Crime and Corruption Commission v Carne [2023] HCATrans 74 (6 June 2023)

Last Updated: 6 June 2023

[2023] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B66 of 2022

B e t w e e n -

CRIME AND CORRUPTION COMMISSION

Appellant

and

PETER DAMIEN CARNE

Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 JUNE 2023, AT 10.00 AM

Copyright in the High Court of Australia
MR P.J. DUNNING, KC: May it please the Court, I appear with my learned friends MR M.R. WILKINSON and MS S.E.D. SPOTTISWOOD for the appellant. (instructed by Crime and Corruption Commission)

MR J.M. HORTON, KC: May it please the Court, I appear with my friend MR J.P. PEMBERTON for the respondent. (instructed by Gilshenan & Luton Legal Practice)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends MS R.M. O’GORMAN, KC and MR C.J. TESSMANN, intervening on behalf of the Speaker of the Legislative Assembly of Queensland. (instructed by Clerk of the Queensland Parliament)

KIEFEL CJ: I think the parties have been advised that leave to intervene has been granted.

MR T.M. BEGBIE, KC: If the Court pleases, I appear with MR P.J. MELICAN and MS E.H.I. SMITH on behalf of the Attorney‑General of the Commonwealth of Australia intervening. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Dunning.

MR DUNNING: Thank you, your Honours. Your Honours, our principal submission is that the matter can be disposed as shortly of as the – by the operation of sections 9(2)(c), (d), and (e) of the Parliament of Queensland Act, which made both the preparation and the presentation of the report proceedings in the Assembly then by force of section 8, unable to be impeached. Ultimately, our submission is that is how your Honours should dispose of it, but that submission was rejected by the majority in the Court of Appeal, and it is pressed against us in this Court.

Can I briefly take your Honours to how it was ultimately dealt with in the Court of Appeal. May I ask your Honours, please, to take the core appeal book at page 85. Your Honours will see in paragraph [80], there is a reference to the conclusion that it:

was subject to parliamentary privilege –

being:

dependent upon the report being one which was made by the Commission –

and critically at [81]:

However, those facts could not confer parliamentary privilege upon a document made and delivered to the PCCC in purported, but not actual performance of the Commission’s functions. The preparation and delivery of the report, without the operation of section 69, were not acts done in transacting the business of the Assembly or its committee.

Which means what becomes critical is the construction that the majority placed on section 69 of the Parliament of Queensland Act, and that which is urged by the respondent in this Court.

Your Honours, the facts leading to the litigation were essentially agreed between the parties by an agreed statement of facts. They are conveniently set out in the reasons for judgment of Justice Freeburn in dissent in the Court of Appeal – which your Honours will find starting at page 87 of the core appeal book. If I can just emphasise these particular parts of that factual background. There is a complaint made in June 2018, anonymously, that the respondent was engaged in multiple acts of:

“corrupt conduct” under s 15 of the CC Act.

I will take your Honours to 15 in a little while. The investigation pursues – you will see at (g), of paragraph [89], that the respondent is informed of both the disciplinary interview he was invited to and the criminal interview. Subparagraph (j): by the end of 2019 he had received a “show cause” letter. Going over to page 88, subparagraph (n):

The Commission says that it completed the investigation on 3 April 2020 and that no further investigation of the –

respondent, as he is in this Court:

is contemplated by it under the CC Act.

KIEFEL CJ: That was an advice to the Attorney‑General, was it?

MR DUNNING: It was, your Honour, yes. But can I direct your Honours’ attention to subparagraph (r), you will see it in relatively like terms – matters are communicated to the respondent’s solicitors shortly after that.

Then, may I ask your Honour, please, to notice subparagraph (q) – the exchange in June 2020 between the chair of the PCCC and the then‑chair of the Commission – where the chair of the PCCC raises with the chair of the Commission the prospect of a report being prepared under section 69 in relation to this investigation, and to use the chair of the PCCC’s language:

because it seems like, again, a cultural issue, as we have discussed in relation to the earlier matter?”

The response was a tentative one, but that such a report was in prospect. In July of 2020, the respondent resigns as ‑ ‑ ‑

KIEFEL CJ: Could we just pause there for the moment? How do we read the response of the chair of the Commission? The Commission is of the view that it has been:

high profile, and it has been in the media.

And “we” – that is, the Commission:

should articulate some of the concerns –

That is the rationale for the preparation of the report. Is that right?

MR DUNNING: In our respectful submission, no, that would not adequately set out the rationale for it. It was ‑ ‑ ‑

KIEFEL CJ: That is what the Commission is saying.

MR DUNNING: Yes, and it was an oral exchange on the day in response to – and one needs to see it, in response to what had prompted it. In terms of the ascertainment of the purposes, we will come to submit one looks at the structure of the legislation, what was contemplated on the provision of such a report, and then what the Commission does in terms of the preparation of that report and, ultimately, the terms of the report.

The respondent resigned as Public Trustee in July of 2020 and that – as everybody accepted and the courts below brought an end to the disciplinary proceedings. Then, there were further exchanges later in 2020 between the Commission and the appellant’s solicitors regarding the prospect of a report being published pursuant to section 69. On 11 September 2020, one sees at subparagraph (u), at a private meeting between the PCCC and Commission:

the Commission advised the PCCC that the Commission would be seeking a direction under s 69 –

There was then an exchange of further correspondence and, ultimately, the commencement of the proceedings in the Supreme Court for the declaratory relief, and then the PCCC providing an indication that it would not give the direction under section 69 until the completion of the litigation.

Your Honours, in terms of what was ultimately litigated, there was some amendment to the proceedings as initially commenced. Indeed, as I will come to indicate to your Honours, section 332 is, originally, one of the provisions of the CC Act that was pursued at first instance. But could I just give your Honours, please, this reference: core appeal book page 22, paragraph 55, Justice Davis sets out what were the final terms on which the proceedings were pursued at first instance. Your Honours, may I then turn ‑ ‑ ‑

GORDON J: Why is that important?

MR DUNNING: Your Honour, it is ultimately not important. I was more giving your Honours a reference in case you wanted to see ‑ ‑ ‑

GORDON J: Okay.

MR DUNNING: ‑ ‑ ‑ how the proceedings had been framed at first instance. Your Honours, can I then move to the Crime and Corruption Act, because that, ultimately, is what is ‑ ‑ ‑

GORDON J: Sorry, may I ask one question about that before you go on. Is the position there about the denial of procedural fairness? There was not a declaration sought at that point.

MR DUNNING: No, the terms of the declaratory relief were in the form that your Honour sees them set out there.

GORDON J: Thank you.

MR DUNNING: Sorry, no, Justice Gordon, I was incorrect about that. May I direct your attention, please, to paragraph 56 on page 23 of the core appeal book.

GORDON J: I see, thank you.

MR DUNNING: Yes. My apologies. Your Honours, can I then turn, please, to the construction of the Crime and Corruption Act, which your Honours will find in the joint book of authorities in volume 1. If I can, first of all, ask your Honours, please, to go to page 68 of the volume, and section 35.

KIEFEL CJ: I think you can take it that we are working from pamphlet copies.

MR DUNNING: Thank you, Chief Justice, yes. So, can I take your Honour, please, to section 35(1)(a), so that the anonymous complaint which had been received – and complaints themselves are comprehended by section 36(1) of the Act – so, the complaint that provoked this investigation is a kind contemplated by 36. The investigation of that complaint was one of the ways in which the Commission performs it corruption functions pursuant to section 35(1)(a) of the Act.

“Corrupt conduct” is defined in section 15 of the Act. Your Honours will see that, as with many of these permanent corruption commissions, there is quite wide language used to start off with that then has a limiting factor – in the case of the CC Act, by way of illustration, 15(1)(c). So, there is effectively a proviso that the conduct of the kind identified in (a) and (b) must also amount to either a criminal offence or something that would be a disciplinary breach. Your Honours will see a like proviso in 15(c).

GORDON J: Section 15(1) (c) or 15(2)(c)?

MR DUNNING: My apologies, Justice Gordon, 15(2)(c), yes, thank you.

GORDON J: Does 15(2) extend the definition? Is that the way we are to read it? That it expands the definition?

MR DUNNING: Yes, it does. Though, in each case, one cannot ignore the limiting dimension of subsection (c) of each – or part (c) of each of those subsections. So, if I can give the illustrations why, 15(2)(a):

impairs, or could impair, public confidence in public administration –

Now, there are many things that might meet that description, but of those, a good number could never amount to something that would fit within subsection (2)(c)(ii), much less (2)(c)(i). Your Honours, “corruption” included suspected corruption. Your Honours see that at section 22 of the Act – in particular, 22(2), and in the conduct of that investigation of corruption including suspected corruption, the Commission had to have:

regard to its prevention function –

and your Honours see that at subsection 24(g) of the Act. I will come to deal with the prevention function in a little more detail later on but, for present purposes, it was by force of statute a feature of the investigation of the corruption function to have regard to its prevention functions.

GORDON J: Am I right that there are in effect three categories: prevention, crime and corruption functions?

MR DUNNING: Correct.

GORDON J: And that they overlap?

MR DUNNING: Yes.

GORDON J: Thank you.

GAGELER J: I am having difficulty following. We start with section 36, which is the complaint.

MR DUNNING: Yes.

GAGELER J: It is about corruption, I think.

MR DUNNING: Yes.

GAGELER J: Is “corruption” corrupt conduct or is it a broader concept?

MR DUNNING: No, “corruption” is corrupt conduct. So, if I can take your Honours please, to Schedule 2. It is page 426 of my pamphlet copy. Your Honours will see the definition:

corruption means corrupt conduct –

Corrupt conduct in itself is defined to send you back to section 15.

GAGELER J: And then, the Commission picks that up in section 35?

MR DUNNING: Yes.

GAGELER J: And which paragraphs of 35(1) are engaged here?

MR DUNNING: In our submission, your Honour, principally, 35(1)(a), assessing a complaint “involving, corruption made or notified to it”, which would include, we would submit, suspected corruption. We would also notice 35(1)(f)(ii), though it does not rise as directly, but it may, in the course of the investigation, have relevance, and (g).

GAGELER J: How do we get to section 24 in that context?

MR DUNNING: We get to 24, Justice Gageler, by 24(g). So, rather than it being in the part dealing with corrupt conduct, in the part dealing with prevention, it has that cover‑all – my language – provision.

GORDON J: Is that the only provision that identifies the overlap?

MR DUNNING: No, we would also reference 24(b) in that regard, Justice Gordon, and, indeed, (c), (d) and (i).

GORDON J: Thank you.

MR DUNNING: Thank you. Your Honours, to save us turning back, if we are still at 24, can I also ask your Honours please to notice this aspect of section 23, where it is stated in terms that it has a “prevention function” which is:

helping to prevent . . . corruption.

Can I then take your Honours, please, to the purposes of the Commission, section 4, page 27. Might I inquire, is my pagination the same as your Honours in the pamphlet copy?

KIEFEL CJ: I think so far it appears to be.

MR DUNNING: Thank you, your Honour. So, section 4(1) sets out the main purposes of the Act and may I ask your Honours please to notice subsection (b):

to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector.

So, when we come to construe the Act as a whole, part of its context is that stated main purpose, a matter that was important in Justice Freeburn’s reasons in dissent in the Court of Appeal.

KIEFEL CJ: The Commission here did not make any recommendations touching upon prevention or reduction of the incidence of corruption in the public sector, did it?

MR DUNNING: No specific recommendations.

KIEFEL CJ: There is nothing in the report that related to this.

MR DUNNING: I will have it double‑checked but I do not believe there is something as specific as that, no. Your Honours, by section 7 of the Act, the Commission has primary responsibility for the achievement of the Act’s purposes, to which I have just take your Honours. Your Honours, if I can then return to the corruption functions in section 33 of the Act, page 46 of the pamphlet, and may I particularly ask your Honours to notice these aspects of the legislative scheme. Subsection 33(1):

The commission has the following functions for corruption (the corruption functions)—

(a) to raise standards of integrity and conduct in units of public administration;

(b) to ensure a complaint . . . is dealt with in an appropriate way –

Then at subsection (2) – I might invite your Honours to read subsection (2), rather than read it out to you. May we particularly draw attention to these aspects of section 33. Parliament has seen fit to provide that one of the corruption functions of the Commission is the raising standards of integrity and conduct in units of public administration. When one goes to subsection (2), it has much wider ambit than actual corruption that is found, or not found, because it speaks of investigating:

conduct liable to allow, encourage or cause corrupt conduct –

and likewise in 2(b), “may happen”, at the end. So, Parliament has seen fit to, in expansive language, define the corruption functions. Unsurprisingly, because the purpose of the Commission is those that I have taken your Honours to, and it would have not only a historical role in pursuing historical acts of corruption, but also a forward-looking role to try and prevent or curtail insipient corruption, or those matters that may lay the ground for corruption. One sees that expressed in those parts of section 33 I have just taken your Honours to.

Section 34 sets out some principles for the performing of the corruption functions, and can I direct your Honours’ attention, please, to ‑ ‑ ‑

EDELMAN J: But 33 also is read with 22, is it not?

MR DUNNING: Yes.

EDELMAN J: So that corruption is the suspected corruption as well.

MR DUNNING: That is exactly correct, your Honour, yes.

GORDON J: Just for completeness, “unit of public administration”, section 20, includes, relevantly, the Public Trustee?

MR DUNNING: Yes, it does.

GORDON J: Thank you.

MR DUNNING: Your Honours, can I then direct your attention please to section 34(d), “Public interest”:

the commission has an overriding responsibility to promote public confidence –

• in the integrity of units of public administration –

The statutory language could not, in our respectful submission, be more powerful, and if I may take up an exchange I had with the Chief Justice a little earlier, in our respectful submission, language like this is not consistent with the sort of delimiting of the power to report that one saw in Balog, but rather an indication that the Parliament was looking for the Commission, in the ways that it considered appropriate, to try and promote public confidence, and the making of recommendations is undoubtedly one of them. Critiquing events in the way that happened here, in our submission, is another. That is not without protections. They are at section 332, and I will come to those shortly.

Your Honours, might I also direct you to section 35, which is, “How the commission performs its corruption functions”. I have already taken your Honours – indeed, I hope – I think I have taken your Honours to all of the parts of section 35 that I wish to take you to. Might I then ask your Honours, please, to go to section 46A. I should perhaps start at section 46. Section 46 talks ‑ ‑ ‑

GORDON J: Did you say 36 or 46?

MR DUNNING: No, 46. Sorry, Justice Gordon, section 46 on page 58 of the pamphlet talks about the Commission dealing with complaints. Your Honours, for completeness, can I give you the definition of “deal with”. It is dealt with in Schedule 2, page 428 of the pamphlet, and what your Honours will see is to:

deal with, a complaint . . . or matter involving corruption –

which would include suspecting corruption, not only involves the investigation of the complaint and the gathering of evidence – one sees that in (a) and (b) – but can I ask your Honours also please to notice (e):

take other action, including managerial action, to address the complaint in an appropriate way.

So, when one comes to look at the ways of dealing with a complaint in section 46, it has to be read in light of that statutory definition. Can I then take your Honours, please, to section 46A, page 60 of the pamphlet. That deals with the matters mentioned in section 33(2). I do not need to take your Honours back to it – that is the corruption functions – but it is at page 46 of the pamphlet if your Honours wanted the reference. In respect of 33(2), what 46A provides:

(2) The commission deals with the matter by –

(a) assessing the matter; and

(b) if the commission considers it appropriate, investigating the matter; and

(c) taking the action the commission considers most appropriate in the circumstances having regard to the public interest principle set out in section 34(d).

Which is on page 47 of the pamphlet copy. So, in fact, in the discharge of its corruption functions, the Parliament has charged the Commission with an investigation that is, in every sense, intended to be prophylactic in relation to corruption, suspected corruption, and insipient or potential corruption calibrated to promoting public confidence in the integrity of the units of public administration. In doing so, by 46A(2)(c), it is left to the Commission’s discretion to take the action it considers most appropriate in those circumstances.

There is no controversy that the complaints, themselves, would have met the description of “corrupt conduct” if proved – it is just . . . . . but, if proved, they would have amounted to corrupt conduct. So, there is no issue that the Commission’s power was engaged and, once engaged, the provisions I have just take your Honours to were those which directed and empowered the Commission to act as it did.

Your Honours, might I then move, please, to the Commission’s reporting functions, because it would be peculiar, indeed, if one investigative body, such as the Commission with all of these powers, gave it such a wide remit – instinct – to improve the integrity of public administration and then did not give it the means to communicate that to those who might be advantaged by knowing it or interested in knowing it.

GAGELER J: Can I just ask a question before you do about what is referred to in the facts as the “show cause process”. Is that a particular statutory process, or is that just encompassed within the working‑out of the provisions you have taken us to?

MR DUNNING: It is encompassed in the working‑out and taking of these provisions. I can check, your Honour. I think there is a separate provision in relation to the laws that regulate State employees.

KIEFEL CJ: It is not under the Crime and Corruption Act.

MR DUNNING: No, not under the Crime and Corruption Act.

KIEFEL CJ: It would be under public services provisions, would it not?

MR DUNNING: Yes, correct.

KIEFEL CJ: Could you find those for us?

MR DUNNING: Of course, yes.

GAGELER J: Are they coercive? Is the show cause process coercive?

MR DUNNING: Sorry, Justice Gageler, coercive in the sense that you have to attend an interview.

GAGELER J: I am just asking, is it, in any way, coercive?

MR DUNNING: Well, it is coercive, at least in the sense that if you do not respond – as the respondent did not in this case – you run the risk of it being acted upon, but not coercive in the sense of – as the facts here demonstrate – the respondent was invited to an interview in relation to the disciplinary proceedings and declined to attend. He offered a reason for why he was not going to attend.

KIEFEL CJ: You are not suggesting that the Crime and Corruption Commission has a part to play in the show cause procedures?

MR DUNNING: No, I am not, Chief Justice.

KIEFEL CJ: That was undertaken by the Attorney‑General, I think.

MR DUNNING: Correct, because that was the responsible Department, and the responsible Minister, for the Public Trustee.

KIEFEL CJ: So, it runs in parallel, in effect, to what we are concerned with here.

MR DUNNING: It does. Literally, it runs in parallel. The reason I qualify it in that way is, if one goes back to the definition of “corrupt conduct” that I took your Honours to earlier, there is the obvious prospect of an overlap between the two. So, if I can give your Honours illustration, 15(1)(c)(ii). So, the CCC does not deal with the disciplinary proceeding but the prospect of something that is complained of amounting to:

a disciplinary breach providing reasonable grounds for –

termination is one of the controlling features to the definition of corruption – and I will take your Honours to section 49 shortly – that again shows interplay between the Commission and reporting to particular bodies that would have a relevance to that.

GORDON J: Before you get to the reporting, can I just deal with the factual matter that I cannot clear up. It will be my fault, and I apologise. In the report itself – this is in the book of further materials at page 170, at paragraph 142 and onwards – it identifies that recommendations were made to the Public Trustee’s office by way of letter. That is, separate recommendations of – this is after there is a finding of no corrupt conduct. As I read it, the Commission then reports – reports is the wrong word – it writes to the Public Trustee’s office and says, we have the following recommendations to make notwithstanding the no finding of corrupt conduct.

Do we have that documentation in the book of materials and is that a play‑out of the provisions you have just taken us to? In other words, is that the Commission identifying what it thought was the appropriate response, having completed its inquiry into the corrupt conduct?

MR DUNNING: The answer is yes to your Honour’s second question. As to the first question, I will find out if it is in the materials.

GORDON J: Thank you. So, that preceded any of the reporting that we are now looking at – that step.

MR DUNNING: Yes.

GORDON J: And it says there were 19 recommendations made by the Commission to the Public Trustee’s Office.

MR DUNNING: Yes.

GORDON J: Thank you. Sorry, one more question. Is that usually the way the Commission reports to one of the units of public administration when there is – or is it an available mechanism for it in response to it working out what its response would be to the provisions you have just taken us to?

MR DUNNING: It is an available mechanism, by reason of the provisions I have taken your Honour to, and I will find out – I will get some instructions on the first of your Honour’s questions.

GORDON J: Thank you.

MR DUNNING: Your Honours, before I go to 64, perhaps while we are just on this topic, can I ask your Honours, please, to go to section 49, page 64 of the pamphlet. This was a provision of some importance to the majority in the Court of Appeal. Subsection (1):

This section applies if the commission investigates –

or some other matters:

a complaint about . . . corruption and decides that prosecution proceedings or disciplinary action should be considered.

Then, it sets out a series of reports in subsection (2) that might be pursued. Most relevant for our purposes is 49(2)(f). Subparagraph (a) deals with the prospect of a criminal offence; (b) to (e), as your Honours will see from their language, deal with a different arm of Government.

Returning to the matter – I think it was your Honour the Chief Justice raised with me – about the disciplinary proceedings running in parallel. They are not conducted by the Commission, and so, in that sense, they do run in parallel. But, in fact, there is certain interaction between the Commission and those who would be running those disciplinary proceedings, and that is because the definition of “corrupt conduct” requires consideration of that matter, and if that has occurred and there has been – to use the language of section 49, fourth line, Commission decides that:

disciplinary action should be considered.

Then that takes you to 49(2)(f). In our submission, section 49 ‑ ‑ ‑

KIEFEL CJ: Was it acted upon in this case, or are you just referring to this as a power?

MR DUNNING: No, it was not acted upon, because there was no – sorry, the ‑ ‑ ‑

KIEFEL CJ: No findings ‑ ‑ ‑

MR DUNNING: Referral of the Attorney-General was under 49, yes.

KIEFEL CJ: There were no findings of corrupt conduct, were there?

MR DUNNING: No, there were not. So, the referral had been made to the Attorney-General under section 49, but by – that came to an end by the reason of the resignation. Section 49, in our submission, dealt with a very specific matter, and self-evidently did so, and that is where the Commission had, in the course of its investigation, decided that prosecution proceedings or disciplinary should be commenced, it then provided the machinery for the Commission reporting to the appropriate body to pursue that matter which the Commission had decided would be considered.

GAGELER J: Was section 35(1)(e) engaged? Was this a case where there was – the Commission was dealing with a complaint in cooperation with the Attorney-General?

MR DUNNING: In as much as it made a referral to the Attorney-General, yes, it was being dealt with in cooperation with a unit of public administration, and in so much as it was corresponding with the Public Trustee’s office, in the matter Justice Gordon referred to earlier, it would also ‑ ‑ ‑

KIEFEL CJ: Which part of “dealing with” involves – is it (c), the referral of the complaint?

MR DUNNING: Yes.

KIEFEL CJ: No, it cannot be, because that is:

to start a prosecution or disciplinary proceedings –

so, one needs to be careful, I think, Mr Dunning. If you are saying, in response to Justice Gageler, that 35(1)(e) was engaged because the Commission was dealing with a complaint in cooperation with the Attorney‑General, you needed to identify which part of “dealing with” is involved if there was a mere referral and then it was left to the Attorney‑General.

MR DUNNING: Yes, that is the point.

KIEFEL CJ: So, was it “dealing with” in cooperation or was it not?

MR DUNNING: In our submission, there would be “dealing with” in cooperation. One receives a complaint about the conduct which is allegedly corrupt; the Commission commences an investigation; in the course of that investigation, it decides that consideration should be given to disciplinary proceedings; it then refers to ‑ ‑ ‑

KIEFEL CJ: But the question is, was is it dealing with the Attorney‑General’s Department in cooperation in relation to the complaint or did it simply refer and leave the matter to the Attorney‑General – in which case, it is not “dealing with” in cooperation.

MR DUNNING: It is the latter. In our submission, the expression “cooperation” would be wide enough to contemplate something at that level – that is ‑ ‑ ‑

KIEFEL CJ: It would have to be undertaking some act with the Attorney‑General if it is cooperating, would it not? If you have merely made a referral, how are you cooperating with the Attorney‑General thereafter?

MR DUNNING: Because the cooperation is in relation to the performance of the corruption functions, and if part of that is to refer the subject of the complaint to the appropriate organ to investigate whether disciplinary proceedings should occur, that is cooperation. In our respectful submission, the distinction is this: cooperation does not require to act in concert. It simply requires that – the expression “cooperate” has its ordinary meaning. It does not mean that the Attorney‑General’s Department, in this case, and the Commission had to do something in concert. It would be sufficiently met by the Commission arriving at a point, making that decision and contacting the Attorney‑General so that that part of the investigation that had been provoked could be pursued by the appropriate organ of government.

GORDON J: The reason why the question might be of importance is because, on the statement of agreed facts, it looks as though the Attorney‑General took the action unilaterally to issue the show cause letter.

MR DUNNING: Can I check that, Justice Gordon and confirm that? I had not thought that was the sequence of events.

GAGELER J: I am sorry, Mr Dunning, did you say section 49 is or is not engaged on the facts here?

MR DUNNING: There was a referral to the Attorney‑General. So, that would empower the giving of a report under section 49, but whether that happened and how it happened was not something that was litigated between the parties. It was not an issue that arose in these proceedings. It was no part of anyone’s case that there was a report under section 49. The case was conducted on the basis that the basis of the report was section 64.

GORDON J: So, although 49 was a power referred to by the majority below, one takes it as part of the context of the Act, rather than anything else.

MR DUNNING: Correct.

GORDON J: Thank you.

MR DUNNING: Your Honours, might I then please turn to section 64, which is the reporting power on which we rely. And your Honours will find that on page 76 of the pamphlet. Can I ask your Honours please to notice these aspects of section 64: by subsection (1) the Commission is given choice in relation to reporting in the performance of its functions. If it chooses to report, subsection (2) sets out what the content of that report should look like, and including subsection (4) which provides that:

The Commission may also include in a report any comments it may have on the matters mentioned in subsection (2)(b).

Which is the objective summary for and against making a recommendation. And we particularly ask your Honour to notice “oppose or are otherwise relevant to recommendations”.

GORDON J: Sorry to be really slow, Mr Dunning.

MR DUNNING: Not at all, Justice Gordon.

GORDON J: Does the letter of 23 April, which we have not got, is that a section 64 report giving rise to the recommendations that are apparently contained in it?

MR DUNNING: Your Honour, can I find that out? I have been shown a passage that actually deals with this issue. I would just like to, if I may, at the morning adjournment ‑ ‑ ‑

GORDON J: Okay. I apologise.

MR DUNNING: No, not at all, I am sorry.

KIEFEL CJ: Perhaps that can be done over the morning break which is coming up. You could perhaps look at that over the morning break.

MR DUNNING: Yes, that was my intention. Thank you, your Honour. Your Honours, may we then turn, please, to have a look at how ‑ ‑ ‑

KIEFEL CJ: Just before you do, Mr Dunning, while we are on the question of reports or recommendations, there was only one report here, is that – factually, there was only one report – that provided to the committee?

MR DUNNING: Yes, correct.

KIEFEL CJ: And copied to the respondent?

MR DUNNING: Yes, an earlier iteration.

KIEFEL CJ: There was a draft and then there was a final?

MR DUNNING: Yes.

KIEFEL CJ: And that is the only report that was ever produced?

MR DUNNING: Yes. Now, your Honours, can I then take you, please, to how the majority dealt with this issue and can I ask your Honours please to take up the core appeal book, and may I ask your Honours, please, to go to page 67 of that book. The reasons of the majority, Justices McMurdo and Mullins, as her Honour then was, start at paragraph [1] on the previous page, but can I particularly draw your Honours’ attention to these paragraphs, which our ultimate submission will be sitting consistently with the statutory architecture I am taking your Honours to. At paragraph [6] on page 67, their Honours say that upon the resignation:

the task of the Commission in dealing with the complaint of corrupt conduct was apparently performed.

That succinct statement of approach is borne out later on and expanded upon in the reasons for judgment yet, in our respectful submission, the provisions I have just taken your Honours to indicated that Parliament had entrusted a wider role to the Commission that was not spent simply upon the disciplinary proceedings coming to an end and, in this case, there being no criminal proceedings. Can I ask your Honours, please, then, to notice paragraph [15] on page 68, and this lay at the core of the majority’s reasons. The second line:

In essence –

this being why the appeal should be allowed:

is because this is not a report of a kind to which section 69(1)(b) applies, because it is not a report which has been made by the Commission in the performance any of its of its statutory functions. Section 69 is not itself the source of a further power or duty of the Commission to report –

Now, we would accept that:

and the Commission’s relevant function, namely its corruption function, having been performed, the Commission was not empowered or required –

and their Honours go on. Can I then take your Honours, please, to paragraph [19] and in the fourth line:

By s 23, the prevention function is concerned with prevention of . . . corruption. This is not a broader function of helping to prevent conduct by senior public servants and public officials which might be considered to fall short of a standard to be expected of them, but where that conduct does not constitute . . . corruption.

I am ignoring “major crime” for obvious reasons. Your Honours, about five lines from the bottom:

And again, each of the powers in s 24 is exercised for the purpose of preventing . . . corruption.

Now, in our respectful submission, the provisions I have taken your Honours to indicate a much wider statutory remit for the Commission than that identified by the majority.

GORDON J: I am sorry to come back to it, but the bottom of [19] was where I picked up, I think, the view they had formed was that the letter of 23 April that had gone to the Public Trustee had performed its function of reporting by recommendation already – and that is why it was not necessary for the further report. Is that the way I am to read that reasoning:

As the Commission wrote to the Attorney‑General in April 2020 –

and I would add, it would appear also to the Commission, to the Public Trustee’s Office – in a sense, they had done their reporting.

MR DUNNING: That is the Court of Appeal’s case – that is the majority’s characterisation of it.

GORDON J: Thank you.

MR DUNNING: Yes, consistent with the notion that it was spent upon – the trial was spent upon the resignation and therefore the show cause coming to an end. May I take your Honours, please, to paragraph [26] on page 72. Their Honours deal with the argument again pressed by my side in this Court in relation to the function set out in section 33, in the third line:

But that does not mean that the Commission has a wider function to do whatever it believes would be likely to promote a standard of conduct to be expected of senior public servants and public officials, beyond raising those standards above a level at which conduct is corrupt.

I will naturally not rehearse before your Honours all of the provisions I took you to, but can I simply remind your Honours of section 4(1)(b) of the Act, which says:

The main purposes of this Act are –

. . .

(b) to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector.

so, improvement was part of its statutory charge. Your Honours, can I then please take you to paragraph [56] of the reasons of the majority, and in particular, your Honours, about six lines into that paragraph:

As we have discussed, it is not the Commission’s function to adjudicate upon allegations of corruption. Having investigated a complaint of corruption, the task of the Commission is to decide whether prosecution proceedings or disciplinary action should be considered. If it decides that such proceedings or action should be considered, it may report, not publicly, but to a prosecuting authority, a head of jurisdiction or the chief executive . . . Otherwise, there is no provision by which it is to report.

Now, in our submission, that is a confined operation for the Commission not borne out by the provisions that I have taken your Honours to. Can I then ask your Honours please to notice ‑ ‑ ‑

KIEFEL CJ: But you would agree that there is no public reporting as part of its function?

MR DUNNING: No, in fact, in our submission, that is one of the great misnomers that has featured in the way the case is, we would respectfully submit, run by the respondent. But publication is an incident of how Parliament organises itself, and to the extent section 69(5) to (7) deal with publication, it is simply to harmonise the position with the Parliament and to make sure there is no difference between a report directed to be given to the Speaker between when the Parliament is sitting and when it is not. I will come to deal with 69 in some detail. So, in our submission ‑ ‑ ‑

KIEFEL CJ: I think we might be at cross‑purposes.

MR DUNNING: Sorry, your Honour.

KIEFEL CJ: That might be how tabling of a report is dealt with under section 69. I do not think you have relied upon that as part of a reporting function. But at paragraph [56], the Court of Appeal is saying that it does not – it is not part of its function to report publicly, that is, itself, to report publicly. You do not have any difficulty with that?

MR DUNNING: No, we have no difficulty with that, no.

KIEFEL CJ: So, the Court of Appeal is saying it is confined to reporting to “a prosecuting authority”, which would be the Attorney‑General, one would assume, or the DPP, directly.

MR DUNNING: DPP.

KIEFEL CJ:

a head of jurisdiction or the chief executive officer of the relevant unit of public administration –

that is where recommendations will be made. Is there anything that the Court of Appeal has missed there?

MR DUNNING: No, in respect of section 49, that is correct, but sections 64 and 69 are in a different category. The Court of Appeal ‑ ‑ ‑

GAGELER J: So, Mr Dunning, in relation to section 64(1), you have to find the Commission performing one or more of its functions, as I understand it ‑ ‑ ‑

MR DUNNING: Yes.

GAGELER J: ‑ ‑ ‑ and then, in so doing, it can report. Which precise functions is the Commission performing in proffering this report?

MR DUNNING: Certainly. It is dealing with its corruption functions. In section 33, the investigation it was conducting was in the course of its corruption functions. In terms of reporting on the performance of its functions, we would call in aid 31(1)(a) ‑ ‑ ‑

KIEFEL CJ: Sorry, section 31 ‑ ‑ ‑

MR DUNNING: Sorry, 33. My apologies.

KIEFEL CJ: Section 33(1)(a).

MR DUNNING: Sections 33(1)(a), 33(2)(a)(i) and (b), 34(d), and by operation of 24(g) ‑ ‑ ‑

KIEFEL CJ: I am sorry, I missed that last one.

MR DUNNING: Section 24(g). By operation of 24(g). Picking up 24(b), (c), (d), and (i). Sorry, your Honours, I may not have given you a reference to 33(1)(b), as well.

GAGELER J: It is out of 35, ends in 33.

MR DUNNING: Sorry, your Honour?

GAGELER J: In proffering this report, we have moved beyond 35. Section 35 is not the function being performed – or it is?

MR DUNNING: Oh, sorry, it is ‑ ‑ ‑

GAGELER J: Yes.

MR DUNNING: ‑ ‑ ‑ because the – what emerges out of the assessment of the complaint in 35(a) then takes one to 35(f) and 35(g).

KIEFEL CJ: But that is how it performs its corruption functions. It is not itself a corruption function. Section 35 deals with how it goes about the corruption functions, it is not to identify the function itself.

MR DUNNING: No, that is why I had ‑ ‑ ‑

KIEFEL CJ: You are really left with 33, are you not? And read by reference to the principles stated in 34, if needs be, but it is really 33.

MR DUNNING: It is essentially 33, and that is where I started, but one should not ignore how 24(g) picks up the prevention function, particularly when one reads that with the objectives of the Act. When one talks of a corruption function, it is not possible to divorce the execution of the corruption function by the Commission from ‑ ‑ ‑

KIEFEL CJ: So, it is corruption and prevention function.

MR DUNNING: Yes.

GORDON J: I keep going back to it. We have already had the report to the Public Trustee which would fall within the same reporting functions. So, they are the same functions for both the report to the Public Trustee and now this report?

MR DUNNING: Yes. So, the Commission might make more than one report. Perhaps, if I pick up that to illustrate the point. In the execution of its functions and the powers that Parliament has entrusted to it to decide how best to pursue its corruption functions and preventative function, it might – as it did here – provide a report directly to the Public Trustee as to ways in which it might improve at an operational level what it is doing and it might, similarly, provide to the parliamentary committee for the parliamentary committee to decide – not the Commission – whether there should be a referral of that report to the Speaker.

Your Honours, may I return, please, to the majority judgment at paragraph [58] on page 80 of the core appeal book. Your Honours will see that their Honours return to this reasoning that:

the Commission’s corruption functions do not extend to addressing conduct which, whilst falling short of a proper standard of performance, is not corrupt conduct. The Commission’s function of raising standards of integrity and conduct in units of public administration is one of its “functions for corruption”.

Then, if I can take your Honours, please, to – their Honours refer in paragraph [59] to “dealing with” – and will take your Honours to the definition if we go over the page:

By providing this report, the Commission would not be addressing the complaint. The Commission has already addressed the complaint: it has completed its investigation and the outcome is that there will be no criminal or disciplinary proceeding.

In our respectful submission, that starkly demonstrates the limited operation, contrary to the breadth of the provisions of the Act that I have taken your Honours to, that the majority proceeded on. It is, in our respectful submission, not right, as the majority held, to conclude that the Commission’s functions were completed simply upon the ascertainment of whether there should or should not be criminal or disciplinary proceedings recommended.

KIEFEL CJ: The foreword of the report that is set out at paragraph [58] of the Court of Appeal, what is the standard expected of them? It is not a reference to corrupt conduct, is it, because there is no finding.

MR DUNNING: No.

KIEFEL CJ: It is a standard which relates to public servants and public officials in the performance of their office more generally, is it?

MR DUNNING: Yes, and it is a foreword that is referable to the body of the report, and it was the foreword that had not been shown to the respondent. But it was, in effect – as forewords are – an epitome of what was set out in more detail in the report itself. Your Honours, can I give you, please, two other references in this regard. Paragraph [67] of the majority’s judgment, page 81:

The Commission performed its corruption functions by itself dealing with this complaint.

It then sets out the manner which:

There was no other action to be taken by the Commission to address the complaint.

That led to the conclusion one sees at paragraph [68]. Now, your Honours, in fact, during the course of the investigation and prior to seeking any direction from the Commission, the respondent did have protections under the Act and, in particular, section 332. Can I take your Honours, please, to the joint book of authorities ‑ ‑ ‑

KIEFEL CJ: What is the relevance of this, Mr Dunning?

MR DUNNING: Well, the complaint ‑ ‑ ‑

KIEFEL CJ: It is what could have been done, but was not done.

MR DUNNING: Because the complaint and the reliance on cases like Ainsworth and Balog is directed at saying there were reputational issues at stake here, and the construction, which the primary judge accepted and Justice Freeburn in the minority accepted, would leave those matters unprotected. The point was simply to make ‑ ‑ ‑

KIEFEL CJ: Was this to go to some discretion about whether a declaration should be made?

MR DUNNING: No, it does not go to that. It goes to, in effect, the contextual argument, as we perceive we are meeting, that one arrives at a construction of the Act about its operation because of concerns around publicity of the report.

KIEFEL CJ: To the effect that you might read certain provisions more strictly because of the effect.

MR DUNNING: Yes.

KIEFEL CJ: I understand.

MR DUNNING: Thank you. Your Honours, can I just give your Honours the reference to it, at page 362. Your Honours will see in section 332, provision is made for somebody who considers – somebody in the position of the respondent who considers the investigation “is being conducted unfairly”, or 332(1)(b):

that the complaint . . . does not warrant an investigation –

to approach the court for relief.

KIEFEL CJ: But that is limited to the stage at which the Commission is investigating.

MR DUNNING: It is. That is correct.

KIEFEL CJ: But we have passed that stage at this point.

MR DUNNING: We have. And the relief one can see is in 334. Your Honours will recollect, from the nature of the omitted application set out in Justice Davis’ judgment that I took your Honours to, that initially that featured in the proceedings but, ultimately, Justice Davis dismissed that and that matter has not been referred to again, because it was decided before Justice Davis on the basis that there was authority that 332 could only be availed of while the investigation was underway and the evidence was the investigation had come to an end. I will not take your Honours to it, but Justice Davis deals with that topic starting at page 55 of the core appeal book, paragraph [168] and onwards with his reasons.

A feature of the case that is put against us and featured in the reasons for judgment is that there was something adjudicative or judicial or quasi‑judicial in the Commission’s investigation or report. Now, in our respectful submission, that is contrary to what this Court held in Today FM in relation to what reports of this kind in fact do. Can I ask your Honours, please, to go to volume 4 of the joint appeal book, starting at page 859 of the joint appeal book.

GORDON J: What is that document, please?

MR DUNNING: Your Honour, it is the decision of this Court in Australian Communications and Media Authority v Today FM.

GORDON J: Thank you.

MR DUNNING: Joint bundle of authorities, volume 4, page 859. Can I give your Honours, please, the passages at 63 to 64 in the judgment of Justice Gageler, pages 887 and 888 of the joint book; also paragraph 81 of your Honour Justice Gageler’s reasons; also paragraphs 58 to 59 of the joint reasons of Chief Justice French and Justice Hayne, your Honour the Chief Justice, Justices Bell and Keane.

In our respectful submission, consistent with the reasoning in that case, there was nothing in what the Commission was doing here or the report that is complained of, that would meet the description of adjudicative, judicial, or quasi‑judicial ‑ ‑ ‑

KIEFEL CJ: Is that put against you?

MR DUNNING: Yes, it is put against us, your Honour. It is dealt with in our learned friend’s written submissions at paragraphs 67, 68, and 72, and it appears to have been of some importance to the majority. Can I take your Honours, please, to paragraph 34 of the majority’s reasons on page 74 of the core book, where their Honours’ second sentence:

Its role is to investigate, and not to adjudicate upon the merits of the complaint.

And, likewise, if I can take your Honours, please, to paragraph 56. I think I have taken your Honours to the passage already, but line 6:

As we have discussed, it is not the Commission’s function to adjudicate upon allegations of corruption.

Your Honour, the decision in Balog is put against us. In our respectful submission, it is disposed of as shortly as appreciating the difference between the statutory regimes in question. Can I ask your Honours, please, to take up volume 4 of the joint book of authorities, and can I ask your Honours, please, to go to page 895 of that book, in the decision of the judgment of the Court, which is Chief Justice Mason, Justices Deane, Dawson, Toohey, and Gaudron.

May I ask your Honours, please, to go, first of all, to page 630 of the report, 900 of the joint appeal book. At the foot of that page, their Honours set out the relevant statutory provision in the ICAC legislation; it was section 74. Can I ask your Honours, please, to notice these aspects, 74(1):

The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation.

Section (4) provided the furnishing of it to the presiding officers. And then (5):

A report may include a statement of the Commission’s findings as to whether there is or was any evidence or sufficient evidence warranting consideration of –

and then it enumerates certain topics. Went on to go and consider the extent of the reporting remit to the ICAC, they say this – if I can take your Honours, please, to page 633 of the report, 903 of the book, middle of the page:

Moreover, the quite guarded way in which s. 74(5) is phrased lends support to the construction for which the appellants contend.

And their Honours expand on why it was guarded. In the next paragraph:

If the legislature had intended, by allowing or requiring the Commission to report, to confer upon it a power to express a finding concerning the criminal liability of a specified person, then it would have been unnecessary to include sub‑s. (5) –

KIEFEL CJ: This is quite different legislation.

MR DUNNING: Completely, and in that case, your Honours, can I simply give you these other references – page 634, starting at about point 4 on the page:

It would at least be consistent with that concern to conclude that the relevant limits of s. 74 are defined by sub-s. (5) –

through to the end of the next paragraph, and at the foot of that page – the last word on the page, in fact, “moreover”, and the whole of that paragraph. Balog was a case decided in terms on the basis of its ‑ ‑ ‑

KIEFEL CJ: Particular provisions.

MR DUNNING: Correct. It does not ‑ ‑ ‑

KIEFEL CJ: Section 74(5) is not a provision found in the Act here.

MR DUNNING: No, or even closely aligned to it, we would submit. Is that a ‑ ‑ ‑

KIEFEL CJ: That might be a convenient time, Mr Dunning. The Court will adjourn for fifteen minutes.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

KIEFEL CJ: Yes, Mr Dunning.

MR DUNNING: Thank you, your Honours. Your Honours, can I just deal with a couple of matters that arose before we broke. Justice Gordon, in answer to your question, the letter to the Public Trust Office of 23 April 2020 is not in evidence but we are having copies made, should it be convenient to receive a copy. But the substance of that recommendation is set out in the draft report. It is in the respondent’s book of further materials, starting at page 170 of that book, starting at paragraph 142, under the heading, “Recommendations to PTO” – I am sorry, the final report.

Your Honours will see the response of the Public Trust Office referred to at paragraphs 150 and 151. In terms of the suite of powers that were given to the Commission, in our submission, properly characterised, in the performance of those tasks under section 35(1) – including as 24(g) picks that up – one receives the referral to the Attorney‑General under section 49(2)(f) – I have already taken your Honours to the provision, I will not take you it again ‑ ‑ ‑

GORDON J: Where do I see that, did you say?

MR DUNNING: If I can ask your Honours, please, to go to – still in the respondent’s further bundle – page 166, to paragraph 97, at the top of that page.

GAGELER J: In your submission, are we allowed to draw inferences of fact from this document?

MR DUNNING: Yes, because it is the basis upon which the parties have litigated the proceedings and the person who is proffering it is the respondent and, as the applicant, I am adopting it. So, in those circumstances, your Honours could draw those inferences if, ultimately, they ‑ ‑ ‑

GAGELER J: I am really alluding to your parliamentary privilege argument.

MR DUNNING: I understand, your Honour, which I intend to move to promptly. So, your Honour, there was ‑ ‑ ‑

GORDON J: So just so I am clear, I just want to make three facts and then I am clear. So, the Commission completes its investigation on 3 April 2020. I am looking at the core appeal book 88, subparagraph (n).

MR DUNNING: Yes.

GORDON J: Then it takes three steps: it writes to the Attorney‑General, consistent with 49(2)(f); it writes to the Public Trustee setting out its recommendations arising out of that investigation; and third, it writes to Mr Carne’s solicitors to tell them the investigation is over and there will be no criminal charges at that time.

MR DUNNING: Well, the CCC is not asking for them to be considered. That is the extent of that ‑ ‑ ‑

GORDON J: I mean to say that is ‑ ‑ ‑

MR DUNNING: Sorry, I did not mean to split hairs, if your Honour ‑ ‑ ‑

GORDON J: So those three reporting mechanisms had taken place in April 2020.

MR DUNNING: That is correct. So, we would say that what the case really involves, in terms of that communicating – leave aside the communications with the respondent himself – that 49(2)(f), which I have just taken your Honours to, the information to the Public Trustee that your Honour has raised with me, in our submission, that is provided under section 24(e) of the Act, which is page 38 of the pamphlet copy, together with section 60, which is page 75 of the pamphlet copy, subsection (2)(a).

KIEFEL CJ: Mr Dunning, given those reports, under section 49, who was there left to report to?

MR DUNNING: Well, there were – when your Honour says who was there left to report to ‑ ‑ ‑

KIEFEL CJ: Yes, who? The prosecuting authority has been – well, taking the Attorney‑General as the prosecuting authority, or a decision was made not to ‑ ‑ ‑

MR DUNNING: Not to prosecute, yes.

KIEFEL CJ: ‑ ‑ ‑ report to the DPP, the chief executive officer of the Public Trustee Office has been reported to. There is no one else, there is no other body in section 49 referred to, to report to.

MR DUNNING: That is correct. For the purposes of the section 49 report, that is correct. But section 64 contemplates that a much broader power to report, reflective of the – and that is the point we lost on below. The majority’s view was the Commission’s functions were spent upon determining whether there should be any recommendation of criminal charges or disciplinary proceedings and there was nothing left to do after that. Now, in our submission, section 64 makes clear that the Commission has much wider functions.

GORDON J: It did not report to the Public Trustee. Was that a section 64 report?

MR DUNNING: No, in our submission, that was a 24(e) and section 60.

GAGELER J: One way of looking at what occurred is in terms of section 33(1)(b). There had been a complaint and it had been dealt with in April.

MR DUNNING: And that assumes that the extent of the Commission’s statutory power in respect of a complaint is to decide two and two only things: should they recommend criminal charges and should they recommend disciplinary proceedings – and for the Commission not to have a function outside that. In our submission, that is just not consistent with the statutory language – just one of the ways in which it would ‑ ‑ ‑

KIEFEL CJ: So, you read 33 and 64 as giving a wider power of reporting?

MR DUNNING: I am not meaning not to respond directly to your answer, Chief Justice, in my submission ‑ ‑ ‑

KIEFEL CJ: Sorry, reporting about complaints.

MR DUNNING: Yes. So, 64(1):

The commission may report in performing its functions.

Those functions include the 33 functions that are not delimited to just questions of whether there should be disciplinary proceedings or whether there should be criminal proceedings, but much, much wider, picking up in turn the ‑ ‑ ‑

KIEFEL CJ: So, you draw a distinction in section 49, which is to do with reports about complaints – the Commission reports general in section 64 are something other than reports about complaints.

MR DUNNING: In our respectful submission, more limited than that. Section 49 is calibrated to deal with the sorts of complaints that ‑ ‑ ‑

KIEFEL CJ: No, section 64 does not have any reference to complaints – it is talking much more generally about reporting, including recommendations to the Police Minister – obviously about crime, and perhaps corruption – more generally in the performance of its functions. What you would have to do is to explain how this report is that kind of report.

MR DUNNING: A section 64 report?

KIEFEL CJ: A section 64 report. And you, in that regard, rely on section 33, as I understand it.

MR DUNNING: Correct, your Honour, yes – and 24 as well, for picking up those functions. If I may just complete the answer – 64(1):

The commission may report in performing its functions.

So, there is an unfettered power to ‑ ‑ ‑

KIEFEL CJ: While it is a Commission that can report – informing its functions – but, relevantly, you would say that the report in reliance on section 64 is – the report in question is not a report about a complaint deal with by the Commission, it is more general, is it not? To come under section 64, it is more generally, in relation to its corruption functions, it is making a report – but it is not making a report about a particular complaint. That is how you would have to frame it, would you not?

MR DUNNING: In our respectful submission, no. So, there is no – sorry, I did not mean to cut your Honour off.

GORDON J: Sorry, I did not hear what you said then.

KIEFEL CJ: No, I am just saying that you seem to be not dealing with the particular matters to which section 49 refers. You are referring to matters more general, but having regard to the complaint in fact made, and somehow running the two together, whereas the Act itself seems to draw a distinction between reports done for different purposes.

MR DUNNING: It does, and in section 49 it dealt with a quite limited set of circumstances calibrated, ultimately, to that. That is, that it is concerned with those part of the discharge of the functions that involve recommending prosecution or disciplinary actions be considered, and says who those reports are to be.

KIEFEL CJ: That is how it deals with a complaint.

MR DUNNING: Well, no. Sorry, in my respectful submission, Chief Justice, no. What it does is, in respect of a complaint, that dimension of the complaint that is concerned with whether there ought to be a consideration of disciplinary charges or criminal proceedings is dealt with in section 49. But there might be aspects of a complaint that raise wider considerations under the Commission’s statutory power, that section 64 gives a power to ‑ ‑ ‑

EDELMAN J: Does that not mean – I mean, is your submission, really, under section 64, that rather than starting with section 33, your starting point ought to be 23? In other words, that although there has been specific complaint in the background here, if one starts with 23 and then goes to 24, 24 can then pick up some of the related corruption functions.

MR DUNNING: I would not resist dealing with that way. In my respectful submission, I do not think it matters whether one starts with a complaint that engages section 33, and because of the operation of 24(g) it then picks up those matters your Honours just raised with me. But either way, the making of a complaint of this character – that is, an allegation of corruption including, obviously, suspected corruption – provokes the corruption functions in 33, and, necessarily, the prevention functions in 23 and 24.

EDELMAN J: But 33 does not really pick up prevention by 24(g).

MR DUNNING: No, it does not. It works the other way, it is 24(g).

EDELMAN J: Yes.

MR DUNNING: Yes.

EDELMAN J: So, you have to be in prevention before you get to 24(g), which then can pick up the aspects of section 33.

MR DUNNING: Yes, but 24(g) says that in performing all of its functions, it has to have regard to the prevention function.

EDELMAN J: But that is part of how it performs its prevention function.

MR DUNNING: Yes.

JAGOT J: As I understand it, Mr Dunning, you are not saying anything more complicated than that section 64(1) sits as an umbrella up the top, you can have various different kinds of reports, complaint, anything else that relates to proper functions. If you get a complaint that fits within 49(1), then you have to comply with it, but that then does not cut off a path if a complaint generates something that does not fit within 49(1). You can do – it is still a report; it is still liable to a direction under 69. Is that how it works?

MR DUNNING: It is. My only regret is I did not say it as succinctly as your Honour has just reflected it back to me, but, yes, that is it exactly.

GORDON J: Can I just qualify that with one other thing. Does that mean, on your argument, that when one reads “functions” in 64, one has to identify what the function is, and here the function is reporting in respect of a complaint that was the subject of and gave rise to a corruption investigation?

MR DUNNING: Yes.

GORDON J: So, chronologically, one still has to find something about which – what is the function you are reporting about, to go back to where we started just after the adjournment – that is, the complaint made against Mr Carne which was the subject of the reporting in the way we have described back in April of 2020.

MR DUNNING: Yes.

GORDON J: That is, report to the Public Trustee with the recommendations, report to the Attorney‑General, conclude with the advice given to Mr Carne’s solicitors that the investigation was over.

MR DUNNING: Yes, but that would not spend the ability of the Commission to be able to report on matters that sat outside. The matters have been dealt with in those three ways.

GORDON J: I am so sorry, could you just say that again? I missed – do you mind speaking up? I did not hear what you ‑ ‑ ‑

MR DUNNING: Sorry, your Honour. That would not spend the Commission’s power if there were other matters that it was in a position to report on that arose from that investigation.

GORDON J: I do not quite understand that submission. Is that to say anything more than your view – that your construction of the words “corrupt conduct” is sufficiently broad that it permits the Commission after the conclusion of the investigation to take further steps, being steps it considers necessary or appropriate?

MR DUNNING: In the form of a report, yes, because ‑ ‑ ‑

GORDON J: In the what?

MR DUNNING: In the form of a report, because that is part of its functions, in terms particularly of enhancing integrity and public confidence in the integrity. Your Honours, can I answer just two other matters that arose before lunch – I think, sorry, one of them I have already answered, and that is the section 49 referral.

Still with the respondent’s book of further material, can I ask your Honours please to go to page 168 of that document? Your Honours will see the heading, “Discussion and recommendations”. The recommendations that are set out there find expression in, for example, paragraph 132 on page 169, and 141 on page 170. But they are in – as is consistent with my answer before the break to the Chief Justice, they are in a more narrative form.

Your Honours, can I then move, please, to the question of parliamentary privilege. Ultimately, we say the case is – sorry. Our submission is that the approach of the majority was in error as to the construction of the Act and that the Commission was empowered to make a report of this kind, consistent with Justice Freeburn’s reasons in the minority and Justice Davis, at first instance. Can I then move to the question of parliamentary privilege, which is, in fact, the position we have taken all along as to how this case ought to be disposed of. Might I inquire, are your Honours using a pamphlet version of the Parliament of Queensland Act? Thank you.

KIEFEL CJ: The answer is, yes.

MR DUNNING: Thank you. Your Honours, the starting point is, in our submission, section 9, which is page 11 of my pamphlet copy. Can I just inquire if that is consistent with your Honours so, hopefully, I give useful page numbers? Thank you. So, if we go to – the Queensland Parliament has seen fit to define what “proceedings in the Assembly” mean. There is a wide inclusive definition in subsection (1) of section (9), which, critically, for our purposes is:

acts done . . . for the purposes of or incidental to, transacting business of . . . a committee.

But, more specifically, in subsection (2) – and, most importantly, in our submission, is (2)(e). “Proceedings in the Assembly” is taken to include:

preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c) –

If we go to (c):

presenting or submitting a document to the Assembly, a committee or an inquiry –

Also, (d):

a document tabled in, or presented or submitted to . . . a committee –

The consequence of a document that meets that description ‑ ‑ ‑

KIEFEL CJ: Mr Dunning, does subsection (1) provide the overall general meaning of “proceedings in the Assembly” and, in particular, by the governing words:

for the purposes of or incidental to, transacting business of the Assembly or a committee.

Must those purposes be present in whatever it is – that is, “acts done” or “words spoken” or what appears in subsection (2)?

MR DUNNING: Yes.

KIEFEL CJ: So, you would then read whatever is further provided in subsection (2), namely:

presenting or submitting a document –

or:

preparing a document –

as subject to the requirement that it be:

for the purposes of, or incidental to, transacting business of the Assembly or a committee.

That must be so?

MR DUNNING: That must be so. And it largely – or entirely, in my submission – finds expression effectively in those terms in any event in the provisions of subsection (2).

KIEFEL CJ: What were the purposes of the committee here in having the document prepared by the Commission?

MR DUNNING: The purposes of the ‑ ‑ ‑

KIEFEL CJ: The committee.

MR DUNNING: The committee? It was in its superintendence of the Commission, but also in the part it plays in the purposes of the CC Act in section 4. That is why it is a matter for the committee to decide whether it will give a referral under – give a direction.

KIEFEL CJ: But the only business that the committee is transacting, then, is considering a referral from the Commission. That is it. What has happened, in fact, is that the Commission says it is thinking of and then it subsequently decides to prepare a report with a view to seeking the committee’s reference for the purpose of tabling.

MR DUNNING: That is right. And the committee’s task is to make the decision.

KIEFEL CJ: So that is transaction of the business of the committee, is to deal with a request from the Commission. That is how you are describing the transaction of its business in question?

MR DUNNING: Sorry, I did not mean to cut you off. I would describe the transaction of its business as, in receiving the report and the request and considering whether it is minded to make a direction or not in relation to the report that has been provided to it, and if it makes that direction, the consequence of it is it will be tabled and therefore communicated to the other members of the House which, in our respectful submission is squarely within – is more than incidental; it really is literally transacting the business of the committee.

KIEFEL CJ: See, the committee itself does not prepare a document, so how does (e) come into it? Because, on what we have just discussed, the committee is not transacting any business by preparing a document because it does not, in fact, prepare a document.

MR DUNNING: No, that is correct. The person who prepares the document is the Commission and so it is:

prepare a document for the purpose of . . . transacting business –

It has prepared a document for the committee to consider, and then, if it is minded to, make a direction that will be tabled. There are two dimensions to that. The first is the committee itself in the discharge of its oversight function is considering the contents of the report.

So, for example, there might be a report of a kind which the Commission takes the view should be tabled and the committee says, look, we think the issues you have raised with us are important; we think we need to keep them under consideration in terms of our oversight of you, but at the moment we are not minded to see them tabled to the rest of the House. And they might have any number of reasons to come into that view. Or they might decide that it should be tabled. So, it is for the purposes the business of the committee, both for its own information and for the committee’s decision as to whether it should be tabled and then thereby circulated to all members of the House – and this, we will come to see ultimately published as a result.

That then takes us back to section 8 and, in particular, subsection (1), that once the preparation of the report is a proceeding in the Assembly, it might not be impeached or questioned. The case is put against us, and was accepted by the majority, that, in effect, the declaration here would not have the impact of impeaching or questioning the report but, in our respectful submission, the declaration made by the Court of Appeal, in fact, did exactly that.

There is no issue, in our submission, of the need for an “appropriative act” as it was called here, because here one has the statutory framework that contemplates that the Commission might prepare a report for the purpose of providing it to the committee, and for the committee to consider then making a direction that it be tabled. So, there is nothing gratuitous about what is occurring here; rather, it is occurring in accordance with a statute that this Parliament has created that contemplates the Commission might create a report for the purpose of providing it to the committee and ask ‑ ‑ ‑

EDELMAN J: Why are you assuming that the purpose must be the purpose of the Commission rather than the purpose of the committee or the Parliament? Section 9 does not say that the purposes must be the purposes of the party that prepares the report.

MR DUNNING: No, it does not, and it is ultimately a question of factors to what the purpose of it was. Perhaps I should more accurately ‑ ‑ ‑

KIEFEL CJ: Otherwise, any document prepared by a third party for those purposes would be covered by parliamentary privilege.

MR DUNNING: Sorry, your Honour?

KIEFEL CJ: If the purposes were those of other than the Assembly or the committee’s, as Justice Edelman points out, any document prepared by a third party thinking that it would be for the use of the Assembly or the committee would be covered by parliamentary privilege, which one would think could not be correct.

MR DUNNING: We do not need to make a submission to that effect. Our submission is simply that there are issues about this appropriative act; in our submission they do not arise here because when one looks at the statutory framework it contemplates that a report of this kind might be created for this purpose.

KIEFEL CJ: Mr Dunning, how does the declaration made by the Court of Appeal that the document in question was not a “report”, how does that impeach – sorry, how does that affect parliamentary privilege in the way with which section 8 is concerned?

MR DUNNING: Because it intervenes to say, in respect of a report that the committee was considering referring for tabling or directing to be tabled as a report of a particular kind that it is not, and it is in that sense that it is ‑ ‑ ‑

KIEFEL CJ: It is just declaring the status of a report. Is that not just something, then, that if consideration is given to parliamentary privilege which might guide the decision, but it does not cut across any decision on parliamentary privilege. It is limited to the status of the particular document – the legal status of the document.

MR DUNNING: Yes, and the legal status of the document is one that the statute has said is to be considered by Parliament in the form of the committee as to whether it gives a direction for tabling or not, and so the Court’s determination of its status ‑ ‑ ‑

KIEFEL CJ: So that is at a point before privilege even arises.

MR DUNNING: In our respectful submission, no, but if the working of the statute is that it contemplates ‑ ‑ ‑

KIEFEL CJ: Yes, I am sorry, you are saying as soon as it is presented to the committee, parliamentary privilege takes effect?

MR DUNNING: No, if it is prepared for the purpose ‑ ‑ ‑

KIEFEL CJ: Well, that depends on whose preparation it is, is it the committee’s or the Commission’s, but putting that aside, at the very least you are saying if it is presented to the committee, parliamentary privilege attaches?

MR DUNNING: Yes.

GAGELER J: And it prevents the court determining the lawfulness of purported statutory action.

MR DUNNING: In respect of that report, yes. It leaves for the Parliament to deal with that.

GAGELER J: Is there any case that has taken parliamentary privilege to the point of saying a court cannot determine the question of the vires of purported statutory action?

MR DUNNING: No. Sorry, in those terms, no, is my answer.

GAGELER J: Big call.

MR DUNNING: Put in those terms, yes.

GAGELER J: It makes parliamentary privilege like a really large privative clause that is capable of being switched on or switched off by parliamentarians.

MR DUNNING: If I may respond, Justice Gageler, to that in this way ‑ ‑ ‑

GAGELER J: Can I add a bit before?

MR DUNNING: Yes, of course.

GAGELER J: Or even worse, by a statutory body that is meant to stay within its statutory charter.

MR DUNNING: Our response, respectfully, is this. To some extent, parliamentary privilege does have a privative operation, if one wants to use the expression “privative”. Another way of expression, in our respectful submission, is it marks the boundaries between the exercise of judicial power and the exercise of legislative power.

No part of our submission intends to say, and I certainly do not believe we have, submitted that the court does not retain the right to construe the relevant legislation to determine whether a privilege of a certain kind is an established privilege. But once that has happened, in our submission, the law is that it is for Parliament to determine the occasion of the exercise of that privilege and not the courts, because otherwise one is necessarily setting up a situation where there is a challenge to the determination of the Parliament in respect of matters that are considered to be within its province.

If we take that proposition back to the circumstances we are presently concerned with, there is no doubt about the legislative competence of Parliament to create something like the Commission in this case. No doubt about its capacity to give it wide powers of investigation and reporting, as the Parliament sees fit. And, in our submission, what flows from that is, unremarkably, the Parliament can, as it has done here, frame an arrangement where it says, look, you have got wide powers of reporting. Those powers include your capacity to prepare a report for us, the committee, and we will then decide whether we give you a direction to table that so that it is tabled to all of the parliamentarians, and whatever else might follow from that.

Our case does not need to go any further than to say that once a regularly enacted statute contemplates that a body like the Commission can create reports for the committee to consider, then, in an unremarkable way it enters into the terms of section 9(2)(c) to (e).

GAGELER J: Let me ask the question another way.

MR DUNNING: Yes, of course.

GAGELER J: Is it within the privilege of the Queensland Parliament to decide conclusively for itself whether a piece of paper answers the description of a “report” within the meaning of section 69?

MR DUNNING: Ultimately, yes. That issue does not arise here because there were concurrent findings of fact that were upheld in the – or were not discharged in the Court of Appeal and there is ‑ ‑ ‑

EDELMAN J: But the premise behind that response is that the report, or the document, purported report or document that is provided is done for the purposes of transacting business of the Assembly or committee if those purposes happen to be the purposes of the Commission, not the purposes of Parliament or the committee itself.

MR DUNNING: In our respectful submission, it is capable of a narrower answer than that. If it is for the purpose of provision to the committee, then that will engage the privilege, just in the way that any Member of Parliament might receive, and receive in circumstances where it will attach privilege, a document by way of information that may not have been lawfully procured or may not be right. It is not, in our submission, the case that one interrogates the orthodoxy of that, because that will necessarily impeach or discourage or hinder the Member of Parliament’s ability to use that document that has been chosen – sorry, in this case I should have said the committee’s power to use that document that it has chosen to act upon.

GORDON J: Can I ask a question, which is a precursor to all of this discussion and debate. Could you identify for me where the committee has the power to call for this report in the first place? I ask that for this reason. If one goes to the committee’s powers actually in the Crime and Corruption Act, it has powers to call for persons, documents or other things, and it then has quite particular powers in order for review. One of them, of course, is to call for a document, being a report which is already in existence, one can imagine.

Where is the power for it to call for this new report? So, if one goes to Part 3 of Chapter 6, Administration, the committee is set up, it has particular functions to monitor and report, its powers are “to call for persons, documents and other things”, it has powers necessary to perform particular functions, and then if there are reports made by the – complaints made about the Commission itself.

MR DUNNING: Our answer, Justice Gordon, is that lies in section 69 of the CC Act, page 80 of the pamphlet copy. I accept it does not, in terms, provide for the committee to make the request, but rather it operates this way. It says that it applies to – this is 69(1)(b):

other report that the parliamentary committee directs be given to the Speaker.

GORDON J: This is a report by the Commission that is in existence, they are saying, we are going to direct it be given to the Speaker as part of our review functions in Part 3, Chapter 6.

MR DUNNING: Yes. Well, it – yes. Now, what it does not expressly set out is the making of the request, but it is, in our respectful submission, unmistakable from the language ‑ ‑ ‑

GORDON J: I am sorry, you say it is available because of what?

MR DUNNING: For this reason, section 64 contemplates a wide power to make reports.

GORDON J: The reason why I raise it is because it also refers in 293 in the note, to take it back to the Parliament of Queensland Act, which itself says, for the purposes of Chapter 3, Part 1, you can call for the attendance or production of documents or other things. It is not a creating of a report mechanism. It is picking up reports and providing for them, consistent with parliamentary privilege, in order to bring them within the parliamentary privilege protection zone. So, I am to read, am I – just so I am clear – I am to read into 69 the ability of the committee itself to make a request for a report to be prepared.

MR DUNNING: No – well, the committee could, but it really contemplates the Commission making the request. The Commission has a – I can turn it up for your Honour, there are other provisions that would give the committee the power to make a request for a report. But, concerned with the present situation, where the Commission in the discharge of its functions has prepared a report under section 64 as it has here, 69(1)(b) picks up that report. So, it:

applies to the following Commission reports –

. . .

(b) . . . other report that the parliamentary committee directs be given to the Speaker.

So, in our submission, it is –

KIEFEL CJ: It has not directed, so.

MR DUNNING: No, it has not yet. No.

EDELMAN J: So, in loose terms, until the processes of the Assembly or the committee are engaged, we are concerned with the processes of the committee – of the Commission.

MR DUNNING: Yes.

EDELMAN J: Why would privilege attach to the processes of the Commission, rather than the committee itself?

MR DUNNING: In our respectful submission, for same reason, if we take the Member of Parliament, staffer, who prepares, in the course of employment, some questions or a briefing note – not asked by the Member to do so – just goes ahead and prepares in the course of discharge of the staffer’s functions, no one would dispute that that is privileged. The reason it is privileged is, when one looks at the objective circumstances in which it was created, it was created for the purpose of transacting parliamentary business. And, in our respectful submission, this would be analogous.

The statute contemplates that the Commission might prepare reports, including those it would ask the Commission to table. I will come to it in more detail when I deal with the tabling provision, but, in our respectful submission, it is wrong to treat tabling as synonymous with publishing, and to seriously undervalue the importance of tabling as the means by which one Member of Parliament, or committee of the Parliament, communicates with other Members of the Parliament. So that, if one takes it back to the instant scenario, whilst we are very focused on publicity, in fact, the direction by the committee under section 69 is the means by which this is disseminated outside the committee and to the Parliament generally against those objectives that I have earlier identified to your Honours.

JAGOT J: Is it relevant to your propositions that you have just been putting that the functions of the parliamentary committee, which are set out in Divisions 2 and 3, are confined, for example – the only express power they seem to have to ask the Commission to give them a report is, for example, 295(2)(a), and then, that is subject to bipartisan support as set out in (3). Is that relevant to your response, I suppose, to Justice Gordon’s question, that they have an implicit or incidental power to section 69 to request a report to be brought into existence? That is, really, what you are saying, as I understand it, they can request that a report be brought into existence by reference to section 69(1)(b), to be subject to a direction, does the things like 295 and Division 3 powers have any bearing upon how you construe 69(1)(b)?

MR DUNNING: In that context, it would, yes. One could start as early as 292(a), because:

to monitor and review the performance of the commission’s functions –

one of the most meaningful ways of doing that might be to call for a report. But our submission in relation to section 69, is that it comprehends – not in that situation – but, what, in fact, happens here, and that is, the Commission has prepared a report; there has been some dialogue with the committee, granted, about it, but – I have taken your Honours to that – the Commission is minded to prepare a report and ask for a direction under section 69.

JAGOT J: Irrespective of whatever the committee might want, you say. I mean, there was that conversation, but you say you can put that to one side, it does not really matter how the – is that you are saying? – it does not matter how the Commission reaches its view; it has decided to prepare a report which it wants to be subject to a direction under section 69.

MR DUNNING: I would not put it that way. I would put it this way: the Commission, in the discharge of functions, has a reporting power under section 64. It knows it has an entitlement to ask the committee to table it if it, in the exercise of its powers, forms the view that that would be something useful. It can go along to the Commission and say, we prepared this report for the purposes of asking you to give us a direction, and the committee then decides whether it should give that direction or not.

Sorry, the only part that I was – what your Honour put to me I was a little concerned about was to accede to the idea that the Commission would do it whether the committee wanted it or not. What the statutory infrastructure contemplates is that the Commission will produce reports, and that it will seek this direction. Now, I accept that section 69 does not lay out the machinery for the making of the request, but it would render 69 otiose unless ‑ ‑ ‑

JAGOT J: The request by the Commission ‑ ‑ ‑

MR DUNNING: For the giving of the direction, yes. So, the reason I am slightly ambivalent about if the committee had requested the Commission to prepare a report, undoubtedly that would, we would submit, be something the committee could do; undoubtedly, it could give a direction in relation to that report. But here, it seems to have been a report that was prepared by the Commission, upon this decision, albeit in consultation, they would prepare such a report and ask for a direction. But what is actually critical here is that the statutory enactment contemplated a wide reporting function and it contemplated that the committee might give a direction in respect of a report made pursuant to that reporting function that would see it tabled and, therefore, shared with the other Members of the House.

GAGELER J: All of that is premised on compliance with the Act. What has been said in the declaration that you say cannot be made is that there has not been compliance with – the document that has been produced does not comply with section 69, and we know from the reasoning of the Court of Appeal that is because it does not comply with section 64. You are saying, as I understand it, that the production of the document – or the intended production of the document – to Parliament prevents an investigation of whether there has been compliance with that statutory scheme that you say exists.

MR DUNNING: In so much as if it is prepared for the Parliament, yes. Ultimately, the Parliament should then judge those considerations, because to make the declaration would practically be to say to Parliament, you should not rely upon that report – but that is ultimately a matter for the Parliament to ‑ ‑ ‑

GAGELER J: No, it is simply saying it is not a “report” within the meaning of section 69 because it has not been prepared by the Commission within its power under section 64. Parliament can do what it likes with the document.

MR DUNNING: And that is the point I was exactly about to make. Let us, if we may, proceed on that posited basis. So, the declaration stands. The committee says, okay, litigation is now at an end; we are still going to table the report. That is, in our respectful submission, exactly why it does involve that impeachment, because it says that report that has been tabled is the same one the Supreme Court of Queensland said was made in breach of power.

JAGOT J: What about 293? I mean, 293 says you can call for any document. It does not matter if it is a report, anything the Commission holds, you can call for. Valid, invalid; legal, illegal; just if the Commission holds it. I am just trying to understand why section 69 is such a big deal if you have 293 anyway. They can call for it. They can choose to table it under the POQ Act provisions. I just have not quite grasped – if you can do that anyway, what is the validity of the report under section 69? What does it do? Anyway.

GORDON J: Can I ask a different question? Why could they not call for the report that you sent to the Public Trustee, which had the recommendations in it?

MR DUNNING: There would be no reason why they could not. Indeed, it had been reported to them in the way that I indicated earlier.

GORDON J: So, one wonders what the purpose of this new report is.

MR DUNNING: The purpose is to table it – to share it among the Members of the House – which will have the consequence of, in this case, published then more broadly – but sharing it among the Members of the House.

KIEFEL CJ: It is to publish to the media. That is what the Commission said. It said the public has an interest. That is what it is about.

MR DUNNING: I do not, respectfully ‑ ‑ ‑

KIEFEL CJ: The Commission’s own words.

MR DUNNING: I do not mean to be repetitious. My response, respectfully, to that is this: to accede to that is to seriously undervalue the importance of one Member of Parliament, or a committee of the Parliament, sharing among the other Members the tabling of the documents. I want to take your Honours to how the tabling provisions work. I hope that will be illustrated ‑ ‑ ‑

KIEFEL CJ: I think we can comprehend that, Mr Dunning.

MR DUNNING: Sorry, your Honour, I was not meaning to be boorish. Justice Jagot, may I return to the question you asked a little earlier? Nothing which your Honour put to me about section 293 I would disagree with, nor does it affect the argument. It is just another, in our respectful submission, exemplification of the fact that those matters that are fairly characterised as being for the purpose of the transacting of the business of, in this case, a committee, enjoy the privilege.

GORDON J: Now you are interrupted, can I just ask one more thing? And then I am going to be very quiet.

MR DUNNING: No, no, of course, Justice Gordon.

GORDON J: What are the other provisions, other than 295(2), which requires bipartisan support, enable the committee to call for the production of a report from the Commission? Maybe you might take that on notice, Mr Dunning and tell me after lunch, if you would not mind.

MR DUNNING: I will, thank you, your Honour.

GORDON J: Thank you.

MR DUNNING: Your Honours, we are now at about item 12 on our propositions. In our respectful submission, the preparation for and presentation to a committee is, in fact, an established privilege, not only by the provisions of section 9 I have taken us to, but also has long been recognised. Can I take your Honours, please, to two authorities. Firstly, Miller, which your Honours will find in volume 6 of the joint bundle, and, your Honours, it starts on page 2077 of volume 6.

Can I take your Honours, please, to page 2115, and in particular at paragraph – sorry, can I just say to your Honours, it is a decision of the Court, and your Honours will see that at page 2098, but the relevant passage is at 2115, paragraph 66, referring to the recent decision in Chaytor, their Honours say that it clearly established two things:

(2) that the principal matter to which article 9 is directed is “freedom of speech and debate in the Houses of Parliament and in Parliamentary committees. This is where the core or essential business of Parliament takes place”: para 47. In considering whether actions outside the Houses and committees are also covered, it is necessary to consider the nature of their connection to those and whether denying the actions privilege is likely to impact adversely on the core or essential business of Parliament –

Then, at 67, adopting a passage out of the 25th edition of Erskine May, towards line F on the page:

An individual member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition –

And we would emphasise these words:

or report from a committee, most of such actions being time-saving substitutes for speaking.”

Can I also ask your Honours, please, to turn up the Criminal Justice Commission decision of the Queensland Court of Appeal, again, volume 6 of the joint bundle of authorities. It starts at page 1796 of the bundle.

EDELMAN J: Which tab is this?

MR DUNNING: Sorry ‑ ‑ ‑

GORDON J: Tab 48.

MR DUNNING: Thank you, Justice Gordon. In paragraph [23], in Justice McPherson’s decision on page 1809, and in particular starting at line 45. And, your Honours, then on page 1812, paragraph [33] – referring to the certificate there – the equivalent of the section 55 certificate here – at about line 32 about the effect of it – then paragraph [34].

Then, your Honour, the reasons of Justice Williams I have just taken your Honours to adopt also the reasons of Justice Chesterman which start at paragraph [37], but the passages that I would like to take your Honours to are at [47] on page 1815. I invite your Honours to read [47] and [48].

KIEFEL CJ: This, of course, is in a rather different context where the committee itself requested the report from the Commissioner.

MR DUNNING: Made the request, yes. And I was about to make the observation that it is factually distinct in that regard, but if the submissions we make about 64 and 69 are accepted – and the operation of them – that factual distinction does not differ in relation to the principle; that is, in this case, the committee had made a request of the Commissioner to prepare the report. In the instant case, the statute contemplated that the Commission might prepare such a report and make a request, and ultimately the distinction in terms of the question of principle involved is, in our submission, not one that matters.

GAGELER J: If you are right about sections 64 and 69, we do not get to parliamentary privilege, do we? You win anyway.

MR DUNNING: Yes, but, in our respectful submission – really, for the reasons in that passage of Justice Chesterman that I just took your Honours to – the proper course is to determine the privilege point first because, otherwise, you are necessarily testing whether the privilege is right. So, if we take that illustration – if we deal with it in that way, you are effectively saying, and as it happens, the Parliament was right as well, and that is ‑ ‑ ‑

KIEFEL CJ: That is where the privilege exists.

MR DUNNING: Yes. And that is the matter in which it would be impugned in the way that it was described. In our submission, once there is an established privilege – and we submit that provision of material like this to a committee is an established privilege – the occasion of the exercise is left to the Parliament. That was decided authoritatively by this Court in Richards. Given the time, I will not trouble to take your Honours to Richards.

The point is picked up again in Egan in a way that is useful, can I ask your Honours, please, to go to volume 4 of the joint bundle? Egan is at page 908 of that bundle and is tab ‑ ‑ ‑

EDELMAN J: Tab 28.

MR DUNNING: Thank you, your Honour. Can I direct your Honours’ attention, please, to these passages: paragraphs 27 and 28 on page 930 of the bundle, 446 of the report. Paragraph 27, in the joint reasons of Justices Gaudron, Gummow and Hayne – and can I particularly ask your Honours, please, to notice the corollary that their Honours identify in the second half of paragraph 27. The same point is picked up by Justice McHugh, paragraph 78, page 466 of the report, 950 of the book ‑ ‑ ‑

GORDON J: So, there are two propositions. The Court can examine the existence of it ‑ ‑ ‑

MR DUNNING: Yes.

GORDON J: ‑ ‑ ‑ but not the manner of its exercise.

MR DUNNING: Correct, yes.

GORDON J: Is there anything else that we get out of this case?

MR DUNNING: No, that is – sorry. And that the rationale for that is to do otherwise is to – that is, to question how Parliament has exercised the power is practically to impeach its outcome.

GORDON J: The Canadians and the English describe it as a merger of the separation of powers.

MR DUNNING: Yes.

GAGELER J: What is a power here? What is the privilege?

MR DUNNING: In the case – in Egan?

GAGELER J: No.

MR DUNNING: In the present case?

GAGELER J: Yes.

MR DUNNING: The privilege is in relation to the preparation of a document for the purposes of the committee and, in our submission, that is an established category of privilege because that is how the committee is discharging the work of the Parliament that it is responsible for.

JAGOT J: Sorry to be obtuse. Are you then coming back to the relevant purpose is the purpose of the Commission, as opposed to the committee or not by saying that?

MR DUNNING: The purpose is the creation of the document. So, yes, the creation of the document for the purposes of transacting the business of the Parliament.

JAGOT J: But that is the Commission’s purpose. I mean, the Commission could, under your idea of section 64 – and 69, to the extent that it is necessary – decide for itself, I am going to create this report for my own purposes, so it does so. Then the parliamentary committee could say, well, actually, we want to direct you to provide that report to us. Is that the point at which – at the time of direction, leaving aside (e) and the purposes of the Commission? So, is parliamentary privilege attracted in that scenario only when the committee asks for the report and wants to deal with it?

MR DUNNING: No. Earlier in our submission ‑ ‑ ‑

JAGOT J: That is the bit I do not get. Why? Because the Commission is deciding to prepare – so it is the third party’s purpose that you are relying on?

MR DUNNING: When we are talking about the third party’s purpose, in our submission, the ultimate enquiry is: was it created for the purpose of the Parliament? And that can arise in a variety of circumstances. One of those will be: the member of Parliament says to somebody, could you go, please, and produce a document for me that deals with this? There is no doubt – and the purpose is because one can see the exchange. At the other end, where we talk about these appropriative acts, it is literally the situation of the stranger who prepares a document, and unless the parliamentarian wants to use the document for parliamentary purposes, it will not enjoy privilege.

EDELMAN J: But, Mr Dunning, it is not – the preparation of the report is not being done by the Commission as an agent for the committee. The Commission is preparing the report on its own behalf, for itself. Purposes – and this comes back to, I think, a question Justice Gordon asked you earlier. You need to identify the power that is being exercised before you can ask for what purpose is that power being exercised, but the power that you are talking about, as I understand it, is a power that is exercised by the Commission on its own behalf. So, it can only be the Commission’s purposes that we are talking about.

MR DUNNING: Our response to that is, respectfully, the Commission does not have purposes outside the discharge of its statutory functions.

EDELMAN J: Maybe not, but that does not stop those purposes being the Commission’s purposes.

MR DUNNING: In our respectful submission, that does not, respectfully, pay adequate regard to the legislative structure we are concerned with here. The legislative structure is one that contemplated the Commission would prepare reports like this and contemplated that it would seek directions of this kind. So one does not have to characterise, in our respectful submission, as a matter of agency; one characterised it as the Parliament choosing that it will set up a body, and it will give the body certain functions, and it will contemplate that the body will provide reports to it which it might decide to see tabled, and it is in that legislative framework that the question of purpose is to be answered.

In our respectful submission, it is not as narrowly answered as saying: did one particular human hold a subjective intention? There is an element of subjectivity to it, but that element of subjectivity, in many cases – this is one of them – is largely determined by the objective circumstances in which the actions took place.

KIEFEL CJ: I see the time, Mr Dunning. It might be convenient.

MR DUNNING: Thank you, your Honours.

KIEFEL CJ: The Court will adjourn until 2.15 pm.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Dunning.

MR DUNNING: Thank you, your Honour. Your Honours, we were dealing with it somewhat before lunch. We turn to deal in a little more detail with the discernment of purpose. Can I take your Honours, please, just to a couple of authorities in that regard. First, to Justice McPherson’s reasoning in Rowley, tab 59, volume 7 of the joint bundle, 2202.

I apologise, your Honours. I understand I may have been difficult to hear before lunch if I am not speaking loudly enough. Please excuse me for leaning forward, but I am told that that helps. Can I take your Honours, please, to page 220 of the report, 2215 of the pagination. Justice McPherson’s reasons were agreed in by Justice Moynihan, as his Honour then was. Justice McPherson deals with the preparation of a document for the purpose of the Commonwealth legislation in section 16, but materially identical for our purposes.

It is a defamation case, and about whether documents that were in the possession of the Senator could be – he could resist disclosure to relation to them on the basis that it offended the privilege. So, about line 25 on that page:

The first question is whether the Senator O’Chee can, within the meaning of s. 16(2)(c) . . . be said to have engaged in “the preparation of a document” consisting of . . . one or more of the documents in section B of the schedule . . . “for purposes of or incidental to transacting” of the business of a House.

In terms of how one goes about it, can I take your Honours, please, to about line 40, where his Honour says:

I consider that a conclusion to that effect can readily be drawn as a matter of objective inference by comparing the dates and descriptions of the documents in section B of the affidavit with the extracts from the Weekly Senate Hansards –

and then, at about line 45:

The expression “purposes” in s. 16(2)(c) inevitably produces an element of subjectivity or intention which, in terms of that provision, must have existed at the time the documents were prepared.

Say, if it were necessary to do so, in the second last line:

it is in my opinion enough to say that recording and compiling notes of information supplied and writing letters on a particular subject in anticipation of imminent discussion or debate on the same subject in the Senate is what one would ordinarily expect a member of Parliament to do –

His Honour then refers to:

item 25 described as “Internal memo from Diane to Senator O’Chee 6.6.95” may not precisely fit that description; but, if it was created or came into existence, as the Senator swears, for purposes of transacting Senate business, there is no good reason for doubting that it too satisfies the requirement of s. 16(2)(c).

KIEFEL CJ: Was the person there mentioned as staff, or as some such person, or is this some assistant?

MR DUNNING: Yes.

KIEFEL CJ: So, it is either a member of Parliament or someone assisting a member of Parliament we are talking about.

MR DUNNING: In this particular – in that example, yes. Yes. And his Honour returns to the question of objectivity, again at about line 30:

An objective indication to that effect is provided by a letter –

dated at that date from somebody else:

to the Cairns Post, which appears to be the letter of that date ascribed to Mr Rowley ‑ ‑ ‑

JAGOT J: You seem to have skipped over the bit under “Acts done for purposes” and the references to Rivlin and Grassby:

It is not, I think, possible for an outside to manufacture –

et cetera.

MR DUNNING: I was not meaning to avoid the consequences of that. I accept, immediately, Justice Jagot – that is why I gave that illustration before lunch – that at the one extreme you have the staffer who asks – sorry, the staffer who is asked; the other extreme you have somebody who is, in effect, sending junk mail. But for most of these occasions, one is looking at somewhere in between, and the discernment of the purpose is a question of fact derived at by looking at the actions of the actors, but importantly informed by the objective circumstances.

So, if we take that sort of situation, the objective circumstance does not connect the preparation of the document with the incidental work of the Parliament.

KIEFEL CJ: If someone was talking about a connection with the work of the Parliament – and his Honour, at about line 16, says:

The privilege is not attracted to a document by s. 16(2) until at earliest the Parliamentary member or his or her agent does some act with respect to it for purposes of transacting business in the House.

MR DUNNING: Speaking of that scenario; that is, where it is effectively unsolicited.

KIEFEL CJ: A third party.

MR DUNNING: Chief Justice, I am reluctant to agree to the notion of third party, because in our ‑ ‑ ‑

KIEFEL CJ: “Other persons or sources”, as his Honours describes them.

MR DUNNING: Yes, but my reluctance is this: the enquiry itself is one to determine the factual question of purpose. One can look to the objective circumstances in which people perform the acts that they did and that will, in many ways, supply the answer to the question of a purpose. Can I give your Honours, please, the reference then ‑ ‑ ‑

GAGELER J: Are you going to say anything about impeaching? There is some interesting discussion in this case about that.

MR DUNNING: Yes. I have intended to have dealt with the question of impeachment before lunch. Might I inquire, your Honour, is there a particular ‑ ‑ ‑

GAGELER J: Page 222, line 50 or so.

MR DUNNING: Yes. We would embrace it for what it says, but that was the point I had rather intended to have made – perhaps, not as well as I had hoped – before lunch, as is the difficulty with the declaration that is sought here, because if one were to allow to run in parallel a making of the declaration and the reception of the document by the committee and its acting upon it, then it would, in the manner described there, be impeached in the sense that it would be prejudicially affected because there would be a competing view of the validity and utility of the document.

I was going to take your Honours to Warsama shortly, which brings the point a little more sharply into focus, but before I do that, may I take your Honours, please, to Carrigan v Cash, tab 46, volume 6, page 1770. The Full Court of the Federal Court upheld Justice White’s reasoning below when it had been held that the challenge to the report was not justiciable. I want to take your Honours to how this question of purpose is dealt with. Can I ask your Honours, please, to go to page 4 of the report, 1776 of the pagination. Can I invite your Honours to read paragraphs 11 to 13 – but, particularly, 13.

Then, your Honours, at page 1778, paragraph 20, their Honours set out the conclusions as to purpose that had been found by the judge below that were not disturbed in that court, and what one sees is an approach to look at the circumstances for the creation of the document. Now, in that case, it was what Mr Heerey was asked to do. In effect, in probability, he will be doing something else. One asks the same question here: what were the objective matters that saw the creation of the report, and that was the statutory structure that contemplated that the Commission could produce a report of this kind touching on these matters.

Your Honours, can I then please go to Warsama, which is tab 61 of the bundle, volume 7, page 2232 of the bundle. Your Honours, going to paragraph 6, the key players were Mr Warsama and Ms Gannon who had been complainants that had led to an inquiry being conducted by Ms Wass QC. Your Honours see that set out in paragraph 3.

Can I then, with that background, take your Honours to these passages. Ms Wass provides a copy of her report to the Department that, in effect, found there had been no evidence of the substance of the whistleblowing and had criticisms of both Mr Warsama and Ms Gannon. Paragraph 8, the Department:

decided that the Report should be published and that it should be published by Parliament.

It used what is known in the United Kingdom as the “motion for an Unopposed Return” as the procedure to do that. The claimants issued a claim against the Department and Ms Wass, and then if we go down to about line E on paragraph 9, the complaint being they were not:

given a proper opportunity to make representations on whether the criticisms of them should be included.

At paragraph 10 there is both a denial and the assertion of parliamentary privilege. Then, your Honours, paragraph 32, page 2247 records:

Each House has the power to call for the production of papers by means of a motion for a Return. This is an historic method used by Parliament for obtaining papers, reports or information from departments and other non‑Parliamentary bodies.

Paragraphs 41 and 42 refer to the mechanical procedures by which that had occurred. Then, your Honours, at paragraph 63 on page 2255, importantly for the present case:

The fact that it is the minister’s department that organises the request by the House (or by the Queen to that minister) does not detract from the fact that this process forms part of the essential business of Parliament. It is the business of keeping Members informed of the important work being carried out within Government departments so that they can hold those departments to account. We cannot accept the claimants’ characterisation of the procedure as a “device” or a “magic trick”.

Then, if I can ask your Honours, please, to read paragraph 64. Your Honours, in terms of the consequences, they are set out at paragraph 76 on page 2259. As to the corrosive effects that allowing the challenge to the report would have had – those matters are dealt with by the Court of Appeal at paragraphs 83 and 84 on page 2262 of the joint bundle. One sees from 83, it is essentially the complaint that is made here – and at the conclusion of 84 – last four lines:

It is inescapable that the claimants would deploy the Report in evidence to establish the benchmark against which they would attack its conclusions, just as surely if they commenced defamation proceedings.

And at 86 – and in particular the last sentence of 86 – and at 92, where the Court of Appeal adverts to the fact that what a party in that position should do is, during the investigative stage, make the challenge.

In our respectful submission, what is occurring here, of the concerns that have been expressed, sit well inside what the Court of Appeal held in Warsama was permissible in the sense that there you had a government department that accessed a facility for the sole purpose of – at least according to the face of the report – for the sole purpose of the publication of the report in respect of a system that had, according to their Honours, an historical pedigree, and not the prescriptions one sees in section 9 of the Parliament of Queensland Act, and that was permissible for the reasons that are there identified, including the countervailing reasons as to why parliamentary privilege to the extent it leaves matters for the Parliament to determine does so for important institutional reasons.

Yes, one can accept that the lack of the ability of somebody in the respondent’s position to challenge the matter now in the House is something that might be of concern to him, allowing for the fact that he is not without a remedy. He could still make representations to the Commission not to give the direction to publish the report.

But countervailing that is the important principle that underlies the protection, because without it and without the certainty of it, people will be less inclined to participate in those legislative actions unless you can be assured that the interactions you have with the legislature – in this case, the committee – will enjoy protection, that is apt to have a chilling effect on the very thing that the privilege is meant to encourage, and that is for people to speak freely to the members of the legislature so they can distil all of those considerations and make all of those political judgments with the benefit of that information.

In a different context, Chief Justice Doyle spoke of those consequences in Rann. Can I give your Honours a reference to that. It is tab 58, volume 7 of the joint bundle. It starts at page 2130, but Chief Justice Doyle’s passage I wish to take your Honours to is at paragraph 124, page 2154 of the judgment, and the views expressed by his Honour were picked up, at least, necessarily, by Justice Perry at paragraph 258, Justice Mullighan at paragraph 283 and Justice Lander at paragraph 393, where his Honour, speaking of the construction to be given to section 16, at about the middle of the paragraph, says:

It would not promote the purpose or object of the Privileges Act, which I take to be to preserve freedom of speech in Parliament and to reflect the principle of non‑intervention, to interpret s 16(3) in a manner that made its operation subject to a judicial conclusion, on a case by case basis, that in the particular case the course of action proposed would impinge upon the freedom of speech in Parliament. That approach is, if anything, destructive of freedom of speech because it leaves the person speaking uncertain whether what the person says in Parliament can be challenged in a court.

I take your Honours to that, and I will not take your Honours back to Justice Chesterman’s reasoning in the Criminal Justice Commission, but his Honour at the conclusion of that case made it clear that it is not as though somebody in the position of the Commission here can do anything it wishes. But, once it is doing something that is for the purposes of the Parliament, then that is, necessarily, the end of the inquiry, because to do otherwise would be to impeach what is happening in the Parliament itself.

That it was prepared for that purpose is a matter that was the subject of specific findings by Justice Davis at first instance, not disturbed. Could I take your Honours, please, to the core appeal book, page 46, starting at paragraph [121]? Can I, particularly, give your Honours – I am mindful of the time – references to paragraphs [121], [122] – which deal with both the purposes of the CCC and the purpose of the PCCC. The certificate, then, in paragraph [123] and paragraphs [138] on page 49, and [141] on page 50.

So, to close out the issue of purpose, in our respectful submission, it does contain – one has to look at it in the particular circumstances of the case and in a case such as the present, the critical things are these: the statutory framework – because that explains why somebody might be producing a report like this and why they might be intending to present it to a committee and ask for a direction. So, it is far removed from the gratuitous sender of information to a Member of Parliament. It rather is a document prepared against the backdrop of a statutory scheme that contemplates the preparation, contemplates provision to the committee, contemplates the request. Whether the request is granted or not does not impact, in our submission, on whether the privilege was created at the time of its preparation, because it may well have a utility for the committee that it does not see is further advanced by its publication.

Can I then move, please, to section 69 of the Crime and Corruption Act which features importantly in the argument that is put against us and was significant to their Honours in the Court of Appeal. Your Honours will find it in the joint bundle of authorities, volume 1, page 98. Could I also ask your Honours, please, to have the Parliament of Queensland Act and in particular sections 53 and 59 – which is volume 2 of the joint book of authorities, pages 532 and 536.

I might start with the Parliament of Queensland Act, if I can, to deal with the consequences of tabling. If I can take your Honours, please, to – in fact, section 48 were Part 3 of Chapter 3 commences. We see a definition of “authorising persons”, and your Honours will notice from 48(b) that:

the chairperson of a committee –

is such a person. Then, there are provisions dealing with particular aspects of publication. Then we get to 53 which deals with, as it were, publication that occurs upon the tabling of a document. So, relevantly for our purposes, 53 provides:

The following documents are taken to be published when tabled or taken to be tabled –

and can I ask your Honours please to notice those words “taken to be tabled”, and those documents include (c):

a report that, under an Act –

. . .

(ii) is required or permitted to be tabled in the Assembly.

GAGELER J: What do the words “under an Act” mean?

MR DUNNING: In our respectful submission, your Honour, a report that has been prepared under a statutory enactment that gave the author a statutory basis for preparing a report.

GAGELER J: In accordance with the Act.

MR DUNNING: Yes.

GAGELER J: Does it mean a report prepared in accordance with the Act?

MR DUNNING: Yes. Then, can I ask your Honours please to go to section ‑ ‑ ‑

GORDON J: Sorry, are we in 53(c)(i) or (ii)?

MR DUNNING: Sorry, we are in 53(c)(i). In fact, it would comply with either, but your Honour is right, it has been received by the Speaker, so yes, we are in 53(c)(i). Can I then take your Honours, please, to 59, which deals with tabling of a report when Assembly not sitting. It applies to a report in a way that corresponds with 53(c). Then, if your Honours would notice, please, 59 (2):

If the Minister or Speaker wants to table the report when the Assembly is not sitting, the Minister or Speaker may give a copy of the report to the Clerk.

Then subsection (3) provides that:

The report is taken to have been tabled on the day –

so that it does not compel the doing of that.

GAGELER J: Who judges whether a report is under an Act for the purpose of sections 53(c) and 59(1)?

MR DUNNING: In our submission, the Parliament does.

KIEFEL CJ: But it goes to the existence of the privilege, does it not?

MR DUNNING: No, the existence of the privilege is, are documents that are tabled in the Assembly privileged? Is that a recognised privilege? Answer: yes.

KIEFEL CJ: But is a condition.

MR DUNNING: We would submit it is, in fact ‑ ‑ ‑

KIEFEL CJ: Before it is received.

MR DUNNING: It is the occasion for its exercise, because, again, look at what the alternative would be: the speaker receives a document and tables it, and somebody goes along and gets declaration to say that is not a document to which section 53 applied. One, in our respectful submission, could not imagine a more frontal attack on the privilege, because it would be to, in terms, impeach it.

Your Honours, can I then, please, turn to section 69 and to what 69 is, in fact, intended to do. If we go to 69(1)(b), this section applies to the following Commission report, this is ‑ ‑ ‑

KIEFEL CJ: Sorry, which Act are you ‑ ‑ ‑

MR DUNNING: My apologies, Chief Justice, the Crime and Corruption Act. I am sorry. That is volume 1 of the joint book of authorities, page 80 of the pamphlet pagination. Section 69(1) provides that the section applies to (b):

a research report or other report that the parliamentary committee directs be given to the Speaker.

A report of the kind we are concerned with here, where the direction would have been made but for the intervention of the litigation. It does not apply to reports under sections 49, 65, or 66 – and we dealt with 49 this morning. Section 65 is a provision about court procedures, and 66 is concerned with confidential information.

In our submission, one passes over that. It is simply to delimit the operation of section 69, but not in a way that impacts us here, because the report we are concerned with here is not a report of the kind referred to in 69(2). It then requires the report to be signed by the chair and given to, amongst other people, the Speaker and the Minister. Then, in (4):

The Speaker must table the report in the Legislative Assembly on the next sitting day after the Speaker receives the report.

If the Parliament is sitting, section 53 of the Parliament Act will have the consequence that it then is tabled and becomes published. The work that sections 5 to 7 do is to deal with the fact that section 59 is somewhat differently expressed. If one goes to subsection (5) of section 69:

If the Speaker receives the report when the Legislative Assembly is not sitting, the Speaker must deliver the report . . . to the clerk –

in contradistinction to the language employed in section 59 of the Parliament of Queensland Act. What it is seeking to do is to ensure, as one would expect, that if the parliamentary committee decides to give the direction, then it is to be – it is to be signed by the chair, it is to be given to, amongst other people, the Speaker and the Minister, and the Speaker is to table it on the next sitting day.

GORDON J: Can I ask about subparagraph (7). Is that a modification to the privilege? Is that to say that privilege only attaches once it is tabled and published? Otherwise, why do you have subsection (7) in those terms?

MR DUNNING: In our submission, it is to pick up the fact that unless you had it in those terms, you would run the risk of a report that is delivered at a time when the Assembly is not sitting and the Speaker does not choose to table it at the next sitting and thereby pick up the operation of section 53 of the Parliament Act because, by section 53 of the Parliament Act, it picks up “tabled” and “taken to be tabled”. Section 59 of the Parliament Act deals with “taken to have been tabled”, but something is only taken to be tabled if the Speaker chooses to table it at the next hearing, whereas this is to deal with making that mandatory.

In our submission, one can see the symmetry of all of that because if it is a topic which is important enough for the committee to have decided it should give a direction for it to be delivered to the Speaker, then one would expect that the committee would be concerned to make sure there are no circumstances in which it would not be tabled, which is why, in our respectful submission, the concern about publicity is to respectfully undervalue the importance of communicating to other members of the House. What 69(5) to (7) ensures is that in the event the Commission gives a direction, then it is definitely tendered in the House, which otherwise, by the operation of the Parliament of Queensland Act, that would not necessarily follow.

When one sees that the two Acts line up together, there is nothing special or remarkable about 69. It is a quintessential provision to ensure the tabling which is the discretion of the PCCC to determine, and certainly not something that would be a basis for reducing its rights. When I say “its rights”, something to confine its reporting capacity. It has a completely – its purpose, self‑evidently, is exactly the opposite. It is to ensure that it can always bring the attention of what it is reported on, provided it has met the filter of the committee, to the attention of the House.

Your Honours, I was then going to move to the Ainsworth question as it is put against us. Can I take your Honours, please, to the joint book of authorities, volume 4, tab 22. The report starts at page 751 of that bundle. Our short point is this: because of the manner in which it is pursued, this Court in Ainsworth just simply did not consider in detail the question of parliamentary privilege and so the outcome in Ainsworth does not stand for any authority relevant to the disposition of this appeal.

Can I demonstrate that in this way. If your Honours would notice on page 753, page 566 of the record, your Honours will see the reference to C.E.K Hampson QC for the respondent Commission. Then, if we go over to 755, you will see Mr Hampson starts his address there, and in the course of the argument recorded on page 756, the extent to which the ‑ ‑ ‑

KIEFEL CJ: Where is this in the report?

MR DUNNING: It is 569, sorry, Chief Justice.

KIEFEL CJ: Thank you.

MR DUNNING: At about point 7 on the page, the extent to which the question of parliamentary privilege is raised is where it said:

A declaration that a report to which parliamentary privilege and immunity attached was void would be impugning or interfering with the proceedings of Parliament.

But there was no issue in the case about the preparation of the report, and that becomes apparent when one looks at how the report had come to be produced. The joint reasons of Chief Justice Mason and Justices Dawson, Toohey and Gaudron start on page 570 of the report. The last full paragraph on that page starting, “In January 1990”, records the fact that this was a report that had been requested by the Executive Government of the Commission. At about halfway through the paragraph, their Honours record:

It was understood, it seems, that the Commission would report on the matter pursuant to s. 2.14(2)(c) and in accordance with s. 2.18 of the Act and that is what in due course happened.

Then, at the foot of that page, there is a reference to – sets out 2.18(1), and if we go over to the next page:

a report of the Commission . . . shall be furnished –

to, amongst other people, the Minister – subparagraph (c). Then 2.18(3), at about point 2 or 3 on that page:

Once printed, the report is “deemed for all purposes to have been tabled in and printed by order of the Legislative Assembly” and is “granted all the immunities and privileges of a report so tabled and printed” –

Then their Honours deal at page – sorry, their Honours do not deal with parliamentary privilege at all, but the occasion simply did not arise. Justice Brennan, as his Honour then was, does deal with the matter briefly. His Honour’s reasons start at page 582 of the report, but can I take your Honours, please, to 586. Your Honours will see a heading, “The function performed”, about halfway down the page. His Honour there commences a discussion – I do not need to take ‑ ‑ ‑

KIEFEL CJ: Do you say that parliamentary privilege would have attached to the report in Ainsworth?

MR DUNNING: Sorry, your Honour?

KIEFEL CJ: Do you say that parliamentary privilege would have attached to the report in Ainsworth?

MR DUNNING: I think it is difficult to give your Honour a direct answer to that question for this reason: it pre‑dated the form of legislation that now appears in 9(1) and 9(2). It concerned a different statutory regime for ‑ ‑ ‑

KIEFEL CJ: But section 8 was still operative.

MR DUNNING: Yes, it was.

KIEFEL CJ: So, would section 8 have applied to give it parliamentary privilege and to make the possibility of impeachment by the Court impossible?

MR DUNNING: It seems unlikely, your Honour, for two reasons. The first is, the report was not one which purpose was for the Parliament. The report was for the purpose of the Executive. The Deputy Premier had asked for this so the Executive Government could make a decision about whether to consider the introduction of poker machines in Queensland. So, it would fail on that ground. Also, when one looks at the provision of 2.18(3), the privilege seems to have attached upon its being tabled, and that reflected the legislation.

KIEFEL CJ: Was it a report to a parliamentary committee?

MR DUNNING: No, it was a report to the Minister, but it got handed to the parliamentary committee as well. Justice Brennan touches on the fact that there did not seem to have been a great deal of clarity as to how this document came to be prepared.

GAGELER J: It was prepared pursuant to statute, was it not?

MR DUNNING: It was, but as to why the Deputy Premier was asking for it. It was. The passage it had in mind, your Honour ‑ ‑ ‑

KIEFEL CJ: The chairman – I am reading from page 586 – the Deputy Premier makes the request, and the chairman of the Commission agrees to it.

MR DUNNING: Factually, what happened was unremarkable, but at 587, your Honours, first full paragraph:

It is not easy to discover the statutory basis on which the Report was produced and furnished.

The next sentence is important on the topic of purpose.

KIEFEL CJ:

The respondent contended that the Report was validly produced . . . and, on being printed, attracted the immunities and privileges of a report tabled in and printed by order of the Legislative Assembly.

MR DUNNING: Yes.

KIEFEL CJ: Is that accepted by their Honours?

MR DUNNING: No, this is just Justice Brennan’s – I should not say “just”.

KIEFEL CJ: I am sorry. Yes, it is.

MR DUNNING: It is the judgment of Justice Brennan writing alone.

KIEFEL CJ: Yes.

MR DUNNING: So, in our respectful submission, Ainsworth does not stand for the proposition that is contended for. The Court did not have occasion to consider the question and, in a sense – it is idle to speculate as to why, but if it matters, it seems likely that the explanation lies in the fact that it was not a request for the purpose of the Parliament but, rather, a request for the purpose of the Executive.

KIEFEL CJ: But it furnishes – at least Justice Brennan’s judgment can be seen to raise the question: assuming that parliamentary privilege attached a document, would a declaration by the Court that procedural fairness had not been accorded to someone whose interests and their reputation was affected by the document impeach parliamentary privilege?

MR DUNNING: In my respectful submission, it would for the reasons I have already given, because what you would have competing with each other is, on the one hand, the report which Parliament has seen fit to receive and act – receive ‑ ‑ ‑

KIEFEL CJ: Well, it is not affecting how it receives and acts upon it. It is simply saying that in relation to this document, a person’s reputation – they have not had a chance to vindicate their reputation. How does that affect parliamentary privilege?

MR DUNNING: Because it necessarily carries with it a criticism or detraction of the report which Parliament has seen fit to ‑ ‑ ‑

KIEFEL CJ: But it does not stop Parliament working on the document.

MR DUNNING: It does not stop ‑ ‑ ‑

KIEFEL CJ: It might give it pause, but it does not prevent it in any way.

MR DUNNING: If we can take up the analogy of it might give it pause, that, in our respectful submission, would be a paradigm of impeachment. If the Parliament chooses to receive the document and somebody goes along to court and says, that document Parliament chose to receive, it wears this adverse characteristic, that must necessarily be to detract from what Parliament has chosen to do – is our respectful submission in response, your Honour.

GAGELER J: This adverse characteristic that you refer to in Ainsworth was non‑compliance in the exercise of a statutory power or the condition of that power. That is all that has been declared in Ainsworth. How is Parliament worse off being told by a court that the law has been breached?

MR DUNNING: Because, on the occasion in which it is told the law has been breached, Parliament is being told, in respect of that document that you are choosing to deal with, the law has been breached. So, if we give it a very practical content – if the respondent in this Court has not availed himself of the steps you might have taken during the investigation, he is still unhappy. The appropriate forum to go to is the PCCC and there say, I was denied natural justice in this way. For that reason you should chose not to give the directions. So, it is not as though he would be left without a remedy ‑ ‑ ‑

KIEFEL CJ: What would be the point of – what would be the purpose, it is unenforceable. It is a mere request to behave honourably.

MR DUNNING: One could, in a sense, characterise any act of the Parliament within those matters that are reserved by way of privileges as being exposed to those vagaries, if I can put it in those terms. But that is not a reason to deny ‑ ‑ ‑

KIEFEL CJ: It is not a reason to say that it is a proper protection, either, which is what you are implying.

MR DUNNING: In terms of propriety, ultimately what we are concerned with here, in our respectful submission, is the boundary between judicial and legislative power.

KIEFEL CJ: Quite.

MR DUNNING: And we are typically concerned when the Court superintends that boundary with an excess of legislative power in respect of legislating beyond power. But the principle remains the same: if something is properly a matter of the preserve of Parliament because it meets the description of something that is proceedings in the Assembly or parliamentary privilege, perceptions of the wisdom of the occasion for the exercise of that power is not, in our respectful submission, a relevant consideration to ‑ ‑ ‑

KIEFEL CJ: That might depend, in large part, upon whether there, as to the question of the existence of the privilege and what impeach really means, to detract to in the way in which was discussed in the CJC Case.

MR DUNNING: Yes.

KIEFEL CJ: That really might be the turning point, because, as you say, the Court has its function, too.

MR DUNNING: Certainly.

KIEFEL CJ: It is finding the point at which it impedes and detracts in a significant, or in a not insignificant way, from the workings of the Parliament.

EDELMAN J: The core of your point, though, is that a mere declaration about unlawfulness does not immunise something from parliamentary privilege. It would not be sufficient, for example, to say, well, all I am seeking, when I am seeking this declaration that I have been defamed by speech in Parliament by a parliamentarian, is a declaration of the unlawfulness of what was said contrary to provisions of the Defamation Act.

MR DUNNING: Exactly correct. Indeed, one could take it a little further, and the more adventurous plaintiff decides not to sue for what was said in Parliament but sues for saying a component of what you said in Parliament factually was untrue. In saying that, none of what I am complaining about got said in Parliament, I am complaining about – but what has, as your Honour rightfully, with respect, points out, is that at its core is that you cannot look at the curial determination and what Parliament is doing and not say that in some way there is an assertion that the matter upon which the Parliament has received or acted upon is diminished by the fact that the Court – there would be no – you would not grant the declaration unless it did that, because, for discretionary reasons, there would be no point to give the declaration.

GORDON J: But the point in Ainsworth was that there was a point in granting the declaration, and the point was that a man’s reputation was at stake and he needed to preserve it by saying that whatever was in the content of the report had been obtained by a denial of procedural fairness. I do not understand how the two overlap. That is two separate inquiries, one is dealing with a person’s reputation, whether they are entitled to a declaration that their statutory rights were infringed; and the second is dealing with a separate topic, and that is parliamentary privilege.

MR DUNNING: I accept that proposition, Justice Gordon. Where respectfully I would disagree is this, on the second component of that, when one talks about parliamentary privilege, one needs to look at what does that envisage in the instant case? Now, in our respectful submission ‑ ‑ ‑

GORDON J: Instant case being here.

MR DUNNING: Here, yes. In our submission, that comprehends the preparation of a report for the purposes of the committee. That was not the issue that got litigated in Ainsworth and there appear to be some reasons for it. None of which is to, and I hope I have not come across as dismissive of the concerns of citizens about this procedure, but, in the end, it involves a collision of two ‑ ‑ ‑

GORDON J: I do not think it involves a collision. That is my point. It involves consideration of someone’s rights: reputation, denial of statutory rights, procedural fairness, rights which in other circumstances you would be defending.

MR DUNNING: Undoubtedly.

GORDON J: And then the question is parliamentary privilege, and what the declaration says is two things. It says something to the person who has obtained it, because their rights have been infringed – not something that has not been done in accordance with the Act – and it tells Parliament something. It tells Parliament they have a report. Privilege is attached to it, which has a consequence that the Court itself considers needs to be subject to the declaration and Parliament then would respond accordingly. I do not know it is a clash.

MR DUNNING: Well, if I may respectfully suggest this in this way. In the first of those matters, that happens in every defamation case where somebody wants to see what was said in Parliament, and we have marked out the boundaries of legislative powers as including the separation of those powers, if you will. So, the fact that something might be said in Parliament has adverse reputational consequences is a reality.

KIEFEL CJ: But surely there is a distinction to be drawn between an allegation by someone that what is said about them in Parliament is unlawful in the sense of being defamatory, which would require a whole trial to conclude, and the question as to whether or not the condition for a statutory function had been fulfilled, which the courts can readily deal with and make a declaration.

And the question is not just general unlawfulness, and it is not generally whether or not it should give Parliament pause. The question is whether or not the declaration impedes, hinders or prevents – as you have taken us to the judgement of Justice McPherson in Rowley v O’Chee. That means detrimentally or prejudicially affected or impaired. So, how would the declaration in Ainsworth have had that effect and how does a declaration here have that effect? That is the real question – not general questions of unlawfulness.

MR DUNNING: In relation to Ainsworth, it appears that the point was never argued as to whether the issue of protection arose. But if the issue of protection around preparation never arose, which might well be explained by the purpose for which it was created, that is ‑ ‑ ‑

KIEFEL CJ: Well, we will just focus on this case and the question which has been put to you a number of times. How does the declaration here impede, hinder, or prevent the workings of the committee or Parliament?

MR DUNNING: Because what it does is when the – let us say the committee were to table the report, when it is tabled to the other members, alongside it would be a declaration that it was the product of a denial of – or it was not a report the committee was entitled – the Commission was entitled to prepare. The committee would have resolved that it was one it was willing to act upon and give a direction for, but there would be a direct challenge to that, because a court would say it was not.

KIEFEL CJ: Well, the declaration is not going to be enforced against the committee, is it?

MR DUNNING: Well, in a sense ‑ ‑ ‑

KIEFEL CJ: You mean, the committee might seek advice about the matter? Is that how its functions are impeded, hindered or prevented?

MR DUNNING: Well, it is criticised – sorry ‑ ‑ ‑

KIEFEL CJ: No, it is stated, the law is stated, the effect is stated.

MR DUNNING: Yes, and in circumstances where the committee chose to act upon the report, someone outside the Parliament says ‑ ‑ ‑

KIEFEL CJ: It might choose not to, in face of the declaration. One might think that, indeed, it had held back deciding what to do with the report until it received the court’s conclusion.

MR DUNNING: If we might respectfully submit, that would not be the most likely characterisation, one ‑ ‑ ‑

KIEFEL CJ: Well, it did.

MR DUNNING: Yes, and if we may respectfully submit, the proper answer for that of any Parliament is that, faced with an argument about whether it exceeded parliamentary privilege or not, it ‑ ‑ ‑

KIEFEL CJ: It would allow the court to determine the question of the existence of the privilege.

MR DUNNING: Privilege, yes, not, in our respectful submission, beyond that. Your Honour, I have given the answer that I have got in relation to the corrosive effect of the declaration on the standing of the report.

KIEFEL CJ: Yes, Mr Dunning.

MR DUNNING: But can I just raise two other matters that are relatedly significant. One is the privilege cannot be eaten away, as it were, coffee spoonful by coffee spoonful, and taken away. Well, this is not like somebody being defamed in the Parliament. There are reasons why, institutionally, these bright lines exist. The second submission we would like to make in that regard is one of the reasons it is adverse again has an institutional dimension, and that is it discourages the open interaction with Parliament that the privilege is there to preserve and encourage.

So, if we give some very practical content to this, when the Commission sits down there in discharge of those wide powers against people who it is reporting on who are almost always going to find the prospect of the investigation unwelcome, the fact that work it performs, as it did here, to conduct an investigation for the purpose of giving it to the committee so the committee can decide what to do with it against a statutory background that allowed for that, is to discourage people from exercising that for fear that it may not in fact be privileged.

GORDON J: This is where I think we are back to where we were before lunch, and that is there was nothing stopping the committee calling for the report that went to the Public Trustee’s office back in April, and they could then have then taken it without any of these issues and dealt with it in accordance with what they saw as the appropriate course in detailing with whatever institutional issues arose.

MR DUNNING: May I make two submissions in response, Justice Gordon. One is, accepting all of that, it does not inform what the power is, and secondly, in our respectful submission, the report given under 24(e) and 60, or the advice, effectively, to the Department, is of a different character. It is effectively operational, and you would expect it to be, whereas this report was intended to be tabled in the Parliament to communicate to the parliamentarians this is what our investigations found. It did not amount to something that we would recommend be prosecuted and it did not amount to something we would recommend disciplinary proceedings on, but we did find these issues and you as parliamentarians ‑ ‑ ‑

GORDON J: It is a bit odd when the same 19 recommendations are reproduced in the subsequent report, and we have them set out. You took us to them in the book of further materials.

MR DUNNING: But there is more in the report than just that topic. Your Honours, I think I have said all I can on that topic. There is the issue of whether there was a denial of procedural fairness. I am extremely mindful of the time. We deal with that and give the references in paragraph 13 of our reply submissions, including where it can be found in the book. The essence of it is simply to make the submission that the only part that was not shown to the respondent was the foreword and the foreword did not more than epitomise the detail that had been set out in the report and it is not a denial of procedural fairness to do that.

KIEFEL CJ: Was it the primary judge who indicated that the foreword seemed to be at odds with the content of the report?

MR DUNNING: It was. I can give your Honour the ‑ ‑ ‑

KIEFEL CJ: So, it is rather different from the report, on the primary judge’s findings?

MR DUNNING: I think the reference that his Honour makes is more one to style.

KIEFEL CJ: I do not think that is right, Mr Dunning.

MR DUNNING: I can give your Honour the reference. Page 21, of the trial judge – page 21 of the core appeal book.

KIEFEL CJ: I think it might be paragraph [53]:

The foreword seems at odds with the body of the report.

That looks a little more substantive, I think, than style.

MR DUNNING: Well, I take the force of your Honour’s point, but it is well short of saying there is something in the report that dealt with matters that the respondent had not ‑ ‑ ‑

KIEFEL CJ: I think it is to do ‑ ‑ ‑

GORDON J: It is the other way around.

KIEFEL CJ: ‑ ‑ ‑ with the fact that the body of the report made no findings, amongst other things. But foreword seems to imply that there are. I think that is what his Honour was saying, but we understand your argument. And I think Justice Gageler has a question for you.

GAGELER J: You can take this on notice, is there a provision in the Crime and Corruption Act that governs the confidentiality or secrecy of information obtained in an inquiry?

MR DUNNING: There are some provisions – may I take that on notice, please, Justice Gageler. Your Honours, finally, unless there are other questions, I did have copies made of that 23 April 2020 letter. I know all courts, appellate ones in particular, recoil at loose bits of paper being thrust at them.

KIEFEL CJ: Is this the recommendations to the Public Trust Office?

MR DUNNING: Correct, yes.

KIEFEL CJ: We will receive that.

MR DUNNING: I understand they may not have been provided at all to the respondent. In those circumstances, can I iron that issue out first?

KIEFEL CJ: Might leave it overnight, then ‑ ‑ ‑

MR DUNNING: Yes, thank you.

KIEFEL CJ: ‑ ‑ ‑ and deal with it first thing in the morning.

MR DUNNING: And, your Honours, I apologise, I am substantially over the time which we sought. I regret that.

KIEFEL CJ: Yes, thank you. I am sure others will be able to refine their arguments.

MR DUNNING: I hope so. Thank you, your Honours.

KIEFEL CJ: You have carried the brunt of it, I think, Mr Dunning.

MR DUNNING: Thank you.

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, we are here concerned to draw to the Court’s attention the implications made concrete in this case of the important provisions of section 9, in particular, of the Parliament of Queensland Act. One way of introducing the considerable effect of those provisions is to contemplate as a possibility a surmise that the reason for the complete absence of any substantive reference to parliamentary privilege in the plurality in Ainsworth, the reason for the parenthetical twice‑uttered description of it as “immaterial” by Mr Justice Brennan in Ainsworth, is because, given the configuration of article 9 in those days, and given the history of the executive commission of the report from the Commission in that case, the question of the legality by reference to the duty to afford procedural fairness being contravened of that report might have been seen by their Honours as arising before and outside any question of parliamentary proceedings.

GAGELER J: That is difficult, Mr Walker, given that the Commonwealth Act ‑ ‑ ‑

MR WALKER: It is section 16, yes.

GAGELER J: And it was understood very well to be declaratory of – it is article 9.

MR WALKER: It self‑proclaims itself as declaratory, but section 16 came with – with quite the greatest respect – a degree of éclat. It was not an obscure provision; I accept that. There is not a hint of reference to it in any part of Ainsworth, either argument or reasons. The surmise I ‑ ‑ ‑

KIEFEL CJ: There could, as they say, have been a reason for that.

MR WALKER: I am raising that it is only by surmise that one can try to understand what Ainsworth says about the present issue. What Ainsworth does not embark upon is any consideration of section 16’s extension, and, in particular, the aspects echoed or continued in section 9, to which I am about to come. One of the evident effects of section 9 is to expand the notion of proceedings in Parliament which had been so fundamental to article 9 – article 9 not itself being, with great respect, the most pellucid statement of a doctrine enabling clear lines of demarcation between the courts and the chambers of Parliament to be discerned – producing at least 200 years of controversy, if not more.

So, by the time – imitating section 16’s Commonwealth initiative – Queensland in section 3 of the Parliamentary Papers Act 1992 enacted first the provisions which can now be seen re‑enacted in section 9, it remained, in our submission, a relatively unexplored exercise as to what were the activities in the judicial arm which would run up against the privilege, or that aspect of parliamentary privilege which is contained in article 9 – that is, section 8 of our current statute.

If I could come then directly to the terms of article 9, there is much that I hope I can put very shortly because of the common ground we have on some matters with both arguments and some judicial suggestions that have arisen with my friend. It is clear that proceedings in the Assembly, to use the language of subsection 8(1), is the pivotal concept. It is clear that the 200 years of murkiness is not dispelled – see subsection 8(2). Then we come to the interplay – they have to be read together, operate together – of subsections (1) and (2) of section 9. I will come to subsection (3) later.

Because subsections (1) and (2) appear in apparently familiar definitional form, it is said to be an inclusive definition, which is no doubt wise, bearing in mind what subsection 8(2) is intending to preserve under the caption of removing doubt. The Chief Justice suggested that our friend considered the possibility that in subsection 9(1) the connective phrases:

in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee.

remains, so to speak, the signal or governing concept of the notion of proceedings in the Assembly to which then subsection (2) would speak in auxiliary fashion. By and large, we accept that, because nothing in the Speaker’s position would – given the terms of section 8 and particularly subsection (2) – suggest that there should be any movement away from whatever concept by the practice of Parliament, by such case law as exists, or by such later enactment as we have before us now, proceedings in Parliament contain the realm within which the privilege can be generated so as to affect the conduct of judicial proceedings.

Your Honours will have noted that the expression “transacting business” used in subsection (1) of section 9 is repeated but with different meaning, importantly, in subsection (2)(e). The business to which transacting is referred in paragraph (e) refers to giving evidence and presenting or submitting a document, which is, of course, a very narrow subset of the way in which business, generally speaking, is or could be transacted – being business of the Assembly or a committee.

Subject only to that observance of a fairly plain textual reading, in our submission, then, as one excepts was the intent of those who enacted section 9, it is tolerably plain for the guidance of those wishing to know whether there is privilege or not how section 9 would operate in a case such as the present. This is a reading which, in our submission, means that the very important issues that have been raised in questions to my friend from the Bench are not, in our submission, either necessary or appropriate to be addressed in this case. Those very important issues concern that which, undoubtedly, lay beneath concerns such as Chief Justice Marshall’s famous delineation of matters and powers.

We accept that as Fitzpatrick and Browne, not for the first time, of course, pronounced, and after the contests of the 19th century in England, we accept that it is emphatically the province of this Court to determine whether the privilege exists. That is Fitzpatrick and Browne. Otherwise, with respect, there would be a juristic wild west that is unimaginable in an orderly Constitution with parliamentary government and Chapter III High Court.

GAGELER J: What is the privilege?

MR WALKER: In this case, the privilege is, and is only, the article 9 articulated in 8(1). That is the only aspect of privilege in question. Privilege is much broader than that, of course. And it is privilege in the sense of a kind of immunity. It is not privilege of a sense of power, which is what Egan v Willis was concerned with, which is also involved, of course, a concomitant immunity that principally was driven by the existence of a power.

GAGELER J: Immunity from what, here?

MR WALKER: In this case, it is immunity from something which – to use the 17th century language, which needs to be construed now, it is immunity from the impeachment or questioning of what is called – we select this part of the case for this test – “proceedings in the Assembly”. That is not the whole of it, because we know it is freedom of speech and debates, and historically one could be forgiven for thinking that those are the most important matters.

Leave that question of political science aside, what this case is about is a privilege in the nature of a kind of immunity of that which falls within proceedings in the Assembly, which we know from section 9 will absolutely not be within what was literally formerly called the walls of the chamber. That those proceedings, understood correctly, as extended by section 9, cannot be impeached or questioned.

We know that the following words, closely cleaving to the 17th century model, have sufficient clarity for today’s case. It refers to a court, and that was what was in question in the courts below in this case, but then that has that pregnant phrase not yet fully fleshed out. A place out of the assembly that can be left to one side as one of the puzzles that article 9 has posed to everybody who has ever looked at it since.

GORDON J: Does that mean, Mr Walker, in our case that the privilege is the immunity from questioning of the delivery of the report to the PCCC?

MR WALKER: Yes, but involved in that is in the character of the document which is delivered to the committee.

GORDON J: So, you go as far as to say not merely the delivery of the document but the character which attaches to it?

MR WALKER: In the circumstances of this case, yes. Can I come soon to an example where that would not be. In fact, I will come immediately to the ‑ ‑ ‑

GORDON J: Before you come to the example, does that character extend to, on your submission, the court not questioning whether or not the report was within power, and not questioning whether or not the statutory conditions for the exercise of the statutory functions giving rise to the report had been met?

MR WALKER: Yes, but I accept that that is at the heart of the matter, and that is a very large question and, for the reasons that I am going to try to put first, it should not be reached.

GORDON J: Thank you.

MR WALKER: But I accept that it is a very important issue. I accept it presents a test for contentions about parliamentary privilege which do not really seem to have been to the forefront of decided cases to date.

GAGELER J: Mr Walker, I did ask the question of Mr Dunning: is there any case you can point to where parliamentary privilege has been used as a privative clause effectively?

MR WALKER: In the particular, can I add to the burden of your Honour’s question to me, so as to preclude any notion of judicial review in the broadest sense of that, concerning the legality of executive action, and, to make it even harder, measured against a statute made by the very legislature regulating the existence and limits of that power – no.

GAGELER J: What is the closest you can point to?

MR WALKER: There is nothing in our written submission because there is no analogy, so far as I can see.

GAGELER J: Why then – if we are back at first principles, and we are concerned with the purpose of article 9, why on earth would we be shielding ‑ ‑ ‑

MR WALKER: The legislators from knowledge of the illegality of something.

GAGELER J: ‑ ‑ ‑ from knowledge of a breach of the rule that they have laid down?

MR WALKER: Your Honour, there is no ready answer to that, but I am going to try and nonetheless argue for your Honours, because this is a test the Speaker wishes these provisions to be subjected to. The Speaker needs to know ‑ ‑ ‑

GORDON J: Why?

MR WALKER: The Speaker needs to know ‑ ‑ ‑

GORDON J: I know he or she needs to know, but why push for this outer limit, given what we have just been discussing in response to questions in different forms but directed at the same end?

MR WALKER: I think the respectful answer to that is because of the way in which the Court of Appeal in Queensland in the CJC Case decided matters, that that sits there and it has passages – all of which your Honours are now familiar with – which really do not sit happily with the thesis that there is nothing in the nature of impeachment or questioning of any aspect of proceedings in the Assembly for there to proceed out of Parliament adjudication of the legality of – I am trying to pick neutral expressions – happenings with legal effect or happenings which affect legal interests being proceeded with in the usual fashion of judicial adjudication.

Now, we entirely accept the very large propositions involved in this, but it is because of the expansion of the notion of “proceedings in the Assembly” which is the evident intent of the combination of provisions in section 9 building on the foundation that section 8(2) leaves in place that there are now raised considerable questions that we do not think that any court has ever looked at before.

GORDON J: Can you 9(2) down so that you have the presentational submission of a document and you read – it is 9(2)(c) and 9(2)(e) as being the drafts?

MR WALKER: We do not have to read it down for that – yes is the answer, I am sorry, but that is no reading down. A document is a document is a document. Whether it is a purported report, a draft report or a personal letter does not matter at all or, as I am going to come to in the CCA itself, a piece of written information – section 71. So we have in section 9 an expansion by words which do not lend themselves to reading down and do not lend themselves to any narrow compass of the critical expression “proceedings in the Assembly” to include:

presenting or submitting a document to the Assembly –

And one starts at least with the understanding that will mean any kind of document. The puzzlement that that might arouse, no doubt leading to what we submit is, with great respect, an unnecessary gloss, the so‑called appropriative act notion. I will come back to that.

KIEFEL CJ: Is there a distinction between the appropriative act approach and the references in one or more cases to there being a necessary connection with the business of the Assembly?

MR WALKER: Yes, there is a difference and we urge, as summarily as I can, the superiority of the latter. It departs not at all from the words which we have ‑ ‑ ‑

KIEFEL CJ: It would seem to be implied in the words.

MR WALKER: And we do not need appropriative acts in order to preclude what appear to be repugnant possibilities such as the unsolicited poison pen – the only purpose of the writer being to get the protection of “coward’s castle” – and of course one would comfortably hope that Members receiving such letters would do not such thing – it would never become part of proceedings in Parliament because it – that is the poison pen writer’s subjective motivations – it does not come anywhere near the notions of the document being for the purposes of or incidental to transacting the business of presenting or submitting a document to the Assembly – which is a business that is done not by a private person, but, of course, by the procedures of the Assembly.

That is why we say the phrase the purposes of, or incidental to – and “incidental to” should not be forgotten – means there needs to be a functional connection. The functional connection will usually be so obvious that one might also coincidentally and not surprisingly see a subjective belief as to what something is going to be used for – or might be used for – in both the person who produces a document and then the person who either receives it or had originally promoted its production.

They are irrelevant – those psychological motivations on the part of those people – it is the functional appropriateness and objective place of the, in this case, document submitted to an Assembly for the course of, purposes of, or incidental to, transacting of business that will be the test of whether that is proceedings in Parliament.

Now, the problem of a kind that I have of recognising in answer to your Honour’s questions arises because this is being done through definitional provisions – there is not a provision – there is not a section 8(1)(a) that says what impeachment or questioning means with respect to the conduct of the core or essential business of the chamber which is the grand inquest of the nation or a legislative body. It does not say that.

It is the proceedings in the Assembly cannot be impeached or questioned relevantly and, for better or ill, the wording of the extensions in subsection (2) of section 9 expand that concept of proceedings in the Assembly. They do so with respect to bits of paper by directly saying that the proceedings in the Parliament include a document presented to a committee – and I read there, selectively from section 9(2)(d).

So, it is by that direct means and reading in that extended definition back into subsection (8) that one reaches the conclusion, textually irresistible, we submit, that the document cannot be impeached or questioned in any court, et cetera. Now, that may be startling, bearing in mind the political science informed, historically laden, understanding of article 9, and Parliament saw that, particularly, the Commons’ relations with the courts in the 18th and 19th century, but there it is, that is what the antipodean Parliament has decreed. And, in our submission, if there is a disturbance of expectations which have been produced by those centuries of usage law, then all that demonstrates is that section 9 is, indeed, a very considerable extension.

Now, one has as well, of course, paragraph (e) of subsection (2) of section 9, and there, it is plain, as we know historically was true with the similar provision in section 16 at the Commonwealth level, that it was intended that proceedings in Parliament, or proceedings, here, in the Assembly, were to be extended, so as to include, not in this case a document, but the conduct of preparing a document. So, in (d) we have the actual piece of paper; in (e), we have the conduct which produced it.

It has to be, for the purposes of, or incidental to, transacting business mentioned in (a) or (c); and (c) is the obvious fit for the facts of this case, whether or not it is a section 69 report, the concept – which is shorthand – I will come back to unpack it. It was a document that was presented to the committee, and there can be no doubt on the agreed facts in this case, if you need it – the section 55 certificate – there can be no doubt that the conduct of preparing that so‑called report was for the purposes of transacting, and certainly incidental to, transacting business, being, presenting or submitting that document to the Assembly – to the committee.

Now, that is how, there being these plain uses of language in subsection (2) to expand, maybe counterintuitively, the notion of proceedings in the Assembly to conduct which could be hundreds of kilometres from the Assembly and could be by people who are not officers of the Parliament and not staff members or Members, and it is for those reasons, in our submission, that if there be a concern about the breadth of the effect we submit those plain words have by expanding proceedings in the Assembly, then that is not a matter which can be dealt with interpretively, that is a matter for other people elsewhere.

That is an argument which does not begin to grapple with the overwhelmingly important substance of what Justice Gageler has asked me, that is, how on earth would one, in a very broad purposive sense, attribute to the intention of these words, keeping from Members in the chamber knowledge of the only authoritative way in which lawfulness can be determined, which is in a court of law, not in Parliament, we are not here posing Parliament as a rival source of authoritative statements of law, far from it.

But, in our submission, that is exactly what must be intended by the notion of extending the concept to proceedings in the Assembly. Let me explain. We know that article 9 has for a long time been understood to render effectively non‑justiciable, not capable, competently, of being determined by a court, whether words spoken in a chamber are unlawful in the sense of being tortious. Now, that can be dealt with by a completely different means, namely, by nipping in the bud any notion of unlawfulness or tortiousness such as by the Defamation Act provisions familiar to all of us giving absolute privilege for certain statements, including in chambers.

So ,that is a different way of achieving the matter which does not prevent you, does not present you, with the spectacle of saying article 9 prevents the hearing of someone’s claim to have been defamed. But article 9 has long been understood as in fact having that effect in cases where you do not have the separate conferral of absolute privilege so as to prevent any tort from being committed at all.

That leaves an important, or leads to an important question: whether there is a distinction between unlawfulness or illegality by reference to a statute. And it will mostly, not always in this country, but very often will be a statute of the very same legislature, the privileges of whose chamber is in question. If that be an irony, so be it. We accept entirely that one would never attribute to a Parliament, that is, a House of Parliament, a view of its privileges which would detract from the rule of law with respect to the very statutes that it plays a part in enacting. We accept that.

EDELMAN J: The categories of common law and statute are not independent, if you are talking about wrongs or torts.

MR WALKER: No, your Honour anticipates me. In our submission, it would not be a principled reason to distinguish between arguments of unlawfulness or illegality that turn on a statute and those that do not turn on a statute. They are equally, with respect, to be regarded and attributed to a chamber of a Parliament as being a matter to which the members are not indifferent; institutionally not indifferent. We accept all of that.

But that has never prevented there being the undoubted effect of article 9 in precluding litigation and thus denying people the possibility of enforcing rights. It also has the effect, through the indirect consequence of permanent stays, as we know, of preventing litigation being fought, according to law. That is, justly, fair trials. One does not say, in the face of those unfortunate but occasionally unavoidable outcomes, one does not say, well, that seems to show that chamber or chambers of the Parliament in question are being labelled as if they were indifferent to the rule of law or callous concerning the availability to others of the rights of a litigant. Far from it.

It is simply, in our submission, in the centuries‑old tension between parliamentary chambers and courts of law there will be – there must be, if there is to be any substance to the article 9 privilege by way of immunity, cases where that which would otherwise cry out for justice in a court of law cannot be entertained in that court of law. Proposition 9 in our outline is that for which we contend by way of a culmination, and you can see that it borrows from Mr Justice Chesterman, in particular in CJC, paragraph [47], but not only there.

Plainly enough, the existence of the privilege must be available whether or not the adjudication against which the privilege is held out as preventing it from occurring, whether or not that adjudication was going to be affirmative or negative to the allegation of illegality. Absurdities follow otherwise, as well demonstrated in the paragraphs to which you have already been taken, in particular Justice McPherson in paragraph [23] and Justice Chesterman at paragraph [47]. We have, I am afraid, transposed their names in our written submissions. Paragraph [47] is Mr Justice Chesterman.

Now, your Honours, if that is correct then the enormity, if it be enormity, the big call may be accepted in what might be called first principles rule of law allocation of function between parliamentary chambers – and it is not as legislatures that we are talking about here; we are talking about parliamentary chambers, which do more than just legislate, on the one hand, and courts on the other hand.

It is in particular to accept that in a case such as the present, the Fitzpatrick and Browne edict applies, and so there has to be a determination on the basis of what we call the agreed facts, as it happens, coincided relevantly by the section 55 certificate, that the preparation of the report which but for the litigation would have been considered for a section 69 direction by the committee, was the preparation of a report for the purposes of transacting the business of the committee, and in a sense that must be so.

You have seen the antecedent dealings between the Commission and the committee contemplating that the committee would see a report which the Commission thought – urged the committee to treat by way of a direction under section 69, but it being accepted on all sides, always, that it would be for the committee, not the Commission, to determine that question. So, there is the business of the committee in terms of the business being transacted, for which 9(2)(e) is relevant. You had the presenting a document to the committee and ‑ ‑ ‑

GORDON J: Is there a middle ground? So, if one takes the position you have just put to us as the high‑water mark consistent with CJC, is it possible to adopt something which we put to Mr Dunning; and that is to say, one can still commence proceedings for declarations, whether it is invalidity or non‑compliance with the Act, not in order to impeach, as you would have it – 9(2)(c), (d) and (e) – but in order to obtain declarations of legality – adopting neutral language – which are directed at a different objective, and, that is, in effect, preserving or seeking a declaration as to my position, being a person the subject of the report?

MR WALKER: That has to be considered.

GORDON J: Do you accept that that is a possibility or is that just not part of your submission?

MR WALKER: I accept it is something the plausibility of which means I have to deal with it. I am going to submit no, on the basis of the reasoning in CJC.

GORDON J: Thank you.

MR WALKER: But I want to do more than simply cite authority, conscious as I am of the higher argument.

GAGELER J: And it is said, Mr Walker – just taking that point up, the reconciliation could occur in two ways, I think. One is by taking a purposive approach to impeached or questioned.

MR WALKER: Yes.

GAGELER J: The other is to take your broad literal approach. But to say, well, that leads to a tension between two statutes – the statute that sets the limits of the process of presentation and submission of the document on the one hand, and the words of section 8 on the other – and that tension has to be reconciled in some satisfactory way. I mean, you could get to the result of a declaration being okay on either basis, I think.

MR WALKER: Your Honour, I will respond to the first. But the second, in our submission, no, only by excessive violence. There is also nothing – let me start again. Purposiveness, of course, raises its own chicken and egg problems. The purpose of section 8 and section 9 is to enlist grand history on the one hand and to enlarge its operation on the other, and to enlarge its operation in a way which was relatively novel – at least, not being around for so long as to have had such an accretion of case law that we would all be confident about how it ended up; that is why we are here, with respect.

One cannot too easily enlist purposiveness for what might be called one’s preferred outcome in terms of law reform – that is, if you were a lawmaker – because if they have chosen these words, it is the meaning of these words which will say how far has the enlargement gone, and because one cannot see, with respect, in the language or history of section 8 – that is article 9 – or section 9, because one cannot see there that there is any carve‑out for any adverse judicial adjudication of proceedings in Parliament, which will not be impeachment or questioning, then, in our submission, it is interpretatively required simply to observe this tension, which will no doubt continue, and comes about from the nature of things. This tension at the moment in this jurisdiction is resolved by the line being drawn as section 9 applied from time to time according to the facts of the case will produce it.

In this case, as I say, the facts are really plain as to purpose and incidental. Once that is accepted, one looks for how one might interpretatively avoid what might appear intuitively to be contrary to the purpose of the rule of law attached; that is, the favourably engaged chamber of Parliament with the rule of law in terms of an article 9 preclusion of adjudication. In a sense, all preclusion of adjudication might be seen to be a bad thing, but it is not only article 9 that does it, public interest immunity does so as well. Obviously enough, we do not live by the notion of let justice be done though the heavens fall. It might be a bit grand for members of Parliament to say the heavens fall if they lose their article 9 protection, but, of course, the protection is not for them, it is for us for whom they are elected representatives.

In our submission, the problem with treating a declaration of invalidity, which may often involve necessarily‑entailed findings of unlawfulness or illegality, unfairness being a particularly biting element of unlawfulness, is first – we make no bones about it, but that would be completely contrary to the approach taken in the Queensland Court of Appeal in CJC to which your attention has been sufficiently drawn.

The language of Justice McPherson, who in Rowley, of course, calls in aid – though surely not exhaustively, let alone substitutively – the language of dictionaries. It was the same judge who described a declaration of invalidity as there being no more potentially destructive form of challenge. That poses, very starkly, a contrast with the – with great respect – weighty rhetorical question that has come from the bench today, namely: why would Parliament not want to know whether this was lawful or not?

It is at that point that, in our submission, it is the particular terms of section 9 that matter. Let me give an example. Let it be assumed that a controversial important decision at first instance in the Supreme Court was – as happens from time to time – made urgently available to a parliamentary committee to consider reform of the law, either as suggested by the judge or it was thrown up as necessary because of what the judge had done – one way or the other. The usual salutary interplay between judicial arm and legislative arm. And it is marked as exhibit A – those reasons before the committee.

Now, at that point – to jump to the end of the story, in a sense – obviously enough, the judge had not written the judgment for the purposes of, or incidental to, the Parliament transacting the business of proposing the law reform on the basis of the decision or its reasons. And it is for those reasons that it would be absurd to suppose that the concurrent appeal being heard in the Court of Appeal against that decision for errors in its reasons could, in any way, butt up against article 9.

Something of that kind can be seen for documents which may though – unlike such a judgment – have had among its purposes informing a committee, and it is readily imaginable how, in administrative agencies in particular, as well as in departments, that could come about, which is one of the reasons why this is a case‑by‑case factual inquiry not lending itself to general prescriptions. In subsection (3) of section 9, you will see that for that very large class of extended proceedings in the Assembly, being a document presented to a committee, that section 8 will not apply – so article 9 will not apply:

in relation to a purpose for which it was brought into existence other than for the purpose of being . . . presented –

to the committee. Then there are important words with an important conjunction, “and”. I think the way this is laid out, it means, so long as the following is also true:

if the document has been authorised by the . . . committee to be published.

We think, before we come to the example which, however tempting, cannot substitute for the text, we offer this to your Honours. We suppose that indicates that in such a case of what I will call multiple purpose, only one of which would attract section 8 by the extension of proceedings in the Assembly, then so long as, as it were, the Assembly is happy to signify its assent to this by publishing, then there will be no article 9 protection with respect to that document, and it can be the subject of all and any litigation, including, in the case of administrative agencies, the kind of judicial review which is, we accept, entirely salutary and critical to the rule of law.

At that point, it is worth observing there is nothing in this case which is said against the appellant – or the position that we are arguing for the Speaker – to be constitutional. Your Honours, it is for those reasons that we submit that unless the everyday cogency of the approach taken in CJC is reversed, and utterly so, then there needs to be more shown to avoid the outcome of the words of section 9 that we have urged than to say, as we would accept is appropriate, that this is a very different landscape from one which obtained not so long ago. That is true. When the law changes, then it can be accepted that the changes may be considerable. Now, as to what I call the everyday cogency, it is surely clear that to take an act in law, such as the making of a purported report, and to say of that that it is not what it claims to be is, as a matter of English – including the 17th century English to be regarded – that is impeaching or questioning that document.

And it is because of the text that says the document is “proceedings in the Assembly” – section 9(2)(d) – that, in our submission, it is then irresistible that, as a matter of enacted language, so long as it can be said that declaring that which claims to be a report not to be a report, because of what in administrative law we would call jurisdictional error, leading to what in jurisdictional or administrative law would lead to it being void, more generally speaking, in one of the chameleon uses of the word, “unlawful”, certainly “unfair” or “unjust”, if it be procedural fairness that is the standard which has been transgressed.

Those are, in our submission, not capable of being seen – any of them – as being in some category which is drastic, complete as to the reversal of the claimed juristic character of the document or the decision or act that it records or constitutes, compared to others which, of a kind not easy to imagine, are so much more serious that they are impeachment or questioning but not the total invalidation or denunciation as unlawful.

It is for those reasons, in our submission, that the notion of a middle ground is one which supposes that there is something more serious than the
complete stripping away of the ostensible character of a document that will answer the description of impeaching or questioning, while the complete stripping away of the ostensible nature of the document is apparently not impeachment or questioning.

The problem comes to this. We respectfully submit that the impulse or imperative for the rule of law, including keeping persons bound by law within the limits of the law, such as official personages, produces the notion that it is entirely salutary in the public interest at a level which must be shared, surely, by chambers of Parliament that there be a tribunal peculiarly fit for that – the Supreme Court – to adjudicate the question, and that, in our submission, entirely misses the point of the shifting of the limits by section 9 for the article 9 protection given by section 8. That whole point is to say that there will be cases that otherwise cry out for justice that cannot be entertained by courts of law because of where we have now newly set the limits of these institutions’ intention.

EDELMAN J: Is that, in effect, really, just to say that impeached or questioned cannot have a different meaning in its extension in section 9 than it did in section 8?

MR WALKER: I hope it says more than that, but it certainly says that, yes.

EDELMAN J: What more does it say, then?

MR WALKER: Well, it says in particular that it will not matter how deserving or pressing the claim for justice in a court of law is; it will still be impeaching or questioning if the aim of it is to, say, invalidate or completely impugn the claim to its legal character of something like an official report.

So, it will never be – article 9 does not diminish in its potency as the scandal of an injustice unadjudicated appears. So, I am saying that as well. But I am certainly saying the extension by section 9, unless there is some connection between the two of those propositions, the extension of section 9 certainly is not a reason, anachronistically, to read in a way that will not be found either in dictionaries or in practice these strong words impeached or questioned.

I am sorry for leaving three minutes unoccupied, your Honours, but that is all I want to say.

KIEFEL CJ: We do not mind, Mr Walker. The Court adjourns to 9.30 am for pronouncement of orders and otherwise until 10.00 am.

AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 JUNE 2023