The President of the Legislative Council of Western Australia v Corruption and Crime Commission [No 2] - [2021] WASC 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF WESTERN AUSTRALIA -v- CORRUPTION AND CRIME COMMISSION [No 2] [2021] WASC 223
CORAM:   HALL J
HEARD:   22 & 23 APRIL 2021
DELIVERED          :   13 JULY 2021
PUBLISHED           :   13 JULY 2021
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:

Parliamentary privilege - Corruption and Crime Commission - Notices to produce emails of former members of Parliament - Whether privilege applies to notices - Whether service of notices was a valid exercise of power - Whether determination of privilege a matter exclusively for Parliament - Whether procedure used to determine privilege was valid

Legislation:

Bill of Rights 1688 (UK), article 9
Constitution Act 1889 (WA), s 2, s 36
Corruption, Crime and Misconduct Act 2003 (WA), s 3, s 4, s 6(2), s 7A, s 7B, s 8, s 18(2), s 22, s 43, s 84, s 86, s 93, s 95, s 98, s 137, s 138, 139, s 140, s 144(2), s 147, s 158, s 222
Parliamentary Privileges Act 1891 (WA), s 1(b), s 5, s 8
Parliamentary Privileges Act 1987 (Cth), s 16

Result:

Notices not invalid (declarations in this respect refused)

Receipt of documents and items without a proper determination of parliamentary privilege not valid (declarations in this respect granted)

Category: A

Representation:

Counsel:

Plaintiff	:	P Cahill SC & R O'Brien
First Defendant	:	S Vandongen SC & E M Heenan
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Corrs Chambers Westgarth
First Defendant	:	Corruption and Crime Commission of Western Australia
Second Defendant	:	McNally & Co
Third Defendant	:	Not applicable

Case(s) referred to in decision(s):

Aboriginal Legal Service v State of Western Australia (1993) 9 WAR 297
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Alley v Gillespie (2018) 264 CLR 328
Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223
Armstrong v Budd (1969) 71 SR (NSW) 386
Australian Capital Territory v SMEC Australia Py Ltd [2018] ACTSC 252
Barton v Taylor (1886) 11 AC 197
Church of Scientology v Johnson-Smith [1972] 1 QB 522
Crane v Gething [2000] FCA 45; (2000) 97 FCR 9
Egan v Willis [1998] HCA 71; (1998) 195 CLR 424
Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd (2007) 239 CLR 89
Halden v Marks (1995) 17 WAR 447
Harris v Victorian Electoral Commission [2020] VSC 676
In the Matter of Opel Networks Pty Ltd (in Liq) [2010] NSWSC 142; (2010) 77 NSWLR 128
JMA Accounting Pty Ltd v Commissioner of Taxation [2004] FCAFC 274; 211 ALR 380
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Mees v Road Corporation (2003) 128 FCR 418; [2003] FCA 306
Perron Investments Pty Ltd v Deputy Commissioner of Taxation [1989] FCA 586; (1989) 90 ALR 1
Prebble v Television New Zealand [1995] 1 AC 321
R (Miller) v Prime Minister [2019] UKSC 41; [2019] 3 WLR 589
R v Chaytor [2010] UKSC 52
R v Parry; ex parte the Attorney General of Western Australia, unreported Supreme Court of Western Australia, Full Court, 1 May 1997
Rann v Olsen (2000) 76 SASR 450
Rowley v O'Chee [1997] QCA 401; [2000] 1 Qd R 207
Sankey v Whitlam [1978] 142 CLR 1
Saunders v Commissioner of the Australian Federal Police [1998] FCA 1652; (1998) 160 ALR 469
South Australia v Commonwealth (1962) 108 CLR 130
Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196
Sportsbet Pty Ltd v State of New South Wales (No 3) [2009] FCA 1283
Stockdale v Hansard (1839) 9 A & E 1
The Queen v Richards; ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157
Wellsley v Duke of Beaufort (1831) 2 Russ & M 639

Texts cited:

Erskine May: Parliamentary Practice (25^th ed, 2019)
Lock GF, 'Parliamentary Privilege and the Courts: The Avoidance of Conflict' (1985) Public Law 64
Odgers' Australian Senate Practice (14^th ed, 2016)
Parliamentary Privilege - First Report (UK Parliament) 1999

HALL J:

The privilege of elected representatives to speak freely in Parliament, without fear of consequences, other than the sanction of Parliament itself, is an essential foundation principle of our system of democratic government. It ensures that matters of public interest can be raised and fully debated without the risk of members being called to account for what they say in any court or other place outside of Parliament.
In 2019 the Corruption and Crime Commission (CCC) issued a series of notices requiring the production of documents or things, in particular the emails of a number of specified former members of Parliament. The emails were sought in connection with an inquiry being undertaken by the CCC into the conduct of those former members. The emails were held by a government department and it was to that department that the notices were initially directed. A question arose as to whether production of some of the emails would be contrary to parliamentary privilege.
Efforts were made by the relevant parliamentary presiding officer, the President of the Legislative Council, and the CCC to agree a procedure for the determination of privilege in respect of the emails. Those efforts failed and the recipient of the notices, the government department referred to earlier, then took advice from the State Solicitor's Office and established its own procedure. After purporting to make a determination of what emails were the subject of privilege, the State Solicitor's Office then produced the remaining emails to the CCC. However, the Legislative Council did not accept that this determination was proper and authorised the President to commence these proceedings to challenge the validity of the notices and the lawfulness of the receipt of the emails.
The issue in this case is whether the exercise by the CCC of the power to obtain and examine documents is, when used in respect of documents that relate to the proceedings of Parliament, inconsistent with parliamentary privilege. That issue requires consideration of the nature of parliamentary privilege, whether it extends to documents of the type sought, whether the notices to produce the documents were a valid exercise of the statutory power in question and whether the determination of which documents were subject to privilege was one exclusively for Parliament to make.
For the reasons detailed in this judgment, I have come to the following conclusions:
1.Parliamentary privilege is concerned with the freedom of speech of members of Parliament. It achieves this by protecting the proceedings of Parliament from being questioned or impeached in any court or other place.
2.The proceedings of Parliament are the debates, passage of legislation and other matters that occur when either house is in session and matters incidental thereto. It also includes the transaction of business by Committees of either house and joint Committees, including hearings conducted by those Committees. Documents that are tabled in Parliament or tendered in evidence in Committees form part of the proceedings of Parliament.
3.Other documents that are closely connected to proceedings in Parliament are also protected by privilege. Whether documents have the necessary connection to proceedings will depend on the circumstances of their creation and use. It is not enough that documents merely relate to proceedings. The connection must be such that use of the documents could potentially involve questioning or impeachment of the proceedings of Parliament.
4.The nature of the privilege is such that it is directed to the use to which evidence of proceedings may be put. Unlike legal professional privilege it is not concerned with maintaining confidentiality. It is, in essence, a privilege from prohibited use, not a privilege from disclosure.   It is only where disclosure also necessarily involves prohibited use of documents that the privilege will protect from production.
5.Prohibited use (that is, the questioning or impeachment of proceedings) includes using evidence of proceedings to support a case that could result in adverse consequences for a member. Such adverse consequences may be findings of criminal or civil liability. It may also include adverse findings as to credibility, character or conduct.
6.The privilege protects proceedings from being questioned or impeached in courts, but also in other places. That protection, therefore, extends to bodies established by the executive for the purpose of conducting inquiries and reporting on the findings of such inquiries, at least where those findings can be adverse to individuals.
7.An investigation conducted by the CCC is an administrative inquiry that may, but does not necessarily, involve formal hearings. It may also result in the making of findings regarding the conduct of public officers and the publishing of reports containing those findings. Members of Parliament are public officers for this purpose. The CCC is, therefore, a place in which the proceedings of Parliament may potentially be impeached or questioned.
8.The powers of the CCC are subject to parliamentary privilege and cannot be exercised if, or to the extent that, the exercise would relate to a matter determinable by a House of Parliament - s 3(2) Corruption, Crime and Misconduct Act2003 (WA). The effect of this is to impose a limitation on any exercise of power, but only to the extent that that exercise would impinge upon parliamentary privilege.
9.Use of information by the CCC occurs at that time when the information is obtained for use in an investigation (that is, produced for examination). That is because the CCC is not merely an investigative body but a determinative one. Documents obtained by it can be immediately used in making findings as to the conduct of public officers. This is to be contrasted with documents obtained for use in a court, where there may be a distinction between obtaining documents and using them. Use of documents in respect of court proceedings will usually occur where the evidence is tendered or in some other way relied on in court.
10.In the present case it is accepted that the documents sought by the notices included some that relate to the proceedings of Parliament in a broad sense. It is likely that this group includes some documents that are also so closely connected to the proceedings of Parliament that they could be used for a prohibited purpose. It is reasonable to infer that those documents could, therefore, be used to determine whether findings of an adverse nature should be made against former members of Parliament. Such use would involve a prohibited questioning or impeachment of the proceedings. Thus, those documents were protected from production to the CCC by parliamentary privilege.
11.The question of whether some of the documents were privileged was a matter determinable by a House of Parliament. Accordingly, there was no power to require the production of those documents unless and until that question was determined in the negative. Thus, the power to issue the notices was only effective to the extent that it related to other documents.
12.The notices did not relate exclusively to privileged or possibly privileged documents. They extended to a broad class of documents that included only some which were likely to be privileged. The vast majority of the documents could not attract a reasonable claim of parliamentary privilege on any view. It was clearly open for the CCC to exercise its powers to obtain such documents.
13.The notices did not require the immediate production of any of the documents. In each case the compliance date was at a future time. This afforded an opportunity for a claim of parliamentary privilege to be raised in respect of any of the documents covered by the notice in question. Such a claim could be advanced either by seeking a ruling from the relevant House of Parliament, by commencing proceedings in a court for a ruling or by implementing a process approved either by Parliament or a court.
14. In these circumstances the notices were not an invalid exercise of power. They did not, however, lawfully require the production of privileged documents. The exclusion of such documents from the ambit of the notices was an implied limitation in respect of the first three notices and an express limitation in respect of the fourth and fifth notices.
15.The recipient of the notices was under a lawful obligation to produce those documents that were the subject of the notices and that were not privileged. The recipient of the notices was, equally, lawfully obligated to not produce those documents that were protected by parliamentary privilege. Until a determination of which documents were privileged was  made the notices could not be complied with. If a determination could not be made in the time allowed, and an extension was not granted, the recipient would have had a reasonable excuse for not complying with the notices.
16.Whether privilege applied to any particular document was a question to be determined either by Parliament itself or by the courts or by some person authorised to do so by Parliament or a court. The recipient of the notices was not authorised to make a determination of whether parliamentary privilege applied to any of the documents for the purpose of deciding which documents were required to be delivered to the CCC. Nor could the recipient authorise another person or body to do so.
17.The method used to determine privilege in this case was not one in which Parliament or the courts were involved, nor was it authorised by either Parliament or a court. The question of which documents were subject to privilege was not, therefore, lawfully determined. Accordingly, the production of the documents and the receipt of them by the CCC on the incorrect assumption that privilege had been lawfully determined should not have occurred.
18.The documents must be returned to the recipient of the notices or delivered to Parliament to enable a proper determination of privilege to be made. That can occur either by Parliament making a determination or by implementing a method agreed to by Parliament or by instituting proceedings in a court.
In these circumstances both the plaintiff and the defendant are partly successful. The notices were not invalid and no declarations in that regard will be made. However, the receipt of the documents by the CCC on the basis that parliamentary privilege had been determined was not valid and those documents must be returned to the recipient of the notices or Parliament until such a valid determination has been made.
For the reasons that follow, the power to make a determination lies with either Parliament or the courts. I am not satisfied that Parliament has the exclusive power in this regard. The courts can make privilege determinations in appropriate cases and there have been instances of this in the past. Whilst the courts have been reticent to exercise this power in order to avoid conflict with Parliament it is, in my view, only limited by that desire and not by any rule of law.
Whilst this case involves matters of high principle, the public interest is generally not well served by a dispute between Parliament and the Executive being aired in a court. The Corruption, Crime and Misconduct Act envisages that the CCC will investigate misconduct by public officers, including members of Parliament. In these circumstances it is inevitable that there will be investigations by the CCC where the issue of parliamentary privilege will arise. Clearly the intention was not to make members of Parliament immune from scrutiny or to give them undeserved personal protection.
What is required is a protocol or memorandum of understanding which provides an agreed process for the determination of privilege in respect of notices and search warrants. This would enable the CCC to undertake its investigations whilst affording appropriate protection to the proceedings of Parliament. Regrettably, such a protocol does not yet exist in this State. Other jurisdictions have established such protocols. Had one existed here this dispute may have been avoided. It is not for this court to set out the terms of such a protocol. The courts can only deal with the specific disputes that are brought before them. It is not the role of the courts to develop or mandate broader public policy. An agreed protocol is so clearly in the public interest as to be self-recommending.

The facts

It was not necessary for any witnesses to be called at the trial of this matter. The parties conferred and produced a statement of agreed facts. This was supplemented by a bundle of agreed documents. The summary that follows is based on the statement of agreed facts with additional information derived from the agreed documents.
The plaintiff, Catherine Esther Doust, is the person who occupied the office of the President of the Legislative Council of Western Australia (Legislative Council) at the time the proceedings were commenced, after being duly elected to that position pursuant to s 11 of the Constitution Acts Amendment Act 1899 (WA) (the President). She was authorised to bring this action for and on behalf of the Legislative Council, by resolutions of the Legislative Council on 5 and 25 September 2019.
The Legislative Council Standing Committee on Procedure and Privileges (the Procedure and Privileges Committee) is a standing committee of the Legislative Council, established by resolution of the Legislative Council on 24 May 2001, and which operates under the standing orders, resolutions and orders of the Legislative Council.
The Department of the Premier and Cabinet (the Department) is established pursuant to s 35 of the Public Sector Management Act 1994 (WA). The Minister responsible for the Department is the Premier of Western Australia.
The first defendant, the Corruption and Crime Commission (CCC), is established by s 8 of the Corruption, Crime and Misconduct Act.
The second defendant, Darren Foster, was at all material times the Director General of the Department (the Director General).
The third defendant, Nigel Pratt, was at all material times the person occupying the office of the Clerk of the Legislative Council (the Clerk). He was duly appointed to that position in February 2014, by the Governor, under cl III of Letters Patent dated 14 February 1986.
At all relevant times, the parliamentary email accounts of members and former members of the Parliament of Western Australia and of their electorate staff have been managed outside the precincts of Parliament by the Department. The contents of those accounts have been in the custody of the Director General. The accounts and the contents of them have not been deleted upon a member of Parliament retiring. The accounts were provided by the Department to members and their staff in relation to their roles as members and as staff, respectively, and were utilised by members and their staff in relation to those roles.
The CCC is conducting an investigation into whether certain former members of the Legislative Council engaged in serious misconduct with respect to the use of travel and electorate allowances and as to whether there was generally such a lack of public accountability and transparency with respect to the use of those allowances as to pose a risk that serious misconduct could occur in that regard.
The CCC served three notices on the Director General dated 12 April 2019 (First Notice), 11 June 2019 (Second Notice) and 6 August 2019 (Third Notice).

These notices were issued in reliance on s 95 of the Corruption, Crime and Misconduct Act. Each of the notices required the recipient to attend at the CCC offices, either in person or by a legal representative or employee, and produce the records or things specified in the notice at a nominated time (the return date). The return date in each case was between three and four weeks after the date of the notice.[1] Those dates were later extended.
[1] Agreed Book of Documents, Documents 1, 2 and 3.
The First and Second Notices related to specified electronic records of three former members of the Legislative Council and their staff. The parliamentary term of each of the former members ended on 21 May 2017. In particular, those notices required the 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;
(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;
(c)copies of all applications, approvals and disapprovals for the issuance/disbursement of parliamentary travel allowance (imprest system) for the specified former members for the date period 1 January 2014 to 31 December 2015; and
(d)copies of all reports of overseas travel undertaken by the former members for the date period 1 January 2014 to 31 December 2015.
The Third Notice required production of:
(a)electronic backup records of the emails and email attachments to 30 September 2019;
(b)copies of all applications, approvals and disapprovals in respect of parliamentary travel allowance for the three former members in both hard copy and electronic form for the period 1 January 2014 to 31 December 2015;
(c)copies of all pay slips and PAYG group certificates for the former members for the period 1 July 2013 to 31 August 2017; and
(d)copies of the employment contracts, job description forms and codes of conduct relating to the staff members.
The emails and calendar entries are the focus of these proceedings and the plaintiff makes no complaint regarding the other types of records sought. The classes of documents that referred to emails and calendar entries are accepted as being likely to include documents which relate to 'debates or proceedings in Parliament' as that term is used in article 9 of the Bill of Rights 1688 (UK). These classes of documents comprised terabytes of data and many hundreds of thousands of individual documents.
On 13 May 2019 the Commissioner of the CCC (the Commissioner) wrote to the President advising of the investigation and the terms of the First Notice. The letter states that the Director General had sought advice from the State Solicitor due to 'concerns that fully complying with the Notice might breach parliamentary privilege'. The letter then goes on to state:
The Commission wishes to obtain all of the records specified in the Schedule but acknowledges that some emails may concern matters occurring within the House, or closely related to the House. It is accepted that if Parliament has not waived privilege over emails, this will likely exclude from production Parliamentary Questions, speeches, Motions and any forms prepared to be raised in Parliament.
The Commission has no interest in any document that is privileged.
For the purposes of the investigation, the Commission requires records concerning travel undertaken by the two named former parliamentarians and other records including use, acquittal and directions to and between staff concerning parliamentary allowances.
I am advised that there may be thousands of electronic communications.
Clearly the documents of interest to the Commission need to be inspected by Parliament or it's designate so that a claim of privilege might properly be made in respect of documents.
As a practical matter, the Commission has forensic search tools to isolate and sequester documents attracting parliamentary privilege. I am unsure whether the Department of Premier and Cabinet is similarly equipped.
The period of the Notice issued under s 95 has been extended to 31 May 2019.
The Commission expects the Department of Premier and Cabinet to comply with the Notice in respect of documents about which there can be no possible claim for privilege, including travel by the two parliamentarians.
I seek to meet with you and Mr Pratt to further discuss a way in which the Commission's legitimate powers are not thwarted, while at the same time, giving full effect to parliamentary privilege so that it is appropriately upheld.[2]
[2] Document 21.
On 20 May 2019 a meeting was held between the Commissioner and the President to discuss arrangements for the production of documents pursuant to the First Notice. In a letter of the same date the Commissioner said that the time for compliance would be further extended to 14 June 2019 and that a non-disclosure requirement would be varied to allow discussions between the Director General and his legal representatives and the President and the Clerk. The letter states that it was acknowledged that there was likely to be privileged material contained in the 'cache of documents sought' and sets out a proposal for extracting that material. The letter notes that the President had said at the meeting that determination of whether privilege attaches to a particular document was a matter to be determined by the House.[3]
[3] Document 22.
On 6 June 2019 the Clerk wrote to the Commissioner advising that the Procedure and Privileges Committee had met on two occasions to discuss the proposal for dealing with privilege, but that further meetings were required. Due to the limited availability of members of the Committee a further extension of time in respect of the First Notice was requested.[4]
[4] Document 23.
In a reply dated 7 June 2019, the Commissioner said that the time for compliance would be extended to 5 July 2019, however no further extensions would be granted. The letter re-iterated that the Commission had an expectation that records that were not subject to parliamentary privilege would be produced and that the Commission had no interest in privileged documents, if there were any. The letter then referred to the lack of an agreed protocol:
It is regrettable that the lack of advancement of the Protocol between the Commission and Parliament has resulted in significant delay to a Commission investigation. The Commission is yet to be provided with the MOU drafted in response to Recommendation 5 of the Legislative Council Procedure and Privileges Committee Report No. 44. In February 2018 the Commission was advised the Speaker of the Legislative Assembly and the President of the Legislative Council were waiting on the outcome of the Australian Senate Privileges Committee inquiry into the execution of search warrants on Senators to finalise a draft for the Commission’s consideration. That report was tabled on 28 March 2018.
An MOU may have assisted in this case. It would be useful for the Commission to be provided with a draft for consideration without further delay.[5]
[5] Document 24.
On 12 June 2019 the Legislative Council passed a motion granting authority to the Procedure and Privileges Committee to make any order or do all things necessary and expedient to ensure that any documents or data created or received by a current or former member were only released to 'an investigative agency' where:
(a)the document or data falls within the lawful scope of any warrant or notice; and
(b)the document or data 'is not proceedings in Parliament within the meaning of article 9 of the Bill of Rights 1688 or does not otherwise fall within the scope of parliamentary privilege'.[6]
[6] Document 25. The first limb of this resolution is almost certainly beyond power as the lawfulness of a warrant or notice is clearly a matter exclusively for the courts, but it is unnecessary to determine that issue as only the second limb is relevant for present purposes.
On 13 June 2019 the President, in her capacity as chair of the Procedure and Privileges Committee, wrote to the Director General advising him of the resolution made the previous day. The letter stated that the resolution authorised the Committee to establish procedures to 'identify, isolate and protect from access by investigative agencies the information of current and former members of the Legislative Council and their staff that is subject to parliamentary privilege'. The letter states that privilege attaches to any material, including electronic documents, that fall within the scope of 'proceedings in Parliament' as that phrase is used in article 9. The letter also sets out a series of resolutions made by the Committee that day. In particular, it had been resolved that the release of documents or data that are proceedings of Parliament to the CCC by the Director General without the authority of the Legislative Council or the Committee 'would constitute a grave breach of the privileges and a contempt of the Legislative Council of Western Australia'.[7]
[7] Document 26.
The President also wrote to the Commissioner on the same date advising him of the resolutions. The letter then said that the Committee was 'ready, willing and able to cooperate with the Commission to the fullest extent possible so that relevant material which is not proceedings in Parliament is available to the Commission so that it may progress its investigation in a timely manner'. As to the proposal raised by the CCC, the letter stated that it was a matter of concern to the Committee that the proposed procedure did not allow for the former members or their staff 'to seek legal advice on the material to be taken or to make a claim of parliamentary privilege'. This was said to be a problem because the question of whether any material was proceedings in Parliament could turn on what had been done with the material or what the member intended to do with it. The Committee provided details of its own procedure for identifying and isolating privileged material. That procedure provided for the data to be searched by Parliamentary staff using search queries provided by the Commission. Any documents identified would then be provided to 'an external party' appointed by the Committee, who would view the documents and make recommendations to the Committee as to whether privilege applies.[8]
[8] Document 27.
On 17 June 2019 the Commissioner wrote to the President, acknowledging her letter of 13 June 2019 and advising of the service of the Second Notice, which raised similar issues. The Commissioner also raised a number of concerns with the procedure set out in the President's letter. Those concerns related to confidentiality and ensuring a reliable chain of custody. There was also a concern that the procedure did not provide for how the Director General was to provide non-privileged records to the CCC, as he was obliged to do by 5 July 2019.[9]
[9] Document 28.
On 25 June 2019 the President wrote to the Commissioner attaching a revised procedure that was intended to address the concerns of the Commissioner. Views were expressed as to the extent and effect of parliamentary privilege. Those views need not be summarised as they assume the matters that are in issue in these proceedings. Suffice to say that the President maintained that privilege extended to documents prepared for the purpose of informing members on issues relating to proceedings and that, in some circumstances, evidence was received in camera and would, for that reason, be protected from disclosure.[10]
[10] Document 29.
On 26 June 2019 the Commissioner wrote to the President, stating that as the Committee had finalised its procedure there should be no impediment to the Director General complying with the notices (by providing all non-privileged material). The letter then states:
Of course, the Commission unreservedly accepts it is for the House to determine whether a particular document or communication is subject to privilege. I am confident that, likewise the House would agree that if the House determines that the document or communication is not subject to parliamentary privilege, the Commission is lawfully entitled to that document.[11]
[11] Document 30.
On 27 June 2019 the President wrote to the Director General setting out the 'agreed procedure', that is, the procedure determined by the Committee after taking into account the concerns of the CCC. In an email of the same day the Clerk proposed arrangements for taking custody of the documents and data for the purpose of implementing the procedure.[12]
[12] Documents 31 and 32.
The belief that the procedure had been agreed appears to have been misplaced. On 4 July 2019 the Director General wrote to the President and, referring to discussions between the President and the Commissioner, said that it was 'regrettable that both parties have been unable to agree on a process under which I can comply with the request made of me by the CCC in their notice'. The letter then states:
Under those circumstances I have considered the advice of the State Solicitor, and Attorney General (who I believe has received advice from the Solicitor-General) and will be complying with the terms of the notice issued to me by the CCC. This will, as I understand, involve technical experts at the CCC applying an indexing and search program to electronic material, while the material remains in the possession of my Department. This initial step will involve the identification of material relevant to the CCC inquiry but not its provision to the CCC investigators. I am advised that no material will remain with the CCC at this stage and my representatives will ensure the material is not read, copied or retained by the CCC.
Subsequently the State Solicitor's Office will consider the identified information for matters of parliamentary privilege and not produce to the CCC any material that it identifies as being subject to parliamentary privilege. As you will be aware the CCC Commissioner has agreed that the Commission does not seek to consider privileged material as part of its inquiry.
Any remaining information not considered to attract parliamentary privilege will be provided to the CCC investigators for use in their inquiry.
I propose to use the same process for the second notice issued by the CCC to me concerning similar matters.
I wish to assure you and the members of the Legislative Council that this is not a decision taken lightly and is done in compliance with legal requests from the CCC pertaining to an ongoing investigation, and where the CCC has expressly indicated that it does not wish to receive any material which is subject to parliamentary privilege. In the absence of the Legislative Council and the Commissioner reaching an agreement about how privileged material is to be assessed, or there being any applicable protocol established in advance by Parliament with the CCC for just this type of situation, I have requested the State Solicitor’s Office to review each document and withhold from production any documents which the State Solicitor’s Office considers are subject to parliamentary privilege. That appears to be the only feasible course which enables me to comply with my legal obligation to provide the non-privileged material requested by the CCC by the time required by the CCC.[13]
[13] Document 33.
On the same day the State Solicitor wrote to the Commissioner setting out the process his office would undertake on behalf of the Department and which, he understood, had been agreed by the CCC. That process reflected that set out in the letter of the Director General referred to in the previous paragraph. The State Solicitor said that he understood that officers of the CCC would assist officers of the Department to identify documents falling within the terms of the notice and then apply search terms to identify those documents that were relevant to the CCC's inquiry. The relevant documents would then be delivered to the State Solicitor's Office so that they could be reviewed to identify and exclude any 'which this Office considers are subject to parliamentary privilege'. It was anticipated that the relevant documents would number in the tens of thousands and that, even though a team of 'about 30 staff' had been established, more time than allowed by the notices would be required. The State Solicitor also noted that documents contained in back-up records may also be caught by the notices but that it would take up to four weeks for this to be determined. He, therefore, requested that the back-up records be excluded from the existing notices and be made the subject of separate notices with a compliance date that was at least six weeks away. Finally, the State Solicitor requested that the first and second notices be varied such that they would be 'confined to relevant documents which, in the view of this Office, are not subject to parliamentary privilege'.[14]
[14] Document 33A.
On 5 July 2019 the Director Operations of the CCC sent an email to the Clerk which noted the process proposed by the President, but said that the CCC could not approve or agree to the process 'as it is a matter for the Privileges Committee, not the Commission'. The email states that the CCC had not yet received any information pursuant to the notices. Officers of the CCC were assisting the Department in copying relevant emails and running search criteria, however that process was taking place at the Department and the CCC would not receive any of the material until it had been subject to review by officers from the State Solicitor's Office.[15]
[15] Document 34.
On the same day the Director Legal Services of the CCC (the Director Legal Services) wrote to the State Solicitor advising that the CCC had not 'endorsed any particular process imposed to overcome the logistical issue of identifying parliamentary privileged material amongst the records required by' the notices. The letter states that the CCC’s view was that any process undertaken by the Director General in order to comply with the notices was a matter for him. The assistance afforded by the CCC was 'to ensure the integrity of the data set'. The back-up records were required under the existing notices, but the CCC would extend the compliance dates to 'a date that is realistic' given the circumstances outlined by the State Solicitor in his letter of the previous day. The letter concludes that the non-disclosure notation on one of the notices permitted the Director General to discuss the notice with, relevantly, the President and the Clerk.[16]
[16] Document 35.
On 6 July 2019 the State Solicitor sent an email to the Director Legal Services setting out the process for copying and searching the emails, which he again said he understood had been agreed in a conversation between the Attorney General and the Commissioner. In a response the following day the Director Legal Services confirmed that the procedure was 'effectively what was agreed' at a meeting between the Attorney General and CCC staff regarding what assistance the CCC could provide. That process had been varied to allow for CCC officers to attend at the offices of the Department, rather than Department officers attending at the CCC with laptop computers containing the relevant material for the loading of the search program.[17]
[17] Document 35A.
On 9 July 2019 the President wrote to the Director General saying that she had become aware that he would not be following the procedure determined by the Procedure and Privileges Committee. The letter states that the question of whether documents falling within the terms of the notices are proceedings in Parliament is 'ultimately one for determination by the Legislative Council' and not one for the Director General, whether or not on advice. The President said that release of documents or data that are proceedings in Parliament without the authority of the Legislative Council would constitute a contempt of the Legislative Council. For the avoidance of doubt, the President confirmed that the Director General did not have the authority to release privileged material.[18]
[18] Document 36.

On the same day, the State Solicitor wrote to the Director Legal Services and confirmed his understanding that the CCC would consider the notices to be complied with if it received all of the documents identified by use of the search program, other than those subject to parliamentary privilege. He said that the data set of relevant documents had been received by his office on 5 July 2019 and that the review process had commenced on 8 July 2019. He requested an extension of time for compliance to 19 July 2019 and again requested that the notices be varied to exclude the back-up records.[19]
[19] Document 36A.
In a response from the Director Legal Services of the same date, she confirmed that the State Solicitor's understanding was correct and, in particular, that the documents required to be produced did not include 'any document subject to parliamentary privilege'. The extension of time was granted and the back-up records were excluded from the existing notices and were to be made the subject of a separate notice.[20]
[20] Document 37.
On 11 July 2019 the Director General wrote to the President in reply to her letter of 9 July 2019. He stated that he was under a legal obligation to comply with the notices and that it had become clear that the CCC was 'not prepared to extend time sufficiently to permit the (Procedure and Privileges Committee) process to be followed'. He said that there did not appear to be any reasonable excuse for failing to comply with the notices by producing those documents that are not subject to parliamentary privilege. As there was no agreed protocol it had become necessary for him to adopt the process by which the State Solicitor's Office would review the documents. He suggested that this process was materially the same as that proposed by the Procedure and Privileges Committee in that it involved him taking the advice of an 'external party', namely the State Solicitor's Office, rather than forming his own view. He then said:
I reiterate that I would much prefer to be responding to the notices under a process that has been agreed between the PPC and the Commission. It would be helpful if, for future notices to produce, a protocol was established between the PPC and the Commission to avoid public officers being placed in a position where no matter which course they take in good faith, they are at risk of significant adverse consequences in the form of contempt of Parliament or contempt of the Commission. That is an initiative which the PPC may wish to pursue and in which my Department would be pleased to be of assistance.[21]
[21] Document 38.
On 18 July 2019 the President replied to the Director General's letter of 11 July 2019. She reiterated the view of the Procedure and Privileges Committee that the question of whether documents are proceedings in Parliament was one for the Legislative Council and 'certainly not a matter for the State Solicitor's Office to determine'. The President said that any delay to the CCC investigation occasioned by following the Committee’s procedure would be modest and was 'absolutely necessary to ensure the protection of parliamentary privilege, which the Committee maintains is one for Parliament and not organs of the Executive to determine'. The President said that there was no impediment to the Department following the Committee's procedure and that was the expectation. As to the risk of being held in contempt of the CCC, the President noted that s 158 of the Corruption Crime and Misconduct Act provides for a reasonable excuse defence and suggested that this would apply as the course proposed by the Director General would breach the privilege of the Legislative Council.[22]
[22] Document 39.
On 22 July 2019 the Director Legal Services wrote to a Deputy State Solicitor advising that the CCC had not agreed a procedure with the Procedure and Privileges Committee in relation to assessing documents for parliamentary privilege. The letter stated that, whilst the CCC had offered technical assistance, the Commissioner's position had at all times been that the CCC 'cannot approve or agree to a process' and that that was 'a matter for the (Procedure and Privileges Committee), not the Commission'.[23]
[23] Document 40.
On 22 July 2019, the CCC received from a Deputy State Solicitor certain records which he was instructed fell within the terms of the First Notice and Second Notice. These records were contained on a USB storage device and consisted of fewer than 100,000 records.[24]
[24] Document 41.
The same day the Acting Director General wrote to the President advising that the documents had been produced 'excluding any documents which are the subject of parliamentary privilege'. She explained that 'each of the documents produced was reviewed by the State Solicitor's Office and, in that Office's opinion, is not subject to parliamentary privilege'.[25]
[25] Document 42.
Also, on the same day the Commissioner advised the Attorney General that the USB had been delivered and that any privileged material was identified and removed before delivery. The Commissioner advised that he had ordered the USB to be placed in secure storage and that in 'the absence of any indication to the contrary' he would release it to CCC investigators later in the week.[26]
[26] Document 42A.
As at 22 July 2019, the Legislative Council had not made any determination about any of the records produced by the Deputy State Solicitor to the CCC.
On 25 July 2019, the Commissioner wrote to the President informing her that the CCC had received the USB on 22 July 2019 and that he understood that the contents had been reviewed by the State Solicitor's Office to ensure that it only contained material that was not the subject of parliamentary privilege. He said that steps had been taken to 'quarantine' documents from the USB that were to be used in any examination or report and that the CCC intended to provide a copy of each such document to the Procedure and Privileges Committee, or its chosen representative, 'so it may, if it wishes, review the document to confirm it is not capable of attracting parliamentary privilege'. In the event that former members sought to make a claim of parliamentary privilege during the investigation, any such claim would be referred back to the Committee for determination. The Commissioner said that it was likely that the investigation would result in at least one report to Parliament and that an advance copy of any such report would be provided to the Committee 'to afford a further opportunity to ensure that parliamentary privilege is protected'. He concluded by adverting to the likelihood of further notices and the desirability of discussions regarding how the issues could be 'cooperatively managed moving forward'.[27]
[27] Document 43.
On 2 August 2019 the President wrote to the Acting Director General advising that, as Chair of the Procedure and Privileges Committee, she had authorised the issue of a summons requiring the production of 'certain documents relevant to the subject of the Committee's inquiry relating to' the notices.[28]
[28] Document 44.
On 9 August 2019 the President wrote to the Director General and expressed the view that officers of the Executive had likely committed contempt of the Legislative Council by making determinations as to the application of parliamentary privilege. She said that the Procedure and Privileges Committee had become aware of the possibility of further notices and, to ensure that further contempts did not occur, had resolved as follows:
That Mr Darren Foster, Director General, Department of Premier and Cabinet, or any person acting in that capacity, is hereby ordered:
1.To not produce to the Corruption and Crime Commission or any other investigative agency in answer to any compulsory process or otherwise any document or data in the Department’s possession that was created or received by a current or former member of the Legislative Council or their staff; and
2.To produce the documents or data that is the subject of any compulsory process immediately to the Legislative Council Standing Committee on Procedure and Privileges pursuant to the Parliamentary Privileges Act 1891 for the Committee to determine whether:
(a)its description falls within the lawful scope of any warrant, notice to produce, or other similar power granted to an investigative agency under a written law; and
(b)the documents or data is not proceedings in Parliament within the meaning of Article 9 of the Bill of Rights 1688 or does not otherwise fall within the scope of parliamentary privilege.[29]
[29] Document 45.
On 14 August 2019, officers of the CCC executed a search warrant[30] issued on 12 August 2019 pursuant to s 101 of the Corruption, Crime and Misconduct Act by entering and searching the residence of Mr Philip Edman, one of the former members of Parliament whose records were the subject of the First Notice, and seized items recorded in a Property Seizure Record.[31]
[30] Document 46.
[31] Document 47.
Among the items seized were:
(a)a Toshiba laptop with Department of Premier and Cabinet barcode BK034620 (CCC Evidence Barcode 006615-2019-0385) (the Laptop);
(b)a Porsche Design Lacie Silver USB external hard drive (CCC Evidence Barcode 006615-2019-0386) (the First HD); and
(c)a WD Element External hard drive (CCC Evidence Barcode 00615-2019- 0384) (the Second HD).
The Laptop and the First HD had been provided by the Department to the former member to use in carrying out his role as a member of Parliament. The Laptop contained, among other things, emails passing to and from the parliamentary email account of the former member while he was a member of the Legislative Council. The First HD was labelled 'MPBACKUP Edman' and contained, among other things, an electronic copy of some of the contents of the Laptop.
The Second HD contained copies of some of the emails and calendar entries sent from and to the parliamentary email account of the former member of Parliament while he was a member of the Legislative Council, including emails sent from the parliamentary email accounts of some of the former member's electorate staff.
The Laptop, the First HD and the Second HD were each likely to contain (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.
On 15 August 2019 the Legislative Council passed a number of motions relating to this matter. Relevantly, motions were passed referring to the Procedure and Privileges Committee the failure of the Acting Director General to comply with a summons to attend and produce documents and the actions of the Director General in producing documents to the CCC without following the procedure that the Committee had authorised. A motion was also passed that the Director General be ordered to attend before the Committee and produce all documents that were identified as relevant to the CCC investigation, all documents that were identified as being subject to parliamentary privilege and all documents that were produced to the CCC, together with lists of those documents. Finally, a motion was passed that the Director General be ordered not to produce to the CCC, in response to any further notices, any documents created or received by a current or former member of the Legislative Council or their staff and, rather, produce any such documents to the Committee for it to determine whether it fell within the 'lawful scope of the warrant' or was within the scope of parliamentary privilege. [32]
[32] Document 48. The validity of the order not to comply with CCC notices is the subject of separate proceedings. The outcome of the present proceedings is unaffected by whether or not that order was valid.
On about 23 and 27 August 2019, the Director General produced records to the Procedure and Privileges Committee in compliance with the requirements of the order made by the Legislative Council on 15 August 2019.[33] The records produced by the Director General to the Procedure and Privileges Committee likely included documents which relate to 'debates or proceedings in Parliament' as that term is used in article 9 of the Bill of Rights.
[33] Document 50.
On 26 August 2019 the President wrote to the Commissioner requesting information regarding the execution of the search warrant on the residence of Mr Edman on 14 August 2019. In particular, whether Mr Edman, as a former member of Parliament, was informed of his entitlement to make a claim of parliamentary privilege over any of the items seized and whether any such claim had been made. The President also asked whether in executing the warrant the CCC had 'followed the Commonwealth MOU'.[34] She then said:
You have stated in your previous correspondence to the Committee that the Commission unreservedly accepts that it is for the Legislative Council to determine whether a particular document or communication is subject to parliamentary privilege. You have also stated that the documents of interest to the Commission need to be inspected by the Legislative Council or its delegate so that a claim of privilege might properly be made in respect of the documents.
Your investigation is now in its overt stage and there is no impediment to the Commission adhering to the material aspects of the Commonwealth MOU so as to permit the Legislative Council to make that determination in respect of the things or documents seized by the Commission over which a claim of parliamentary privilege is made. Accordingly, can you please advise, should a claim of privilege be made, how and when the documents of interest to the Commission will be made available to the Legislative Council or its delegate for inspection.[35]
[34] The reference to the 'Commonwealth MOU' appears to be to a Memorandum of Understanding between relevant federal ministers and the Presiding Officers of the Commonwealth Parliament of 2005. This MOU will be referred to later in these reasons.
[35] Document 51.
On 4 September 2019, the CCC gave the Laptop and First HD to the President. The Clerk received and currently holds the Laptop and the First HD. These items were provided in the expectation that the Legislative Council would approve a recommendation made in a report by the Procedure and Privileges Committee.[36] The relevant recommendation was that the CCC be ordered to produce the laptop and all copies of the data contained on it to the Clerk.[37] In a letter accompanying the items the Commissioner stated that the CCC had expunged all copies of material obtained from the laptop and the hard drive from its IT infrastructure.[38]
[36] Document 52. The resolution was passed on 5 September 2019 - see Document 54.
[37] Procedure and Privileges Committee, Report 56, Recommendation 3.
[38] Document 52.
On 10 September 2019, the CCC served two notices on the Clerk requiring the production of records and things held by him. In particular, the Laptop and First HD originally seized from Mr Edman (Fourth Notice)[39] and all documents produced by the Director General to the Procedure and Privileges Committee on 23 August 2019 (Fifth Notice).[40] In both cases the notices included the exclusion 'Save and except for any data or content which is determined by the Procedure and Privileges Committee of the Legislative Council to be subject to Parliamentary Privilege'.[41]
[39] Document 4.
[40] Document 5.
[41] The wording differed slightly between the two notices in that the first referred to 'data or content' and the second only to 'content'.
By resolutions passed on 5 and 25 September 2019 the Legislative Council authorised the President to commence and conduct proceedings challenging the validity of all of the notices.[42] The Clerk was also directed not to comply with the notices served on 10 September 2019 pending the outcome of any proceedings and an assessment of parliamentary privilege by the Committee with respect to those notices.[43]
[42] Documents 54 and 56.
[43] Document 56.
On 1 November 2019, the Director Legal Services wrote to solicitors instructed by the President and confirmed that the CCC remained in possession of the Second HD, and that it had not been altered in any way. A question had been raised as to whether the Second HD contained a complete back-up of the Laptop. The CCC was no longer in possession of the Laptop by this time, but the letter states that the file listing on the Second HD did not reflect 'the technical composition of a backup'.[44]
[44] Document 58.
On 8 November 2019, a member of the WA Police Force seized the Second HD from the CCC in execution of a search warrant at the CCC's premises, but the CCC retained possession of an imaged copy of the contents of the Second HD.[45]
[45] Document 59.
On 18 November 2019, in answer to a summons issued by the Clerk pursuant to s 5 of the Parliamentary Privileges Act 1891 (WA),[46] the CCC produced to the Procedure and Privileges Committee the imaged copy of the contents of the Second HD and 34 printed documents which were contained on the Second HD.[47]
[46] Document 60.
[47] Document 61.
On 22 November 2019, the Clerk returned to the CCC the 34 printed documents which the CCC had produced on 18 November 2019, and the CCC retains possession of them.
The Laptop and the First HD have been the subject of a search warrant caused to be issued by the WA Police Force, and the Laptop, First HD and Second HD are currently held within the precincts of Parliament in a secure container that can only be accessed by agreement with the WA Police Force.
The imaged copy of the contents of the Second HD is currently held by the Clerk as agent for, and subject to the direction of, the Legislative Council or its delegate, the Procedure and Privileges Committee.
On 11 May 2020, the Legislative Council, by its delegate, concluded that 1,120 of the records produced by the Deputy State Solicitor to the CCC on 22 July 2019 were subject to parliamentary privilege.
On 24 June 2020, the Legislative Council, by its delegate, concluded in relation to copies of records contained on the Laptop that 6,945 of those records were subject to parliamentary privilege.
On 7 December 2020, the Legislative Council, by its delegate, concluded in relation to copies of records contained on the Second HD that 251 were subject to parliamentary privilege.
On 18 February 2021, the Legislative Council, by its delegate, concluded in relation to copies of records contained on the First HD that 21 of those records were subject to parliamentary privilege.
The parties remain in dispute as to whether the legal effect of the conclusions referred to in the last four paragraphs is that the Legislative Council has conclusively determined that the records are subject to parliamentary privilege.

The plaintiff's case

The plaintiff's case is that parliamentary privilege renders records that comprise or record a parliamentary speech, debate or proceeding immune from compulsory production to the executive arm of government.
Parliament has, the plaintiff asserts, exclusive jurisdiction to determine whether in any particular case a specific record or communication is subject to parliamentary privilege. The only limited exceptions to this exclusive jurisdiction are that the courts can determine questions of privilege arising in the course of existing proceedings and can determine whether a warrant issued by parliament in respect of an alleged contempt relates to an existing privilege. As those exceptions do not apply to the present case, the plaintiff says that any issue of privilege in respect of documents required by the CCC was exclusively a matter for Parliament.
The first three notices required the production of records that included some that it was open to the Legislative Council to determine were subject to parliamentary privilege. In that respect the notices affected parliamentary privilege because 'they purported to compel production of potentially privileged records and to deprive the Legislative Council of the opportunity to exercise its power to protect and enforce the immunity before records were produced'.[48]
[48] Plaintiff's Written Submissions [9].

The plaintiff's case is that the effect of s 3(2) of the Corruption, Crime and Misconduct Act is to ensure that the privileges of each House of Parliament are 'unaffected by anything contained in or done pursuant to that Act'. Section 3(2) also prohibits the exercise of a power by the CCC to the extent that the exercise of the power 'would create an opportunity or occasion for a House of Parliament to consider and deliberate upon an issue of privilege and, if it considered it appropriate to do so, determine that issue'.[49]
[49] Plaintiff's Written Submissions [4].
The plaintiff says that service of the first three notices was prohibited by s 3(2) because those notices extended to potentially privileged records and 'there was (no) real occasion for the Legislative Council to consider and deliberate upon the issue of privilege, and, if the Legislative Council considered if it appropriate to do so, to affirmatively determine that one or more records included in the notices were subject to parliamentary privilege'.[50] The service of the notices was invalid 'to the extent of the parts that require production of a category of records likely to include documents that it was open to the Legislative Council to determine were subject to parliamentary privilege'.[51]
[50] Plaintiff's Written Submissions [9].
[51] Plaintiff's Written Submissions [10].
The plaintiff says that because the first three notices were invalid receipt of records pursuant to those notices was consequentially invalid. In addition, the plaintiff says that receipt of the records was invalid because, in receiving the records, the CCC treated the opinion of the State Solicitor's Office as having the same legal effect as a determination of privilege by the Legislative Council. The effect of this was to deprive the Legislative Council of 'the opportunity to exercise its exclusive power to determine, protect and enforce the immunity from production before the records were produced'. Accordingly, the receipt of the records was prohibited by s 3(2) because it was an exercise of a power that related to a matter determinable by a House of Parliament.[52]
[52] Plaintiff's Written Submissions [11].
The plaintiff makes no complaint about the validity of the search warrant, but does say that the CCC's retention and use of the Second HD affected the Legislative Council’s privilege because it deprived the Legislative Council of 'the opportunity to exercise its power to protect and enforce the immunity from examination and use before the contents of (the Second HD) were examined and used'. Accordingly, it is said that the retention and use of the Second HD was conduct that was prohibited by s 3(2) because seizure of the device related to a matter determinable by the Legislative Council, namely whether there were records on the device that were immune from retention and use by reason of parliamentary privilege.[53]
[53] Plaintiff's Written Submissions [14].
The plaintiff says that the fourth and fifth notices affected the privilege of the Legislative Council in two possible ways. Firstly, notwithstanding that the notices expressly excluded anything 'determined by the Procedure and Privileges Committee of the Legislative Council to be subject to Parliamentary Privilege', the Clerk could be required to comply with the notices before the Legislative Council had had the opportunity to consider and deliberate on the issue. Secondly, because the notices 'purported to compel the Legislative Council to make a determination on an issue of parliamentary privilege within a certain time'. On either basis the notices would interfere with the exclusive jurisdiction of the Legislative Council to 'consider, deliberate upon and determine an issue of privilege in the manner and at a time of its choosing'. The service of the notices is said to be prohibited by s 3(2) because each notice 'on its face was expressed to relate to a matter determinable by the Legislative Council'. The service of both notices is, accordingly, said to be invalid.[54]
[54] Plaintiff's Written Submissions [16].

The defendants' case

The second and third defendants chose to take no part in the proceedings. They were both content to abide by the court's decision. I will refer to the first defendant, the CCC, as 'the defendant' for the sake of convenience.
The defendant's case is that the privilege enshrined in article 9 of the Bill of Rights does not render documents immune from compulsory production, but rather protects the freedom of speech of members of Parliament on the floor of the House and renders immune from impeachment or questioning debates or proceedings in Parliament.[55] The privilege is not concerned with confidentiality and is, in fact, inconsistent with it.[56] The defendant asserts that the only authority relied on by the plaintiff to support the proposition that the privilege protects from production is not an authority that applies in this State.[57]
[55] First Defendant's Written Submissions [11].
[56] First Defendant's Written Submissions [72].
[57] First Defendant's Written Submissions [73] - [75], referring to Rowley v O'Chee [1997] QCA 401; [2000] 1 Qd R 207.
The defendant submits that a proposition that the examination of records relating to debates or proceedings 'for any purpose' necessarily involves questioning or impeaching those debates or proceedings is wrong and inconsistent with settled authority. It is only if the effect or purpose of the examination is to question or impeach a debate or proceeding in Parliament that the privilege will apply.[58]
[58] First Defendant's Written Submissions [84].
The defendant says that the nature of the CCC investigation, being one into whether members or former members have misused travel and electorate allowances, is not concerned with questioning or impeaching 'the propriety of what was said or done during debates or proceedings in Parliament'. In these circumstances no occasion for the application of privilege arises.[59]
[59] First Defendant's Written Submissions [91].
If, contrary to the first submission, parliamentary privilege does protect from compulsory production, the defendant's case is that it is not within the power of a House of Parliament to determine whether a document is protected by privilege.[60] It is, the defendant submits, for the courts, not the Parliament, to determine the existence and scope of a privilege. It is only where the existence of the privilege is undoubted that it is for the relevant House to determine the occasion and manner of its exercise. A House cannot 'by fiat, declare that a document which is not, as a matter of law, protected by the alleged privilege is protected and thereby make it so'.[61]
[60] This submission is contrary to statements made in letters from the Commissioner to the President - see Documents 21 and 30.
[61] First Defendant's Written Submissions [92] - [95].
Further, even if, contrary to the second submission, it is within the power of a House of Parliament to make such a determination, the defendant's case is that this is not, on a proper construction of s 3(2) of the Corruption, Crime and Misconduct Act, a 'matter determinable by a House of Parliament'. The defendant submits that the plaintiff's construction of s 3(2) is so broad in its effect as to make it impossible for the CCC to exercise its powers to compulsorily acquire documents relating to a member or former member of Parliament.[62] It is contended that this supports a conclusion that the word 'matter' as used in s 3(2) refers to matters that would otherwise fall within the ambit of the CCC's investigative powers but for the fact that a House of Parliament has exclusive power to deal with them, that is, matters over which a House has summary jurisdiction under s 8 of the Parliamentary Privileges Act. In other words, the purpose of s 3(2) is to ensure that the CCC does not exercise a misconduct function in respect of matters that constitute a contempt of Parliament.[63]
[62] First Defendant's Written Submissions [28].
[63] First Defendant's Written Submissions [48], [60].
For those reasons the defendant says that none of the notices were invalid and nor was the retention of records beyond the power of the CCC.

The source of parliamentary privilege

The Parliament of Western Australia is established under the Constitution Act 1889 (WA). Section 2 of that Act provides that the Parliament of Western Australia consists of the Queen and the Legislative Council and the Legislative Assembly. Laws for the peace, order and good government of the State of Western Australia are made by the Queen, by and with the advice and consent of the Legislative Council and Legislative Assembly.
The Council and the Assembly have, subject to the provisions of the Constitution Act, all the powers and functions of the previously existing Legislative Council. Section 36 of the Constitution Act provides that it is lawful for the legislature of the Colony (now the State) by any act to define the privileges, immunities and powers to be held, enjoyed and exercised by the Legislative Council and the Legislative Assembly and the members thereof respectively.
The Parliamentary Privileges Act has the long title of 'An Act for defining the privileges, immunities and powers of the Legislative Council and Legislative Assembly of Western Australia, respectively'. Section 1 of that Act provides as follows:
1. Privileges, immunities and powers of Council and Assembly
The Legislative Council and Legislative Assembly of Western Australia, and their members and committees, have and may exercise -
(a)the privileges, immunities and powers set out in this Act; and
(b)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.
The balance of the Parliamentary Privileges Act sets out a number of privileges, immunities and powers, including a power of either House to order any person to attend before the House or before any committee of the House and produce such books, records or other documents in the possession or power of the person. An order to attend may be notified by summons. The Houses of Parliament are empowered to punish summarily for certain types of contempt.
The Parliamentary Privileges Act does not otherwise provide for privilege in respect of the proceedings of Parliament. Accordingly, it is necessary to consider the privileges, immunities and powers of the Commons House of Parliament of the United Kingdom and its members and committees, held by custom, statute or otherwise, as at 1 January 1989.
As at the relevant date, the privileges, immunities and powers of the House of Commons of the UK included those set out in article 9 of the Bill of Rights of 1688. It is common ground that those privileges form part of the law of Western Australia by virtue of s 1(b) of the Parliamentary Privileges Act and that they are not inconsistent with that Act.
Article 9 of the Bill of Rights provides as follows:
Freedom of Speech
That the freedom of speech and debates or proceedings in Parliament ought not be impeached or questioned in any court or place out of Parliament.[64]
[64] Antiquated spellings have been rendered into modern forms.
The historical context of the Bill of Rights is that in 1688 James II was expelled and Parliament invited William, the Prince of Orange, and his wife Mary, daughter of James, to take the throne as joint monarchs. The Bill of Rights was essentially a compact between the new monarchs and Parliament and represents one of the foundation stones of constitutional monarchy. One of the concerns that Parliament sought to address was that during the reigns of Charles II and James II members had been held liable in the courts for things said or done in Parliament. This included the prosecution of a speaker of the House of Commons for authorising the publication of a parliamentary paper that was alleged to have libelled James when he was Duke of York. The immediate purpose of article 9 was to provide protection for members for what they said or did in Parliament from proceedings by the King in the courts that were at that time under his control. Thus, although article 9 expressly refers to courts it was from the Crown that Parliament was asserting its independence and impunity. At that time Parliament had no guarantee that, in a case involving a dispute between it and the Crown, the judges would act otherwise than as agents of the Monarch. [65]
[65] Crane v Gething [2000] FCA 45; (2000) 97 FCR 9 [39]; Lock GF 'Parliamentary Privilege and the Courts: The Avoidance of Conflict' (1985) Public Law 64, 73 - 75; Harders 'Parliamentary Privilege - Parliament versus the Court: Cross-examination of Committee Witnesses' (1993) 67 Australian Law Journal 109 at page 115.

The Corruption, Crime and Misconduct Act - relevant provisions

The main purposes of the Corruption, Crime and Misconduct Act (the CCM Act) are set out in s 7A. They include 'to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector'.
Section 7B provides that the CCM Act's purposes are to be achieved primarily by establishing the CCC. The Act's purpose in relation to misconduct is to be achieved by conferring functions on the CCC and the Public Sector Commissioner. Section 7B(4) provides that 'The Commission is to be able to investigate cases of serious misconduct'.
Serious misconduct is defined in s 3 of the CCM Act to mean 'misconduct of a kind described in s 4(a), (b) or (c); or police misconduct'. Section 4 relevantly provides that:
Misconduct occurs if -
(a)a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer's office or employment; or
(b)a public officer corruptly takes advantage of the public officer's office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause detriment to any person; or
(c)a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years' imprisonment; …
The term 'public officer' is defined in s 3 of the CCM Act as having the meaning given by s 1 of the Criminal Code. Section 1 of the Criminal Code (WA) defines the term public officer as, inter alia, 'a member of either House of Parliament'. The CCC can perform its functions in relation to conduct alleged to have been engaged in by a person who was a public officer at the time of the alleged acts even if the person has ceased to be a public officer - s 6(2) CCM Act.
The serious misconduct function of the CCC is set out in s 18 of the CCM Act. That section provides that it is a function of the CCC to ensure that an allegation about, or information or matter involving, serious misconduct is dealt with in 'an appropriate way'. The way in which the CCC can perform the serious misconduct function is set out in s 18(2), which relevantly provides:
(2)Without limiting how the Commission may perform the serious misconduct function, the Commission performs the function by -
(a) receiving and initiating allegations of serious misconduct;
(b)considering whether action is needed in relation to allegations and matters related to serious misconduct;
(c)investigating or taking other action in relation to allegations and matters related to serious misconduct if it is appropriate to do so, or referring the allegations or matters to independent agencies or appropriate authorities so that they can take action themselves or in cooperation with the Commission;
…
(e)regardless of whether or not there has been an allegation of serious misconduct, investigating whether serious misconduct -
(i)has or may have occurred; or
(ii)is or may be occurring; or
(iii)is or may be about to occur; or
(iv)is likely to occur;
(f)making recommendations and furnishing reports on the outcome of investigations;
….
(h)assembling evidence obtained in the course of exercising the serious misconduct function and -
(i)furnishing to an independent agency or another authority, evidence which may be admissible in the prosecution of a person for a criminal offence against a written law or which may otherwise be relevant to the functions of the agency or authority; and
(ii)furnishing to the Attorney General or a suitable authority of another State, a Territory, the Commonwealth or another country, evidence which may be admissible in the prosecution of a person for a criminal offence against a law of the jurisdiction concerned or which may otherwise be relevant to that jurisdiction.
The powers that the CCC can exercise in the conduct of an investigation are set out in pt 6 of the CCM Act. Those powers include a power to obtain documents or other things from any person by service of a notice. In this regard s 95 relevantly provides:
(1)The Commission may, by written notice served on a person, require the person -
(a)to attend, at a time and place specified in the notice, before the Commission or an officer of the Commission as specified in the notice; and
(b)to produce at that time and place to the person so specified a record or other thing specified in the notice.[66]
[66] The CCC can also issue a summons requiring a person to attend and give evidence and/or produce records or other things - s 96 CCM Act.
The power of the CCC in relation to things produced to it under a notice is set out in s 98, which relevantly provides:
(1)The Commission or a person authorised in writing by the Commission may -
(a)inspect any document or other thing produced before the Commission or an officer of the Commission; and
(b)retain the document or other thing for a reasonable period; and
(c)take photographs or copies of, or extracts or notes from, anything relevant to the investigation.
The CCC has the power to conduct examinations of witnesses under oath for the purposes of an investigation, which may be either private or public - s 137, s 138, s 139 and s 140 CCM Act. But there is no requirement for an investigation by the CCC to include examinations.
A person served with a notice requiring the person to produce records or things under s 95 is entitled to make a claim for legal professional privilege, with limited exceptions which are not presently relevant, as a reason for not complying with the requirement - s 144(2) CCM Act. Whilst this section does not make any specific reference to other privileges, such as parliamentary privilege or public interest privilege, there is no reason to suppose that the availability of those privileges as a justification for non-compliance was intended to be excluded. There is a presumption against any such exclusion unless displaced by clear words or necessary implication.[67]
[67] As an aspect of the principle of legality referred to in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 and Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196.
In any event, any doubt as to whether parliamentary privilege was intended to be excluded is negated by s 3(2) of the CCM Act, which provides:
Nothing in this Act affects, or is intended to affect, the operation of the Parliamentary Privileges Act1891 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.[68]
The interpretation and effect of s 3(2) was in contention between the parties and is one of the principle issues to be determined in these proceedings. That issue will be dealt with later in these reasons.
[68] The last comma appears to be in the wrong place. It should be placed after, not before, the word 'that' - but nothing turns on this.

The distinction drawn in Stockdale has also been referred to in Australian cases. In the High Court in The Queen v Richards; ex parte Fitzpatrick and Browne[118] the issue was the validity of warrants issued by the House of Representatives to take two men into custody for breaches of privilege. Dixon CJ said that 'it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and manner of its exercise'.[119] In the circumstances of that case this meant that the court could determine whether the information contained in the warrants was sufficient in law to amount to a breach of privilege, but if the warrants on their face were consistent with the breach of an acknowledged privilege they were conclusive. The distinction has also been adopted in this State in respect of the Western Australian Parliament.[120]
[118] The Queen v Richards; ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157.
[119] The Queen v Richards; ex parte Fitzpatrick and Browne (162). See also Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 446 (Gaudron, Gummow and Hayne JJ).
[120] Aboriginal Legal Service v State of Western Australia (1993) 9 WAR 297; Halden v Marks (1995) 17 WAR 447.
The distinction might be likened to the distinction in Administrative Law between legal questions as to whether jurisdiction exists and factual questions arising within that jurisdiction. However, such a distinction, whilst workable in many circumstances, does not provide a straightforward answer in others. This is an example of that, as is evident from the different views as to whether the question here was one exclusively for Parliament (as contended by the plaintiff) or exclusively for the courts (as contended by the defendant). Those views can be justified by how the question about the documents is framed. It could be framed as a question about the scope of the privilege (does privilege extend to the type of document) or as a question about the application of an acknowledged privilege (does a document fall clearly within an acknowledged type of protected document).
In truth, the reason there is room for disagreement is that in circumstances where documents are sought in the course of an investigation, the question of whether some documents are protected from production involves a number of inter-related inquiries that do not fall neatly into one category or the other. For example, in the present case the following questions could be relevant:
1.Have any of the documents been tabled or tendered such that they have become part of the proceedings of Parliament?
2.If not, are any of the documents so closely connected to the proceedings of Parliament that use of them could result in those proceedings being impeached or questioned?
3.Is it possible that, given the nature of the investigation and the powers of the body seeking the documents, that they could be used to impeach or question proceedings if produced?
The exercise of determining whether documents are protected by privilege in such a case involves intertwined questions of whether privilege exists in respect of that type of document and whether a particular document falls within that privileged class.
It is perhaps because of the difficulty in demarcating in cases like this that the few previous cases that have touched on the issue have not definitively determined whether the matter is for the courts or the Parliament. In Halden v Marks, in the context of an application for an injunction to restrain a Royal Commission, the Full Court said that it was settled principle that the courts will not intrude on the role of Parliament and will endeavour to regulate their own proceedings so as to avoid doing so.[121] The court accepted that, whilst there were many cases in which the courts had ruled on the privileges of Parliament, they fell into two main categories. First, cases where a question of parliamentary privilege is raised in a case already before the court. Second, where the courts have been asked to review action by Parliament to enforce its proceedings (as in Richards). The implication was that the courts should not, or should not too readily, go beyond these established exceptions. The court said that the relief sought in that case required it to determine the application of parliamentary privilege and to determine whether the Royal Commission would breach that privilege. This would require the court to intrude into the 'exclusive domain of Parliament' to determine whether a contempt had occurred.
[121] Halden v Marks (1995) 17 WAR 447, 462.
The court said that the rule that the courts will not adjudicate in this area, except in the limited circumstances and for the limited purposes mentioned, has been justified by the need to avoid conflict between Parliament and the courts. Further, that whatever the basis for the rule, whether it is truly a question of jurisdiction and power, or merely a matter of propriety, it applied to the circumstances of that case. The court said that to determine the issues raised by the appellant it could not avoid the risk that its decision would differ from the decision Parliament might come to should the same issue be presented to it.[122]
[122] Halden v Marks, 463.
The two categories referred to Halden have different conceptual bases. The conceptual basis for the courts making determinations in existing legal proceedings is necessity. If issues of parliamentary privilege arising in on-going court proceedings had to be referred to Parliament this would cause fragmentation and disruption to the orderly conduct of the business of the courts. Cases would inevitably be delayed, particularly if Parliament was not in session. However, the very fact that the courts have recognised that practical necessity is a justification for making determinations regarding parliamentary privilege is an implicit acknowledgment that the courts have jurisdiction. In these types of cases there is no suggestion that the courts have been confined to only making determinations that also fall into the second category. That is, where determinations of this type are made it is implicit that they must also be susceptible to the jurisdiction of Parliament. The risk of conflicting decisions has not been determinative - rather, that risk has been outweighed by other factors, in particular the importance of cases before the courts not being unnecessarily disrupted. This supports a conclusion that the categories are not necessarily closed and there may be other circumstances in which the weighing of competing factors may justify the exercise of the court’s jurisdiction even though the Parliament may also have jurisdiction in the particular case.
The conceptual basis for the second category is a distinction between legal issues and factual issues. This distinction allows for limited judicial review whilst respecting the jurisdiction of Parliament to manage its own internal affairs. Cases falling into this category rely on it being possible in a particular case to say whether the issue is one going to the scope or existence of a privilege or, alternatively, one dealing with the exercise of that privilege. The obvious example of this is contempt of Parliament. It is for the courts to decide what, at law, can constitute a contempt and Parliament cannot create jurisdiction in this regard simply by asserting it. However, in a particular case it is for Parliament to decide whether or not, as matter of fact, it has been proven that the person has committed the alleged contempt. But (as I have noted earlier) there may be cases where the issue is less easy to characterise as one of law or fact, or may involve considerations that are inextricably mixed.
The plaintiff relies on Halden and says that it compels a conclusion that any determination of whether privilege applied to the documents in this case was one exclusively for Parliament to make. I do not accept that Halden does compel such a conclusion and there are other factors that weigh against it. Halden is not authority for the proposition that the courts only have jurisdiction in the two limited circumstances referred to - the 'rule', if it be properly so described, is that the courts will arrange their procedures to avoid conflict. The considerations referred to are reasons not to exercise jurisdiction, rather than establishing the non-existence of it. Furthermore, the primary concern was to avoid trespassing on an area that fell clearly within the domain of Parliament - that is, whether conduct amounted to a contempt. The court in that case was not dealing with the distinctly different question of whether documents were protected from production. Not only is this an ancillary question to whether any contempt has occurred, it is not one that so clearly falls within the exclusive cognisance of Parliament.
Crane v Gething is a case that is more factually similar to the present one.[123] In that case the Australian Federal Police were conducting an investigation into the use of travel expenses by a Senator. Search warrants had been executed at the Senator's parliamentary and electorate offices and at his home. The Senator claimed that some of the documents seized were protected by parliamentary privilege and sought to maintain that claim in a challenge to the warrants in the Federal Court. The police placed the disputed documents in sealed containers and delivered them to the Registrar of the ACT Supreme Court in Canberra. The Clerk of the Senate was informed and advised the Senator that he had three options for determining whether any of the documents was the subject of parliamentary privilege:
1.To allow the police to have access to the material, wait to see whether any of it is proposed to be used in any legal proceedings and then contest the use of it in those legal proceedings in the court in which they are to take place.
2.Bring an action in a court to seek a judgment that all or some of the material is protected by parliamentary privilege and therefore immune from seizure.
3.Agree with the Australian Federal Police to the procedure whereby a neutral third party examine the material and determine whether any of it is subject to parliamentary privilege.
[123] Crane v Gething [2000] FCA 45; (2000) 97 FCR 9.
French J (as his honour then was), considered the history and scope of parliamentary privilege and then said;
In the end however while these observations may be of assistance to the parties in reviewing their respective positions, they are academic. That is because in my opinion it does not fall to this Court to determine the exercise of parliamentary privilege here. Indeed it does not seem to me that the relevant privilege, if it exists, arises under s 16 at all. The documents in question have been seized pursuant to a search warrant issued under s 3E of the Crimes Act 1914. The issue of the warrants, albeit done in each case by an issuing officer who was a magistrate, was an administrative and not a judicial act. …
The issue of a search warrant therefore differs fundamentally from the issue of a subpoena or the making by a court of an order for the production and inspection of documents or the requirement that a person answer questions. Those are coercive processes of a court. The court can be asked, in connection with those processes, to determine questions of parliamentary privilege that may arise pursuant to s 16 of the Parliamentary Privileges Act and Article 9 of the Bill of Rights which are essentially concerned with the interaction between parliamentary and judicial proceedings. The issue of a search warrant is an executive act in aid of an executive investigation. The investigation may lead to the initiation of criminal proceedings. It may clear the person concerned or yield insufficient evidence to justify the initiation of a prosecution. The issue of a search warrant itself does not commence any judicial proceeding. The production of the documents for which privilege was claimed in this case to the Registrar of the ACT Supreme Court and subsequently to the District Registrar of this Court, does not change the character of the seizure. Whether privilege is to be asserted by the Senate must therefore be resolved between the investigating authorities and the parliament.
It might be thought that the approach outlined above runs counter to the proposition, for which Jacobsen v Rogers is authority, that a claim of public interest immunity raised by a State agency against seizure of documents under a Federal search warrant can be dealt with on judicial review of that warrant. The majority in their joint judgment said in that case:
As is demonstrated by Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 and by this case, if a dispute arises as to the existence of the immunity, means are available to obtain a judicial determination of the issue. In any event, practical difficulties in giving effect to the immunity in the context of the execution of a search warrant would seem to us to be an inadequate reason for holding the doctrine to be inapplicable. (at 589)
The proposition that a court, on judicial review of the issue or execution of a search warrant, can determine claims of executive privilege or public interest immunity in relation to seized documents, does not translate to the case in which a claim of parliamentary privilege is made in respect of the seizure. This is because there is a fundamental difference between public interest immunity and parliamentary privilege. The immunity from production that courts will concede to some official documents is the expression of a self-imposed judicial restraint. It involves a balancing exercise between the interests of the executive in the confidentiality of certain documents and the competing interest in the administration of justice. This may be subject to principles conferring near absolute immunity on cabinet papers -Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604.
The sources of parliamentary privilege in the Commonwealth parliament are the Constitution, the Bill of Rights and the Parliamentary Privileges Act. Those sources, while partly codifying the privilege through s 16 leave in place other elements of the powers, privileges and immunities of the House of Commons of the United Kingdom at the establishment of the Commonwealth. But whatever the full content of parliamentary privilege it does not derive from judge made rules nor does it depend for its application upon any exercise of judicial discretion. While the law of parliamentary privilege may properly be applied by the court in judicial proceedings where the privilege impacts upon the exercise of the court's jurisdiction and powers, it is not, in the ordinary course, for the courts to decide questions of privilege as between the Executive and the Parliament in litigation between the subject and the executive. …
As senior counsel for the third respondent said, there are few occasions when any person comes to the court simply seeking to vindicate a privilege of parliament where it is not incidental to some pending cause before the court. Counsel characterised this application, insofar as it related to parliamentary privilege, as an attempt to enforce through the court a claim for privilege, a course not done or permitted in the past. Counsel submitted that if the claim is to be advanced or vindicated then it should be done by the parliament and in the parliament. Counsel for the President of the Senate had no instructions on the question whether the court was an appropriate forum for the ventilation of the privilege issue, but submitted that that was really for the court to decide. No submission was made on behalf of the Senate on the question whether parliamentary privilege under s 16 of the Act could be invoked in relation to the search and seizure of documents pursuant to a search warrant. As is apparent, I agree with the thrust of the submission made by counsel for the third respondent. Where documents the subject of a claim of privilege on the part of a House of Parliament are tendered in a court in the context of a prosecution or other proceeding the court may have to decide the question for itself, applying the provisions of s 16. But the subject documents, being seized in aid of a lawful administrative investigation, the claim for privilege in respect of them does not arise under s 16 and does not otherwise fall for determination by the court in this litigation.[124]
[124] Crane v Gething [45] - [49].
These reasons are deserving of the utmost respect and strongly support a conclusion that the courts should not exercise jurisdiction to determine disputed questions of privilege arising in respect of executive actions, such as search warrants, as opposed to court proceedings. However, the distinction made for executive actions is less convincing when dealing with a body such as the CCC which has power to make and publish findings and opinions about the conduct of public officers. Furthermore, French J did not go so far as to say that the courts did not have jurisdiction to determine issues of parliamentary privilege and referred to the considerations of comity noted in Halden and the desirability of avoiding conflicting decisions. Whether those considerations justify the courts not exercising jurisdiction must be influenced by the views of Parliament as to whether this is something that falls within its exclusive cognisance. As noted earlier, the Clerk of the Senate had suggested that one course of action was to bring an action in a court seeking a determination of privilege. That would strongly suggest that the Senate did not view this as a matter exclusively for it to determine.
Reference is made to Crane v Gething in Odgers' Australian Senate Practice, a well-respected authority on parliamentary procedure, in the following terms:
In Crane v Gething (2000) 97 FCR 9, a case involving the seizure of documents under search warrant in the offices of a senator, a judge of the Federal Court found that the court did not have jurisdiction to determine whether parliamentary privilege prevented such a seizure, as the issue of search warrants is an executive act and not a judicial proceeding, and that only the House concerned and the executive may resolve such an issue. This finding was contrary to a submission made by the Senate, to the effect that parliamentary privilege protected from seizure only documents closely connected with proceedings in the Senate, and that the court could determine whether particular documents were so protected This aspect of the judgment was not appealed and is unlikely to be regarded as authoritative. The documents in question were forwarded to the Clerk of the Senate in accordance with the order of the court. The Senate appointed a person to examine the documents to determine whether any were protected from seizure by parliamentary privilege, to return any so protected to the senator, and to provide the remainder to the police.[125]
[125] Odgers' Australian Senate Practice (14^th ed, 2016), 62 - 63.
Furthermore, since Crane v Gething was decided a memorandum of understanding has been entered into between the Australian Federal Police, the presiding officers of the federal Parliament and relevant ministers (MOU). That MOU adopts a procedure similar to that used for claims of legal professional privilege, namely that where a claim is made at the time a warrant is executed the relevant documents will be placed in a secure container and delivered into the safekeeping of an agreed neutral third party. The member then has five working days to seek a ruling on whether the claim can be sustained. The procedure states that 'it is a matter for the Member to determine whether he/she should seek that ruling from a Court or the relevant House'. The adoption of that procedure in the MOU appears to involve an implicit acceptance that the courts have jurisdiction to determine disputes about the application of parliamentary privilege in the context of compulsory processes. I am unaware of any cases where a ruling has been sought from a court pursuant to this procedure, but it would seem churlish for the courts to deny themselves jurisdiction on the basis that Parliament has exclusive jurisdiction when that exclusive jurisdiction is no longer claimed (if it ever was).

There is no memorandum of understanding or agreed procedure in this State at the present time, but there are indications that the Western Australian Parliament accepts that the courts have a role in determining disputed questions of parliamentary privilege in respect of executive actions. In particular, in this case when the search warrant on Mr Edman was executed on 14 August 2019 the President wrote to the Commissioner asking for confirmation that the procedure set out in the 'Commonwealth MOU' would be followed.[126] Since that MOU does not extend to members of State Parliaments, the reference to it is an apparent acceptance that the procedure adopted by it was also appropriate in the present context. As that procedure allows for a claim of privilege to be determined by bringing an action in a court, it must be concluded that the President implicitly accepted that this was an available option. There is no meaningful distinction to be made between a search warrant and a notice to produce in this regard.
[126] Document 51.
The jurisdiction of the courts does not depend on the existence of an MOU. The jurisdiction has long existed independently of any agreed procedures or MOUs. The relevance of any MOU or other statement of intent by Parliament is that it is relevant in determining whether matters fall within the exclusive cognisance of Parliament or not and, if so, whether the court should decline to exercise the jurisdiction.
In my view this leads to the conclusion that where an issue of parliamentary privilege arises in the context of a notice to produce or a search warrant that issue can be determined either by seeking a ruling from the relevant House or by commencing proceedings in a court for a declaration as to whether privilege protects the relevant documents from production or seizure. Where there is real issue as to the extent of the privilege (as will often be the case) the preferable course may be to bring proceedings in a court. My reasons for that conclusion are as follows.
Firstly, there is no rule of law that prevents courts from exercising jurisdiction in respect of such matters. The reluctance of the courts to exercise such jurisdiction is based on the need for mutual respect between the courts and Parliament and the desirability of avoiding conflicting decisions where possible. Secondly, the well accepted and long-existing exceptions referred to Halden show that the determination of parliamentary privilege is not a matter falling within the exclusive cognisance of Parliament. In particular, the exception relating to determination of privilege questions arising in the course of existing proceedings has arisen from practical necessity. The fact that the Houses may also have a power to rule in such cases has not prevented the courts from making rulings. Thirdly, it has always been the proper role of the courts to determine the scope of parliamentary privilege. The compulsory production or seizure of documents are very likely to raise such questions because the boundaries of what constitutes the proceedings of Parliament are not clear cut. Fourthly, the matters falling within the exclusive cognisance of Parliament have changed over time and adapted to meet changing circumstances. One of those changes relates to the increasing powers of investigative bodies and the increasing likelihood that the exercise of such powers will conflict with parliamentary privilege. The indications are that Parliament views the courts as having a role to play in the resolution of such conflicts. Fifthly, the fact that the courts and the Houses have concurrent jurisdiction to determine disputed questions of privilege does not mean that conflicts will necessarily arise. Whilst it is a theoretical possibility, the desirability of avoiding such conflicts would no doubt act as an incentive not to make a second ruling in any particular case.
Where a claim of parliamentary privilege is raised in respect of a notice or search warrant it is open to the affected parties to commence proceedings in a court. This may be by the issuer of the process, the recipient of the process or by Parliament seeking declarations as to whether the documents in question must be produced or are protected from production by privilege. Even in the absence of an agreed procedure the court would have power to make orders protecting the status quo and ensuring that the documents were preserved by being sealed and surrendered to an independent third party or to the court.
In practical terms it is not difficult to see why it may be thought appropriate in some cases to institute court proceedings rather than seeking a ruling from Parliament. Quite apart from the fact that the courts can act with expedition and have established processes for dealing with disputes of this nature, the courts have the advantage of being independent of any vested interests. This may avoid any perception of bias that may arise where Parliament makes rulings in the context of an investigation into the conduct of current or former members of Parliament. However, I do not rely on those advantages to support my conclusion that the court has jurisdiction to determine disputed questions of privilege in respect of compulsory processes, such as notices and search warrants.
Once it is accepted that the power to determine whether documents are privileged is not one exclusively for Parliament then the suggestions that the notices were invalid as requiring Parliament to do something, or to do it within a set time period, must fail. In circumstances where a notice sought a category of documents that included some believed to be privileged, it would be open for the recipient of the notice to commence proceedings in a court to challenge the validity of the notice insofar as it was maintained in respect of those documents. Of course, the privilege is not that of the recipient of the notice but of Parliament itself and it would also be open for Parliament to bring the proceedings if it thought appropriate or to seek to be heard. It would also be open to Parliament, the recipient of the notice and the issuer of the notice to come to an agreement for the resolution of any questions of privilege. As I have noted, protocols for resolving such issues have been formulated in other jurisdictions. Regrettably that is not the case in Western Australia.

Was the determination by State Solicitor's Office valid?

All of this leads to the necessary conclusion that the notices were not invalid on their face. They were not invalid because they did not require the production of privileged documents and it was possible for questions of privilege to be determined prior to the compliance date. However, whilst the determination of whether documents are privileged or not is not one exclusively held by Parliament, it is not a question that can be determined either by the CCC or the recipient of the notice. When that question arose it had to be determined either by Parliament, by the courts or in accordance with some arrangement agreed with Parliament.
The methodology implemented by the Department, with the acquiescence of the CCC, did not fall into any of these categories. The Director General was no doubt in a difficult position, he was under a legal obligation to comply with the notice (insofar as it related to non‑privileged documents) but also under a legal obligation not to produce privileged documents. He was at risk of committing an offence for non-compliance with the notice or breaching the privileges of Parliament and being held in contempt by it. He needed some method of filtering the documents and thereby meeting both obligations. In the absence of any procedure agreed to by Parliament and the CCC the answer may not have seemed obvious.
It was in these circumstances that the Director General sought the advice of the State Solicitor's Office (SSO). Whilst all of the details of that advice are not known, the result was the process that has been described earlier in these reasons. It was not a process agreed to by Parliament or endorsed by a court. In effect it involved the opinions of staff members of the SSO being treated as determinative of whether privilege attached to particular documents. Not only was this not a role that could be properly performed by the SSO, it ran a significant risk that the opinions would differ from those that might be reached by Parliament (as proved to be the case) or the courts. It was not a lawful and proper determination of the question of which documents were covered by privilege.
The suggestion by the Director General that the SSO was independent and could, therefore, make a valid determination of privilege without the concurrence of Parliament was misconceived. It does not fall to the recipient of a notice to develop their own process and then to confer on it the character of being independent. The process here was not independent because the SSO was in the role of the lawyer representing the interests of the Director General and the Department. In any event, as I have said, it had no authority to make binding determinations as to privilege. It could, like any lawyer, give advice to its client. But that advice could not acquire greater authority simply because the SSO was an arm of government or because the Director General had resolved to follow the advice without looking at the documents himself.
No doubt those who developed this process did so in good faith and in an effort to resolve a seemingly intractable impasse. But the SSO does not have the power to make determinations as to parliamentary privilege, any more than does any other lawyer. If the process that was adopted was a valid one it would be open for parliamentarians who received a notice to appoint their own private lawyer to decide questions of privilege - clearly that would not be proper or viable.
If the Director General could not obtain a determination prior to the compliance date then he would have a reasonable excuse for not producing the records, at least to the extent of those in respect of which any possible claim of privilege arose.
Thus the delivery up and receipt of the documents as a result of that process was not lawful because it did not involve a proper determination of the question of parliamentary privilege in circumstances where it is accepted that some, at least, of the documents covered by the notice were so protected.
I note that the Procedure and Privileges Committee has subsequently made rulings as to which documents are privileged, but those rulings do not, of course, rectify the fact that the CCC received the documents (and still retains possession of some of them). Those rulings may, however, be relevant in achieving a final resolution of this matter.

Conclusion and orders

The notices were not invalid. The declarations in that regard sought by the plaintiff will not be made. However, the receipt of the documents and other items on the basis that a valid determination of privilege had been made was not valid. The CCC did not have power to require the production of privileged documents and until a proper determination of which documents were protected from production had been made any documents possibly covered by such privilege should not have been produced. Thus, declarations regarding the receipt of the documents will be made. The documents and related items should be returned to allow for a proper determination of privilege to be made, either by Parliament or by a court, or by way of a procedure authorised by Parliament or a court.
I will hear from the parties as to the precise terms of the orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
13 JULY 2021