R v Collaery (No 6)

[2020] ACTSC 164

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Collaery (No 6)

Citation:

[2020] ACTSC 164

Hearing Dates:

25 May 2020 – 29 May 2020

DecisionDate:

26 June 2020

Before:

Mossop J

Decision:

See [16]

Catchwords:

PARLIAMENTARY PRIVILEGE – NATIONAL SECURITY – affidavits relying on parliamentary reports and statements made in parliament – reports and statements cited to support truth of facts in affidavit are inadmissible – submissions before the International Court of Justice citing parliamentary reports – reports cited only to prove content are admissible – admissible media reports – the  material the subject of possible privilege only of peripheral importance to the proceedings

Legislation Cited:

Bill of Rights 1688 1 Will and Mary sess 2 c 2

National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 27(3), 31

Parliamentary Privileges Act 1987 (Cth), s 16

Cases Cited:

Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223

Carrigan v Cash [2016] FCA 1466
Carrigan v Cash [2017] FCAFC 86
Comalco Ltd v ABC (1983) 50 ACTR 1
Commonwealth v Vance [2005] ACTCA 35; 158 ACTR 47
Egan v Willis[1998] HCA 71; 195 CLR 424
Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981
Rann v Olsen[2000] SASC 83; 76 SASR 450
R v Murphy (1986) 5 NSWLR 18

R v Theophanous[2003] VSCA 78; 141 A Crim R 216

Parties:

The Queen (Crown)

Bernard Collaery (Defendant)

Representation:

Counsel

R Maidment QC and C Tran (Crown)

P Boulton SC, C Ward SC and R Khalilizadeh (Defendant)

J Kirk SC, A Mitchelmore SC, T Begbie and D Forrester (Attorney-General (Cth))

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Gilbert + Tobin (Defendant)

Australian Government Solicitor (Attorney-General (Cth))

File Number:

SCC 195 of 2019

MOSSOP J:

Introduction

1. During the course of a hearing pursuant to s 27(3) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), that was held in order to decide what orders should be made under s 31 of that Act (the s 31 hearing), an issue arose in relation to parliamentary privilege. The issue arose because certain parts of the evidence made reference to statements made in Parliament which would be “proceedings in Parliament” for the purposes of s 16 of the Parliamentary Privileges Act 1987 (Cth) (PP Act). Counsel for the Attorney-General took objection to the admissibility of those statements. He did so without any enthusiasm, simply to ensure that the court did not inadvertently fall into error by admitting material contrary to the terms of s 16 of the PP Act. As the decision in Commonwealth v Vance [2005] ACTCA 35; 158 ACTR 47 (Vance) illustrates, the admission of such material has the potential to cause problems even where the parties have not objected to the admissibility of the material.  Unlike in Vance, in the present case any material potentially the subject of parliamentary privilege is firmly at the periphery of the issues in the s 31 hearing. Thus, the question was one which might have been resolved by some means other than by a ruling. Nevertheless, the parties allowed it to become another front in their greater war.

The operation of s 16 of the PP Act

1. Section 16 of the PP Act provides, relevantly:

16 Parliamentary privilege in court proceedings

(1)For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

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

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

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

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

(d)the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

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

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

…

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

…

1. The following points can be made about the operation of s 16. They are drawn from the useful summaries in Carrigan v Cash [2016] FCA 1466 at [10]-[15] and Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 (Hanson-Young (No 4)) at [364]-[370]:

(a)Section 16(1) is declaratory as to the effect of Art 9 of the Bill of Rights 1688 1 Will and Mary sess 2 c 2 in relation to the Australian Parliament but specifies that, in addition to any other operation which Art 9 may have, it includes those in the following subsections in s 16.

(b)As a result, s 16 is not to be regarded as limited in its scope to the operation of Art 9. Rather, the terms of the section indicate that s 16 may have an operation which is additional to that of Art 9: Rann v Olsen[2000] SASC 83; 76 SASR 450 (Rann) at [53], [100], [236]‑[245] and [393]; R v Theophanous[2003] VSCA 78; 141 A Crim R 216 at [66].

(c)Section 16(3) has the effect of making it unlawful for evidence to be tendered or received in a court, for questions to be asked, or statements, submissions or comments made, concerning “proceedings in Parliament” for specified purposes.

(d)Subsection (2) defines in an inclusive manner the term “proceedings in Parliament”. The core of the concept is “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House” of the Parliament.

(e)However, “proceedings in Parliament” extends to “the presentation or submission of a document to a House”, and “the preparation of a document for purposes of or incidental to the transacting of any … business” of a House of Parliament.

(f)It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it: Egan v Willis[1998] HCA 71; 195 CLR 424 at [27].

(g)The court may receive and consider evidence concerning parliamentary proceedings for the purposes of determining whether parliamentary privilege applies: Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 231‑2 (Amann Aviation); Carrigan v Cash [2017] FCAFC 86 at [42].

(h)Section 16(3) does not preclude a court from admitting evidence of what occurred in Parliament. Rather, the prohibition is a purposive one ("by way of, or for the purpose of").

(i)A thing is done for a purpose prescribed by s 16(3) only if the court is asked to make a finding or reach a conclusion of the prohibited kind, either as a step along the way or as part of determining the ultimate issue: Rann at [73].

1. In the present case, the critical provision for the objections made is s 16(3), particularly s 16(3)(c), which refers to the “drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament”. The review of the authorities by Beaumont J in Amann Aviation at 224-228 and the extracts of the explanatory memorandum set out in that case at 230 explain the operation of s 16(3) in the context of, and consistent with, the earlier court decisions in relation to Art 9 of the Bill of Rights (except, of course, the two decisions in R v Murphy – one of which was R v Murphy (1986) 5 NSWLR 18 – which the PP Act was designed to overcome). Amongst the cases reviewed by Beaumont J was the ACT decision of Comalco Ltd v ABC (1983) 50 ACTR 1, where Blackburn CJ at 5 rejected the proposition that there was a rule which prevented evidence of proceedings in Parliament being admissible. Leaving aside R v Murphy, the authorities referred to in Amann are illustrative of the proposition that Art 9 does not prevent any reference to what occurred or was said in Parliament.

Categories of material objected to

1. The material objected to and my rulings are contained in a table at the end of these reasons.  The material objected to falls into a number of categories which I will set out below so as to explain the reasons for my ruling on the individual objections.

Footnotes relying upon parliamentary reports (table items 1-4, 6-7)

1. Where a footnote in an affidavit makes reference to proceedings in Parliament in relation to something other than what was said in proceedings in Parliament, the purpose in doing so must be to demonstrate or support the truth of the text supported by the footnote. The footnote is included because some conclusion about the accuracy of the text can be drawn from the fact that some supporting statement was made in proceedings of Parliament. In using the proceedings in Parliament in this way, the party relying upon the statement is using it “for the purpose of … inviting the drawing of, inferences or conclusions” from the proceedings in Parliament. That purpose is contrary to s 16(3)(c). It clearly goes beyond merely proving as a fact that certain things were said in Parliament. It invites the reader to reason that because the statement was made in proceedings in Parliament, the asserted fact is true or more likely to be true. An example is found in the affidavit of Ms McGrath dated 13 November 2019 at [49] which says:

On 25 February 1999 Foreign Minister Downer visited Xanana Gusmao in jail in Indonesia and discussed Australia’s interest in keeping the terms of the 1989 Timor Gap Treaty alive. 

1. The footnote for that statement is “Alexander Downer, Questions without Notice, Timor Gap Treaty: Interim Arrangements, House of Representatives, Hansard, 12 October 1999, [internet reference given]”. What is sought to be done is to use the statement made in Parliament as proof of the facts stated in Parliament. In that way, it directly seeks to draw an inference or conclusion that the statement made to the Parliament is true and the party relying upon that portion of the affidavit invites the drawing of that inference or conclusion. That is prohibited by s 16(3)(c). In the present case, it causes no difficulty about the admission of the fact asserted (as opposed to the footnote), because the Attorney-General has agreed to the fact stated in the paragraph. The Attorney-General adopted the same approach in relation to each of the footnote references of this type. As a consequence, the non-admission of the footnotes in this category does not have any substantive evidentiary consequence.

Submission to parliamentary committee (table items 5, 8)

1. Slightly different circumstances apply in relation to footnotes in the McGrath affidavit which refer to a submission made to a Joint Standing Committee. Section 16(2)(b) includes within proceedings of Parliament “the presentation or submission of a document to a House or a committee”. This refers to the act of presentation or submission, rather than to the contents of the document itself. That is in contrast to paragraph (d), which refers to both “the formulation, making or publication of a document” as well as the document itself, thereby emphasising that paragraph (b) relates to the act of presentation or submission rather than the content of the document. Having regard to the terms of s 16(2)(b), I would not refuse to admit the footnotes. In the absence of evidence that the version of the submission that was referred to was published “pursuant to an order of a House or a committee”, I do not find that the version of the document referred to in the footnotes falls within paragraph (d). I note however that this ruling is of no substantive evidentiary consequence, having regard to the fact that the Attorney-General has agreed for the purposes of the application, that the facts to which the footnotes refer are true.

Footnotes in submissions to another body (table items 13-26)

1. Another category of case in which an objection is taken is where written submissions (or their equivalent) in proceedings in the International Court of Justice are tendered and those written submissions themselves make reference in the footnotes to proceedings in Parliament. For example, the document at Exhibit 14, tab 1, is Australia’s submissions to the International Court of Justice, which themselves make reference to the ministerial statement made by Mr Brandis to the Parliament in relation to the execution of search warrants at the defendant’s premises. Those written submissions are tendered only to prove their content rather than the truth of their content. The content was relevant because the defendant asserted that the statements made in them would be interpreted by others as accepting the truth of the defendant’s allegations. In those circumstances, the fact that the document made reference in the text or a footnote to proceedings in Parliament does not infringe s 16(3). No inference or conclusion is sought to be drawn from the referenced sources in the submission. Any inference or conclusion is sought to be drawn from the position adopted in the submissions and, in particular, the absence of any express denial of the truth of the defendant’s allegations. I would therefore admit the footnotes.

McCarthy affidavit (table item 9)

1. In relation to the statement by Prime Minister Abbott, which is the subject of [78], footnote 12, in Mr McCarthy’s affidavit of 12 November 2019, I consider that the purpose of the admission of that statement is to invite the drawing of an inference or conclusions wholly or partly from what was said in Parliament.  The inference or conclusion is that stated in [75], that the effectiveness of the neither confirm nor deny response is now questionable.  Alternatively, it is the inference that there was substance in the allegations the subject of the comment by the Prime Minister.  The paragraph and the footnote are therefore not admissible although the Attorney-General has admitted, without reference to the occasion, that the Prime Minister publicly said those words.  This renders the ruling devoid of substantive evidentiary consequence.

Parliamentary statements in television programs (table items 27-29)

1. The evidence does not establish that the statement made on page 3 of tab 5 of Exhibit 14 was a statement made in Parliament.  It is possible that the video of the television program makes that clear, but only the transcript was in evidence.  The statements on page 14 of tab 6 of Exhibit 14 are more consistent with an exchange in Parliament, but the evidence does not establish that. 

1. In any event, I do not consider that any inference or conclusion is sought to be drawn from those statements.  The only inference or conclusion that could be sought to be drawn is that the words were said in Parliament and formed part of the television program and that is not a prohibited purpose: Hanson-Young (No 4) at [369]. The situation would be different if it was sought to establish that the statement was true or false. I would therefore admit the statements.

Statement to Parliament issued as press release (table item 30)

1. Tab 10 of Exhibit 14 is a document described as “George Brandis, A-G (Cth), Media release, “Ministerial Statement - Execution of ASIO Search Warrants” dated 4 December 2013”.  While the content of this statement appears to be consistent with a statement that might have been made to the Parliament, the evidence does not establish on the balance of probabilities that it was.  However, assuming that it was, the description of the document indicates that it is a media release.  If a minister who has made a statement to the Parliament then chooses to release a copy of that statement as a media release, then the media release does not constitute words spoken or acts done in the course of transacting the business of the House.  Rather, it is a separate exercise in public communication in the same way that any other statement by a member of Parliament or minister outside the Parliament would be. I would therefore admit the statement.

Media reports with reference to ministerial statement (table items 11, 12)

1. Media reports summarised in the exhibit to the affidavit of Stephanie Wee dated 13 November 2019 referring to the ministerial statement referred to in the previous paragraph are admissible.  This is because the statement itself is admissible.  However, they are also admissible because they are only tendered to prove widespread reporting of the matters in the statement rather than any conclusion from any statement made in Parliament.

1. Exhibit 16 was a collection of copies of the media reports which were summarised in Ms Wee’s affidavit. Notwithstanding that an objection was taken in relation to any materials that might be the subject of parliamentary privilege, no party identified with precision those parts of this three volume exhibit that were said to be inadmissible. Having regard to the fact that the documents were tendered to prove the widespread dissemination of the allegations made by the defendant, they were not tendered to do any of the things prohibited by s 16(3). I decline to make any ruling that would exclude any such parts of the exhibit.

Objections and ruling

1. The documents the subject of the objections and my ruling on them are set out in the following table.

Source	Passage	Ruling
1.	McGrath affidavit, 13 November 2019	Footnote 39 (Senate Standing Committee Report)	Reference to the Senate Standing Committee not admitted. Balance of footnote admitted.
2.	Footnote 43	Footnote not admitted.
3.	Footnote 44	Footnote not admitted.
4.	Footnote 58 (Joint Standing Committee Report)	Reference to Joint Standing Committee not admitted. Balance of footnote admitted.
5.	Footnote 61	Footnote admitted.
6.	Footnotes 70-71	Footnotes not admitted.
7.	Footnote 74	Footnote not admitted.
8.	Footnote 76	Footnote admitted.
9.	McCarthy affidavit, 12 November 2019	Footnote 12	Footnote not admitted.
10.	[78]	Paragraph not admitted.
11.	Wee affidavit, 13 November 2019	Exhibit SW1 Page 36	Admitted
12.	Exhibit SW1 Pages 87-97	Admitted
13.	Exhibit 14 tab 1: Written Observations of Australia on Timor-Leste’s Request for Provisional Measures	[13] and footnote 20	Paragraph and footnote admitted.
14.	[13] and footnotes 20-21	Footnotes admitted.
15.	[30]	Paragraph admitted.
16.	[51] and footnote 70	Paragraph and footnote admitted.
17.	Exhibit 14 tab 2: Questions relating to the Seizure and Detention of Certain Documents and Data ((Timor-Leste v Australia) – Verbatim Record CR 2014/2	[34(a)] (page 18) and footnote 11	Paragraph and footnote admitted.
18.	Exhibit 14 tab 3: Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia)-Verbatim Record CR 2014/4	[5] (page 9) and footnote 3	Paragraph and footnote admitted.
19.	Exhibit 14 tab 4: Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) – Counter‑Memorial of Australia	Footnote 1	Footnote admitted.
20.	Footnotes 11 and 12	Footnotes admitted.
21.	Footnote 32 (budget statements only)	Footnote admitted.
22.	Footnote 41	Footnote admitted.
23.	[3.39], [3.40], [3.41], [3.42] (part) and footnotes 94-95	Paragraphs and footnotes admitted.
24.	Footnote 180	Footnote admitted.
25.	Footnote 237	Footnote admitted.
26.	[26] and footnote 451	Footnote admitted.
27.	Exhibit 14 tab 5: Connor Duffy, “New details emerge in claims of spying on East Timor”, Transcript, 4 December 2013	Statement by George Brandis on page 3	Statement admitted.
28.	Exhibit 14 tab 6: Marian Wilkinson and Peter Cronau, “Drawing the Line - Four Corners”, Transcript, 17 March 2014	Statement by Scott Ludlam and George Brandis on page 14	Statement admitted.
29.	Ministerial statement by George Brandis on page 16	Statement admitted.
30.	Exhibit 14 tab 10	George Brandis, A-G (Cth) Media release, “Ministerial statement - Execution of ASIO Search Warrants”	Statement admitted.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 26 June 2020