Arena v Nader and ANOR S111/1997 [1997] HCATrans 320 (13 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S111 of 1997

B e t w e e n-

FRANCA ARENA

Applicant

and

THE HON. JOHN ANTHONY NADER, RFD, QC

First Respondent

THE STATE OF NEW SOUTH WALES

Second Respondent

For Judgment

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 13 OCTOBER 1997, AT 12.01 PM

(Continued from 10/10/97)

Copyright in the High Court of Australia

HIS HONOUR: I take the following facts from the judgment of the Court of Appeal against which the applicant is seeking special leave to appeal to this Court. The applicant, the Honourable Mrs Franca Arena, a member of the Legislative Council of New South Wales, made a speech in the Council on 17 September 1997 with reference to the Royal Commission into the New South Wales Police. The Honourable Mr Justice Wood was the Royal Commissioner. Mrs Arena read from a newspaper report of 19 March 1996 which said that prominent people would be exposed "in the police royal commission's pedophile inquiry starting tomorrow". The article said that "Premier Bob Carr ... has invited Opposition leader Peter Collins to a private meeting in his office on Thursday at 4 pm to discuss the royal commission". After reading out the article, Mrs Arena's speech continued:

"Did that not give us a lot of hope that things would change? But what happened? The next day Bob Carr's office denied that such a meeting was ever going to take place, but it is fair to assume that a meeting did indeed take place when the furore had died down. There was also another meeting which took place here at Parliament House late the following Sunday between Bob Carr; the General Secretary of the Australian Labour Party, John Della Bosca; party president, Terry Sheahan; and other important figures in the ALP. Are these people going to deny the meeting took place?

I had confirmation by security officers and others unable to talk about it publicly who could testify to it but are in fear of losing their jobs. I believe it was all to organise damage control. Following the meeting with Peter Collins and the late meeting at Parliament House, the Premier met with Justice Wood. What happened at the meeting between Justice Wood and Carr I do not know. No information was leaked, but I am bold enough to presume that an agreement was reached to ensure that people in high places would not be named as it would have been too traumatic for the community to realise how many of its so-called upstanding citizens were involved in criminal activities".

On 24 September 1997 the Special Commissions of Inquiry Amendment Act 1997 (the 1997 Act) was assented to. It inserted into the Special Commissions of Inquiry Act 1983 ("the 1983 Act") a new Pt 4A comprising ss 33A to 33H. Section 33B reads as follows:

"(1) A House of Parliament may, by resolution, authorise the Governor to issue a commission under section 4 authorising or requiring a person to inquire into and report to the Governor and the House on such matter relating to parliamentary proceedings within or before the House or one of its committees as is specified in the resolution.

(2) Each House of Parliament may, by resolution, authorise the governor to issue a commission under section 4 authorising or requiring a person to inquire into and report to the Governor and the House on such matter relating to parliamentary proceedings within or before a joint committee of both Houses as is specified in the resolution.

(3) A resolution referred to in this section applies to the parliamentary proceedings specified in the resolution.

(4) A resolution under this section authorises but does not require the issue of a commission, as contemplated by the resolution, under section 4 by the Governor on the recommendation of the Minister.

(5) Without affecting the operation of any other provision of this Part, but subject to subsection (4), a resolution referred to in this section is effective to authorise the issue of the commission concerned."

Section 33D contains the following provisions:

"(1) A House of Parliament that passes a resolution under section 33B or 33C may, by the same or any later resolution, declare that parliamentary privilege is waived in connection with the Special Commission to such extent as is specified in the declaration.

...

(3) However, a declaration by a House of Parliament under this section waiving parliamentary privilege:

(a) does not operate to waive parliamentary privilege to the extent that it can be asserted by a member of either House of Parliament in relation to anything said or done by the member in parliamentary proceedings within or before a House of Parliament or a parliamentary committee, but

(b) operates to authorise the member to give evidence before the Special Commission if the member chooses to do so, unless the declaration provides otherwise.

..."

Section 33F requires a resolution under ss 33B and 33D to be passed by at least two-thirds of the members of the House present and voting.

On 25 September 1997 the following motion was passed by the necessary majority of the Legislative Council:

"1. That this House resolves under s 33B of the [1983 Act] to authorise the Governor to issue a commission under section 4 of the Act authorising or requiring a Commissioner appointed pursuant to the Act, to inquire into and report to the Governor and this House on the following matters relating to parliamentary proceedings within or before this House as specified below:

(1) Claims made by Mrs Arena in the Legislative Council on 17 September 1997 to the effect that:

(a) a meeting took place between the Premier, Mr Bob Carr, and the Leader of the Opposition, Mr Peter Collins, to plan the suppression of names of individuals allegedly being investigated by the Royal Commission into the NSW Police Service;

(b) the Premier and Justice Wood met and that 'an agreement was reached to ensure that people in high places would not be named'; and

(c) a meeting took place between Premier Bob Carr, John Della Bosca and Terry Sheahan at Parliament House to plan the suppression of the names of individuals allegedly being investigated by the Royal Commission in the NSW Police Service; and

(2) Whether Mrs Arena had any evidence to support these claims which she made under parliamentary privilege.

2. That this House further resolves to declare under section 33D of the Act that parliamentary privilege is waived in relation to any parliamentary proceedings relevant to the conduct of the special Commission of Inquiry, and in particular in relation to the speech given by Mrs Arena in the Legislative Council on 17 September 1997 commencing at 5.27 pm, to the extent necessary to allow the conduct of the inquiry and the report thereon."

By Letters Patent dated 26 September 1997 expressed to be made and issued under the 1983 Act, His Excellency the Governor authorised and required the Honourable John Anthony Nader RFD, QC, to inquire into and report on matters stated in the resolution. The report was to be delivered on or before 24 October 1997.

On 29 September 1997 the Commissioner issued a summons to Mrs Arena under s 14 of the 1983 Act requiring her to attend on 3 October 1997 "to give evidence and to produce any books, documents, writings or electronically stored information in [her] custody or control which relate to" matters which were the subject of her speech in Parliament. Section 22 of the 1983 Act provides that upon failure to attend in answer to such a summons the Commissioner may issue a warrant for the apprehension of the person served.

Mrs Arena as plaintiff commenced proceedings by summons in the Equity Division of the Supreme Court on 2 October 1997 against the Commissioner as first defendant and the State of New South Wales as second defendant. The issue raised by the proceedings is whether the 1997 Act is valid.

The Commissioner, who appears in this Court only to submit to such order as the Court may make, held a brief hearing at which Counsel assisting his Commission ("the Nader Commission") said that he proposed to call Mrs Arena as the first witness.

Mrs Arena's challenge to the validity of the 1997 Act was expedited in the Supreme Court. On Friday last, the Court of Appeal (Priestley, Meagher and Handley JJA) delivered a joint judgment holding that none of the grounds of challenge had succeeded and dismissing the summons. Mrs Arena promptly lodged an application for special leave to appeal to this Court and, as the Commissioner proposed to commence sittings today unless restrained, she applied for an interlocutory injunction to restrain him from sitting until her application for special leave is determined. I heard the application for the injunction on Friday afternoon last and extended the injunction until this afternoon in order to have an opportunity of considering my decision.

The jurisdiction to grant an injunction to preserve the subject matter of an application for special leave is well established, though it is exercised only in exceptional cases. See Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 684; Attorney General (UK) v Heinemann Publishers Australia Pty Ltd [1987] HCA 45; (1987) 61 ALJR 612 at 614; [1987] HCA 45; 75 ALR 461 at 464; Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452 at 459; Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1991] HCA 13; (1991) 65 ALJR 360 at 361; [1991] HCA 13; 99 ALR 417 at 419. In Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 155-156, Mason ACJ said that -

"there are a variety of situations in which the Court, on a proper balance of convenience, will restrain enforcement of a statute in aid of a plaintiff's constitutional right. In arriving at a balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement. And in some cases the balance of convenience may be affected by the Court's perception or evaluation of the strength of the plaintiff's case for invalidity. ... In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires."

His Honour was there speaking of a party's constitutional right to pursue some course of conduct that an impugned statute prohibits. That is not the present case. For reasons that are stated below, the statute impugned in this case concerns privileges of the Parliament that exist not primarily to serve the interests of the applicant or of a class to which the applicant belongs but to serve the public interest. The 1997 Act which affects those privileges has been deemed to be in the public interest by the Parliament which enacted it and its validity has been upheld after argument by a unanimous Court of Appeal. This is not a case in which an individual constitutional right or immunity is opposed to the presumed public interest in the enforcement of a statute. It is a case in which, on one side, reliance is placed on the public interest in the preservation of parliamentary privileges and constitutional limitations on legislative power and, on the other side, reliance is placed on the public interest in the operation of a statute held to be valid by the New South Wales Court of Appeal. To determine the application for an injunction in the present case, it would be necessary for me to evaluate what Mason ACJ described as "the strength of the plaintiff's case for invalidity" in the light of the decision of the Court of Appeal.

If this were a case of protecting a personal constitutional right or immunity, the factors which would tell against the granting of an injunction are powerful indeed. The 1997 Act contains a 6-month "sunset clause" (s 33H) limiting the period in which the Act will operate. An injunction to restrain the Nader Commission from sitting will delay its inquiry into the suggestion made by Mrs Arena that the Premier, the Leader of the Opposition and others who allegedly attended the first meeting met "to organize damage control" and into her presumption that an agreement had been made between the Premier and Mr Justice Wood "to ensure that people in high places would not be named". That inquiry is designed to maintain public confidence in the Executive Government, the Parliament and the Judiciary consequent upon the suspicion of impropriety that must or might have been engendered by Mrs Arena's speech. The inquiry might reasonably be expected to reveal whether there is any - and if so, what - evidence or information available to support the allegations made. A conclusion of that inquiry as quickly as the subject matter permits is clearly desirable.

Moreover, as counsel for Mr Justice Wood pointed out, if the Commission is restrained from sitting, the Judge is denied the forum in which he may speak to repel the allegation by which he has been traduced. A similar observation might be made on behalf of the other interested parties. Of particular importance are the facts revealed in an affidavit filed by Mr Justice Wood in the Supreme Court. It shows that he conducted the Royal Commission into the New South Wales Police Service over a period of four years - a period which, he deposes, "has been an enormous personal strain on me and on my family, particularly my wife." He and Mrs Wood had gone to South America en route to an International Judges Conference and as part of a long holiday "to re-establish our lives." The Judge has had to leave Mrs Wood in South America to return for the conduct of the Nader Commission. This has been distressing for Mrs Wood who awaits the Judge overseas. In these circumstances, the balance of convenience would not favour the granting of an injunction unless an assessment is made that the case for invalidity of the 1997 Act is a strong one. Finally, Mrs Arena offers no undertaking as to damages if an injunction be granted and if she should fail in her application for special leave. If this were a case in which an injunction were sought to protect a personal constitutional right or immunity, the absence of such an undertaking would destroy her application for an injunction.

It follows that, if Mrs Arena's application for special leave to appeal were no more than a step taken to obtain some political advantage, to avoid the risk of political embarrassment or to advance some cause, I should have no hesitation in refusing her application for an injunction. I should do so the more readily as s 33D(3)(a) permits a witness who is a member of Parliament and who is called as a witness before a Special Commission, to give or to decline to give answers to questions relating to anything said or done by that member in parliamentary proceedings.

The application for special leave raises an issue of constitutional importance, namely, whether the New South Wales Parliament has the power to enact a law that affects the privileges of the Parliament. The privileges of Parliament were seen by the House of Commons in 1621 to be "the ancient and undoubted birthright and inheritance of the subjects of England. (See The Commons' Protestation of 1621 noted in Holdsworth, vi History of English Law at 95). No doubt they exist not for the benefit of the members of Parliament but for the protection of the public interest. The freedom of a member of Parliament to speak in the Parliament was protected by Article 9 of the Bill of Rights which declared that that freedom "ought not to be impeached or questioned in any court or place out of Parliament". In Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at 334, Lord Browne-Wilkinson delivering the advice of the Privy Council stated the basic concept underlying Article 9 to be -

"the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect."

Prima facie, the 1997 Act purports to create an exception which permits a member's statement in Parliament "to be questioned subsequently". If this be so, the issue raised by the application for special leave is the existence or non-existence of a power in the Parliament to vary the absolute quality of its privileges and to empower a House of the Parliament to authorise an inquiry into and a report upon the claims made by a member in his or her speech and whether there is evidence to support the claims made.

If the application for an injunction be refused and the Nader Commission proceeds, perhaps to finality, before the special leave application is heard, the purpose of the application for special leave will be gone. To determine the application for injunction in that way, it would be necessary to form a view that the case for denying the Parliament's power to enact a law affecting its privileges is too weak to be considered on an application for special leave to appeal. On a question of such importance to the people of New South Wales, it would not be appropriate to express such a view without the applicant having had a fuller opportunity to develop the argument than was given on the urgent hearing of the application for an interlocutory injunction. The formation of a view as to the strength of the case for denying the Parliament's power should await the hearing of the application for special leave. I do not overlook the sunset clause in the 1997 Act, but that clause is immaterial to the scope of the power of the New South Wales Parliament. As at present advised, that is the central and only question which might warrant a grant of special leave and then only if the case for denying the Parliament's power is sufficiently strong to warrant a grant of special leave.

The political and personal factors which give urgency to the conclusion of the Nader Commission have to be evaluated in the light of the public significance of the issue of constitutional power. Even the personal considerations affecting Mr Justice Wood must be subordinated to the public interest in having those issues canvassed on the application for special leave without a prior, albeit tentative, assessment of their outcome. Having regard to the interruption of the travel arrangements of the Judge and Mrs Wood and the costs incurred in the Judge's returning to Sydney for the Nader Commission, it is to be expected that the State will ensure that they will not be disadvantaged, financially or temporally, in answering the call of public duty.

Counsel for the Honourable the Premier invited me, in the interests of a speedy disposition of the matter, to exercise the power conferred by s 21 of the Judiciary Act 1903 (Cth) and to determine forthwith the application for special leave. I decline to do so. The issue of constitutional power warrants a hearing by a Full Court. But the desirability of a speedy disposition of the matter warrants the abbreviation of the usual practice in dealing with special leave applications.

For that reason, a Full Bench of three Justices will sit tomorrow or on Wednesday to hear and determine the application for special leave. I shall hear the parties as to the actual time of the sitting and as to the directions to be given to ensure that the matter can be argued at that time.

In the public interest, I propose to extend the injunction until the application for special leave is determined.

MR BURBIDGE: May it please your Honour.

HIS HONOUR: Mr Burbidge.

MR BURBIDGE: Your Honour, I would seek that the special application be determined Wednesday rather than tomorrow, really, I suppose, your Honour, largely as a question of logistics but I do not wish to say anything more than that, thank you.

HIS HONOUR: Mr Solicitor.

MR KATZ: Wednesday would be convenient, if it is convenient to the Court, your Honour.

HIS HONOUR: Does any other counsel have any submissions to make? I take it that the parties who sought leave to intervene below will be seeking leave to intervene again. Mr McCarthy.

MR McCARTHY: That is the case in relation to the Premier.

HIS HONOUR: Yes. Do you know what the situation is in relation to the other parties who are interveners?

MR McCARTHY: I would not be sure at the moment, your Honour.

MR K. CUSH: I appear for Mr Collins, but that would need to be clarified, your Honour.

HIS HONOUR: You would need to clarify that?

MR CUSH: I would need to clarify it.

HIS HONOUR: I see. The matter can be heard on Wednesday. There is question of what documents the Court will need and the preparation of summaries of argument, if possible. First of all, as to the documents which the Court will need and an index for those documents. Mr Burbidge, I take it that the originating documents in the courts below are available easily?

MR BURBIDGE: I believe so, your Honour.

HIS HONOUR: That would be what, the summons?

MR BURBIDGE: There were a number of items of evidence, your Honour. I think, in the main, that they are no longer relevant but I would certainly revisit those and ensure that each of those was made available. I rather believe, your Honour, that the totality of the material in the courts below, save for the judgment, I think, are contained in two binders which were delivered to your Honour's chambers or at least to the Registry on Friday last.

HIS HONOUR: That is these binders here: the outline of submissions and the submissions in reply?

MR BURBIDGE: Yes. There are, in fact, two. There is a white one as well, your Honour.

HIS HONOUR: Yes, extracts of authorities.

MR BURBIDGE: Yes. That comprises the material presented by the learned Solicitor-General. I wonder, your Honour, if your Honour were minded to permit me to uplift each of those binders, I would reconstitute them with the totality of relevant material in them and if your Honour wishes the earlier material relating to the factual aspects of the matter to be there as well, then, of course, I should include those as well.

HIS HONOUR: That is a matter, in a sense, for you, Mr Burbidge. I mean, I have expressed the view that I have in relation to the aspect of the matter that might attract the Court on an application for special leave, that is, essentially, the constitutional question, so that the factual matters, if you acceded to that view, would not need to be reproduced, but it is a matter entirely for you.

MR BURBIDGE: Thank you, your Honour.

HIS HONOUR: These books here would need, I think, to be indexed in some satisfactory fashion so that the Justices can find their way around them.

MR BURBIDGE: Certainly, your Honour.

HIS HONOUR: What about additional submissions? Would you have any to make?

MR BURBIDGE: I believe that we would wish to rephrase some of the submissions which are to be found in the written material already, your Honour, but I do not know that there would be any submissions of an entirely different nature, no.

HIS HONOUR: Yes. I might say that there are some authorities which, I think, the Court might be advantaged if counsel were to give some attention to them and I refer to three: Fielding v Thomas (1896) AC 600 at 610; Chenard and Co v Joachim Arissol (1949) AC 127, and the judgment of the Western Australia Supreme Court in Aboriginal Legal Service of Western Australia Inc v State of Western Australia & Anor (1993) 113 ALR 87.

MR BURBIDGE: That will be done, your Honour.

HIS HONOUR: Those might be taken into account if they are thought to be relevant in the course of the preparation of your summary of argument.

MR BURBIDGE: Thank you, your Honour.

HIS HONOUR: Mr Solicitor, have you any additional material that you would wish to place before the Court?

MR KATZ: No, your Honour. Perhaps I am misunderstanding, but was your Honour proposing to take as the summary of argument on the special leave application the written submissions which were before the Court of Appeal and which I understand your Honour has?

HIS HONOUR: No, what I had thought would be done would be that that material, which is already here, would be reproduced just in the interests of urgency, and that counsel would be free to formulate, with such amendments as they saw fit, the written arguments that they sought to make before the Full Court of this Court.

MR KATZ: I see. In those circumstances, I would not expect that we would want to put any additional material before the Court.

HIS HONOUR: Well then, when do you think it would be possible to prepare the summaries of argument for consideration? Mr Burbidge, could that be done on your part by, say, 4 o'clock tomorrow?

MR BURBIDGE: Yes, your Honour.

HIS HONOUR: And could the same timetable apply to you, Mr Solicitor?

MR KATZ: Yes, your Honour.

HIS HONOUR: Mr McCarthy, would you have any difficulty in meeting a timetable of that kind if you were seeking leave to intervene and wished to make any further submissions?

McCARTHY: No, your Honour.

HIS HONOUR: You do not know, I suppose?

MR CUSH: No, your Honour. I hope not, I hope it would be as expedient - - -

HIS HONOUR: Yes. Well, all I can say is that if any parties are seeking leave to intervene, it would obviously be necessary for any summary of submissions to be available to the Court and they should be lodged with the Court by 4 pm tomorrow.

MR McCARTHY: May it please your Honour, in the Canberra or Sydney Registry?

HIS HONOUR: It can be done in the Sydney Registry provided it is not a very lengthy document because they can be faxed to Canberra from there but that might be a matter which can be undertaken in discussion with the Registry officers. I think the Sydney Registry obviously would be the more convenient.

MR McCARTHY: Your Honour, in relation to the hearing, does your Honour envisage this hearing to be in Canberra on Wednesday?

HIS HONOUR: Yes, in Canberra on Wednesday.

MR McCARTHY: And did your Honour have a time in mind?

HIS HONOUR: I was going to raise that with counsel.

MR McCARTHY: Thank you, your Honour.

HIS HONOUR: I take it that it might be convenient for counsel to come to Canberra on Wednesday morning. Having regard to the nature of the matter, it seems to me that the times that are ordinarily limited for special leave applications might be extended if counsel thought it desirable to do so. Would you wish to have longer than 20 minutes, Mr Burbidge?

MR BURBIDGE: I believe I would be assisted by whatever additional time your Honour were minded to permit us.

HIS HONOUR: Yes. What about you, Mr Solicitor?

MR KATZ: I think I would be content with 20 minutes but, of course, I cannot give up any extra that my learned friend is going to get.

HIS HONOUR: I think, in the circumstances, we will extend the time to 30 minutes on the part of the parties to the proceedings and in relation to interveners, their application for leave to intervene, of course, will be considered by the Full Bench and they ought not to expect a time of the same limit, even if leave to intervene is given. Rather, the leave to intervene would, expectedly, be granted on the basis of the written submissions and if there was a need for any short period for oral submissions that time would be expected to be more limited than 30 minutes.

MR McCARTHY: As your Honour pleases.

HIS HONOUR: Would it be desirable to have the time for the hearing fixed for 11 o'clock on Wednesday morning?

MR BURBIDGE: It would certainly be convenient to me, your Honour.

HIS HONOUR: Mr McCarthy?

MR McCARTHY: That would not be inconvenient, your Honour. I was wondering whether your Honour - I am not aware of the schedule for the rest of the day - as to whether it would have been convenient to have had a time later in the day but that may not be of convenience to the Court.

HIS HONOUR: I think it would be desirable, having regard to the nature of this case, to leave the Court with a little time for itself.

MR McCARTHY: Thank you, your Honour.

HIS HONOUR: The matter will be dealt with then at 11 o'clock on Wednesday morning. The injunction, in the meantime, will be extended until 4 pm on Wednesday afternoon.

MR BURBIDGE: If your Honour pleases.

HIS HONOUR: I notice there is no appearance today for Mr Nader but I presume that the submitting appearance still apply and, of course, if Mr Nader were to appear and desire to be heard, then the same time limits would apply as has been indicated in respect of the other parties.

Adjourn the Court.

AT 11.28 AM THE MATTER WAS CONCLUDED