliamentarian and response given fatal to claim for parliamentary privilege –– scope of
s 6(2) Legislative Assembly (Powers and Privileges) Act 1992 (NT)
ADMINISTRATIVE LAW – Jurisdictional error – non-jurisdictional error on the face of the record – admissibility of evidence

Bill of Rights 1688 (Imp), Article 9
Legal Profession Act 2006 (NT), Part 4.11
Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 3, s 4, s 6
Parliamentary Privileges Act 1987 (Cth) s 16
Supreme Court Act 1979 (NT) s 14, s 18, s 20

ACT v SMEC Australia Pty Ltd [2018] ACTSC 252, Carrigan v Cash [2016] FCA 1466, Craig v South Australia (1995) 184 CLR 16, Erglis v Buckley [2005] QCA 404, Independent Commission of Corruption v Cuneen & Ors [2015] HCA 14; 256 CLR 14, Kirk v Industrial Court (NSW) [2010] HCA; (2010) 239 CLR 531, Obeid v R [2015] NSWCCA 309, OPEL Networks Pty Ltd (In Liq) [2010] NSWSC 142, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, R v Grassby (1991) 55 A Crim R 419, Rowley v Armstrong [2000] QSC 88, Rowley v O’Chee [2001] 1 Qd R 207, Sportsbet Pty Limited v State of New South Wales (No 3) [2009] FCA 1283, referred to

REPRESENTATION:

Counsel:

Plaintiff:  A Moses SC with K Anderson
First Defendant:  No appearance
Second Defendant:  J Kirk SC with M Caristo

Solicitors:

Plaintiff:  Hicksons Lawyers
First Defendant:  Solicitor for the Northern Territory
Second Defendant:  Squire Patton Boggs

Judgment category classification:    A

Judgment ID Number:  Mil20565

Number of pages:  32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Law Society Northern Territory v Legal Practitioners Disciplinary Tribunal (NT) & Anor [2020] NTSC 79

No. 2020-3306-SC

BETWEEN:

LAW SOCIETY NORTHERN TERRITORY

Plaintiff

AND:

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL (NT)

First Defendant

AND:

ALISTAIR WYVILL SC

Second Defendant

CORAM:    MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 11 December 2020)

Introduction

1. This is an application brought by Originating Motion by the Plaintiff seeking orders in the nature of certiorari and prohibition against the First Defendant, the Legal Practitioners Disciplinary Tribunal (NT) (the Tribunal), with respect to two decisions of the Tribunal dismissing complaints made against the Second Defendant for alleged unprofessional conduct or alternatively, unsatisfactory professional conduct contrary to s 464 of the Legal Profession Act 2006 (NT). The First Defendant also ruled as inadmissible a number of documents which the Plaintiff intended to tender into evidence (the Evidentiary Rulings). The Plaintiff seeks declaratory relief in respect of these documents and an order prohibiting the Tribunal from making a final determination of the Disciplinary Application without reconsideration of the Evidentiary Rulings.

2. The Tribunal has made a submitting appearance and was excused from attendance at the hearing.

   Background facts

3. In July 2012, the Cabinet of the Northern Territory Government approved the offer of a Crown Lease over land known as the Stella Maris site to Unions NT. At the time, Ms Delia Lawrie was Deputy Chief Minister and a member of the Legislative Assembly. Ms Lawrie was involved in the Stella Maris site and had worked towards the goal of the lease being offered to Unions NT. On 3 August 2012 the documents offering and setting out the conditions of the lease were signed by the then Minister for Lands and Planning, Mr Gerald McCarthy (Mr McCarthy). A general election for the Northern Territory Legislative Assembly was to take place on 25 August 2012. The Government entered into caretaker mode on 6 August 2012.

4. The election resulted in a change of Government. The new Government opposed the lease which was ultimately not granted to Unions NT. In December 2013 the Government commissioned an inquiry into the circumstances of the purported decision to offer the lease and associated matters (the Inquiry). Mr John Lawler was appointed as the Commissioner of the Inquiry under the provisions of the Inquiries Act 1945 (NT).

5. Ms Lawrie and Mr McCarthy were summoned to appear at the Inquiry to give evidence and to produce documents. At that time, Ms Lawrie was Leader of the Opposition and Mr McCarthy was the Deputy Leader. The Second Defendant, who practised as a barrister at the independent bar, acted as counsel for Ms Lawrie and Mr McCarthy at the Inquiry, instructed by a firm of solicitors.

6. Hearings before the Inquiry took place over a number of days between 12 February 2014 and 1 April 2014. On 26 May 2014 the Commissioner presented his report to the Administrator. The report was tabled in the Legislative Assembly on 19 June 2014. It contained a number of adverse findings concerning Ms Lawrie’s conduct.

7. On 19 May 2014, Mr Michael Gleeson, Ms Lawrie’s then Chief of Staff, sent an email to the Second Defendant, to which he replied on the same day. These emails formed the basis of Allegation One in the proceedings before the Tribunal. In short, the Tribunal found that the emails forming the basis of the allegation were inadmissible because they were subject to parliamentary privilege, that it would be unlawful for the Tribunal to receive them into evidence and dismissed Allegation One on 5 August 2020. The Plaintiff contends that that decision amounted to jurisdictional error on the part of the Tribunal and seeks an order quashing that decision.

8. Subsequently, the Tribunal sought submissions from the parties concerning Allegation Three. This allegation is that on 19 June 2014 at or shortly before 10:04am, the Second Defendant telephoned Mr Gleeson advising that either Ms Lawrie or Mr McCarthy should make a statement in the Assembly, in the event that Commissioner’s Report, when tabled, contained adverse findings about either of them,  stating that those findings came as a complete surprise when it is alleged that the Second Defendant knew that this assertion would be false or alternatively, was reckless as to whether it was true or false.  

9. The evidence relating to the telephone call was contained in an email sent on 19 June 2014, and the particulars of the allegation, relied on an email chain starting on 14 February 2014 and ending on 19 June 2014, as well as other documents, the substance of which were set out in the affidavit of Fiona Kepert sworn on 2 October 2020 as contained in Annexure A thereto at paragraphs 3.1 to 3.30.

10. After hearing submissions from the parties, on 4 September 2020 the Tribunal held that the telephone communication by the Second Defendant was protected by parliamentary privilege and dismissed this allegation.

11. Following its decision on 4 September 2020, the Tribunal made a number of oral rulings during a hearing from 7 September to 11 September 2020 rejecting the tender by the Plaintiff of various documents (the Excluded Documents) into evidence (collectively, the Evidentiary Rulings). It is common ground that the Evidentiary Rulings were made on the basis that receipt of the Excluded Documents into evidence would be unlawful as a breach of parliamentary privilege for the same reasons given by the Tribunal in its decision in relation to the Allegation One.

    The Tribunal

12. The Tribunal is established by s 669 of the Legal Profession Act 2006 (NT). Membership of the Tribunal is provided for by s 670. The Chairperson of the Tribunal may make rules for the practice and procedure of the Tribunal and may issue practice directions: s 677A. If a disciplinary application is brought in the Tribunal, the Tribunal must conduct a hearing into each allegation particularised in the application: s 517. The Tribunal is bound by the rules of evidence in conducting the hearing: s 521. The parties to the application are the Law Society and the Australian legal practitioner against whom the complaint has been made: s 522 (1). A complainant may also be granted leave to appear as may any other person whom the Tribunal is satisfied that it is appropriate to appear: s 522 (3). Parties and persons granted leave to appear have the right to be heard and may be represented by an Australian legal practitioner: s 522(5). The Tribunal has the power to make a variety of orders if it finds the legal practitioner guilty, including an order recommending that the name of the legal practitioner be removed from the Roll, and order that the legal practitioner’s Practising Certificate be suspended, or an order that the legal practitioner pay a fine as well as other relief: s 525. Oddly, the power to dismiss a complaint is not mentioned but it is common ground that such a power must be inferred. The Tribunal has the power to make interlocutory or interim orders before making its final decision: s 526 (1). The Tribunal may also order costs: s 529. If the legal practitioner is found guilty he or she has a right to appeal to the Supreme Court: s 533 read with s 525. There is no right of appeal if the complaint is dismissed, nor against an interlocutory order.

The relief sought

1. The jurisdiction of this Court to grant the relief sought is not in dispute. This Court has long had the power to grant certiorari, prohibition or what is now called judicial review. So much is clear from s 14(1)(c) of the Supreme Court Act 1979 (NT). Order 56 of the Supreme Court Rules provides for the procedure in these circumstances to be commenced by Originating Motion.

2. The Tribunal is not a Court. In Craig v South Australia[1] the High Court discussed the types of errors which are amenable to review by the former Writ of Certiorari. The starting point was that a distinction is made between inferior courts and administrative tribunals. In relation to the latter, the Court said[2]:

   At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with law…

   …If such an administrative tribunal falls into error of law which causes it to identify a wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision by the tribunal which reflects it.

3. Certiorari will lie if there is jurisdictional error, or error of law on the face of the record, even in the case of an error by a Tribunal. The Plaintiff contends that the Tribunal erred in finding that the documents upon which it sought to rely were subject to parliamentary privilege, and that this was an error which went to its jurisdiction. Alternatively it was a non-jurisdictional error on the face of the record.

4. The Plaintiff’s argument is that the Tribunal wrongly determined on the facts of the case that the evidence was inadmissible. This led to the two allegations being dismissed as there was no evidence left to try those matters. Thus, it was put that the error was jurisdictional in each case, relying on Kirk v Industrial Court (NSW)[3]. In that case, the former Industrial Relations Commission of New South Wales (which at the relevant time was a tribunal) convicted Mr Kirk of occupational and safety offences. The High Court held that the Commission made two errors of law which amounted to jurisdictional error. The first error was that the Commission failed to properly construe the section of the offence with which the appellant had been charged, with the result that there was no evidence to support the charge. The second error was that the Commission permitted the prosecution to call the appellant as a witness in which the appellant was one of the defendants. Although that was not a case where the Commission wrongly rejected admissible evidence which amounted to jurisdictional error, I accept that if the Tribunal wrongly construed the relevant statutory provisions which led to the exclusion of evidence relevant to its determination of the complaint in this case, it is subject to judicial review. The Court also said that ordinarily if relief is granted on the ground of jurisdictional error, it is unnecessary to consider whether there is error on the face of the record[4], although that might not always be the case if there is no jurisdictional error. The Court also confirmed that the record does not ordinarily include the reasons of the Tribunal unless the Tribunal has chosen to incorporate its reasons[5]. I am able to find that this has occurred in this case. As was pointed out by the High Court in Craig[6] a merely introductory or incidental reference to the reasons for the decision does not produce the consequence that the whole or part of the reasons somehow both become part of both the formal order and “the record” of a particular court or tribunal. In the present case, the orders of the Tribunal and the reasons were in both cases incorporated into the same document. That being so, the result will likely be the same in this case whether there is jurisdictional error or error of law on the face of the record.

   Parliamentary Privilege

5. Article 9 of the Bill of Rights 1688 (Imp) provides:

   That the Freedom of Speech and Debates or proceedings in Parlyament ought not be impeached or questioned in any Court or Place out of Parlyament.

6. Section 6 of the Legislative Assembly (Powers and Privileges) Act1992 (NT) (the LAPP Act) provides, relevantly:

   (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 Assembly and, as so applying, shall be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

   (2)   For the purpose of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Assembly, and for the purposes of this section proceedings in Parliament means all words spoken and acts done in the course of, or for the purposes of or incidental to the transacting of the business of the Assembly or of a committee, and without limiting the generality of the foregoing includes:

   (c)the preparation of a document for the purposes of or incidental to the transacting of any such business;

   (3)   In proceedings in a 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 the assembly, 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 the Assembly;

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

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

The reasons of the Tribunal relating to the first allegation

1. After setting out the background facts which are referred to in paragraphs [3] to [9] above, the Tribunal set out the particulars of the charge, which consisted of the emails referred to in the two paragraphs below.

2. On 19 May 2014 at 9:33am, Mr Michael Gleeson, who was at that time the Chief of Staff to Ms Lawrie, sent an email to the Second Defendant concerning statements made by Adam Giles, who at the time was the Chief Minister [and leader] of the Country Liberal Party [Government]. That email said:

   Hi Alistair,

   In the last week’s censure debate Giles made these comments:

   Mr GILES:  You cannot even accept your name being presented this way. My challenge to the Leader of the Opposition, the member for Karama, and the members for Arnhem, Fannie Bay, Johnston and Wanguri is quite simple. If you believe your claims to be true, take them outside and made (sic) them public. If you do not have the courage to take them outside, then clearly you do not believe these claims to be true and you are simply playing politics in coward’s castle. If you are true to your word about elements of corruption and wanting enquiries- I challenge you, member for Barkly, you misled the Stella Maris Inquiry…
   Mr MCCARTHY: Will you call me Gerry Obeid outside? Bring your Hansard.
   Madam SPEAKER: Member for Barkly!
   Mr GILES: I ask you to step aside from your position for misleading an enquiry under the Inquiries Act, which has been proven to be true and correct. Should you believe the professional standards of politics and inquiries, I ask you to resign because you misled the Stella Maris Inquiry, which you admit and for which you were found guilty.

   Clearly the Chief Minister’s assertion is untrue- the Member for Barkly has not be (sic) found guilty of anything and the Chief Minister’s comments are highly prejudicial to the Inquiry’s findings and recommendations.

   Maybe the Chief Minister has received a final report which has already drawn the findings which he asserts.

   In the event that he hasn’t, one conclusion is that he has used parliamentary privilege to pressure or influence the commission in the preparation of its final report.

   In my view even though the submission may not have been closed, this would justify a strong letter to the Commissioner and could be used in the debates in the Assembly.

   What do you think, Alistair?

[21]At 12:02pm on that day, the Second Defendant sent an email to Mr Gleeson in the following terms:

Hi Mike,

I would think the best point to make- in parliament- is that Giles’ statements suggest he has been provided with a draft of the report apparently for his review and approval. Getting this on the record in the House will help with labelling this the CLP’s report. I would prefer to adopt the position that this process never had any independence from the beginning, they picked Lawler because they knew he would do what he was asked to do and this just confirms that this whole process was a set up from the beginning.

Writing to Lawler suggests that he has an independence to be influenced! What do you think?

Dissenting report underway!

[22]The Tribunal said:

Ms Lawrie’s Chief of Staff in substance requested Mr Wyvill’s thoughts on what should be done in response to Mr Giles’ words. Mr Wyvill replied with what he thought was the best point to make in Parliament and said that getting it on the record in the House would help.

[23]The Plaintiff’s submission to the Tribunal referred to the decision of White J in Carrigan v Cash[7] which highlighted the absence in the present matter of a clear causal connection between the advice of the Second Defendant and the business of the Assembly. The Tribunal held that it did not accept that a causal connection was essential for the purposes of s 6(2) of the LAPP Act although the existence of a causal connection may well be relevant. Nevertheless, the Tribunal found that there was a clear causal connection between the advice of the Second Defendant and the business of the Assembly, observing that “what was said in the Assembly is the explanation for the Respondent’s advice being sought and the advice he gave included what he thought was the best point to make in Parliament and that getting it on the record of the House would help”. The Tribunal again dealt with this point subsequently in relation to a submission that further evidence was needed before the Tribunal could be satisfied that the advice proffered by the Second Defendant was for the purpose of or incidental to transacting the business of the Assembly. The Tribunal said:

We disagree. The Applicant was given leave to file any material on which it relied in response to the Respondent’s written submission on the parliamentary privilege issues and did so by referring the Tribunal to portions of one of the Respondent’s affidavits, emails and letters. This material did not contradict or diminish the obvious inferences to be drawn from the emails in question. They speak for themselves. What was said in parliament was expressly the subject of Ms Lawrie’s Chief of Staff’s email requesting the Respondent’s thoughts and we infer that in sending that email he was acting for her. The respondent’s email in reply expressly referred to what he thought was the best point to make in Parliament and getting it onto the record in the House. In these circumstances we conclude that these emails are encompassed by s 6(2) as they were prepared for the purposes of or incidental to the transacting of the business of the Assembly. As such they come within the meaning of “proceedings in Parliament.”

[24] For the reasons discussed below I do not think that this conclusion was in error.  

[25]

The Plaintiff submitted to the Tribunal that the decisions in Rowley v Armstrong[8] and R v Grassby[9] were inconsistent with the construction of

s 6(2) of the LAPP Act because they rejected the proposition that parliamentary privilege extended to communications from non-members that seek to persuade members to make particular statements in Parliament. The Tribunal rejected this submission observing that these decisions turned on their own facts and that there was ample authority, referring to Erglis v Buckley[10] that communications from non-members may be covered by parliamentary privilege. After referring to a number of decisions, including Rowley v O’Chee[11], Sportsbet Pty Limited v State of New South Wales (No 3)[12], OPEL Networks Pty Ltd (In Liq)[13] and ACT v SMEC AustraliaPty Ltd[14] the Tribunal concluded that it would be unlawful for the Tribunal to consider Allegation One and it was dismissed.

The submissions of the parties and reasons for refusing relief

[26]Counsel for the Plaintiff began his submission by referring to the decision of the New South Wales Court of Criminal Appeal in Obeid vR[15]. In that case, a former member of the Legislative Council was charged with wilfully misconducting himself in public office, a common law indictable misdemeanour. It was alleged that whilst in office, he made representation to a senior public servant with the object of securing a benefit for a business in which he had an undisclosed interest. It was held that the indictment does not concern matters incidental to parliamentary speech or proceedings. As the Court said, the communication which was the subject of the offence was not communicating with the executive generally, but communicating with the public servant about the renewal of certain leases in particular which had nothing to do with proceedings in Parliament. It is difficult to see the relevance of this decision to the facts of this case, and no particular submission was made concerning it.

1. Next, it was submitted that counselling or soliciting by a non-member of particular statements in Parliament by a member is insufficient to attract parliamentary privilege, even if the statements relate to an issue recently raised in parliamentary debates. Counsel referred to R v Grassby[16] for the proposition that whilst privilege could extend to non-members it was confined to “petitioners”, “witnesses and others who solicit business in parliament” in “the discharge of their duties”. It was put that it did not cover the provision of information to members in other capacities, irrespective of whether that information was subsequently used in proceedings in Parliament. The facts in that case concerned a document prepared by Mr Grassby, a former Member of Parliament, which contained defamatory imputations against three persons said to have been complicit in the murder of Donald MacKay. Mr Grassby had been charged with criminal defamation. The document was given to the informant’s Member of Parliament for the purpose of it, or the information contained in it, being used in Parliament.

[28]Allen J, after referring to a passage in T E May, Parliamentary Practice, which stated that “although both Houses extend their protection to witnesses and others who solicit business in Parliament, no such protection is afforded to informants, including constituents of Members of the House of Commons who voluntarily and in their personal capacity provided information to Members, the question whether such information is subsequently used in proceedings in Parliament being immaterial”, held that the material was not privileged. As counsel for the Second Defendant pointed out in his submissions, that case is not authority for the proposition expressed in such wide terms as the Plaintiff submitted. The real ratio of the case was that there was no immunity to just anybody who seeks to persuade a Parliamentarian to say something in Parliament. The distinguishing feature from that case is that the Second Defendant was not just a mere informant; he was acting in his professional capacity as an adviser to the Leader of the Opposition and was responding to a request for advice from the Leader of the Opposition’s Chief of Staff.

1. The same applies to the decision in Rowley v Armstrong[17]. In that case the Plaintiff brought an action for defamation against the Defendant for two oral publications the Defendant had made about illegal fishing by the Plaintiff.  The publications were made to a member of the Senate and to a member of the Legislative Assembly of Queensland. In both cases, the publications were unsolicited by either parliamentarian and the informant was acting in his personal capacity. Jones J, after reviewing the authorities, held that “an informant in making a communication to a parliamentary representative is not regarded as participating in ‘proceedings in Parliament’ and therefore the provisions of the Parliamentary Privileges Act do not apply”[18].

[30]Reliance was also placed on the decision of the Queensland Court of Appeal in Rowley v O’Chee[19]. That case was concerned with whether documents in the hands of Senator O’Chee, which came into his possession from outside sources and were not prepared by him or someone on his behalf, were the subject of the privilege. The Court of Appeal held that they were so privileged. McPherson JA said[20]:

They [the documents] consist principally, if not exclusively, of letters sent by or documents received from other persons or sources. It is not, I think, possible for an outsider to manufacture Parliamentary privilege for a document by the artifice of planting the document upon a Parliamentarian: see Rivlin v Bilainkin [1953] 1 QB 485; and Grassby (1991) 55 A Crim R 419. The privilege is not attracted to a document by s16 (2) until at earliest the parliamentary member or his or her agent does some act with respect to it for the purposes of transacting business in the House….Generally, it seems to me that if documents like these came into possession of Senator O’Chee and he retained them with a view to using them, or the information they contain, for the purpose of Senate questions or debate on a particular topic them it can be fairly said that his procuring, obtaining or retaining the possession of them were ‘acts done… for purposes of or incidental to the transacting of the business’ of the House.”

[31]I agree with counsel for the Second Defendant that this case does not carry the matter any further than was decided in R v Grassby or Rowley vArmstrong, so far as concerns the facts of this case.

[32]The next authority relied upon by the Plaintiff is the decision of White J in Carrigan v Cash[21]. In that case, the respondent, the Honourable Senator Michaelia Cash, was the Minister for Employment in the Australian Government. She appointed a retired Federal Court Judge, the Honourable Peter Heerey AM QC to inquire into, and report on, complaints and related issues concerning the Honourable Michael Lawler, who was then the Vice President of the Fair Work Commission. Mr Heerey provided his report to the Minister who published a redacted version of the report in the Senate. The Plaintiff sought judicial review including certiorari and a declaration that the report is void and of no effect. The issue was whether the report was subject to parliamentary privilege. The Parliamentary Privileges Act1987 (Cth) is for all intents and purposes identical with the LAPP Act.

1. White J said[22]:

   The question of whether words were spoken, or acts were done, for a specified purpose is a question of fact. Prima facie, it requires an assessment of the subjective purpose of the actor in question: O’Chee v Rowley (1997) 150 ALR 199 at 208. However, as with so many areas of the law, the ascertainment of that purpose is informed by an objective consideration of the circumstances, that is, by consideration of those matters which stand independently of any statement of the actor of his or her purpose, especially statements made in retrospect.

[34]His Honour observed that the Minister’s purpose may also inform the assessment of Mr Heerey’s purpose; the terms of reference included whether there was a reasonable basis for both Houses of Parliament to consider requesting the Governor-General to remove Vice President Lawler from the Fair Work Commission on the grounds of proved misbehaviour or incapacity. Mr Heerey did not state his task as being to advise the Minister as to whether there was such a reasonable basis; instead he referred to the consideration of the issue by the Parliament itself. Mr Heerey prepared his report for the consideration of the Parliament and he had no other purpose; accordingly the conduct of Mr Heerey in preparing and providing the report and the conduct of the Minister both fell within the description of “proceedings in Parliament”.

[35]Counsel for the Plaintiff submitted that this case demonstrates that the request for advice from Ms Lawrie could only be salient where it was directed to transacting the business of the Assembly and is distinguishable from the business of an ordinary parliamentarian in respect of non-parliamentary capacities or interests. Thus it was put that, contrary to the approach adopted by the Tribunal, an examination of the scope of the request for advice, the content of the advice, and the correspondence or disjunction between the two, is essential. As to the first of these propositions, it seems to me that if the purpose of the advice given in relation to what a Parliamentarian might say during debates, even if related only to defending the personal reputation of that Parliamentarian or for that matter, the personal reputation of another Parliamentarian, is very much the business of the Assembly. As counsel for the Second Defendant correctly submitted, free speech by Parliamentarians in Parliament is at the very heart of what is protected by Article 9 of the Bill of Rights. Certainly, Carrigan v Cash is not authority against that proposition as that did not fall to be considered in that case. I accept that whilst White J approached the matter on the basis that the report’s purpose was not simply to advise the Minister, but to inform the Parliament, his Honour did not deal with the question of whether, had the report been prepared solely to advise the Minister, it would have been protected. I also accept that White J did find a strong correlation between the advice sought and the response given, but it does not necessarily follow that the absence of such a strong correlation is fatal to a claim for parliamentary privilege.

[36]Counsel for the Second Defendant referred me to the decision of the Queensland Court of Appeal in Erglis v Buckley & Ors[23]. In that case, the Leader of the Opposition in the Queensland Legislative Assembly made a lengthy statement in Parliament criticising the conduct and management of Ward 9D of a certain Queensland hospital. The source of the information supplied to the Leader of the Opposition, was the plaintiff, Ms Erglis, who had been a nurse on the relevant ward.  A number of other nurses sought an opportunity to refute these allegations and to that end, had a meeting with the Minister for Health. Following that meeting, the Minister promised to read out a letter in Parliament containing their side of the matter. The letter was composed, written, signed by the defendants and transmitted to the Minister who read it in Parliament. Ms Erglis sued for defamation, as the letter contained some imputations which were found by a jury to be defamatory of her. The question that arose on the appeal is whether the defendants were protected by parliamentary privilege.

1. McPherson JA, with whom Jerrad JA and Dutney J concurred, said[24]:

   The effect of what he [the trial judge] said was that in doing the acts of composing, typing and sending the letter to the Minister, the defendants were entitled to the absolute protection of parliamentary privilege under the Act, and that the plaintiff was therefore not entitled to impeach or question them as she did in bringing her claim for damages for defamation in respect of the letter ex 9. This, as will be seen, has the consequence of extending the protection to persons who are not themselves members of Parliament, but it seems to me that such an extension is, in the circumstances of this case, necessarily implicit in the statutory provisions themselves. Sections 8 and 9 of the Act do not in terms confine the privilege to members of Parliament themselves. That is consistent with the nature of the privilege as it has been judicially characterised in the past. It is well settled that it belongs not to the individual member but is the privilege of parliament as a whole: see Rowley v O’Chee [2000] 1 Qd R 207, at 224-225, and the authorities cited there. Furthermore, as his Honour pointed out or implied, it would be wrong to assume that the protection afforded by, for example, s 9(2)(e), is restricted only to a member of the Assembly who prepares the document himself or herself; the protection must be intended to cover those who prepare and provide the document for him or her to use in transacting the business of the Assembly. Unless therefore the statutory protection is designed to benefit only members who have unusually retentive memories, other persons will inevitably be drawn into and become involved in the member’s behalf in the act of preparing the document for presentation to the Assembly, or in other acts incidental to that business of the Assembly.

[38]What Erglis demonstrates is that the privilege is not confined to the member; it is available even to outsiders who prepare a document for the use of the member at the member’s request if the document is to be used in transacting the business of the Assembly. Counsel for the Second Defendant submitted that the Second Defendant’s email did not seek to manufacture Parliamentary business. On the contrary, it counselled the making of a statement in Parliament in response to a statement made in Parliament in relation to a report that was required to be tabled in Parliament, doing so in response to a request for advice from the Chief of Staff of the Leader of the Opposition. The Second Defendant was not an “outsider” as is the case with a person who sends unsolicited documents to Parliamentarians. I agree. Clearly, the Second Defendant’s advice was being sought by the terms of the Gleeson email: “What do you think, Alistair?”

[39]Counsel for the Plaintiff submitted that Erglis provides no clear answer to the question to be determined in this case. In that case the letter corresponded within the scope of the request and additionally the letter itself was to be published in Parliament. So it was put that the connection between the Second Defendant’s email and the request for advice in the Gleeson email did not sufficiently correspond so as to afford protection. The following matters were relied upon to support this submission. First, to the extent that the request contemplated anything being impugned, it was Mr Giles’ statements in the House. Secondly, the Second Defendant’s email recommended that Ms Lawrie impugn the integrity of the Commissioner. There was therefore a major disjunction between the scope of the request and the subject matter for advice. The Second Defendant’s email stated that the matters he suggested could be used in unspecified debates in the Legislative Assembly.  There was nothing to indicate that the contents of the “letter” (presumably the proposed letter to the Commissioner) were intended to inform the Assembly on a particular issue or otherwise assist in the transacting of the business of the Assembly. The advice was directed at the protection of advancement of the private interests of Ms Lawrie, in particular, her reputational interests as a witness in the Inquiry, and not in relation to the discharge of her functions in the Assembly. Therefore, the connection between the Second Defendant’s email and the transacting of the business of the Assembly was not materially greater than the connections that were held to be insufficient in Grassby and Rowleyv Armstrong.

[40]There is no authority which authoritatively deals with the point raised by counsel for the Plaintiff, namely that there must be a sufficient correspondence between the request and the advice given.

[41]Counsel for the Second Defendant submitted that the Plaintiff’s argument mischaracterises the emails. Part of the Gleeson email suggests that the Chief Minister had already received the Commissioner’s report, as otherwise how would he know that Mr McCarthy had been found guilty of misleading the Commissioner? At that time, the report had not been presented to the Administrator. Alternatively, Mr Gleeson surmised that the Chief Minister had used parliamentary privilege to put pressure on or influence the Commissioner’s final report. The Second Defendant’s email dealt directly with that question in the first sentence of his email. The second part of the Second Defendant’s email was directed at “the process” adopted and the Commissioner not being independent and making these points in Parliament rather than writing a “strong letter to the Commissioner”. Mr Gleeson was seeking the Second Defendant’s advice on both questions insofar as he asked about the possibility of the Chief Minister putting pressure or influence on the Commissioner. Further, it was put that it was the Second Defendant’s intention that was of primary importance and it was clear that his purpose was to suggest that Ms Lawrie make certain statements in the Legislative Assembly in response to those of Mr Giles. The point was also made that in a situation such as the present, when the Second Defendant was acting for Ms Lawrie, that he would normally be expected to provide advice not merely on suggestions coming from her or her staff as to how to respond to an attack in Parliament, but what, in his opinion, is the best way to respond, which is what he did. I should add that he left his suggestions for the consideration of Mr Gleeson because at the end of the email, he asks “What do you think?” implying that the discussion of how best to respond was still open for further consideration. I accept counsel for the Second Defendant’s submission.

[42]In OPEL Networks Pty Ltd (in liq)[25] Austin J considered a claim for parliamentary privilege in respect of an email prepared by an assistant secretary to the Prime Minister and Cabinet which disclosed a Question Time brief containing information for a Minister’s use in Question Time in the Senate; and a Question Time brief to be used by the Prime Minister in Question Time in the House of Representatives. The briefs had been prepared by the sender of the email. Austin J upheld the privilege saying[26]:

It seems to me to be necessarily true, and not dependent upon the evidence of the particular case, that if briefings to parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that may well affect the quality of information available to Parliament. To take a step that would have that consequence would, I think, derogate from the force of the Bill of Rights and run contrary to the historical justification for that legislation, so ably sketched by McPherson JA (and see Mees v Road Corporation (2003) 128 FCR 418; [2203] FCA 306 and [75-79] per Gray J).

1. What OPEL and other authorities[27] establish is that documents prepared by Ministerial staff for use by a Minister in the business of the Parliament will ordinarily be privileged. I see no distinction between a Minister and any other Parliamentarian. In ACT v SMEC Australia Pty Ltd[28], the privilege was extended to drafts of briefs to the Minister. I see no reason to differentiate between an advisor or the staff of a Parliamentarian and a legal practitioner employed to advise a Parliamentarian on what to say or do in the Legislative Assembly. To the extent that the Second Defendant’s email could be considered as only a suggested response which may or may not have been accepted by Ms Lawrie, it is relevantly no different from a draft.

[44]Counsel for the Plaintiff submitted that when considering the scope of purposes of or things incidental to the transacting of the business of the Assembly, it is important to focus on the business of the Assembly rather than the business of individual members of the Assembly which may have a broader scope. It was put that the evident statutory purpose of s 6 of the LAPPAct is to safeguard the functioning of the Assembly as an organ of Government, not to safeguard the interests of individual members, even where those individual interests may be affected by other events in Parliament. Counsel referred to the decision of the High Court in Independent Commission Against Corruption v Cunneen & Ors[29] where the plurality referred to what was said in Project Blue Sky Inc v AustralianBroadcasting Authority[30]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.

[45]Counsel referred to s 6(2) which provides, relevantly, that “proceedings in Parliament means all words spoken and acts done in the course of or for the purposes of or incidental to the transacting of the business of the Assembly or of a committee, and without limiting the generality of the foregoing includes:

(a)the giving of evidence before the Assembly or a committee, and evidence so given;

(b)the presentation or submission of a document to the Assembly or a committee;

(c)the preparation of a document for the 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 the Assembly or a committee and the document so formulated, made or published.

[46]It was submitted that sub-paragraphs (a), (b) and (d) are tied to intrinsic functions of the Assembly as an integrated organ of government rather than the individual capacities of Parliamentarians.

[47]As counsel for the Second Defendant pointed out in reply, Article 9 of the Bill of Rights is in very wide terms. In effect, whatever is said in Parliament is protected, whether it is said by an individual member or a member of the Government Ministry, and whatever it relates to, regardless of the motive of the member raising it. It is perfectly within the scope of that freedom for Ms Lawrie to make any statement she wishes to make in the Assembly in order to protect her own reputation or that of another member, or to respond to criticism of her or another member, just as it was within the scope of that freedom for Mr Giles to say what he is alleged to have said. The business of the Assembly includes whatever is said in the Assembly by a member. The purpose of s 6(2) is not to place a limitation on Article 9 of the Bill of Rights, but if anything, to expand it. I reject the submission that s 6(2)(c) is to be read down in the manner contended by the Plaintiff.

[48]In conclusion, I can find no error by the First Defendant in the decision it reached that the documents sought to be relied on to support Allegation One were inadmissible because they were protected by parliamentary privilege. It was conceded that if this were so, there was no evidence upon which the First Defendant could convict the Second Defendant of Allegation One and that it was rightfully dismissed.

Allegation Three

[49]This allegation is in the following terms:

On 19 June 2014, the Respondent engaged in professional misconduct, contrary to section 454 of the LPA, by breaching Rule 59(a)(i) of the Barrister’s Conduct Rules. The Respondent advised Mr Michael Gleeson, the Chief of Staff to Ms Delia Lawrie, the then Leader of the Opposition in the Northern Territory, that in the event that the report of the Stella Maris Inquiry contained adverse findings about Ms Lawrie or Mr McCarthy, a public statement should be made by Ms Lawrie that the findings came “as a complete surprise”’ when the Respondent knew this assertion would be false or alternatively, was reckless as to whether it would be true or false.

[50]The advice given was in a telephone conversation with Mr Gleeson shortly before 10:09am on 19 June 2014. The evidence relied upon to prove this allegation was contained in an email from Mr Gleeson to Ms Lawrie sent at 10:09am that day, in the following terms:

Alistair just called. He says we should say words to the effect:

“We have only just received this report and clearly we will need some time to digest the findings”.

“We weren’t given any notice that there would be adverse findings and these findings come as a complete surprise”.

“We won’t be making any further comment now as there is a real chance we will be taking this matter to the Supreme Court”.

[51]This particular email is but one in a chain of emails dating back to 14 February 2014 which related to the question of whether or not the findings came as a surprise. Of particular relevance in this case was an email of 18 June 2014 at 12:40pm from Mr Gleeson to the Second Defendant which attached two documents headed “Delia Notes” one of which continues “Stella Maris Inquiry (assuming adverse findings)” and the other continues “Stella Maris Inquiry (assuming no adverse findings)”. There was a further email at 8:40pm that day from Ms Lawrie to the Second Defendant that she had Charlie Phillips working further on responses to Parliament and had asked Mr Gleeson to ensure the argument around the Commissioner’s Report would be ready tomorrow.  On 19 June 2014 at 10:25am Mr Gleeson sent an email to the Second Defendant headed “Delia speaking notes”. At 10:33am on the same day the Second Defendant responded by email to Mr Gleeson and Ms Lawrie re “Delia Speaking Notes” advising that all was fine and referring to what should be reinforced. At 10:54am (after the subject telephone call) Ms Lawrie sent an email to Mr Gleeson:

Send Alistair my speech notes from Charlie Phillips for consideration. I will of course follow Alistair’s advice.

[52]That night, the Commissioner’s Report was tabled in the Assembly. When speaking in the Assembly in response to the Report, Ms Lawrie’s comments reflected some of the Second Defendant’s advice insofar as she said: “We have only just received the Report” and on three occasions said “…no notice of adverse findings has been provided to us”.

[53]The Tribunal made some factual errors in setting out the facts. The Tribunal incorrectly referred to the time of the Second Defendant’s telephone conversation with Mr Gleeson as occurring at a short time before 10:39am instead of 10:09am, and incorrectly referred to the timing of the email at 10:54am, stating instead to it being sent at 10:20am. I am not persuaded that these minor factual errors vitiated the Tribunal’s decision.

[54]The Tribunal concluded that the conversation was privileged because it fell within the words of LAPP Act, s 6, in that it was “words spoken…in the course of, or for the purposes of or incidental to, the transaction of the business of the Assembly”. The Tribunal also said that “consistent with our view of the applicable law as explained in the reasons we published on 5 August 2020 referable to Allegation One, it is not lawful for the Tribunal to receive evidence of Mr Wyvill’s advice as it is being tendered in order to question the truth or good faith of what he advised Ms Lawrie to say in the Assembly”, referring to s 6(3)(a) of the LAPP Act. The Tribunal also held that “the same outcome follows if the admonition in Article 9 of the Bill of Rights 1688 (Imp) is applied to the Second Defendant’s advice. To allow it to go into evidence would allow proceedings in Parliament to be impeached within the meaning of that term as explained in the authorities referred to in our reasons of 5 August 2020”.

[55]I note that in submissions made to the Tribunal before that ruling was made, counsel for the Plaintiff said “that if you apply the reasoning in your August 5 decision, then Allegation Three stands in the same position as Allegation One. And I could not put to you a submission that differs from that because I am bound to accept at this stage, subject to judicial review, your reasoning in your 5 August decision”.

[56]Despite that concession, counsel for the Plaintiff submitted that there was no request for any advice prior to the telephone call, and that therefore parliamentary privilege did not arise in relation to the email. The Plaintiff’s submissions concentrated on the telephone advice given rather than on the document which evidences the advice. That document was an email from Mr Gleeson to Ms Lawrie. Plainly that document was privileged as it came from Ms Lawrie’s Chief of Staff to her and it directly related to what she was being advised to say in Parliament. So far as the telephone advice itself is concerned, although there was no actual request for advice, the circumstances show that the preceding emails to that advice were not just being provided for the Second Defendant’s information. It was only natural, and to be expected, that he would respond in some way. When one goes to the “Delia notes” which preceded the advice, there is specific reference to the matter of whether previous notice of any adverse findings had been given.  In the “Delia notes…Stella Maris Inquiry (assuming adverse findings)” that subject is raised in paragraphs 2 and 3. The only matter the Second Defendant added in addition is that statement was that “this (ie the adverse findings) came as a complete surprise to us”.

[57]Counsel for the Second Defendant in his submissions pointed out that in the OPEL decision, there was no request for any advice, but nevertheless the Question Time briefs were held to be subject to privilege. That was because of the relationship between the relevant Ministers and the person who drafted the briefs was doing what was expected of him in the ordinary course. In this case, the relevant relationship between the Second Defendant and Ms Lawrie and the context in which that advice was given explains why the Second Defendant provided the advice. The Second Defendant’s purpose was not to advance some objective of his own; it was to assist Ms Lawrie to deal with an attack which was expected to be made against her and Mr McCarthy in the Parliament.

[58]In my opinion the telephone call between the Second Defendant and Mr Gleeson was privileged for essentially the same reasons as the emails in Allegation One were privileged. Although the First Defendant made some mistakes in the timings of the emails, this did not vitiate the First Defendant’s decision which was correct on the facts.

The Declaration sought

[59]The Plaintiff has sought a declaration that the admission into evidence of the documents listed in Schedule 1 for the purposes of the Disciplinary Application is not rendered unlawful by s 6(2) of the LAPP Act and/or Article 9 of the Bill of Rights.

[60]It is agreed between the parties that the Tribunal rejected the tender of each of the documents listed in Schedule 1 to the Originating Motion on the sole basis that receiving them would be unlawful as a breach of parliamentary privilege.

[61]It is also agreed between the parties that the Plaintiff acknowledged before the Tribunal, and the Second Defendant agreed, that if the Tribunal adopted the same approach to s 6(2) of the LAPP Act and the law of parliamentary privilege as it had in respect of the dismissal of Allegation One of the Disciplinary Application, it would follow that the Tribunal would exclude from evidence the documents listed in Schedule 1 to the Originating Motion.

[62]No submission was made before me that I should re-examine the documents myself and I was not taken to them by either counsel. In those circumstances, in the light of my decision in relation to the claims for certiorari, I decline to make the declaration sought.

Orders

[63]The relief sought in the Originating Motion is refused.

1. The application is dismissed.

[65]I will hear the parties as to costs.

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[1](1995) 184 CLR 163.

[2]At p179.

[3][2010] HCA 1; (2010) 239 CLR 531 at [67]-[68].

[4]Ibid, fn 3 at [78].

[5]Ibid fn 3, at [83].

[6]Craig v South Australia (1995) 184 CLR 163 at 181-182.

[7][2016] FCA 1466.

[8][2000] QSC 88.

[9](1991) 55 A Crim R 419.

[10][2005] QCA 404.

[11][2001] 1 Qd R 207.

[12][2009] FCA 1283.

[13][2010] NSWSC 142.

[14][2018] ACTSC 252.

[15][2015] NSWCCA 309.

[16](1991) 55 A Crim R 419.

[17][2000] QSC 88.

[18]At para [34].

[19][2001] 1 Qd R 207.

[20]At 221.

[21][2016] FCA 1466.

[22]At para [44].

[23][2005] QCA 404.

[24]At [31]-[32].

[25][2010] NSWSC 142.

[26]At [118].

[27]For example, ACT v SMEC Australia Pty Ltd (2018) ACTSC 252.

[28]At [79].

[29][2015] HCA 14; 256 CLR 14 at [31].

[30](1998) 194 CLR 355 at 381-382; [69]-[70].