The President of the Legislative Council of Western Australia v Corruption and Crime Commission
[2020] WASC 397
•6 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF WESTERN AUSTRALIA -v- CORRUPTION AND CRIME COMMISSION [2020] WASC 397
CORAM: ALLANSON J
HEARD: 27 FEBRUARY 2020
DELIVERED : 6 NOVEMBER 2020
FILE NO/S: CIV 2717 of 2019
BETWEEN: THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF WESTERN AUSTRALIA
Plaintiff
AND
CORRUPTION AND CRIME COMMISSION
First Defendant
DARREN FOSTER
Second Defendant
NIGEL PRATT
Third Defendant
Catchwords:
Practice and procedure - Discovery - Where discovery by categories - Whether documents relate to any material issue
Legislation:
Corruption, Crime and Misconduct Act 2003 (WA), s 3, s 4, s 8, s 18, s 95, s 98, s 152
Criminal Code (WA), s 1
Parliamentary Privileges Act 1891 (WA), s 1
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | P Cahill SC & R O'Brien |
| First Defendant | : | E M Heenan |
| Second Defendant | : | C Beetham |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Corrs Chambers Westgarth |
| First Defendant | : | Corruption And Crime Commission Of Western Australia |
| Second Defendant | : | McNally & Co |
| Third Defendant | : | No appearance |
Case(s) referred to in decision(s):
Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121
Co‑operative Bulk Handling Ltd v Brookfield Rail Pty Ltd [2014] WASC 31
Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Lonsdale Investments Pty Ltd v OM (Manganese) Ltd [No 2] [2009] WASC 253
Science Research Council v Nasse [1979] UKHL 9; [1980] AC 1028
Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
ALLANSON J:
Introduction
The Corruption and Crime Commission is conducting an investigation into the use of travel and electorate allowances by members of the Parliament, including whether certain former members of the Legislative Council engaged in serious misconduct with respect to the use of those allowances.
The Director General of the Department of the Premier and Cabinet (the Department) has custody of the electronic records of the parliamentary email accounts of all members and former members of the Legislative Council and of their electorate staff. In the course of its investigation, the Commission served three notices directed to the Director General to produce records in his custody.
The action of the Commission in serving the notices to produce has resulted in this action brought by the President of the Legislative Council, and a separate action brought by the Attorney General of Western Australia which, in effect, supports the actions of the Commission.
At the heart of the actions is the relationship between the privileges of the Parliament and the powers, rights and functions of the Commission under the Corruption, Crime and Misconduct Act 2003 (WA); in particular the court will need to determine whether the Commission has power to issue coercive process for the production of records, some of which might be subject to parliamentary privilege.
The present application is concerned with a more limited question of discovery. But the exercise of the power to order discovery requires the court to consider the matters in contention between the parties.
The action
The plaintiff commenced this action as President of the Legislative Council of Western Australia, on behalf of the Legislative Council, against the Commission, the Director General and the Clerk of the Legislative Council.[1]
[1] Where it is necessary to refer to the second and third defendants, I will refer to them by the office they hold.
The plaintiff seeks a declaration that the three notices that were served on the Director General and the Clerk by the Commission, in the course of an investigation by the Commission into the use of travel and electorate allowances by former members of the Legislative Council, were invalid. The plaintiff seeks further declarations that the service of each notice was invalid, and that the receipt, retention and use of records produced to the Commission in response to the notices was invalid. The plaintiff seeks an order for delivery up to the plaintiff of records which were produced as a result of the notices.[2] The claim includes a more general collateral challenge to the validity of the notices, apparently unrelated to the claims of parliamentary privilege. It is not necessary to consider it for the purposes of these reasons.
[2] The plaintiff also challenges two later notices, but the current application is concerned with only those to the Director General.
The discovery applications
No orders for discovery have previously been made in the action. The application for discovery is confined to the specified categories described below and there is no application for general discovery.
On 18 December 2019, the plaintiff applied for the following orders:
The first defendant give discovery on affidavit of the documents described in paragraphs 1 and 2 below.
1All documents dated, created or received between 12 April and 22 July 2019, including but not limited to letters, email, diary/calendar entities, meeting notes, telephone notes and file notes constituting or evidence communications between any of the following in relation to the First, Second or Third Notices issued by the Corruption and Crime Commission (as defined in the statement of claim):
a.the Attorney-General;
b.the State Solicitor;
c.the State Solicitor's Office;
d.the Director General of the Department of Premier and Cabinet;
e.the Department of Premier and Cabinet;
(ea)the Corruption and Crime Commission;[3]
f.any employee, representative or staff member of the Corruption and Crime Commission, Attorney-General, State Solicitor's Office or the Department of Premier and Cabinet.
2All documents created internally by the Corruption and Crime Commission between 12 April and 22 July 2019 that refer or relate to the production of records in purported compliance with the First, Second or Third Notices issued by the Corruption and Crime Commission (as defined in the statement of claim), including documents that refer or relate to the identification of records falling within those Notices that are or may be the subject of parliamentary privilege.
[3] Category 1(ea) was added by amendment on 26 February 2020.
On 10 February 2020, the plaintiff applied for further discovery orders from the second defendant:
The second defendant give discovery on affidavit of the documents described in paragraphs 1- 3 below.
1all documents constituting or evidencing communications, or records of communications, between 12 April and 22 July 2019, including but not limited to letters, emails, telephone notes and file notes, between any of the following in relation to the First and Second Notices issued by the Commission: the Director General, any other staff member of the Department of the Premier and Cabinet, the Attorney General, the State Solicitor, any staff member of the State Solicitor's Office (including contract or temporary staff), the Commissioner, and any staff member of the Commission;
2all documents comprising or recording matters or things considered, and steps taken, by the Director General in relation to the arrangements that resulted in production of documents to the Commission by or on behalf of the Director General;
3[The plaintiff gave notice on 20 February 2020 that this paragraph of the application was no longer pressed.]
The principles relating to an application for discovery
A party does not have a strict entitlement to an order for discovery.[4] The power to order discovery is discretionary. But discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.[5] Subject to the rules of privilege, there is a public interest in having available all evidence relevant to the issues in litigation.[6] The ultimate test is whether thediscovery is necessary for fairly disposing of the proceedings.[7]
[4] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [6].
[5] Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 321.
[6] Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, 128.
[7] Science Research Council v Nasse [1979] UKHL 9; [1980] AC 1028, 1065.
Subject to discretionary considerations, including those arising out of case management, the question is whether the documents sought relate to any matter in question in the action. In Co‑operative Bulk Holding Ltd v Brookfield Rail Pty Ltd, Edelman J said:
It is sufficient if the document would either (i) advance a party's case or damage his or her opponent's case, or (ii) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case. Alternatively, the documents will relate to a matter in question in the proceedings if they contain information which could affect the manner in which a party may decide to conduct proceedings. The assessment of whether documents relate to a matter in question therefore proceeds by reference to the pleadings, the conduct and admissions of the parties, and the nature of the action.[8]
[8] Co‑operative Bulk Handling Ltd v Brookfield Rail Pty Ltd [2014] WASC 31 [18].
The case management considerations set out in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) are relevant to the exercise of the discretion to order discovery. Those considerations expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties. Specifically, the court should have regard to the likely relevance and importance of the documents to the issues in the proceeding as well as (to the extent they can be ascertained) the likely time, cost and inconvenience of searching for and disclosing the documents.[9]
[9] Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17 [13]; Lonsdale Investments Pty Ltd v OM (Manganese) Ltd [No 2] [2009] WASC 253 [5].
I accept, as submitted by the plaintiff, that the documents sought are relatively confined in that they relate to communications between a limited number of people, and internal documents of the Commission and the Director General, over a period of less than four months. The communications sought are recent and should be readily identifiable.
There is no evidence regarding the likely time, cost and inconvenience of discovery of the categories of documents sought; and no evidence that the costs of the procedure would not be proportionate to the financial position of the parties, which are publicly funded bodies. The legal issues in dispute between the plaintiff and the Commission are complex and important. The factual issues are more confined and relatively straightforward.
The critical factor is whether the discovery sought is reasonably required for the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial. As this matter has been argued, that calls for consideration of whether the factual issues to which the documents may relate are material to the cause of action, that is, 'the set of facts to which the law attaches the legal consequences that the claimant asserts'.[10]
[10] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [31].
The legislative context
In this application it is sufficient to refer only to specific sections of the relevant legislation.
The Parliamentary Privileges Act 1891 (WA)
The Parliamentary Privileges Act defines the privileges, immunities and powers of the Legislative Council and Legislative Assembly of Western Australia. It does so by reference to the privileges, immunities and powers set out in the Act, and also:
to the extent that they are not inconsistent with this Act, the privileges, immunities and powers by custom, statute or otherwise of the Commons House of Parliament of the United Kingdom and its members and committees as at 1 January 1989.[11]
[11] Parliamentary Privileges Act s 1(b).
The current application does not require any detailed consideration of the content of the relevant privileges, immunities and powers.
The Corruption, Crime and Misconduct Act
The Commission is established under s 8 of the Corruption, Crime and Misconduct Act.
The general functions of the Commission are set out in pt 2, div 2 of the Act, with functions in relation to particular matters set out in succeeding parts.
The general functions of the Commission include 'to ensure that an allegation about, or information or matter involving, serious misconduct is dealt with in an appropriate way.'[12] Serious misconduct is defined to include misconduct by a 'public officer'.[13] Public officer includes a member of either House of Parliament.[14]
[12] Corruption, Crime and Misconduct Act s 18(1).
[13] Corruption, Crime and Misconduct Act s 3 and s 4.
[14] Corruption, Crime and Misconduct Act s 3, by reference to the Criminal Code s 1.
Part 6 sets out the powers of the Commission. Relevantly, by s 95(1)(b), the Commission may, by notice, require a person to produce to the Commission, at a specified time and place, a record or other thing specified in the notice. The Commission may inspect, retain, photograph or copy any document or thing produced.[15]
[15] Corruption, Crime and Misconduct Act s 98(1).
While the Commission has functions in relation to allegations of misconduct by a member of either House of Parliament, s 3(2) of the Act provides:
Nothing in this Act affects, or is intended to affect, the operation of the Parliamentary Privileges Act 1891 or the Parliamentary Papers Act 1891 and a power, right or function conferred under this Act is not to be exercised if, or to the extent, that the exercise would relate to a matter determinable by a House of Parliament.
The pleaded cases
The statement of claim and reply
The pleaded facts
Perhaps because of the subject matter of this action, the statement of claim is largely directed to contentions of law. Material facts are pleaded in pars 10 to 23.
Relevantly to this discovery application, the plaintiff pleads that the Director General had custody of the electronic records of the parliamentary email accounts of all members and former members of the Legislative Council and of their electorate staff.[16]
[16] Statement of claim [6].
The Commission served three notices to produce on the Director General dated 12 April 2019 (First Notice), 11 June 2019 (Second Notice) and 6 August 2019 (Third Notice).[17]
[17] Statement of claim [10].
The First and Second Notices related to specified electronic records of three former members of the Legislative Council, and required production of:
(a) a complete electronic copy of all emails and email attachments sent to, and received by, the specified former members and their electorate staff, through their parliamentary email accounts, for the period 1 January 2014 to 30 September 2017; and
(b) a complete electronic copy of all calendar entries created by, or on behalf of, the specified former members through their parliamentary email accounts, for the period 1 January 2014 to 30 September 2017.[18]
[18] Statement of claim [11] - [13].
The Third Notice required production of the electronic backup records of the emails and email attachments to 30 September 2019.[19]
[19] Statement of claim [14].
In or about July 2019, the electronic records were searched by a member of the staff of the Department, using search terms and with technical assistance provided by the Commission. The Director General provided the records identified by the application of the search terms to the State Solicitor's Office.[20] The plaintiff pleads that the staff at the State Solicitor's Office 'purportedly determined' which records were the subject of privilege.[21] Neither party suggests that there was a 'determination' made that had any legal effect.
[20] Statement of claim [15].
[21] Statement of claim [15(b)].
The records, other than those which were not 'purportedly determined' to be privileged, were produced by or on behalf of the Director General to the Commission, which received and retains them.[22] No determination had been made by the Legislative Council about whether any of the records were the subject of parliamentary privilege.[23]
[22] Statement of claim [15] - [16].
[23] Statement of claim [16(c)].
In September 2019, the Commission served two further notices (the Fourth Notice and Fifth Notice) on the Clerk of the Legislative Council. This discovery application is, however, confined to documents related to the first three notices.
In this application, the plaintiff also relies on the plea, in the reply, that the Commission participated, alternatively, acquiesced, in the process by which the State Solicitor's Office 'purportedly determined' which records were the subject of privilege.
The propositions of law
The balance of the statement of claim is largely propositions of law regarding the proper construction of s 3(2) of the Corruption, Crime and Misconduct Act.
The plaintiff contends that:
(1)whether a particular record or information is the subject of the parliamentary privilege of the Legislative Council;
(2)the occasion and manner of enforcement of parliamentary privilege in respect of a particular record or information; and
(3)whether any coercive production for examination or use of such record or information outside the Parliament constitutes contempt of the Parliament;
are matters determinable by a House of Parliament.[24]
[24] Statement of claim [29].
Paragraphs 30 and 31 plead the proper construction of s 3(2) of the Corruption, Crime and Misconduct Act.
Based on that construction, the plaintiff pleads that the records obtained under the notices are 'such that a determination whether any of those records was or were the subject of Parliamentary Privilege would first be required in order to establish which, if any, of those records [the Commission] could be empowered to require [the Director General] to produce'.[25] The plaintiff pleads that the service of each notice was invalid and that each notice was invalid.
[25] Statement of claim [32] ‑ [33].
The plaintiff pleads that the Commission's receiving, retaining and using of the records produced by or on behalf of the Director General were invalid exercises of power in that:
(a)those notices purported to require production of specified records which included records which were the subject of Parliamentary Privilege;
(b)a determination as to which of those specified records was or were the subject of Parliamentary Privilege would first be required in order to establish which, if any, of those records the first defendant could be empowered to require the second and third defendants to produce;
(c)such a determination could only be lawfully made by the Legislative Council and no such determination had been made; and
(d)it related to matters determinable by a House of Parliament, namely the matters pleaded in paragraph 29 above, in that the records received were records as to which subparagraphs (b) and (c) above applied.[26]
[26] Statement of claim [35].
Paragraph 37 pleads a collateral challenge to the notices, apparently unrelated to the question of privilege.
Critically, the plaintiff's position is that only the Parliament could determine whether a particular record was subject to parliamentary privilege. The invalidity of the exercise of power by the Commission results from the fact that no determination had been made by the Parliament as to which of the records specified in the notices was or were the subject of parliamentary privilege. That is said to taint the notices, the service of the notices (both of which preceded the 'purported determination' of privilege), and the subsequent receipt of the records. The 'purported determination' of privilege is factually irrelevant to any of those contentions.
The defence
The Commission admits:
(1)the privileges, immunities and powers of the Parliament include the power to adjudge what is a contempt constituted by breach of an acknowledged privilege of the Parliament, and to commit for such a contempt by a warrant;[27]
(2)the First and Second Notices relevantly required production of the records pleaded in pars 13(a) and 13(b) of the statement of claim, but says that was 'save to the extent that those records were immune from production by reason of any privilege';[28]
(3)the Third Notice required production of the electronic back-up records pleaded in par 13(a) of the statement of claim, 'save to the extent that those records were immune from production by reason of any privilege';[29]
(4)it retains the records produced to it.[30]
[27] Defence [6(a)].
[28] Defence [8] - [9].
[29] Defence [11].
[30] Defence [13(a)].
While the parties differ as to the statement of the extent of the privileges of the Parliament, the Commission admits that, on the proper construction of s 3(2) of the Corruption, Crime and Misconduct Act, no power, right or function conferred under the Act may be exercised if, or to the extent that, the exercise would relate to:
(1)the impeaching or questioning of debates or proceedings in the Parliament;
(2)whether any coercive production for examination or use of such record or information outside the Parliament, for a purpose for which the coercive production is required, constitutes a contempt of the Parliament; or
(3)the privileges, immunities and powers set out and referred to in the Parliamentary Privileges Act.[31]
[31] Defence [27(a)].
The Commission contends that any notice it issued pursuant to s 95 of the Corruption, Crime and Misconduct Act does not require the production of records which are immune from production by reason of parliamentary privilege, but that any such notice is valid to the extent to which it does not require the production of such records.[32]
[32] Defence [27(c)].
With respect to the process by which documents were considered by the State Solicitor's Office, the Commission pleads:
As to paragraph 15 of the statement of claim:
(a)the first defendant repeats paragraphs 8(b) to 8(h) and 9(b) to 9(c) above [as to varying the time for compliance with each notice];
(b)by letter dated 5 July 2019, the first defendant advised the State Solicitor, then the solicitor for the second defendant, that:
(i)the first defendant had not endorsed any particular process for the identification of whether any documents within the scope of the First Notice or Second Notice were immune from production by reason of the privilege pleaded in paragraph 6(a)(i) above;
(ii)the first defendant had not endorsed any particular process by which the second defendant should satisfy himself that he had extracted all documents, information or records held by the Department of Premier and Cabinet that fell within the scope of the First Notice and Second Notice; and
(iii)the process which the second defendant determined to follow in order to lawfully comply with the First Notice and Second Notice was a matter for the second defendant;
(c)by letter dated 9 July 2019, the first defendant advised the State Solicitor, then the solicitor for the second defendant, that it would consider the First Notice and Second Notice to have been complied with upon production of the records referred to in the respective schedules to the notices:
(i)limited by the application of search terms supplied by the first defendant's investigators;
(ii)excluding any documents only available on backup records held by the Department of the Premier and Cabinet; and
(iii)minus any documents immune from production by reason of Parliamentary privilege;
(d)by letter dated 22 July 2019, the first defendant advised a Deputy to the State Solicitor, then the solicitor for the second defendant, that:
(i)the first defendant had not agreed any procedure with the Procedure and Privileges Committee of the Legislative Council in relation to assessing whether any documents within the scope of the First Notice or Second Notice were immune from production by reason of Parliamentary privilege; and
(ii)the first defendant did not seek production of material which was immune from production by reason of Parliamentary privilege;
(e)on 22 July 2019, the first defendant received from a Deputy to the State Solicitor, then the solicitor for the second defendant, a USB storage device containing electronic documents which the Deputy State Solicitor advised the first defendant he was instructed fell within the terms of the First Notice and Second Notice, having regard to the first defendant's letter dated 9 July 2019 pleaded above;
(f)the first defendant otherwise does not admit the allegations in the paragraph.[33]
[33] Defence [12]. The parties have agreed a list of 61 documents, including the three letters from the Commission pleaded in this paragraph.
The statement of agreed facts
Relevantly to the present application, the parties have agreed, in a Statement of Agreed Facts, that:
7.At all relevant times, the parliamentary email accounts of members and former members of the Parliament of Western Australia:
(a)have been managed outside the precincts of Parliament by the Department [of the Premier and Cabinet];
(b)have been in the custody of the Department; and
(c)have not been deleted upon a member of Parliament retiring.
8.The parliamentary email accounts of members and former members of the Parliament of Western Australia and their staffers are likely to include (but not entirely consist of) documents which relate to 'debates or proceedings in Parliament' as that term is used in article 9 of the Bill of Rights 1689.
…
12.On 22 July 2019, the Commission received from a Deputy to the State Solicitor certain records which the Deputy to the State Solicitor advised the Commission he was instructed fell within the terms of the First Notice and Second Notice having regard to a letter from the Commission dated 9 July 2019.
13.As at 22 July 2019, the Legislative Council had not made any determination about any of the records produced by the Deputy to the State Solicitor to the Commission.
Consideration
On an application for discovery, it is necessary to consider whether the documents sought are reasonably required for the fair and just determination of the issues in contention. The pleading of immaterial matters, or in this case, matters of law, should not have the effect of expanding the range of discovery beyond that necessary for the just determination of the action.
The plaintiff submitted that the orders it seeks encompass documents that evidence:
(a)the precise role performed by the State Solicitor's Office in reviewing and considering the documents provided to it by the Director General;
(b)whether or not that role as performed amounted to purporting to determine questions of parliamentary privilege in respect of the records so reviewed; and
(c)the Commission's knowledge of and involvement in the State Solicitor's Office performing that role.
The plaintiff submitted that these are relevant factual issues which arise on the pleadings. The plaintiff further relied on the plea in the reply that the Commission 'participated, alternatively, acquiesced, in the process pleaded in paragraph 15 of the statement of claim, thereby preventing the Legislative Council from exercising its acknowledged power to determine which of the documents specified in the notices were the subject of Parliamentary Privilege'.[34]
[34] Reply [2(d)].
The plaintiff accepted that whether the Commission participated in the role performed by the State Solicitor was, as a matter of law, not necessary to the relief it sought, but added the qualification, 'on certain facts'; the plaintiff further argued that the Commission had posited its knowledge and involvement as a 'mitigating point'. The plaintiff submitted that the involvement or acquiescence of the Commission is a true factual issue, and relevant to the claim for a declaration that the Commission's receipt of documents was invalid and in contravention of s 3(2) of the Corruption, Crime and Misconduct Act.[35]
[35] ts 155 ‑ 156.
None of the factual issues identified by the plaintiff as to the role of the State Solicitor's Office are material to the relief sought or to any defence. However those facts are established they could not affect the result of the proceeding.
That is necessarily so as to the plaintiff's claims that the notices were invalid when issued, and the service of the notices was invalid ‑ both matters occurring before any reference to the State Solicitor's Office. But in relation to the whole of the plaintiff's claim, the invalidity of the exercise of power by the Commission is said to result from two matters: the use of coercive powers for production of records or information which is the subject of the privilege of the Legislative Council; and the exclusive privilege of the Legislative Council to determine whether a particular record or information is the subject of privilege. The plaintiff's claim for relief is based on the fact that no determination was first made by the Parliament as to which of the records was the subject of privilege, and not from anything done in the attempt to comply with the notice.
The pleading in the reply is not responsive to the Commission's defence. The plaintiff did not, in par 15 of the statement of claim, make any allegations of fact regarding the Commission's participation or acquiescence in the 'purported determination' of privilege by the State Solicitor. The non‑admission in par 12 of the defence did not put in issue any 'involvement' or 'acquiescence' by the Commission. Otherwise, par 12 of the defence simply pleads the content of three letters the Commission sent to the State Solicitor. No question of 'mitigation' arises on either party's pleading.
On the claim and defence as pleaded, the documents sought by discovery do not relate to any factual issue that is material to the relief sought.
The same conclusion applies with respect to the orders sought for discovery from the Director General.
Two other matters were argued. They can be dealt with briefly.
First, the Commission submitted that any allegations that the Commission participated, alternatively acquiesced in a contravention of parliamentary privilege are, in substance, allegations that the State Solicitor's Office and the Commission have committed a contempt of the Parliament. That issue is not justiciable.
The plaintiff submitted that, while only the Parliament can determine a contempt, the Parliament does not have the power to determine whether the Commission infringed the Corruption, Crime and Misconduct Act and acted in excess of power under the Act. In my opinion, the plaintiff's argument is correct. Were it necessary to decide the allegations of participation or acquiescence to resolve the validity of the exercise of the Commission's powers or the performance of its functions, that issue would be justiciable in the court. But, on the pleaded cases, it is not.
Second, the Commission referred to s 152(2) and s 152(7) of the Corruption, Crime and Misconduct Act, by which an officer of the Commission may not disclose official information, that is, 'information acquired by [an officer of the Commission] by reason of, or in the course of, the performance of the person's functions under this Act'. An officer of the Commission cannot be required to produce or disclose any official information in or to any court except for specified purposes, none of which is presently relevant.
Section 152(4) prescribes circumstances in which official information may be disclosed, despite s 152(2). The only relevant circumstance is in s 152(4)(c), 'when the Commission has certified that disclosure is necessary in the public interest'. Counsel for the Commissioner advised that, on his instructions, it was likely that a certificate would issue if it was determined that the materials were relevant. The effect of s 152, however, remained in contention.
The breadth and purpose of the restriction on disclosure were considered by the Court of Appeal in Corruption and Crime Commission of Western Australia v Allen:
In s 152, 'acquire' bears its ordinary meaning of (relevantly) 'to come into possession of': Macquarie Dictionary (5th ed, 2009). Whilst information can only be acquired by the appellant by or through its officers, it is apparent from s 152(8) that the Act recognises a distinction between information acquired by an officer of the appellant and information acquired by the appellant. While it may be correct to say that a record simply of an officer's own decision is not a record of information which the officer has 'acquired', when that information is recorded by the officer in the course of his or her duties under the Act it comes into the possession of, and is thereby acquired, by the appellant. Such information is acquired by the appellant by reason of, or in the course of, the performance of its functions under the Act and accordingly becomes 'official information' by virtue of s 152(8). It becomes part of the record of the investigation which the appellant is required to keep under s 224 of the Act.[36]
[36] Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 [44].
Counsel for the plaintiff argued for a qualification to the scope of s 152(2), apparently limiting it to information which relates to the investigation and the way in which an allegation of serious misconduct is dealt with. The argument put forward by the plaintiff would exclude 'something that is more ancillary to the performance of the function and in the nature of an administrative or procedural aspect that sits preparatory to the performance of the function itself or the continuation of the performance of the function itself'.[37] With respect, I can find no warrant for that qualification in the text of the Act or the purpose of s 152 disclosed by its terms.
[37] ts 166.
I would dismiss the applications for discovery orders on the ground that the documents requested are not material to the pleaded claim. The operation of s 152 does not presently arise.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson6 NOVEMBER 2020
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