Crime and Corruption Commission v Carne [2023] HCATrans 75 (7 June 2023)

Last Updated: 9 June 2023

[2023] HCATrans 075

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 WEDNESDAY, 7 JUNE 2023, AT 10.00 AM

(Continued from 6/6/23)

Copyright in the High Court of Australia
KIEFEL CJ: Before you proceed, Mr Begbie, I have some questions for Mr Walker, if you would be so kind. Judges make use of overnight, as well, Mr Walker.

MR WALKER: I have no doubt, your Honour.

KIEFEL CJ: Mr Walker, it is just to take up the point which was touched on yesterday but not gone into, I think, in any detail. It has to do with what is the purposes of the business of the committee.

MR WALKER: Yes.

KIEFEL CJ: I think it is accepted that whatever is done regarding the document which is called the report, it needs to be for the purposes of the business of the committee to qualify as proceedings of the ‑ ‑ ‑

MR WALKER: Of transacting the business of the committee.

KIEFEL CJ: Yes. But, unlike the Assembly, where the business might be regarded as wider and more general, here the business of the committee would be found in its statutory function – it being a statutory committee.

MR WALKER: Yes.

KIEFEL CJ: So, the question then is what the document called the report has to do with its functions. It has an oversight function under the Crime and Corruption Act.

MR WALKER: Yes. Can I draw to attention at the outset subsection (5) of section 9. What your Honour has said about a comparison between the Assembly and the committee is, with respect, plainly correct, subject from time to time to legislative delineation of a committee’s work but, for the purposes of privilege, there is that rather striking subsection (5), with that arresting phrase:

it does not matter –

So, the nature of the business transacted apparently does not matter “for this section”. I do not suggest that the evident intention of those words is impossible to see; it is very possible to see. It is to remove from what I might call liminal function, setting boundaries, an examination, obviously, in a court of what the committee thinks it is doing.

KIEFEL CJ: Yes. No, I understand.

MR WALKER: And being a committee of the Assembly, one can imagine – bearing in mind that the committee can always be, as it were, pulled back by the shepherd’s crook of the Assembly itself, or, for that matter, ask the Assembly to endorse or not what has happened in the committee – bearing in mind that it is a subset of the whole; bearing in mind that it is a parliamentary chamber, one can see why, for the purposes of examining the extent of definitions in subsection (2), the Court has to bear in mind subsection (5). Following that, then ‑ ‑ ‑

KIEFEL CJ: But that would not affect the central point that the business of the committee is its statutory functions.

MR WALKER: Absolutely. Well, statutory functions plus those things which are inherent in being a committee of the Assembly, of course.

KIEFEL CJ: Yes. I do not think we are in that territory here, though.

MR WALKER: No, no. In this case, the Speaker stands back from an argument concerning the CCA. But, to try to address your Honour’s questions ‑ ‑ ‑

KIEFEL CJ: We have not quite got there yet.

MR WALKER: I am sorry. I thought your Honour had asked me whether you had to look at ‑ ‑ ‑

KIEFEL CJ: I was heading in the general direction ‑ ‑ ‑

MR WALKER: Of transacting business, your Honour.

KIEFEL CJ: ‑ ‑ ‑ of transacting business and functions. But the question which might arise is, given its oversight functions, what have those functions got to do with an involvement in complaints about corrupt conduct themselves? It is a question of whether or not, in the first place, it is any business of the committee to involve itself in a complaint and what the Commissioner has done about a complaint or the Commission’s view about the complaint. That is one question.

Relatedly, in telling the Commission, as it did, that it would treat the document as a report for the purposes of section 69, are we in an area where it might be said it is purported to authorise the document as a report? That is relatedly, but probably a separate question.

MR WALKER: Could I start with the last one?

KIEFEL CJ: Yes.

MR WALKER: The Speaker has no intent to argue ‑ ‑ ‑

KIEFEL CJ: I realise there might be limitations on how far you wish to get into the facts of this.

MR WALKER: Yes. But for the Speaker, we have no intent to argue that the effect of section 292 of the CCA is to enlarge what would otherwise be the power of the Commission.

KIEFEL CJ: Commission. So, if we start from the premise – if we start from the hypothetical premise that the Commission is not authorised to make ‑ ‑ ‑

MR WALKER: Thank you.

KIEFEL CJ: ‑ ‑ ‑ the document or the report, it is accepted that it is no part of the function of the committee to extend the authority of the Commission.

MR WALKER: Absolutely. That is, neither adjudicatively, which is unthinkable given the constitutional separation which is in fact the reason for the tension that parliamentary privilege polices, but also because legislatively that is not how Parliament legislates by resolution of a committee. So, I accept all of that, the Speaker accepts all of that. On the other hand, the functions of the committee, which can be generally summarised as supervisory, do include being sufficiently informed of what the Commission is doing, perhaps even proposes to do, and to pass that on as it sees fit to the Assembly, see, for example, section 292, paragraph (c).

KIEFEL CJ: It depends on what one regards as an oversight role and what is found in the words of section 292. There is nothing there which suggests that its oversight – I mean, it is oversight said to monitor and review the performance of the Commission’s functions, not to relay what the Commission might think about a particular complaint or its concerns beyond those which are expressed in the Commission’s powers or functions to report. I mean, here in what factually has occurred it would seem that the committee and the Commission discussed before the preparation of the report the possibility of something in the nature of a report being prepared.

MR WALKER: Yes.

KIEFEL CJ: The committee encouraged, if not – encouraged, I think would be a fair word, the preparation ‑ ‑ ‑

MR WALKER: Consented is an appropriate word, given the statute’s use of consent.

KIEFEL CJ: ‑ ‑ ‑ and it more or less said that it would treat the report – it would treat the document as a report for the purpose of section 69. Now, the question is, one, is that part of its function, and the related question, does that amount to the committee purporting to authorise the report?

MR WALKER: It is certainly not the latter.

KIEFEL CJ: Why?

MR WALKER: The committee may be wrong as to legal character, just as a chamber of Parliament may be wrong as to the legal character of something before it. That does not in either case disable the committee or the Assembly from considering the substance of the matter, including as affected by any such error.

KIEFEL CJ: But the question is whether or not this Court can have a look at what the committee has purported to authorise, and I think that was ‑ ‑ ‑

MR WALKER: I entirely accept that.

KIEFEL CJ: That was the exception that Justice McPherson referred to in CJC.

MR WALKER: I entirely accept that the question that arises under section 8 as extended by section 9 is the role of a court, and now, at this point in this case, this Court. I accept that completely. May I stress, however, that the functions of the committee under section 292, in our submission, would plainly extend – see paragraph (b), paragraph (c), and for that matter, the general task in paragraph (f) – would plainly include considering what the Commission proffers to the committee under the guise of being, that is, said to be, a report capable of being the subject of direction under section 69.

The fact on the hypothesis that is the proper one for me to address, namely, that it was not such a report, for whatever reason, is not one, however, which would deprive the committee of considering it and the committee perhaps making an error for itself as to whether it is. And when you consider the way in which an error may be committed, say, by reason of a breach of section 71(a) of the CCA, so some anterior failure properly to apprise somebody, an affected person, of an adverse finding, one can see that it is not, on its face, obvious to a committee that that which purports to be a report to which the duty in 71(a) attached, in fact, cannot be because that mandatory duty under 71(a) had, it turns out, not been complied with.

It is for those reasons, in our submission, that this Court would never say that the availability of privilege depends upon whether the committee is correct in its understanding of the legal status of that which comes to it by way of being – and now we turn to the language of section 9(2)(d) – simply, a document.

KIEFEL CJ: But if one takes a step back before it considers its – the question is not factually whether or not it has authorised the preparation of the report by the encouragement it gave to put it before it and for the purposes of the Commission, not the committee.

MR WALKER: Yes.

KIEFEL CJ: All of those are involved in the question of whether or not it is to do with the business of the committee.

MR WALKER: Yes. Now, if the business – sorry, not “if” – the way we put it yesterday involves critical attention to the breadth of the language in paragraphs (c) and (e) of subsection (2) of section 9. There is no question that the document purporting to be a report concerning which there might be a section 69 direction was presented to the committee.

There is no call – particularly bearing in mind the hint that comes in subsection (5) of section 9 – I stress, only a hint – there is no call for that to be interpreted as if, interstitially, one has the (4), and qualifying the word “document”, a document which is truly that which it purports to be. That would be to intrude a test that, in our submission, is entirely contrary to the obvious intendment of subsection (2) of section 9 which is that upon there being the presentation of a document to a committee, that presentation is proceedings in the Assembly.

KIEFEL CJ: Not entirely. It does not conclude the question. Subsection (2) of section 9 says that the proceedings may include particular acts.

MR WALKER: No, quite.

KIEFEL CJ: But it does not answer the question ‑ ‑ ‑

MR WALKER: “For the purposes of” ‑ ‑ ‑

KIEFEL CJ: ‑ ‑ ‑ for the purposes of the business of the Assembly.

MR WALKER: “Incidental to” them. I do not resile from what I said yesterday. Yes, we accept what your Honour raised yesterday – that “for the purposes of or incidental to, transacting business” of the committee is absolutely necessary. But if there be document submitted to the committee, here it is clear the committee has, among other things, see 292 – the provisions I have referred to – it, obviously, has the function and capacity to consider for itself whether something which has presented it to it by way of a supposed report to which there might be a section 69 direction, the committee has the right to examine that. Indeed, one would have thought that it is in the public interest that there be absolutely inhibition in then being able to say, we think this is or is not a report concerning which we might make a section 69 direction.

KIEFEL CJ: Would it have the same power with respect to anything it received?

MR WALKER: Yes, it does. The question is, does a court have the capacity to interfere by way, ultimately, of injunction – a prohibition against such a direction? And those are ‑ ‑ ‑

GORDON J: “Interferes” is an unusual word, is it not? Because it is really three questions. The question is, does the privilege exist? And there is no dispute that the Court can determine whether or not – that question. The second question is, are we impeaching or questioning the exercise of that privilege? And the answer is that is not an issue here. Then the third question is the question which the Chief Justice is asking about and that is the prior question, what do we do about the question of power in respect of the provision of the document itself, and, as you describe it, whether or not it has complied with the relevant statutory provisions, i.e., in its preparation. And those two questions may not overlap.

MR WALKER: No. And there may be more than two there.

GORDON J: I think there was three, actually – I apologise.

MR WALKER: If we look at power, one of the aspects of power – and there are two, at least, distinct elements of power here. There is the power of the committee to receive and do what it will, not what this Court would permit it to do, but what it will, with anything it receives. That is the first thing. The second thing is the power of the Commission to submit, correlatively, the power of the committee to consent to receive any information including in documentary form. Now, section 71 of the CCA answers that. There is such a power.

EDELMAN J: But why is that power not a power that is being exercised for the purposes of the Commission itself and not for the purposes of the committee?

MR WALKER: So long as those are not regarded as mutually exclusive, the short answer is, how could I possibly on the face of the material you have seen, say that it is not one of the purposes of the Commission to have the committee consider whether there should be a section 69 direction? It is palpable, yes. Factually that is true, but that not only does not say it was not a purpose of the committee, it actually bespeaks that it was, because there was a submitter, a submittee and the submittee only had the power to consider. And it is clear from the anterior dealings, it is clear from the way in which the committee expressed itself in holding its hand, pending the resolution of these proceedings, that the committee had on its agenda consideration whether to give the direction.

So that receiving and having the document is for the purposes of transacting its business, including the future contingent possibility of a direction under section 69. Now, the business of the committee communicating formally by way of a process that involves, to my client, the prospect of tabling, with all its consequences of publicity, that is at the very heart of parliamentary business. It is both the business of the committee, who has a role under section 69, of course, obviously. It affects directly the business of the Assembly to whose presiding officer the section 69 direction leads this document.

Now, it is for all of those reasons that we did use – I am sorry, we did use the word “interfering” because that is the right word to use concerning parliamentary privilege and the relation of chambers and their committees to courts. But the whole struggle that produced the not so settled understanding of article 9 – that whole struggle involves keeping the court out of the processes of Parliament. That is so – it is for Parliament.

There are exceptions to that, we know, under our Constitution – the Commonwealth. But, by and large, because of article 9, it still remains the case that it will be for Parliament to decide whether or not, for example, a standing order has been breached without being dispensed with.

GAGELER J: The point about the standing order is that it is not law in the sense of the law that is administered by the courts.

MR WALKER: Would your Honour forgive me, appearing as I do for a Speaker, saying, yes, it is law in the sense captured in the Latin translated as the law and usages of Parliament: lex et consuetudo parliamenti. So, it is law in that sense, and it is constitutionally significant to accept reflected in the Commonwealth level by section 49 that there is a body of norms that are
not enforceable in courts of law. Indeed, that is one of the tenets that one advances if you are appearing for presiding officer in arguing about article 9.

GAGELER J: Going to the core of article 9, there is a sentence in Lord Diplock’s reasons in Rediffusion [1970] UKPC 12; [1970] AC 1136 at 1155 that I just wanted to put to you. Here, he is referring to Barton v Taylor and he says that:

the Judicial Committee –

in that case –

treated it as axiomatic that the court had jurisdiction to inquire into . . . unlawful conduct by members of a legislative assembly in the course of legislative proceedings in the chamber.

MR WALKER: That is wrong.

GAGELER J: You say that it is wrong?

MR WALKER: In this country, that is wrong. That is imbued with what in this country is false learning concerning inferior colonial legislatures, and it is entirely at odds with the cases which discriminate between those matter‑informed provisions in our Constitution which can be litigated and those which cannot be. There would be none that cannot be, were that dictum to be taken for its apparent effect. In particular, it is at odds with the division representing the resolution of the tension exemplified by the statement in Fitzpatrick v Browne.

So that there is no call for an examination of how there has been an exercise of parliamentary power within the walls – and this case is about what is the effect of that on justiciability of things which would otherwise be – and call out for justiciability – when the definition of the walls has been moved out by section 9. But, that approach by Lord Diplock is, with respect, impossible to sustain without such heavy qualification as to render its articulation of no utility.

GAGELER J: Thank you.

KIEFEL CJ: Thank you, Mr Walker. Mr Begbie.

MR DUNNING: Sorry, your Honour, just before my learned friend starts, Mr Horton has kindly indicated there would be no objection, if the Court
wanted it, to the provision of the 23 April letter. I have copies and if your Honours wish, I can have them circulated at a convenient time.

KIEFEL CJ: Yes, I think that would be preferable for the Court to have it. Thank you, Mr Dunning.

MR DUNNING: Of course, your Honour. How many copies would be convenient?

KIEFEL CJ: Enough for the Court and a few over.

MR DUNNING: Very good. Thank you, your Honour.

MR BEGBIE: Your Honours, the Attorney‑General says that the issues in this appeal fall to be resolved by the ordinary construction and application of sections 8 and 9 of the Parliament Act. That does not make them easy, but that is the way in which they fall to be resolved. The Attorney’s interest in these issues, of course, stems initially from the fact that those provisions are modelled on the Parliamentary Privileges Act (Cth), particularly subsections (1) and (2) of section 16 which, respectively, are the underpinning or the model for sections 8 and 9.

Section 16(3) of the Commonwealth Act goes further than anything you see in the Parliament Act because what it does is, so to speak, explain or codify what it means to impeach or question, and it proscribes a wide array of conduct as impeaching or questioning. I will come back to why that difference has some significance.

The other reason the Commonwealth has an interest in this is that the Commonwealth itself of course has a range of statutes which, in a broad sense, can be compared with the Crime and Corruption Act in that they establish statutory offices or office holders that have a statutory relationship with a statutory joint committee of Parliament which, so to speak, superintends their activities and engages with the Houses about that. So, the Commonwealth is concerned that, of course, whatever the Court says in this case will have a significant bearing upon that body of Commonwealth law.

Given the way argument has developed, and issues have been exposed in questions from your Honours, we propose to approach our oral outline in a slightly different order from what is in the written oral outline. I would like to start, first, with section 8 and the purposive understanding of that by looking at article 9 cases and the broader principles that article 9 manifests. Doing that involves presupposing that we are talking about proceedings in Parliament, and it speaks to what happens, what must courts do or not do when we are talking about proceedings in Parliament. That is the part of our oral outline that we deal with in paragraphs 9 to 12.

Secondly, I would like to turn, then, to the section 9 question: what is proceedings in Parliament? We apprehend that is where much of the difficulty in this case lies, and we join with the Speaker in saying those difficulties are resolved, ultimately, as a matter of textual construction. But it is important, again, to see how those textual matters work in practice, and I will develop in that part of the submissions the principles that guide that process and the way courts – and I emphasise courts – determine whether something is proceedings in Parliament.

Finally, I will just turn to, briefly, to the majority judgment and explain where, we say, having regard to those matters, the majority went wrong. Could I start with the most difficult aspect of article 9, and it is the aspect that is crystallised in this case, which is what happens when a court is confronted with a prayer for relief to deal with a claimed unlawfulness, and it is said that that is in the exclusive cognisance of Parliament.

Your Honour Justice Gageler has raised the question whether there are authorities that look at that conflict in a universe where what the Court is asked to adjudicate on is, in fact, the application of statutory provisions. The case we want to start with is the case of Bradlaugh v Gossett. And your Honours will recall that is the case – one of the cases – that dealt with that long controversy where Charles Bradlaugh, a Member of the House of Commons, was initially wanting to take an affirmation, not an oath; was then confronted with the problem that if you did not take an oath and you voted, you were liable to penalties of $500 for every time you voted.

All of that was regulated by a statute, the Parliamentary Oaths Act. Under that statute, the courts had the exclusive role in determining the question of fines, but there were provisions which regulated when you could take the oath and what you could do about that. What happened was that after some three years of this struggle, Mr Bradlaugh asserted a right to take the oath and that right was refused by the House and, following further contretemps, he was ordered to be removed by the Serjeant‑at‑Arms. He sought relief in the Queen’s Bench for what he said was a breach of the Parliamentary Oaths Act and restraint of the Serjeant‑at‑Arms.

Now, you will see immediately from those facts that we are talking about something factually very different from the present case. We are talking about something that is unambiguously proceedings in Parliament – and I have deliberately put down the track that question about what is proceedings in Parliament. But, accepting that what we are talking about here is proceedings in Parliament, what is instructive is how the court dealt with this particular clash between the Parliament’s view of the Oaths Act and what Mr Bradlaugh wanted the court to say about the Oaths Act.

If your Honours would go to tab 44, I will start at page 278 of the report, which is the decision of Justice Stephen which gives the more detailed description of the circumstances and approach taken, but Lord Justice Coleridge came to the same conclusion and all three members of the court agreed on these propositions. If you look, first of all, in the middle of the page, “The legal question”, you will see there ‑ ‑ ‑

EDELMAN J: Which page?

MR BEGBIE: Page 278 of the report, your Honour. You will see there put very starkly the problem, and the conclusion pre‑empted is:

the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute‑law which has relation to its own internal proceedings –

Reading on, you will that this is not viewed as a controversial proposition but at that time many authorities were said to support it. Two are cited, one is the quote there from Blackstone at the bottom of the page and the other are the four enumerated passages from the judgments in the famous case of Stockdale v Hansard.

Justice Stephen did not shy away from the problem that what might have happened in the House was frankly unlawful in the sense that it was frankly contrary to the statute, and so you will see his Honour highlights that towards the middle of the second paragraph on 279:

Grant, for the purposes of argument, that the resolution of the House and the Parliamentary Oaths Act contradict each other; how can we interfere without violating the principle just referred to?

GORDON J: Where is that, sorry, Mr Begbie?

MR BEGBIE: On page 279, your Honour sees the second paragraph, it is about point 7 on the page.

GORDON J: Thank you.

MR BEGBIE: “Grant, for the purposes”. Justice Stephen went to some pains to repeat this point, and he does so at later places in the judgment, as well. If you go over the page to 280, second sentence of the second paragraph, at about point 4:

In order to raise the question now before us, it is necessary to assume that the House of Commons has come to a resolution inconsistent with the Act . . . We must of course face this supposition and give our decision upon the hypothesis of its truth.

GORDON J: There is no inconsistency here alleged. We are not in that territory, because the act that is being concerned with here is an act of taking of the oath in the House itself.

MR BEGBIE: That is so. I am not ‑ ‑ ‑

GORDON J: I recognise that you accept they are factually different, but there is no inconsistency between the two pieces of legislation here. Not been put in those terms.

MR BEGBIE: What has been put below is that there was non-compliance with the CC Act, and that in those circumstances privilege does not stand in the way of the courts adjudicating and declaring that non‑compliance. At a level of principle, we say not identical – and we absolutely recognise the factual differences – but at a level of principle, we say this decision comes close to the problem Justice Gageler was raising yesterday about authority as to this point.

GAGELER J: Do you say that this decision stands for the proposition that article 9 of the Bill of Rights goes to the jurisdiction of the Court to enquire into legality as distinct from what might be done by way of enquiry or grant of relief in the exercise of that jurisdiction? That distinction is not clearly drawn here. In fact, the language used of interfere, control, is somewhat ambiguous. But is a distinction that is drawn quite clearly in 20th‑century cases. And my understanding of those 20th century cases is that they say that article 9 goes to the exercise of jurisdiction, not to the existence of jurisdiction to enquire into legality. Do you dispute that?

MR BEGBIE: I do not dispute it, your Honour. Can I, in a sense, take it on notice a little bit? I have not sought to analyse it through that prism. Certainly, everything I will be developing today is consistent with what your Honour says in that what article 9 manifests – and I will come to a case that deals with this – is a broader principle of mutual respect, which is less a jurisdictional idea than an idea that courts will not cut across what Parliament is doing, or might do, or has done, in an exercise of restraint that is consistent with the system of government – the representative democracy that we work in. So, with that small caveat, could I, perhaps, leave the answer there?

GAGELER J: Yes.

MR BEGBIE: So, your Honours will see the consequence of this reasoning at the bottom of 280, going over to 281. If your Honours go to 284 – and I will not step through this for time reasons and because your Honours can, obviously, do this – but very powerful arguments were raised by Mr Bradlaugh about where the court was heading and to the effect that, does this mean that Parliament, in effect, becomes a court? Is the constitutional arrangement confounded to that degree? How can it be that there is a power that is wholly unreviewable and that the decision of Parliament, itself, remains final and that is the end of it?

Again, Justice Stephen does not shy away from that problem. He does not say that Parliament becomes the court for the purposes of such a provision but that, if there is a remedy, it is not with the courts. So, the distinction between Parliament’s decision and the decision of a court from which there is no appeal becomes small in practice. But such is ‑ ‑ ‑

GORDON J: Just so ‑ ‑ ‑

MR BEGBIE: ‑ ‑ ‑ the importance of the principle. I am sorry, your Honour.

GORDON J: No, it is all right. I did not mean to interrupt. Do you step away from what Chief Justice Dixon said in Fitzpatrick v Browne?

MR BEGBIE: No, no. I will come to that in the second part of our submissions, because this is what we say is the important balance that is struck here. The Court will decide whether the privilege exists in a particular factual setting. Here, it does that by reference to the provision, section 9, and the way it tells you what is proceedings in Parliament. But once the conclusion is reached that you are dealing with proceedings in Parliament – a big question and I will come to it – but once that conclusion is reached, you are in the Bradlaugh territory. That is when courts do not intrude upon Parliament’s decisions, Parliament’s own assessment of its evidence, of its information.

So, I deliberately started this fairly stark point and that is because we do not want to shy away from the fact that this is a stark line that is drawn – it has been called a bulwark of representative democracy and it is recognised that if you have it, it will operate in some cases in ways that cause courts not to be able to administer justice in the way they otherwise would. That is understood. This is, with respect, a very clear example of that.

GAGELER J: Mr Begbie if, in the course of proceedings in Parliament, the Serjeant-at-Arms is authorised to physically escort a Member from the chamber, the question can be adjudicated upon by a court as to whether the Serjeant-at-Arms was properly authorised to do so. That is where the question of the privilege of Parliament arises. But it arises by reason of the court adjudicating the question of whether an assault has occurred.

So, the starting point is the adjudication of a legal right, and then the question is whether there was a privilege of the Parliament that was exercised to allow that to occur. Just because it is a proceeding in Parliament does not mean that the court cannot inquire.

MR BEGBIE: The facts that your Honour puts – can I suggest two issues that throws up? The first your Honour puts is the court can inquire into the assault in order to ask the question, did the privilege apply. We agree it can. Your Honour might have put it, can adjudicate on the assault. We do not agree with that. So, the court has a provisional initial look at the parliamentary circumstances for one purpose, which is adjudicating whether or not the privilege applies.

We have sent through a case of Amann Aviation which your Honour will be familiar with. It was the first case decided under section 16 of the Parliamentary Privileges Act. One of the issues that came up in that was the potential circular problem of the court looking at Hansard in order to determine whether the privilege applied. What Justice Beaumont said, and what has been accepted ever since – and this is consistent with previous practice as well, of course – is that the court can look at the proceedings in Parliament, it can look at what occurred in Parliament on a de bene esse basis to say, when I look at this and all the other facts, is these proceedings in Parliament? So, in your Honour’s case, that is what would happen with the assault. If the conclusion is as it ‑ ‑ ‑

EDELMAN J: That is really no more than saying the court can inquire into the existence and the boundaries of the privilege itself. But that is where the inquiry ends, because the correlative of the privilege is that there are no rights. And if there are no rights, there is nothing to be adjudicated upon.

MR BEGBIE: We accept that, with this slight proviso, to the extent there are rights, they are matters for Parliament, not matters for the court.

EDELMAN J: Yes.

GORDON J: After you determine the existence of the privilege.

MR BEGBIE: Quite so. And concluded it exists.

GORDON J: That is why I do not understand why – I mean, that is exactly what Chief Justice Dixon said, did he not, in Fitzpatrick and Browne?

MR BEGBIE: It is for the court to adjudicate the existence of the privilege, indeed. And that is what we will be saying in the second part of our argument, it is the court and only the court that will adjudicate the existence of the privilege in a case like this. And it will do so in the ordinary fact-finding ways that courts are uniquely positioned to undertake. We start with section 8 and article 9 in this case and the cases I will just come to, to put in focus what happens when the court is dealing with proceedings in Parliament.

Before I leave this case, can I draw to your Honours’ attention page 275, and this is the part of the decision of the Chief Justice which is cited time and again. At about point 3:

What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases . . . are agreed, and are emphatic.

Et cetera. That passage has been cited in many of the cases your Honours have already been taken to – Egan v Willis, Chaytor, CJC v PCJC, and is also cited in the case I am about to come to. So, the principle as articulated there and as explained in detail by Justice Stephen is not an archaic one confined to the English context. It is a live one which explains how article 9 and the principles that it represents are understood and have been understood for a very long time.

GORDON J: The next paragraph is interesting, is it not, by the Chief Justice. He does not answer it, but he identifies the difficulties of reaching this idea that the Court is not involved.

MR BEGBIE: Yes. When your Honours examine this case in more detail – and it is for time reasons that I have not done this – but I draw to your attention there are passages that on the face of them also seem to create difficulty because of the way Stockdale v Hansard is discussed and the other aspect of Stockdale v Hansard which is, if you like, the first limb of the Fitzpatrick statement, and I would say two things about that without going to authorities on it. The first is that, to the extent Stockdale v Hansard stands for the proposition that it is for the courts, not Parliament, to be the adjudicator of whether the privilege exists, that is emphatically the law and that is what we advance.

On the facts of Stockdale, though, the situation becomes murky, but it is because the law at that time permitted a publication after the dealings in the Assembly to be the subject of defamation proceedings. That was corrected within a year of Stockdale being decided by legislation and that has not been the law in Australia. So, the relevant part of Stockdale for this case is the part that is summarised and picked up by all the judges in this case.

One thing that is striking about what their Honours did in that case is that they exercised extraordinary restraint. They did not, as it were, come to a provisional view about lawfulness. They did not seek to examine the facts of what Mr Bradlaugh had done or why the House might have decided he should not take the oath. They did that initial inquiry into whether or not the privilege applied, and once it did, you have seen how starkly it stayed away from it.

The same phenomenon you see in the case of British Railways Board v Pickin, which is at tab 45. This is not a statute case in the way Bradlaugh was. What happened here was that Pickin had a claim to land and the Railways Board, in its defence, pleaded a statutory provision which it said had vested the land in the Board. And in reply, it was said that that statutory provision had been, in effect, procured by the Board by misleading Parliament.

Again, we are very directly in the terrain of something that is unambiguously proceedings in Parliament, but what is instructive is what the courts did insofar as staying away from that examination that inquiry is concerned. If I can just go to the passages, very briefly, and really draw attention to them to illustrate this point. On page 787 of the report, it is obscured by the red number 1753, at line G:

The function of the court –

This is from the judgment of Lord Reid. You will see:

Any attempt –

And it is an “attempt”, there, not – that is all that is required:

to prove that they were misled by fraud or otherwise would necessarily involve an inquiry –

And Lord Reid goes on over the page, and you would read down to the end of the paragraph that begins:

For a century or more –

In the judgement of Lord Morris, on page 790, starting at line C, what is set out is the kind of inquiry that the Court would become embroiled in were it to embark upon adjudicating the allegation in the reply. Lord Morris then goes on to consider cases that say that, emphatically, cannot be done, and at the top of page 792 concludes:

there cannot be a triable issue in the courts whether an Act of Parliament was improperly obtained.

Lord Wilberforce at the very top of 793:

The remedy for a Parliamentary wrong, if one has been committed, must be sought from Parliament, and cannot be gained from the courts.

Your Honours would also read on 797 at line G the allegations made in the reply and then, at the top of the next page:

The whole of this is upon the clearest authority which I have stated impermissible, and unless capable of amendment must be struck out.

Lord Simon’s speech from about H, this is on the same page, your Honours:

A second concomitant of the sovereignty of Parliament –

speaks to the privileges – you will there, citing the oft‑cited passage from Erskine May and the part of the judgment of the Chief Justice in Bradlaugh. And your Honours would read on down to the end of the paragraph just above G – and I do not need to take your Honours to Lord Cross other than to say that there is agreement. So, that represents the position which we say exists under article 9 and its related principles.

Now, I will not go back to this case because it has been carefully scrutinised already, but we do say that the decision of the Queensland Court of Appeal in CJC v PCJC is an example of a situation in which a court is asked to adjudicate upon compliance with a statute and refuses to do so because of the operation of parliamentary privilege. That is obscured a little bit, perhaps, by some of the focus on the procedural fairness aspect of that case, but the first declaration sought – you will recall – was that the action was ultra vires – the statutory provisions – and that is discussed at some length – perhaps unfortunate length – by Justice McPherson having regard to the privilege. Indeed, his Honour acknowledged that very point at paragraph [19] when he said in saying what I have said thus far, I may have already said too much because of the privilege. We would say, with respect, he was right about that.

We also draw attention to the fact that Bradlaugh and Pickin – those two cases we have just looked at – were cited and followed by Justice Chesterman at [45] – and Justice Chesterman at [47], with respect, neatly draws out the problem of courts even starting down the track of this inquiry because the making of a bare allegation – whether substantiated or not – then becomes the trigger for the court to start examining what happened in Parliament. While this case might not, on its facts, throw up the problem particularly starkly – dealing as it does more with barren sounding questions of technical compliance – if the allegation had been, for example, that one of the key participants for the Commission or the committee had acted in bad faith, or malice, or with actual bias, to start inquiring into that, that question of lawfulness is to immediately start questioning – in the broad sense in which that is used – proceedings in Parliament – if it be proceedings in Parliament – I do not want to jump the gun on that.

KIEFEL CJ: Mr Begbie, Justice McPherson at paragraph [25], however, stated the exception which I alluded to earlier in my conversation with – discussion with Mr Walker. His Honour did not doubt that there might be questions which the court can properly answer which relate to whether something constituted proceedings in Parliament, and his Honour there referred to the example of whether something was properly authorised.

MR BEGBIE: Quite, and ‑ ‑ ‑

KIEFEL CJ: So, there are limits. I mean, the question itself, whether something is proceedings in Parliament, is obviously one for the court.

MR BEGBIE: Quite so, and can I add to that what Justice Chesterman said in paragraph [48], which is a good illustration of how – and I will come back to this – when you inquire into whether something is proceedings in Parliament, it might be relevant in that initial inquiry phase to look at the Act, and to look at the facts about what was done purportedly under the Act. There might be cases where – and I am, of course, not straying into the facts of this case as an intervener, but there might be cases in which what was done were so extraordinarily distant from the statutory function or from the task that had been set that you would readily conclude by reference to the statutory provisions that this was not being done for the purposes of the transacting of parliamentary business.

KIEFEL CJ: The business of the Assembly or the committee.

MR BEGBIE: Yes. I will develop that further, if I might, your Honour. Before finishing this point, which is one of my two largest points, can I say there are other examples of courts staying their hand when being asked to examine the lawfulness of conduct. We embrace what was submitted for the Speaker, that for this purpose there are not categories of lawfulness that can be identified as attracting the privilege or disapplying the privilege.

So, what was said in Bradlaugh about compliance with statute law is the same principle that is followed in relation to, for example, procedural fairness in a non‑statutory context, and that is case of Carrigan v Cash that I will come back to in a moment as well. It is the same principle that applies in all the defamation cases. A defamation is an actionable tort; it is unlawful in that sense.

GAGELER J: What about cases like Trethowan and Cormack v Cope? Cases that raise questions about whether the product of a parliamentary process is one that is compliant with legal requirements as to what is to occur within that process. It becomes a little more complex in those cases, does it not?

MR BEGBIE: It does become more complex, and it becomes a complex factual inquiry in those cases. I will come in due course to a case that is in the joint bundle called Szwarcbord v Gallop which looks at the distinction between a document prepared for one purpose but then picked up and published, and what one does in that case. So, if I might deal with your Honour’s question in that way.

GAGELER J: Thank you.

MR BEGBIE: If that will deal with your Honour’s question. I, perhaps, may not have understood it. So, what that tells us so far, we think, your Honours, is that one function of article 9, which is to prevent courts ruling on the lawfulness of proceedings in Parliament, is clear and is apparent from the cases and must be part of what is intended in section 8.

Can I turn to the next purpose of article 9 and that principle of exclusive cognisance that we draw attention to? These are all, of course, completely interrelated. It is only for the purposes of, so to speak, presentation that we tease them apart. This is the purpose of ensuring that Parliament is able to arm itself with everything it needs to hold the Executive to account. The best description of that, we think, is that given by Justice McHugh in Egan v Willis.

If your Honours go to tab 28, would your Honours go first to paragraph 68, which is page 945 of the joint bundle? You will see there that his Honour picked up the passage of Lord Coleridge in Bradlaugh and also some of the passages of Justice Stephen. At 69, is the explanation of why I have been using the expression “article 9 and related principles” or “article 9 principles”. Your Honours might have seen that article 9, itself, was not actually the focus of Bradlaugh and in the case of Prebble – which I will come to in just moment – it is described as a manifestation of this wider principle of mutual respect and exclusive cognisance.

So, I identify that because it is important to recognise that although Bradlaugh does not, in terms, speak to article 9, what Justice McHugh recognises – and what all the other authorities that pick up Bradlaugh recognise – is that it is speaking to the very principle that is embodied in article 9. His Honour Justice McHugh makes that pellucid in 70, saying:

If the law laid down in Bradlaugh correctly states the relationship between the Supreme Court of New South Wales and the Houses of Parliament of that State –

that being a State in which that relationship is set by article 9.

EDELMAN J: Do you accept Justice McHugh’s statement at 69 that these principles of parliamentary law are jurisdictional?

MR BEGBIE: As I read what his Honour is saying, the courts are not precluded – I am sorry, exercising their jurisdiction. No, I am not sure that that would cause me to change the answer because that is not saying the court does not have jurisdiction, it is saying that the court ‑ ‑ ‑

KIEFEL CJ: Without relief.

MR BEGBIE: Yes, the court does not exercise it in its decision. As I read it, your Honour – and I may well get notes in the course of these submissions or over the break which cause me to come back to your Honour on that. Can I just say something about timing ‑ ‑ ‑

GORDON J: Can I just say something about 70. Justice McHugh draws a distinction between – and this comes back to the matters that are being put to you about existence versus exercise. So, consistent with Fitzpatrick and Browne, Justice McHugh draws a distinction where he says, well, it is not open to the court:

to make a formal declaration which is binding on the parties for all purposes including their conduct in the House –

as distinct from relief of the kind that was considered, for example, in Ainsworth and other cases where one is not making a declaration which is binding on the Parliament. Do you accept that is a distinction that is open?

MR BEGBIE: I accept there is a distinction, but I will need to ‑ ‑ ‑

GORDON J: If you want to come back to it later.

MR BEGBIE: ‑ ‑ ‑ come back to it, because what cases like Egan and Fitzpatrick, perhaps Halden v Marks in Western Australia throw up – in fact Halden explains this point very well. Broadly speaking, the authorities divide into two streams. One is the stream in which courts are being asked to review what Parliament is doing in the exercise of its privilege and that is one privilege. It is not this privilege, it is not the article 9 privilege. So, Fitzpatrick speaks in that context.

A lot of the cases we are looking at, of course, are cases in which article 9 is the privilege that is relevant or the statutory declaration of article 9, and they talk about when a court can examine things that are proceedings in Parliament, but not for the purposes of seeking to control Parliament, just whether they have to stay out of the arena altogether. So, it is not a bright line distinction and, in some ways, this case straddles them, but it is important just to be careful about some of those statements for that reason. And, as I say, that distinction is explained, we think helpfully, in Halden v Marks.

Before leaving Egan v Willis, I had better come to the actual passage that I was centrally concerned to emphasise, which is at paragraphs 100 to 102, which addresses that fundamental role – and it does not need to be laboured – of Parliament and, of course, its committees, to undertake the critical function of examining and criticising the Executive, and the need for them to have access to all the information necessary to do that. And your Honours can immediately, perhaps, see where we are going with that in this case.

What we have called in our oral outline a third purpose of the article 9 principles is one that has already been adverted to in the context of Rowley v O’Chee. It is the principle that people need, when they are speaking in and for proceedings in Parliament, to do so with the complete freedom that comes from knowing at the time they speak what they say and do will not be examined later in a court. It is to avoid the chilling effect, if you like. The way that purpose is advanced is through the recognition of the exclusive cognisance. The case that develops that very, we say with respect, clearly – and it has been cited many, many times in the Australian jurisprudence – is the case of Prebble v Television New Zealand, which is at tab 55.

This was a defamation case, so it now factually some distance from the present case, and we rely on it as an explanation of the principle that courts will respect. This was a somewhat unusual defamation case because, in this case, it was the member that had brought the action, and the defendant wished to use parliamentary materials in a truth defence to establish that the plaintiff and other Ministers made statements in the House which were misleading and also to allege or prove that a conspiracy was thereby entered into which resulted in the passing of legislation.

What the Privy Council considered was first whether article 9 prevented that from happening, and secondly, whether that created an unfairness of the kind that Mr Walker spoke to yesterday which might require a stay of proceedings altogether. So, it is a case that recognises sometimes this principle can operate in such a stark way that courts cannot administer justice. As it happens, this was not such a case, but that is the reality.

If your Honours go to 332 and consider from article 9 itself at point B, and then you will see at C that looking at article 9 alone just in its terms would lead to the conclusion that the matters sought to be proved by proceedings in Parliament would question or impeach freedom of speech. It is what follows that I have adverted to as the broader principle. Your Honours will see that these cases we have already gone to – Stockdale, Bradlaugh, Pickin – are all cited in that context. Then, at F, the Privy Council ‑ ‑ ‑

GAGELER J: If you are looking at the respective constitutional roles that are referred to, the respective constitutional roles ‑ ‑ ‑

MR BEGBIE: Yes.

GAGELER J: I am probably just repeating a question I have asked many times, but is it not the role of the court to declare what the law means?

MR BEGBIE: No doubt. And his Honour comes – and I will take you to this – to the rub: what happens when those roles clash? That is what we are dealing with here in every one of these cases. At one level or another, even if it is just the court’s role to consider evidence relevant to a case, that is still a role of the court and when they clash something has to give, and what gives is the court’s role, not the Parliament’s role, the court having done the very, very important task of determining whether the privilege exists.

Your Honours, I will not step through this, but you will get assistance, we submit, from the discussion that goes over the entirety of the next page. It is a discussion that picks up section 16(3) of the Commonwealth Act. I said to your Honours at the start that is a provision in the widest terms, and it explains what questioning and impeaching is for the purposes of article 9. It means, for example, making any:

statements, submissions or comments . . . questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament –

Even more wide, subparagraph (c):

drawing, or inviting the drawing of, inferences or conclusions . . . from . . . proceedings in Parliament.

GAGELER J: That is all about the exercise of jurisdiction.

MR BEGBIE: Yes, quite. I agree, your Honour. And what his Honour said ‑ ‑ ‑

GAGELER J: How it is exercised.

MR BEGBIE: Yes, or if you like, the decision not to exercise.

GAGELER J: No, it is about how it is exercised. It is about drawing inferences from evidence.

MR BEGBIE: I see. Quite so.

KIEFEL CJ: I see the time, Mr Begbie.

MR BEGBIE: Yes.

KIEFEL CJ: Might I inquire at this point what allocations of time have been made to allow the respondent – I am conscious of the interveners having taken some time – to enable the respondent to respond, and how we are travelling. Are we within the timeframes, or not?

MR BEGBIE: We are, your Honour, and I should have started by telling your Honour that we have spoken, and my learned friend does not anticipate – subject to anything that happens in my own submissions, does not anticipate being longer than an hour. I would – if your Honours would indulge it, I would expect I would take half an hour after we come back.

KIEFEL CJ: Then reply?

MR BEGBIE: Yes, of course, that will not be long.

KIEFEL CJ: So, we are comfortably within the timeframe of finishing today?

MR BEGBIE: Yes, your Honour.

KIEFEL CJ: All right. The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ: Yes, Mr Begbie.

MR BEGBIE: Continuing with Prebble, your Honours, we stopped at the point of talking about section 16(3) of the Commonwealth Act. Before I pick up again, can I just say in answer to your Honour Justice Gageler’s questions about jurisdiction that we, so to speak, agree with your Honour and my provisional answer I firm up on, and draw your attention to, I think it is paragraph 5 of the plurality in Egan v Willis, which does not, perhaps, decide it finally, but it certainly lends some support to that being the approach. And as we have just seen, that is the approach that is described in Prebble.

Returning, then, to section 16(3), which of course does not apply in this case, but what is noteworthy is two things that are picked up by the Privy Council. First, the reason for its enactment, which was to remedy what was seen to be a terrible trampling of the privilege in the Murphy trials by cross-examining witnesses as to the truth of their evidence in parliamentary committees. But secondly, and this is the point I am coming to, just below E, is the conclusion that that Act, and section 16(3), contains the principle to be applied under article 9.

When your Honours consider the meaning of “impeach” and “question”, they are not narrow expressions intended to cover only particular categories of ways in which courts might intrude upon parliamentary activity. They are, as all the cases we have looked at to date illustrate, words that seek to prevent any intrusion into that parliamentary sphere, after the initial question of the application of the privilege has been decided.

Would your Honours go over the page? The need for parliamentarians and witnesses and people who are engaging with Parliament to be able to speak freely is addressed from A down to D. Then, on page 336, at point G, you will see the three interests at play in this case. Of course, they are not identical to the interests in play in the case before your Honours, but in the context here being discussed, the Privy Council held that where there is a clash, it is the parliamentary interest that prevails – which is just another way of stating, starkly, what the cases have illustrated that we have already looked at.

Where that takes us, perhaps, is – I am sorry, before I wrap that up, your Honours have Alley v Gillespie, at tab 23 in the joint bundle. I will not take your Honours to it, but you will recall that that question of exclusive cognisance loomed to some degree, in that case. Your Honour Justice Gageler recognised that principle in paragraph 76, and your Honour Justice Gordon, with Justice Nettle, discussed and recognised that principle in paragraphs 105 to 108. So, it is not just that Prebble, itself, has been picked up and applied in a lot of Australian authority, this Court, only relatively recently has emphasised that part of the decision that I have taken your Honours to.

So, where that leaves us in construing section 8, your Honours, is this: first, it hardly needs to be said that as a fundamental bulwark of our system, this is a principle which engages the constructional approach reflected in the principle of legality, and we have cited authorities for that, and I do not need to take your Honours to them. What I do wish to underscore, though, is that this is not green fields exercise here. This approach has been well‑recognised across the Australian jurisdictions with respect to article 9 and with respect to the construing of provisions like section 8 and section 16.

We have looked at Egan. I have referred already to Halden v Marks, which are New South Wales and Western Australia. Your Honours have seen the decision in CJC which reflects all of these same principles in Queensland, and – your Honours have not been taken in much detail to this case, and I will draw one point out – it is the case of Rann v Olsen, which is South Australia – a five‑member bench in South Australia which considered these issues very carefully and extensively. I will go only to one of the issues in the decision of Chief Justice Doyle, which is the leading judgment and other judges, save for some differences as to the approach on the particular facts in the defamation case, the other four judges agree with these principles. The passage I would pause on begins on at 110 ‑ ‑ ‑

KIEFEL CJ: Which tab is that, Mr Begbie?

MR BEGBIE: I am so sorry, your Honour. It is tab 58. While your Honours are pulling that up, I can remind you of a case before the Queensland Court of Appeal of Laurance v Katter, which was one of the early cases to start considering the constitutional validity of section 16(3). One of the judges in that case, Justice Davies, upheld its constitutional validity by construing the idea of impeaching and questioning in a purposive sense, and what his Honour said was, it is for the court to determine whether or not a particular use of proceedings in Parliament in a court proceeding would in fact impeach or derogate from the operation of the House or the Parliament, and if it concluded that it would not, then parliamentary privilege did not cover that use.

From 110, Chief Justice Doyle analyses that argument, and it was only an argument because it was not – in fact, in law, it was only one of the three judges that had considered it – and says the privilege just cannot operate that way, in doing so in the context of section 16, but by reference, as he goes on, to the wider principles such as in Prebble. Justice Mullighan agrees generally at 283. Justice Perry expressly agrees on this point at 255. Justice Lander again expressly agrees at 393. To round out the jurisdictions, the Court of Criminal Appeal in Victoria in the case of Theophanous has approached section 16 in this way, including particularly with reference to the rejection of that idea of treating, questioning and impeaching in a purposive way, as Justice Davies had done in Laurance v Katter.

Theophanous is a case that we sent through, and I will not take your Honours to it, but that is what it stands for. I will not spend more time on Rann v Olsen, save to say that it is a very careful and, we say, valuable exposition of the privilege as it stands in section 16 of the Commonwealth Act. So, that is what we wish to say about section 8.

If I can turn, then, to the second part of our submissions, which is to look at the question of proceedings in Parliament and how that is determined and by whom. Now, the way I wish to do this is obviously not to repeat what the Speaker has said about this, which I might say we embrace, but rather to go to the propositions that the respondent relies upon to – we say improperly – narrow section 9. The first of those propositions, which is in the respondent’s submissions at 95(a) is to this effect: the majority was right below to conclude that parliamentary privilege cannot apply to acts which are ultra vires because, invoking Kable, that which is beyond a statutory function is a nullity and cannot have legal consequences.

That is to, in our submission, ignore the very plain language of all words spoken and acts: not all words and acts lawfully or validly or authorised, all words spoken, and acts done, that is a factual proposition. And as Kable itself makes clear, a thing that might be a nullity in law remains a thing in fact. And the very passage that is footnoted in our learned friend’s submissions is your Honour Justice Gageler’s statement to that effect at 52 in Kable. That is what this provision is concerned with, things in fact. And they exist whether or not they were lawful or authorised or defamatory or whatever else it might be.

The only limit that Parliament has imposed on all words spoken and acts done is itself a factual limit. Were they done in the course of, or for purposes of, or incidental to the transacting of Assembly or committee business? That is a factual limit, not a legal limit. You do not find a legal limit in that language. Some factual situations, of course, will be very clear when you are in the terrain of in the course of, what someone says in debate in the House, it is beyond the shadow of a doubt that that factual test has been engaged. The same could be said of paragraphs (a) to (d) in subsection (2). They are going to be very clear. Where it gets difficult is a case like this ‑ ‑ ‑

KIEFEL CJ: Mr Begbie, is there a distinction to be drawn, though, when you say it is just a question of fact, between the business of the Assembly, which can mean almost everything, and the business of a committee established by a statute? Because, as mentioned earlier in relation to the latter, you necessarily look to the statute for the limits of its function. So, in that sense, it might be a question of mixed fact and law – what it does and whether it is within the confines of the statute which established the committee.

MR BEGBIE: We would resist that, your Honour. We say it is a question of fact which can include looking at the statutory provisions and the extent to which ‑ ‑ ‑

KIEFEL CJ: What if the act done had absolutely nothing to do with the business of the committee? That is a legal question, surely – partly mixed fact and law. There is a factual – there would be a connection, but the connection must be ‑ ‑ ‑

MR BEGBIE: Yes, I understand.

KIEFEL CJ: ‑ ‑ ‑ to what the functions are legally.

MR BEGBIE: Yes.

KIEFEL CJ: So, largely a factual question, but there must be a legal hook or anchor.

MR BEGBIE: I accept that, your Honour. I understand what your Honour says, and I accept that. It is more – perhaps I was pre‑empting something your Honour was not saying. That analysis is undertaken that the initial stage for determining the privilege ‑ ‑ ‑

KIEFEL CJ: Yes, that is right.

MR BEGBIE: ‑ ‑ ‑ and for that purpose, yes. Your Honour has gone straight to where I was going to go. These factual inquiries – and particularly in a purpose case, where proceedings in Parliament or in the Assembly exist only because of an assessment of purpose – become very difficult, and they throw up the spectre of the problems that your Honours were all, with respect, very properly raising yesterday.

We say there are three features of the statutory provision that, in combination, help to answer that. We do not say there will not be hard cases – and this might well have been one of them if it had been run differently below – but these features, which I will state and then address by reference to authorities, should give some comfort in our submission that this is not creating a roving privative clause engageable at will or anything as drastic as that.

GORDON J: So, these are features of sections 8 and 9?

MR BEGBIE: Yes, and particularly section 9. Two are found in the provision itself and one is found in how it works. First, picking up your Honour the Chief Justice’s point, the provision requires there must be actually parliamentary business. It is not enough to have fantastical or speculative or unreal conceptions of parliamentary business. It must be possible to identify some parliamentary business to which the acts and words relate.

It might be future business. It will very commonly be future business. A parliamentarian sits down and writes a speech that is intended to be given in the House. It is future business but it is clearly contemplated actual business. That is why – and I think, perhaps, you may have had this mind, Chief Justice – you can look to the provisions of the Crime and Corruption Act to think about – to ask the question: is there business in play? That will help answer that question. But there must be business. The second is ‑ ‑ ‑

GORDON J: Sorry, just so we . . . . . that means, in relation to that question, one looks to the functions of the committee in this context?

MR BEGBIE: Yes. That will often be one of – it may even be the only matter you need to look at. As my learned friend for the Speaker says, there may be situations where that committee or its members are doing things that do not find voice in the statute. That does not mean they cannot be business of the committee or indeed, depending what they are, business of the Assembly. You might need to make a quite different factual inquiry to answer that question than just ‑ ‑ ‑

KIEFEL CJ: How could it be the business of the committee if it was not statutorily authorised?

MR BEGBIE: Because the committee might, in fact, do things that stand outside that. Just as in Stockdale, the House might, in fact, do something completely contrary to the Parliamentary Oaths Act. I need to be very clear; we are not suggesting this is a carte blanche or that ‑ ‑ ‑

EDELMAN J: But it is, in fact, doing it for the purposes of transacting business.

MR BEGBIE: Yes.

GAGELER J: In a Commonwealth context, that would be pretty hard to square with section 16(3) of the Commonwealth Act – that kind of inquiry where you are actually questioning the motives, the intentions of the members who constitute the committee.

MR BEGBIE: This is my third point, your Honour, and I will make it second. The way this inquiry is conducted is by a court. A court, for the purposes of assessing whether the privilege is engaged – and that means in a case like this – for the purposes of assessing whether or not these are proceedings in the Assembly, might conduct a very detailed inquiry, and it could even include that kind of examination. It is to be hoped this would not happen, but if a member falsely claimed to be doing something for parliamentary business and a court was to look at that and look at all the surrounding evidence, it might conclude that that claim was wrong. Indeed, something very like that happened ‑ ‑ ‑

KIEFEL CJ: I am struggling to imagine how that could be relevant to judicial review, or almost any cause of action that could relate to the conduct of a committee.

MR BEGBIE: It will only be relevant to the point of deciding whether the privilege limits the scope of that judicial review. The second limit in the provision itself is that it does – and this is perhaps so obvious it hardly needs to be said, but it does require an actual purpose in point of fact, not a colourable purpose, to try and secure the protection of the privilege. That is illustrated by a case I think your Honour Justice Gordon identified in Rowley yesterday, and the case of Rivlin, which we have handed up overnight.

That was, self-evidently, colourable. A person who had made defamatory statements sought to further that. Having been ordered by a court not to do them, sought to further that by then attending Parliament with repetitions of the statement and delivering them to Parliament, and sought to invoke the privilege in that context. The court had no difficulty at all in, as it were, seeing through the ruse.

EDELMAN J: Why does purpose have to be – or why does it even include subjective purpose?

MR BEGBIE: Because, ultimately, you will be dealing with human actors, at some level, that have an intention to do something for a purpose.

EDELMAN J: But parliamentary purpose – when you are looking at Parliament’s purpose in passing any legislation, no sensible person ever suggests that that purpose must be equated, in any way, with any subjective purpose or intention of any parliamentarian. Why would you do so for the purposes of parliamentary privilege, either for Parliament or for its committees?

MR BEGBIE: I do not resist what your Honour says about that factual setting, but in other factual settings it is the only sensible way in which the question of purpose can be assessed.

KIEFEL CJ: If you are talking about the key being the transacting into business of the Assembly or the committee, “for the purposes of” establishes a necessary connection, does it not?

MR BEGBIE: It does.

KIEFEL CJ: Why would you look, in first the place, to subjective intention? Then you get into areas such as you were positing before, where it comes down to the perception of members of the committee about what they might be doing, whether it is for the purpose – and that suffices. It seems an extraordinary proposition.

MR BEGBIE: Perhaps I would best answer both of those questions, if I might, by turning to the cases I was going to go to, if your Honours would permit me to do it that way. I would like to go back to Carrigan v Cash. Your Honours have seen that. It is at tab 46.

EDELMAN J: I do not want to take you out of turn, but are we still on point 2?

MR BEGBIE: Sorry, what I seek to do is state all three points and illustrate in the cases how the three of them work together, so to speak.

GORDON J: So, the three are: must be parliamentary business, requires an actual purpose, in fact not colourable, question whether it is objective or subjective for the moment, and the third is ‑ ‑ ‑

MR BEGBIE: That the court will determine those questions in an ordinary fact‑finding way. Carrigan illustrates this. Given the time, I will be very swift. This is the Full Court decision. We have handed up overnight the decision of Justice White which further illustrates the point I am going to make. But if your Honours in time look at the inquiry that is summarised in paragraphs 12 through to the primary judge’s conclusions in 20, you will see that is an inquiry into the purpose of a former judge, Mr Heerey, in preparing a report which was ultimately destined for tabling in the Parliament to inform an expected but not inevitable question about a prayer for relief for the removal of a vice‑president of the Fair Work Commission.

GAGELER J: Did the report have a statutory basis?

MR BEGBIE: The report did not have a statutory basis. The Minister responsible for administering the Act engaged Mr Heerey to inquire into and report, and the allegation was that one of the people whose complaints were addressed in the report, Ms Carrigan, had been seriously denied procedural fairness. The plea in response was, first, the entire process that is being sought to be impugned was ultimately proceedings in Parliament within the meaning of the extended definition in the Commonwealth Act, effectively equivalent to section 9 of this Act. That became the only question in this case. The primary judge examined that very carefully, looking at what happened in Senate Estimates Committees, looking at the Minister’s purpose as revealed in correspondence and terms of reference, looking at the report itself to ‑ ‑ ‑

GORDON J: They were all objective fact, from which inferences were drawn from those facts.

MR BEGBIE: Yes, they were, but they were inferences as to the purpose of an individual. That is the fact‑finding, and that was the purpose of that fact‑finding. I should say, two individuals, strictly: the Minister and Mr Heerey. It included – and your Honours will see this at ‑ ‑ ‑

EDELMAN J: Why Mr Heerey? Why is it not just the Minister’s purpose? Why would the court be concerned with the purpose of the third party, especially if one is going to introduce subjective questions into it?

MR BEGBIE: In this case, the same answer would have been achieved, and it was clear what the Minister’s purpose was. That is what ‑ ‑ ‑

GORDON J: I do not think, to be fair, when one reads this Full Court – and I must say, I have not analysed properly, but paragraph 11 identifies the complaint being:

the impugned conduct of Mr Heerey and the Minister –

but the Full Court then makes the very important point to say:

A more specific question was whether the report was prepared “for purposes –

There was a complete focus on the purpose for the preparation of the report. And that is, ultimately, what was addressed in the judgment, was it not?

MR BEGBIE: It was. And that was what was sought to be impugned, and that was what Justice White found was proceedings in Parliament because of the purposes he found through an assessment of objective facts, but also, as it happens, an affidavit from the Minister’s chief of staff, which is described at paragraph 24.

What Justice White was doing with this detailed inquiry was what Justice McPherson did in a less detailed way in Rowley. Which is to say, the question of purpose is a question of intention, perhaps in some cases, as your Honour Justice Edelman says, that we manifest what the purpose is, and you do not need an individual’s purpose. In other cases, you might – and this was a case where you did. And it would seem from the way that proceedings in the present matter were conducted below that was the inquiry that was embarked upon and the factual findings, uncontradicted, were that the purpose – I withdraw that so I do not conflate the statutory with the factual. The intention – and so far as we are aware, the only intention – of embarking upon the preparation of a report was to provide it to the committee for the committee to do things with it.

I referred earlier to a decision of Szwarcbord v Gallop, which is at tab 60. This deals with not, I should say, the cases your Honour Justice Gageler raised with me, so I had misunderstood what we were talking about – this is dealing with a different situation. It deals with the problem of a report – of the potential problem of a report being prepared for one purpose and then later tabled in Parliament. I think, if I understood it, your Honour Justice Jagot posited that kind of scenario in a question to my learned friend Mr Dunning, what if the Commission here had, for its own purposes, without thought for the committee, prepared a report and then at some later point the committee had sought it or it had been provided to the committee?

They are the facts of this case. A board of inquiry was instituted, it prepared a report, it gave the report. In due course, it came to be tabled in the Assembly and there was controversy, then, about the effect of that tabling, so to speak, retroactively into what had been done beforehand. The reasoning at 21 to 24 at the end of that decision explains and illustrates that this can be a complicated factual inquiry, but it is ultimately a factual inquiry and the conclusion was that at the time the acts were done, and the words were spoken in preparing the report, it was not a purpose of the board of inquiry to transact or participate in the transacting of Assembly business.

Therefore, all of what was done did not attract the protection of the privilege. Certainly, the tabling itself did, and perhaps even the copy that was tabled might attract the privilege, but beyond that you do not cloak the anterior work with privilege simply by virtue of the tabling. That is really, if I can say in a nutshell, what happened in Ainsworth on the facts – that is what Ainsworth was ultimately dealing with, and it is what section 9(3) of the Parliament Act, read together with section 50, deals with.

EDELMAN J: On one view, that might be what has happened here. If one says the purposes of the Commission are its own purposes – they are not the purposes of Parliament – at the moment of tabling, one does not then retroactively apply 9(2) to events that have occurred until the point of tabling.

MR BEGBIE: That would be so if the Act said the purposes of Parliament or the purposes of the Assembly – of course it does not, it is completely silent as to who can hold the purpose and there is a good reason for that. But ‑ ‑ ‑

EDELMAN J: If a third party – here, the Commission – has a purpose of submitting a report to the Assembly or to its committee that is not shared by the Assembly or the committee, would that really be what section 9 is concerned with, and the extension, concerned with purposes of third parties that are not shared by Parliament or its committees?

MR BEGBIE: Your Honour raises an additional fact which is an important one. Let us say – and I am trying not to be drawn into the facts of this case for obvious reasons – but let us say in a particular set of circumstances, the Commission had said to the committee, we are thinking about doing a report and if we do, we might hand it to the committee and the committee said, do not do that; we do not want it; we will never use it, and we think you are going down the wrong track. If the Commission, in that situation, decided to go ahead and do it, it would face a very difficult factual case to say, we were doing it for the purposes of the committee. If a stranger – and this is the classic stranger to Parliament ‑ ‑ ‑

KIEFEL CJ: But are you saying it is open here to infer that the committee wanted it and really sought it?

MR BEGBIE: I am saying it has been inferred, in point of fact – sorry, I am going too far. In point of fact, it has been found that the intention was to provide it to the committee, and, in point of fact, it is agreed that there was some meeting of minds between the committee and the Commission as to that. I do not want to try to characterise that, because it is not my role, but that is what the agreed facts were on which the primary judge’s factual findings, and they are set out in Justice Freeburn’s decision.

Now, you have to bear in mind also, of course, that there is a statutory relationship – that is, a pre‑existing relationship between the Commission and the committee, and that would be another piece of objective evidence that would inform this. If a complete stranger to the committee had said, I am going to prepare a report for the committee which is going to be extremely defamatory of a person and then gave it to the committee, that is the Szwarcbord ‑ ‑ ‑

EDELMAN J: But a statutory relationship is not a relationship of agency. The Commission is not an agent of the committee.

MR BEGBIE: No, I agree with that. But that does not change the factual conclusion. The last point – which I can make in 20 words or less – to be drawn from section 9 is the complete alignment of the committee and the Assembly – indeed, the complete alignment of things done for purposes of transacting of committee business even if not done by a committee – with things done in the House in the Assembly.

The provision makes no delineation. That is why – two things – first, it is critical that courts oversee the question whether something is, in fact, proceedings in Parliament, in that it meets the statutory definition of section 9 – but if the Court does conclude that it is defined, or it is to deal with that in the same way as it would deal with the kind of situation in Bradlaugh. That is the way the statutory provisions work.

Can I finish with where we say the Court of Appeal majority erred. The error, in our submission, is ultimately a very simple one. It assumed the answer to the only question that was ultimately determinative. The question was whether “acts done” or words spoken “for purposes of or incidental to” could attract parliamentary privilege if they were ultra vires. You can see from the bookends of the judgment that their Honours assumed the answer was no, privilege cannot attach if the acts are ultra vires. You see that first in paragraph [15], page 68 of the core appeal book, the closing words:

the Commission was not empowered or required by any other provision of the Act to make this report. Consequently, this report could not be the subject of parliamentary privilege.

That bypasses entirely the inquiry that ought to have been undertaken. That is reiterated at [80] and [81] and it is important to see how that is done. At the end of [80] their Honours give a very brief, and we say not entirely complete, summary of the primary judge, saying:

The possibility it would still be privileged was discussed by his Honour only saying that the document was “as a matter of fact, prepared with the intention of delivery to the PCCC” and that it was in fact so delivered. The judge referred also to the certificate –

They are the facts picked up in [81] when their Honours say:

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.

That is, with respect, wrong. Those facts, particularly understood in light of the other facts, brought the acts and words of the Commission within the means of proceedings of the Assembly in section 9. Whether they were ultra vires does not change their character as acts and words, and in point of fact the intention – and so far as we are aware the only intention – was what is found here and accepted by the majority. So, to say, as they do in the final sentence:

The preparation and delivery of the report, without the operation of s 69, were not acts done in transacting the business of the Assembly or its committee.

Is interestingly right. It is right because it focuses only on one part of the factual inquiry, “in the course of”. But that sentence should say – and I do not seek to be critical in a grammatical sense – but what it should say is “were not acts done for the purposes of or incidental to”, and so understood, that is wrong, because it assumes, as I say, the answer that was required to be investigated. Excuse me, your Honour.

Finally, did that impugn, or question, proceedings in the Assembly? If it is accepted that, on those facts, these were, in fact, proceedings in the Assembly, then the findings of the majority as to what was done being beyond power and the declaration that section 69 was not engaged, clearly and starkly, in our submission, questioned and impugned the proceedings in the Assembly that were constituted by the acts and words of the Commission in preparing the report, in delivering the report, and in the report itself.

The declaration goes further because it is not limited, it cannot be limited, to the Commission as distinct from the committee. The purpose, recall, of this declaration, is to ensure that the committee does not publish. It is a declaration, the very point of which is to constrain the committee from giving a direction for the delivery of the report, to constrain the delivery of the report to the Speaker of the Assembly, to constrain the Speaker’s tabling of the report and the publication that would follow on it. That is what the declaration seeks to do. That is impugning in the starkest way; that is interfering with the business of the Assembly in the starkest way. It could be said ‑ ‑ ‑

GAGELER J: What if the declaration simply has the effect of telling the Speaker that he does not have the duty to table the report that he would have if it was a true report? This is under section 69(4). What if that is the only legal consequence of the declaration?

MR BEGBIE: The first answer is it is not the only legal consequence. The second answer is ‑ ‑ ‑

GAGELER J: Okay, go to the second answer.

MR BEGBIE: The second answer is that the Speaker might take a different view, and might wish, in fact, to table it, and to do so purportedly under that section. And what will exist, then, is a conflict of the starkest kind between the Court and Parliament. I give that answer, and it sounds, as it were, insensitive to the concern your Honour raises.

We understand why your Honour asks that, and it might well be thought that Parliament would welcome, or committees would welcome guidance from the Court about the law, but that is not a stable basis on which to approach this. It is just not the way these centuries of jurisprudence deal with it. And just as the House in Bradlaugh would possibly not have welcomed the Queen’s Bench giving guidance on the meaning of the Parliamentary Oaths Act, that might be case here, too.

But there is – the brute practical consequence of it is manifest, in our submission, that this is intended to stop what is going to happen in the future, with the committee, and the Speaker, and the Assembly. All the rest is done and dusted. The declaration will either achieve that purpose, in which case the majority decision intrudes upon the Assembly; or it will be ignored, in which case there is a conflict of a sharp kind contrary to the principle of exclusive cognisance and the mutual respect of the different arms of Government, that whichever way you view that it is inescapable in our conclusion that there has been an impugning of proceedings in Parliament, as understood.

Thank you, your Honours.

KIEFEL CJ: Thank you, Mr Begbie. Yes, Mr Horton.

MR HORTON: May we address your Honours on three principal topics. The first is the construction of the terms of the Crime and Corruption Act in the context of what actually occurred here with the report. We will not re‑traverse on the path, but we do want to point out the real character of this report as evidenced from the report itself, and where it fits within the statutory scheme, and in that regard, we take a different view from the way in which it was presented by the CCC.

In particular we say it was a report which could only have been under section 49 and therefore one which was expressly excluded from the operation of section 69, and that the section expressly engages, by reference to that legal criterion in 69(1)(b), the court’s determination as to whether it is or is not of that character. That is, this legislation involves the courts cooperatively in supervising and keeping within legal limits this body with extraordinary coercive powers.

The second point is, can we deal with the issue of privilege, and finally, can we say something about the issues more generally, which is written about tension, reconciliation, compromise, and effect. In terms of the Act itself and the report, can we take you to the respondent’s book of further materials. We are going to do this in the context, your Honours, of section 49. On the first two, page 129 of the respondent’s book, paragraph 110.

Now first, what your Honours can see occurring here is the sort of reporting which 49(a) contemplates, to the DPP in that case. Paragraph 110 is a little odd, because it is not the DPP who is recorded as making the decision but the CCC. The CCC has decided there would be no charging with a criminal offence. Of course, what section 49 contemplates, 49(2)(a), is that that decision be one for the prosecuting authority. But nevertheless, it seems what occurred here was, in broad pursuit, perhaps, of what 49(2)(a) contemplates, that is, referral off to the DPP. If any further confirmation that is needed, it is put in slightly different terms in various places, but the core book at page 96 ‑ ‑ ‑

JAGOT J: Did you say the court book or the ‑ ‑ ‑

MR HORTON: I am sorry, the core book, in the reasons of the majority. I am sorry.

JAGOT J: Right, yes.

MR HORTON: Paragraph [117] of the majority decision below – I am sorry, of Justice Freeburn’s dissent, your Honour. You will see there is reference there to a letter which records that there has been:

a review of evidence by the Director of Public Prosecutions, it has been determined –

it is not said by whom, that there would be no criminal prosecution. So that is the discharge of the referral in 49(2)(a). Then, as your Honours have seen, there is a referral, also pursuant to 49(2)(f), to the Chief Executive of the agency, who seems to be the Attorney‑General, for the purpose of the taking of disciplinary action.

If your Honours would turn back to sections 43 and 44, pamphlet version page 56, what that seems to be is a referral “to deal with” by the Attorney‑General. In a managerial sense, management action to be taken. You will see, your Honours, in 44(2), the Commission has a “monitoring role”. And in subsection (4) of 44, that agency head may ask for cooperation from the CCC.

One can see that having been executed in the report itself, principally at page 128 of the respondent’s book. You will see there your Honour’s reference to the show cause procedure having ensued, and that having never proceeded to conclusion because of the resignation. That is the scheme, relevantly here, that section 49(2) contemplates. So that is the dealing of the complaint.

When the majority below refers to that having concluded things – nothing left to be done – we say that is the correct characterisation, with great respect, on what 49 contemplates in terms of reports about complaints dealt with by the Commission. Just for completeness, can we point out that when it comes to the definition of “deal with”, in the schedule to the Crime and Corruption Act, pamphlet version page 428, when alpha (e) – paragraph (e) is engaged, is the “take other action” which is what the Attorney‑General was pursing because it was referred off to the Attorney for other action. So, the other action, in that sense, is not the Commission’s action in a section 49 sense. The other action is what might be done by those to whom it had been referred for action – to use the language of Balog, “facilitative”.

Then we have, peripherally, the letter to the Public Trustee, which does not have a claimed character on its face – which might be a section 64 report or a prevention report; who knows, it does not say. But, in any event, no part of reporting involves publishing of its character. When this provision of 69 comes to that important question – which we know is tied with tabling because section 53, paragraph (c) of the Parliament of Queensland Act says, to table this report is to publish it. Section 69 gives that special attention.

GAGELER J: Where does section 64 fit within this scheme, in your submission?

MR HORTON: Section 64 is a general statement that, with all the functions of the CCC, there can be reporting.

JAGOT J: Well, except 63 functions.

MR HORTON: Yes, I am sorry.

JAGOT J: Is that significant, that you cannot do section 63 – that is, crime functions?

MR HORTON: Let me check, if I might?

JAGOT J: It does not say you cannot do complaint or corruption functions.

MR HORTON: Yes, that is right – with all the crime functions you can report, but when it comes to corruption on complaint functions, that is 49. How do we know that? One, the statutory language. But we know it, too, because you read this section against the precepts, we say, of the enduring significance of Balog and Ainsworth. We know that this statute is drafted after those decisions, and we know that one gives effect to those precepts.

One needs to be careful in terms of the effect on reputation at the point of publication, first of all, and publication is the point at which reputation bites – and a prior question is that one tends not – and this statute does not – one does not mix the finding of an opinion‑giving role with the investigative one – the general investigative one. The one which involves the exercise of extraordinary coercive powers by bodies who are not limited to admissible evidence.

GAGELER J: Was there an exercise of coercive power in this case?

MR HORTON: I do not think so. My client was not coerced, of course, into interview. There was an examination, and your Honours have seen in the material many tens of statements taken within the organisation – but all within a public service organisation.

GORDON J: So, just so I understand the point we have got to. Your point is that we have deal with the report or we have dealt with the letter that went to the Public Trustee. We have not yet got to the preparation of the report in issue in these proceeds.

MR HORTON: Yes. So, the report, we are told in oral argument – we do not know – there is one report. Outside us to this process to some extent – there is one report. And so, to the extent that report was what was prepared as part of referring to DPP and referring to the agency head, that is a 49 report, because it is the report which – to use the ‑ ‑ ‑

KIEFEL CJ: I am sorry, I am a bit confused. Are you talking about the document that is called a report for the purpose of these proceedings?

MR HORTON: Exactly. Yes, your Honour.

KIEFEL CJ: It was not sent to the DPP; it was not sent to the Attorney‑General.

MR HORTON: I cannot say that. I am not able to say that.

KIEFEL CJ: Well, there is no suggestion that it was.

MR HORTON: I do not know.

KIEFEL CJ: So, it is not suggested that any of the section 49 reporting methods were utilised with respect to it.

MR HORTON: Yes, that is right. I cannot point to the evidence to say that a report of this kind – this formal kind – went to either of those bodies.

JAGOT J: Is your point that section 49 is exhaustive? Is that what you are saying? And therefore, any report of this character must be a section, it cannot be anything else?

MR HORTON: Yes. Because this was a complaint about corruption. The Commission did deal with it and, to the extent there was a document recording its conclusion, this is it.

KIEFEL CJ: So, you say the appellant’s reliance upon the many general powers, or functions – perhaps functions in particular – are really not to the point here because there is a special process that has been provided by the statute?

MR HORTON: Precisely, with respect.

GORDON J: I had understood below that you accepted that this report – the subject of this proceedings – was authorised under section 64.

MR HORTON: Never.

GORDON J: Right. I misunderstood that.

JAGOT J: How do you then ‑ ‑ ‑

MR HORTON: I think the trial judge – I am sorry, your Honour.

GORDON J: Sorry, what did you just say about the trial judge?

MR HORTON: At trial there was some confusion – but it was not on our part – as to whether we sought the relief in respect of 69 or 64 – and it was 69 in respect of which the relief has always been sought.

GORDON J: I see. I apologise. Sorry, Justice Jagot.

JAGOT J: Coming back to section 63, is that significant that it only excludes from part 6 the crime functions, not the corruption complaint functions? And why would you then read 64(1)? I am assuming to exclude. You must be reading it that way, I assume.

MR HORTON: Yes, having regard to the statutory context of sections 49 and 69. Yes, because of this reason: crime – you might have a blanket exclusion on reporting, for obvious reasons.

JAGOT J: I am not suggesting ‑ ‑ ‑

MR HORTON: No, no, I accept ‑ ‑ ‑

JAGOT J: ‑ ‑ ‑ there is any issue. I am just suggesting does that not by not excluding?

MR HORTON: Yes, because you might have, with the corruption function, more than one thing going on. You might be dealing with a report on the corrupt conduct complaint, which is the case here, full stop. But we know, also, that there are prevention functions, and so forth, and annual reports, and so forth. So, it leaves room for the possibility of reports about that, but not so far as they would ought fall properly within section 49. That is, for crime the exclusion is blanket, and for corruption the exclusion is for reports on corruption complaints.

JAGOT J: What you do is 71?

MR HORTON: Section 71? Relevant, also, in this context. Can we make one important point here at the outset. The committee here is not one person. It is not the chair. The chair is by necessity an Opposition‑appointed person, but the chair on the numbers – to speak in a rule manner on section 302 – is government‑controlled, but the chair is an Opposition Member. The committee speaks only by decision on majority vote. Some of what the committee does has to be bipartisan. We would urge when it comes to purpose for the moment and committee business for that not to be framed by reference necessarily to what the chair communicates in a private communication for the moment, which might be section 71 ‑ ‑ ‑

KIEFEL CJ: Mr Horton, when a letter is given in evidence and communications referred to under the hand of the chair, does not the court assume that the necessary decision‑making behind that has occurred? I mean, we do not have any evidence to the contrary.

MR HORTON: No, you know that the requirements in section 55 of the Parliament of Queensland Act have been satisfied and that is that the chair has done that. That is all one knows.

GORDON J: Is your criticism or your identification of the distinction between the chair and the committee referrable to what is set out in the statement of agreed facts about the meeting between the chair and the committee?

MR HORTON: Yes, in two senses. One is relevant to what occurs in that exchange, and I have gone to it in the context of 71 because that seems to be a section 71 exchange, perhaps. That is, what occurs in that meeting is a conversation orally between the chair of the committee and the chair of the Commission. But second – we will come back to it; and we have made these submissions in writing about the effect of the certificate which we say is evidence – it is just evidence, which we always contradicted, and which itself contradicts the objective evidence.

So, section 71, important again, your Honour Justice Jagot, in that it refers to an exception about material that is in a report under section 69, directing the Commission and the committee, importantly, command of Parliament to the committee back to the process in 69. All roads lead to 69.

JAGOT J: I did not follow that, I have to say – sorry.

MR HORTON: The last words of the provision in 71 does not include a report under section 69, stressing the importance of section 69 but allowing the free flow of exchange, with consent, between the supervising body and the Commission.

GORDON J: Put another way, it is an expansion of the information provision on top of 69, is that the way you are putting it?

MR HORTON: Well, on top of, perhaps, 292, for example.

GORDON J: That is why I am asking. You have got a number of ways in which information can be provided to the committee. The committee can call for it under 292.

MR HORTON: Yes.

GORDON J: It can, with the consent of the committee, receive it under 71 if it is not in a report in 69, and then there can be the reporting provisions giving rise to the tabling requirements in section 69.

MR HORTON: Yes.

GORDON J: As well as, you would say, separate from exists in 49 in this context.

MR HORTON: Yes, and we have accepted from the outset that the communication between the Commission and the body that scrutinises it on behalf of Parliament, as Parliament, should be, on these provisions, the one just cited, free – because that is the exchange which occurs in private, for the moment, in the execution of those critical functions of one form – I emphasise that – one form of supervision of this body.

JAGOT J: So, are you accepting that, if the PCC consented, the CCC, could have given, then, this report, being, on your case, a report under section 49 – under section 71?

MR HORTON: Yes, we have never cavilled with the proposition, and we do not now, that this report could be in the PCCC’s possession.

JAGOT J: Pursuant to section 71?

KIEFEL CJ: Under – pursuant to what authority?

MR HORTON: Well, we just do not make ‑ ‑ ‑

KIEFEL CJ: Your position does not tell us anything.

MR HORTON: No. Well, it says, it is not – nothing we do seeks to impeach that aspect, if it is impeached.

KIEFEL CJ: Well, you are not impeaching anything.

MR HORTON: Precisely. Yes. Our case has always been, that is the publication which is sought.

KIEFEL CJ: You say that the only reporting in relation to complaints with respect to corrupt conduct are those provided for in section 49, and this cannot be a report under section 69 because it is not a report on a public hearing, it is not a research report, and it is not an “other report” because at the point at which we are concerned, no direction has been given.

MR HORTON: Yes.

KIEFEL CJ: Is that how it works?

MR HORTON: Well, that is one way. And it is also a report which can only be on a corrupt conduct complaint, so it could only be of a quality which is conceived by – take away the power question ‑ ‑ ‑

KIEFEL CJ: And in aid of your section 49 process submission, the protective provision – I have forgotten the section – the protective provision which allows someone to challenge the investigation into the conduct ‑ ‑ ‑

GORDON J: Section 332.

KIEFEL CJ: Yes, 332. Thank you. That supports your section 49 argument, you would say?

MR HORTON: Yes. So, when it said in 69(2), for example, that it must be “under section 49”, we do not suggest there that means prepared in accordance with the statutory authority 49 gives, we say, of a character that 49 conceives of; that is, which is in truth a report which is about a dealing with a corrupt conduct complaint, because those kind of reports have a special process which 69 says are not to be published; they are referred to others facilitatively in respect of findings and opinion‑giving by others.

And when it comes to giving them to the committee, 71’s extra confirmation that one must come through the process, the gateway of 69 – a gateway in which, we say, this Court has jurisdiction, expressly preserved, in effect, by that test, in concert with Parliament in keeping this body supervised. This is part of the duty we say of the Courts, articulated by Justice Brennan in Ainsworth; the essential nature of judicial review – uniquely essential in this regard in maintaining compliance with the Statute.

JAGOT J: So, do you accept that it is a 71 document, or do you say no, on the facts, it is not a 71 ‑ ‑ ‑

MR HORTON: No.

JAGOT J: Is that right? It is not ‑ ‑ ‑

MR HORTON: No, in character, it is a dealing with a corruption complaint, which would seem to be what – which is what 49 contemplates.

JAGOT J: No, I understand that. But is it also a thing that the PCC has consented be provided to it, on the facts?

MR HORTON: We say that the exchanges in the private communications recorded in the transcript and the Hansard do not rise as high as consent. It might be acquiescence.

KIEFEL CJ: Well, it might be encouragement.

MR HORTON: Well, it does not, with respect, we say, rise so high. But the important thing is this, that is, not a committee consent; that is, the chair speaking orally in a 71 communication.

JAGOT J: If it were a 71 communication, then would section 50(2) of the Parliament of Queensland Act authorise publication anyway? I am just trying to understand what the endgame is here.

MR HORTON: My client’s endgame?

JAGOT J: Well, the issue is publication.

MR HORTON: Yes. Yes.

JAGOT J: Section 69 provides a means to – in, I guess, a mandatory publication, if engaged, but there is also section 50 of the POQ Act.

MR HORTON: Section 69 makes mandatory the publication of a report on a public hearing. But in respect of other reports, there are two relevant gateways to pass through. One is the possibility of the courts declaring as we ‑ ‑ ‑

JAGOT J: No, I understand that.

MR HORTON: And the second is Parliament’s discretion. That is, it leaves to Parliament, it delineates exactly the debate that has taken place over last day and a half, and that is it delineates for Parliament – Parliament delineates for itself that area which is its discretion as necessary following after the statutory criterion being fulfilled, which is for this Court, the courts.

GORDON J: So, just to take that in stages, under 69, it is mandatory if it is a public report or there is the direction for the tabling?

MR HORTON: Yes.

GORDON J: Where do you say you get the second, which you call the second avenue available to you?

MR HORTON: Because the statutes alert to what should and should not come within that discretion.

GORDON J: So, it has excised out 49, we know that.

MR HORTON: Yes, but I am responding to your Honour’s question on 69.

GORDON J: Well, 69 excises 49 reports.

MR HORTON: Yes. There must be no publishing, in effect, of a 49 report. There must be publishing of a report on a public hearing. All logical responses, and all responses which take from Parliament’s discretion those questions, just out of interest. Parliament is not saying, give us the report and we will decide in our free discretion – unimpeachable discretion, perhaps – what should and should not be published. Parliament is delineating here, in section 69, by way of a statutory command, purposefully, we submit, what should and should not be within Parliament’s discretion. Section 49 is not within it, public report is not within it, and there is this area in the middle which is.

KIEFEL CJ: I see the time, Mr Horton.

MR HORTON: I am sorry, your Honour.

KIEFEL CJ: The Court will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Horton.

MR HORTON: Your Honours, could we return to the exchange which occurs in the Hansard transcripts, because I fear that I have been at cross‑purposes from the Court with respect to them.

KIEFEL CJ: Would you mind speaking a little more slowly?

MR HORTON: I am sorry.

KIEFEL CJ: Speaking for myself, I do not want to miss the points.

MR HORTON: Thank you, your Honour, I will.

JAGOT J: And loudly – sorry, it might be me.

MR HORTON: And to the Hansard equivalents, at pages 95 and 96 of the respondent’s book. You will recall these are the exchanges which occurred between the respective chairs. The reason we submitted these are no more than acquiescence ‑ ‑ ‑

KIEFEL CJ: I am sorry, these are?

MR HORTON: No more than acquiescence by the committee chair is that at page 96, immediately underneath the redaction, the words appear:

You will be seeking a direction under section 69 for the tabling of that report?

That report is not this report. That report is the redacted report ahead, above, and that is not this report.

GORDON J: So, when we say “this report”, just to be absolutely clear, we are talking about the report the subject of the claims of privilege which is currently in the possession of the committee?

MR HORTON: Correct.

GORDON J: And this is not dealing with that report?

MR HORTON: The chair’s comment deals with a completely separate report from anything the subject of this proceeding.

KIEFEL CJ: Is it what they called the draft report?

MR HORTON: No, it is an irrelevant report which has been redacted on the grounds of irrelevance. What appears under the black text is irrelevant to this proceeding. It is no report of relevance to this proceeding in any way.

JAGOT J: So, sorry, where it says:

in relation to this matter –

MR HORTON: Change of subject now. Yes, that is where that other irrelevant report is.

JAGOT J: So, the matter is not this matter?

MR HORTON: Correct.

JAGOT J: I see.

MR HORTON: Full stop.

GORDON J: I do not understand this, because in the statement of agreed facts that Justice Freeburn sets out, he sets out these quotes. The statement of agreed facts contains these quotes.

MR HORTON: And it may be because these are quoted in a way that – can I take to you that in a moment about why the error comes about?

GORDON J: Okay.

MR HORTON: Can I just make the point, factually, for the moment, that when this transcript on page 96 speaks of “that report”, it is no report or document of any relevance to the proceeding currently before your Honours. The relevance only begins in the sentence:

In the Public Trustee Matter –

which is, of course, the matter which is before the Court.

GORDON J: Where is that?

MR HORTON: Page 96 of the respondent’s book, your Honour.

KIEFEL CJ: The relevant part commences with the chair of the Commission saying:

Yes. That is where that is.

And then:

In the Public Trustee matter –

is where we are concerned with.

MR HORTON: Yes. So, the sum total of the committee chair’s ‑ ‑ ‑

KIEFEL CJ: It says:

we were in the same position.

That is why it is there.

MR HORTON: Yes.

KIEFEL CJ: That is why the other references are there, because it says:

we were in the same position.

MR HORTON: Yes. The sum total of the committee chair’s response is zero there; the committee chair listens. That is not consent. And on the preceding page, the extent of the committee chair’s engagement is:

Did you say –

Neither of those, we say, amounts to consent, for the purpose of section 71, or otherwise. The committee chair is listening.

JAGOT J: Sorry, did you say something like, “Did you say”? I just missed that.

MR HORTON: On the preceding page, your Honour Justice Jagot, page 95, the chair – this is in June, several months earlier:

Did you say you are proposing to prepare a report –

JAGOT J: Sure, in – yes.

MR HORTON: Yes. But my point is – our point, I am sorry ‑ ‑ ‑

KIEFEL CJ: Does not the answer by Mr MacSporran refer to the respondent?

MR HORTON: Yes, but that is the Commission’s – this is not – if we are looking at it from the perspective of consent of the committee, these ‑ ‑ ‑

KIEFEL CJ: This is your chair to chair point?

MR HORTON: No, separate from this. If the test is, did the committee consent to the receipt of this report, our submission is these documents do not show consent.

GORDON J: Sorry, I will take it in stages. I know I am being slow. Page 95. The reference to the report on 95 is not the report the subject of these proceedings?

MR HORTON: It is the subject of these proceedings.

GORDON J: Is not?

MR HORTON: Is.

KIEFEL CJ: So that:

Did you say you are proposing to prepare a report in relation to this matter, because it seems like, again, a cultural issue –

is a reference to a report in these proceedings?

MR HORTON: It is.

JAGOT J: I thought you just said ‑ ‑ ‑

KIEFEL CJ: And the chair of the Commission then goes on to say:

We have not decided finally, but for the reasons you are articulating . . . because it is high profile and it has been in the media –

reference to “show cause”, that is all a reference to the respondent and the complaint upon which the investigation was held?

MR HORTON: Yes. And this conversation occurs in ‑ ‑ ‑

KIEFEL CJ: But then, on page 96, when the chair says:

You will be seeking a direction . . . for the tabling of that report?

That is not that report?

MR HORTON: Correct. These are different days, as you will see from the dates at the bottom of the pages.

KIEFEL CJ: I see.

MR HORTON: So, they are two extracts ‑ ‑ ‑

KIEFEL CJ: I see. They do not follow on.

MR HORTON: ‑ ‑ ‑ at two different points in time. They are unconnected.

KIEFEL CJ: That is 19 June and 11 September respectively.

MR HORTON: Yes. So, they should not be read ‑ ‑ ‑

KIEFEL CJ: So, the reference on 11 September at page 96:

You will be seeking a direction . . . for . . . that report?

just has nothing to do with this, but where it says:

In the Public Trustee matter –

they take up their conversation?

MR HORTON: Yes. And our submission is that it is not encouragement, it is not consent and, at most, it is passive acquiescence to what the Commission is proposing.

GORDON J: And you raise those questions because you seek to avoid the application of which provisions in the CC Act?

MR HORTON: Well, because it was raised with me whether this might be something which engaged section 71. Now, it may not matter, but it seemed not to engage 71 if that is put forward as the evidence of the consent. And second – the purpose which we will come to – is not revealed in these parliamentary documents with a parliamentarian as being – having a particular committee or parliamentary one, other than it is being discussed in these ‑ ‑ ‑

KIEFEL CJ: Mr Horton, to date, the appellant has never relied upon these conversations as applicable sections 70 or 71, have they? It does not appear in anything in the courts below.

MR HORTON: Not to my knowledge. Yes, it was just raised as – whether this was encouragement and we want ‑ ‑ ‑

KIEFEL CJ: You are raising it for completeness.

MR HORTON: I am sorry. It was raised as encouragement, and we wanted to say these do not show encouragement to provide the report or consent to it. Simply, a civil engagement, a passive engagement by the committee with the Commission chair about its daily work. We propose to move to what centrally is the privilege question, your Honours.

KIEFEL CJ: Would you say, though, at page 95, the chair of the committee is encouraging the preparation of the report?

MR HORTON: No, he is seeking to confirm his understanding of what has previously been said.

KIEFEL CJ: Where is the reference to the committee – where is the reference to it being for the purpose of section 69 being given for that purpose?

MR HORTON: Can I take you to those four or five ‑ ‑ ‑

KIEFEL CJ: Because that appears in the statement of agreed facts, I think, but not in the ‑ ‑ ‑

MR HORTON: Yes, but it is in the report itself – both the first version and the second version – the draft and the more final – and it is in the briefing notes which goes to the commissioners about what should happen to the report. Could I take you to five references to show that? The first being at 36 of the respondent’s bundle – it is the beginning of the report – but 37, is the relevant paragraph, 10, on page 37. The CCC in September of 2020 decides that it is in the public interest to publish under section 69.

Can we just make the point there that at no stage is it contemplated – apart from referring to 69 – that this is a committee matter or a parliamentary matter. That is, the CCC, at this stage, seems to have treated the decision to publish under 69, as one which was for it alone, at least on what is presented. I am not suggesting the Commission purpose is the parliamentary purpose – quite the opposite. But if we are looking in the report for some objective reference at the time to this being parliamentary business, none, we submit, will appear.

Then, if your Honours would turn to page 71. This is a letter from the CCC to our client on 18 September 2020, and you will see on page 2 of the letter – which is on 71 – it is:

the Commission’s decision about whether to publish any public report –

and the second‑last paragraph:

If the Commission decides to issue a public report –

So, it seems the Commission is invoking 69 and, at least on what is written, is regarding it as something within its capacity. Then, if one turns to the second version of the report – the one with the “Foreword” – that appears at pages 113 and following ‑ ‑ ‑

KIEFEL CJ: I am sorry, what page was that?

MR HORTON: Page 113 and following. You will see, your Honours, at 114 the same heading remains, “Decision as to whether to issue a public report”, and you will see over the page, 115, paragraph 14:

4. publically reporting on its investigations.

is said to invoke 64 and 69 in footnote 8.

GORDON J: What do you do about paragraph 9. Does that alter the suggestion?

MR HORTON: Yes, by this time, and only by this time, has the Commission decided, because there have been in exchanges with our client’s solicitor, that needs to invoke the participation of Parliament to secure a publication under 69 – this is the recognition, we say, for the first time, of the need for it to relate in some way to parliamentary business as distinct from the business of the Commission, which up till now has been expressed in terms of what the Commission wished to publish in what it regarded as the public interest.

Then your Honours will see at page 137 of the respondent’s book, a briefing note of 2 October, which is at or about the time of this second version of the report, which informed the commissioners about factors for and against issuing a public report, and on 139 there is a heading, “Is it the Commission’s Decision to publish?”

KIEFEL CJ: How does all this material sit with the statement of agreed facts? Are there any inconsistencies?

MR HORTON: Not that I am aware of. I think it was a summary of the facts, but these were the ones that were annexed to a certificate which was before the courts below as the facts, the source of the facts in the event. Now, this is internal Commission thinking, but you will see, for example, at paragraph 24 on page 140 that a decision:

to publish a report to the PCCC under s 69(1)(b) . . . is protected by –

privilege. But that is the thinking of the Commission at the time, late in the day, and it is in allusion to a business of Parliament or the need to engage with Parliament in procuring publication. Now, that is the purpose point.

Now, whether that be the objective or subjective purpose within it, it is the objective document prepared at the time, which is the subject of this proceeding, and which we say contradicts the certificate in the sense that this was not a document prepared, at least as at September, for the purpose of any Assembly business. This was self‑claimed by the Commission to be the Commission’s purpose of pursuing the public interest and, of course ‑ ‑ ‑

KIEFEL CJ: You are referring to section 9 of the Parliament of Queensland Act?

MR HORTON: I am.

KIEFEL CJ: But it would not be the Commission’s purpose anyway, would it?

MR HORTON: Precisely. Until September, the only purpose we have is a Commission purpose and the Commission does not even claim or invoke in the thing which is now claimed to attract privilege, any parliamentary business as the basis for it, in its text.

KIEFEL CJ: It does not raise any business of the committee.

MR HORTON: Correct.

KIEFEL CJ: It is simply utilising the committee as a means by which of making the information public.

MR HORTON: In September, in does not raise the committee at all. It proceeds on an incorrect assumption that it is for it to decide to publish a report in the public interest or not – albeit invoking 69. That is just what it is. It seems to dawn on the Commission that it needs to invoke Parliament’s assistance with a direction, and you have seen where that is in the exchange with the committee chair. Then you have seen the October version of the report and the briefing note which begins to allude to the need for that step to be taken before publication could occur. So, it is only at that stage that the documents reveal a purpose which could be a business of the Assembly.

KIEFEL CJ: A business of the what?

MR HORTON: Assembly.

KIEFEL CJ: It is the Commission’s purpose, though.

MR HORTON: Precisely – and not the Assembly’s. Only once one wishes to submit, of course – it elides to the need to submit to the committee to obtain a direction, could one begin to think there was a purpose which is other than the Commission’s? That purpose is to seek a direction under section 69 – full stop – for the purpose of the committee deciding whether or not to give the direction.

EDELMAN J: Could a direction be given?

MR HORTON: No.

EDELMAN J: Because of your section 49 argument.

MR HORTON: Yes. But it does not stop one asking.

EDELMAN J: Yes.

MR HORTON: Like an invalid – a poor request for a planning approval or a licence, or a mining approval, does not stop me submitting the application, it does not need to be granted and it does not mean that I cannot be precluded from proceeding.

EDELMAN J: If the direction had been given, contrary to section 69(2), there would be an issue within section 9.

MR HORTON: Well, can we address it in this way? On one view, no; and on our view, no: because section 69 expressly seeks that determination in terms of being a legal criterion. So, Parliament wishes to know, by virtue of having framed 69 and 49 as they are, it wishes to know actively whether this is or is not a report which in itself has framed the test for as engaging or not engaging its discretion, read, by analogy, the existence or otherwise of its privileges statutorily achieved – first point.

If, on the contrary view, it has been done, then one might fashion the relief differently, perhaps. But we have only sought here, anyway, a bare declaration. In which case, one would still, again, think Parliament would wish to know the criterion it has stated as a legal determinant as a precursor to the exercise of that which it has carved out for itself.

Similarly, if this were a public report that was not for publication that an individual wished to have published in order to vindicate reputation which had been smashed in a public hearing, then one would say too, some relief must run in terms of commanding it to be and determining it to be its legal status being a public report of the kind foreshadowed in section 69(1)(a). Because, too, Parliament has said in that case we have already commanded, we have engaged all of our parliamentary activity, Parliament being, of course the two Houses plus the Royal Assent. We have engaged all our formal parliamentary activity to command ahead of time. They are the stated criteria by which the people can hold us to account, both in the House and in their courts.

GORDON J: May I ask you another question? We were taken before lunch to Justice Crispin’s decision in Szwarcbord v Gallop where his Honour approaches the question by reference to two steps. One is the approach you have just adopted, i.e., identification whether privilege exists. And then his Honour says, without deciding, at the bottom of page 267 that notwithstanding that privilege was not established:

Privilege may be attracted by the retention of a document –

by the committee or by the Assembly:

for a relevant purpose –

Do you disagree with that analysis? And if so, why?

MR HORTON: No, I do not disagree with Justice Crispin’s analysis. But in this case, we have the statutory formulation of this, and it does not apply in the case where the criterion has been stated as a precursor and with clarity so one could only retain it for the purpose of giving or not giving the direction. That is the answer to that, but yes, because we know that there might be many things going on in the relationship between a committee and the body it oversees.

We accept that complexity but, where Parliament has spoken without complexity is when it comes to what you do with a document that has dealt with a corruption complaint about an individual that might affect reputation. Because the channel for that is clear. That is, really, our point.

GAGELER J: Can I just ask a question about some of the terminology in section 69?

MR HORTON: Yes.

GAGELER J: Is there a specific provision of the Act that deals with a report on a public hearing? And is there some technical content in the reference to research report?

MR HORTON: I think the answer is no, there is no formulation definition, I think, of a public report, your Honour. Public hearings, of course, are to be rare on the statute – they are not the preferred option, so they will not arise, of course, regularly.

GAGELER J: That is one way of conducting an investigation, is it?

MR HORTON: It is. Yes, and I think the statute commands, again, that that would be only in exceptional cases, in effect. Then, the Commission of course has a research function, but we would say it is to be distinguished from that sort of activity which is investigating a complaint. The research functions are certainly functions which the CCC has. “Research”, in that sense, describes adequately what it is that is being undertaken.

GAGELER J: I am not sure we were taken to the research function.

JAGOT J: Section 52.

GAGELER J: I see. Thank you.

EDELMAN J: Is the effect of that submission – I appreciate your case is that there was not a direction that was given here, but is the effect of your submission that, if the parliamentary committee issued a direction for a report that the parliamentary committee considered not to be a section 49 report, but which a court, upon proper consideration, considered to be a section 49 report, it would be within the scope of parliamentary privilege for the court to make a declaration that the committee had unlawfully issued that declaration? You say that the court could make that declaration.

MR HORTON: Well, that the court might give a bare declaration.

EDELMAN J: A bare declaration that the committee had acted unlawfully.

MR HORTON: No, a bare declaration as to the legal character of what it is. Now, it might go further, but for the moment, what we are saying is that one would obviously be restrained and there would be principles of comity and so forth – and relief is of, course one, stage at which the restraint should apply in circumstances in which it occurred and so forth – but Parliament expressly left these legal criteria to be determined and it cannot be dependent only upon whether someone catches them, if you like, before the action is taken in reliance upon them.

Now, of course, here, there is no direction. It is not just a case; there is no direction. So, we have caught it before that stage, but even after that stage, I think for argument to be good, with respect – although, one might run into specific arguments in a specific case; difficulties – it, in theory, does not prevent a declaration being made after, because Parliament’s command remains Parliament’s command, and that is the legal criterion which we set as legal criterion, which are determined of course by courts.

We reject entirely – and we will come to this at the end – any concept that these have pushed back the courts out of those cases which cry for justice, where the court’s traditional role properly lies in scrutinising and holding the Executive to compliance with statutory function and the matter of their exercise.

For our point to be good, we accept, your Honour, we have to say at both stages it might apply increased tension in the second circumstance. But tension is not the same as saying, as has been put on behalf of the Commonwealth Attorney-General, where there is tension – or clash was the word used – it is you, it is the courts that need to retreat. We will come to this at the very end – sometimes the tension might be necessary in furtherance of the overarching purpose; that is, for Parliament to do what it thought it should do in the discharge of its functions, but for the courts not to shy from the duty, which is the way it is framed in the cases, particularly Justice Brennan in Ainsworth. The court’s duty, in this case, because it is the only way in which the Executive – in respect of adherence to statutory functions – is properly held amenable to them.

Can we go, very briefly, to three of the cases on privilege, your Honours, because – for this purpose. One: to show that the language is consistent with the existence of jurisdiction continuing, but it being a question of whether the particular Acts are insulated, to use the words of Justice McPherson in Criminal Justice Commission v Parliamentary Criminal Justice Commissioner, at volume 6, tab 48, your Honours. The relevant page appears at 1810 of the joint book.

You will see at line 35 there, at page 22 of the report, his Honour Justice of Appeal McPherson refers to the insulation by article 9, which we point to as one example in these more modern parliamentary privilege cases as an example of the existence continuing of jurisdiction, and privilege invoking question for this exercise. Hence, one might adopt differences in relief, and so forth. Your Honours have already been taken to [25], and indeed, [48] of the judgment as examples of where, despite the approach in that case, their Honours left open the possibility of the exercise of subsisting jurisdiction, we have seen in brackets.

KIEFEL CJ: Well, his Honour at paragraph [25] gives us an example where there is a lack of authority to do that which is said to be part of the proceedings of Parliament. On your argument, that is not what would apply here because we are not talking about the committee purporting to authorise but without a basis for doing so. On your argument, it is simply that there was no authority for the Commission to do what it did and the committee did not do anything to make it other than a document – it did not make it a report.

MR HORTON: Yes. It is a document that had been presented with the assertion by someone who is not Parliament that it has a character that Parliament should treat as being within a provision which gives it discretion.

KIEFEL CJ: So, your argument in relation to whether it is part of the transacting of the business of the committee – you say it has nothing to do with the committee.

MR HORTON: Nothing.

KIEFEL CJ: There is no connection? Well, there is a connection but not a connection with its business?

MR HORTON: That is right. Exactly. The connection is ‑ ‑ ‑

KIEFEL CJ: Do you rely for what is understood to be the business of the committee on its functions as stated?

MR HORTON: Yes. Here, two possibilities, both derived from a statute. One is the business, if you like, of receiving and considering documents for the purpose of section 69(1)(b) directions, and second, a more general examination and scrutiny of the body, which this is not because ‑ ‑ ‑

KIEFEL CJ: It is not an act of oversight.

MR HORTON: No, and the report ‑ ‑ ‑

KIEFEL CJ: What was your first one, I am sorry, Mr Horton?

MR HORTON: I am sorry, the business of receiving and considering documents for the purpose of their ‑ ‑ ‑

KIEFEL CJ: But it could only be for the purpose of a function, though, would it not?

MR HORTON: Yes.

KIEFEL CJ: I mean, otherwise you are just a post box.

MR HORTON: Exactly. And that is the connection, because whether one speaks of an approbative act or the need for the connection, it is the same basic concern, and that is to remember that the principle being invoked, however it be imperfectly statutised in sections 8 and 9 – because this is merely the textual articulation of an important principle and an incomplete articulation; no criticism of that – when one comes to that, when one is dealing with the principle in legislation, one must remain centred to and refreshed by its source, which here is what must be done or not done in order that what is the core or essential business of Parliament – to invoke a case, we will come to in a moment – is not, to use a word of the Commonwealth Attorney‑General’s representative – interfered with, and more objectively, affected.

The effect here has to be measured to against the statutory scheme, which, in 69, invites the very assessment which we sought and benefited from, in which case there is no committee business with which it could possibly interfere.

EDELMAN J: But where you are going with this submission is, effectively, an alternative argument that if there were some committee business that were interfered with, it is possible for the court to fashion its relief to somehow align parliamentary privilege with an interference with the functions of Parliament.

MR HORTON: I do not need to, for this reason, your Honour. If our submission is right about the business of the committee being invoked upon it being or not being a report capable of receiving a direction, then that thought applies equally to before and after the direction. The only inconvenience – and that is all it is, but it is not an intrusion – is that in the meantime a direction was, in fact, given. Now, that is an inconvenience, and not a clash, and not a tension because the statute invites both. It might be a timing issue, but that is all it is.

GORDON J: Is that to say any more than on Justice Crisp’s analysis that the receipt of the document is a subject of the privilege, being the receipt of it, until there is an act of the relevant part of Parliament?

MR HORTON: Yes, and that is ‑ ‑ ‑

GORDON J: And that is consistent the cases where a third parties send documents in which themselves are received but ‑ ‑ ‑

MR HORTON: Yes, with the greatest respect.

GORDON J: And then the second limb of that becomes, does it, that on the appropriate – whether it is language of appropriate act or appropriation or whether by direction or consent, it changes?

MR HORTON: Yes. The sorts of inquiries which are invoked specially and require special individual attention, when the provider of the material is an outsider. We do not have the sort of difficulties in the CJC Case in the Court of Appeal regarding the Crime Commissioner who was, herself, an officer of Parliament doing something at the instigation of Parliament.

So, it is rather hard to see for a moment that that very internal case could resolve – other than at a core level – principles which might apply to the special case of the singular – as we had said, singular relationship between a statutory executive body and a statutory parliamentary committee doing something which was in Queensland, at the time, new. So, the relationships, the demarcations, particularly the way it might affect reputation, had to be the subject of careful statutory articulation.

In the alternative, your Honours, we have claimed, of course, a declaration that if for some reason it is before Parliament and can be published, or is published, that it does not prevent a declaration of whether or not the statutory preconditions for the preparation had been complied with. Again, all ‑ ‑ ‑

EDELMAN J: That is the much larger claim.

MR HORTON: We might put it as the smaller one, but it is still suggesting only that the legal determination as to the compliance or not with the statutory conditions have been met – all of which are parliamentary commands that they be complied with clearly in the statute. So, to declare it is to declare – we would say, again – what, on the formulation of the act, Parliament might well wish to know.

EDELMAN J: A parliamentarian might well wish to know whether or not a speech they are going to give the next day is defamatory, but it would be very surprising if a court were to give a declaration to that effect.

MR HORTON: Here, of course, we do not have that prospect and we have, of course, the actual interference with the reputation. So we have, upon some of the indicia which seemed to underpin the implication of privilege, one of the very strong ones – reputation is one; whether the documents provided or the work is done by an outsider; whether it is by reference to statutory criteria; whether those statutory criteria can be read as “prior to” – prior to the exercise of what has been foreshadowed – and whether, we would submit, importantly, this – whether the matters which we are dealing with are thought to improve and not hinder the overarching statutory purpose. Here, we say, that is to cooperate in the supervision of this body – both courts and Parliament.

Can we take you to two things in conclusion, your Honours? The first is Justice Brennan’s formulation in Ainsworth, at volume 4, tab 22 of the joint bundle. Your Honours have seen it before – page 772 of the joint bundle, 585 of the report. Your Honours, in the first paragraph, the essentiality, in effect, his Honour says of being:

amenable to judicial review if effect is to be given to the limits of the authority and the manner of its performance as prescribed by the statute –

That is the duty which, we say, the courts cannot be forced to retreat from. The second, I cannot remember – which is probably a good reason to leave them.

If it please the Court, they are our submissions.

GORDON J: Can I ask one question before you – and that is the question of relief.

MR HORTON: Yes.

GORDON J: Just so I am understanding it, in the – we were taken, yesterday, to – or maybe it is today, I have forgotten which it was – which was just the relief that you sought at first instance, which is in paragraph 55 on core appeal book page 22, and included an expanded declaration about procedural fairness. Which, of course, you did not get at first instance, but you got on appeal. Is that the way it worked?

MR HORTON: Yes. We raised it at a trial in the course of argument, the Speaker had said, in written submissions, and we have given you the reference, that would be a not impermissible form of relief, and we claimed it.

GORDON J: Thank you.

MR HORTON: It was only on appeal that we obtained that relief, and seemingly, the court below considered that to be sufficient, it being our primary point. That is, if it could not be – if it was a report of this purported
nature, and it could not be published under section 69, it could not be published at all, and that is the basis upon which, we would say, the court granted the relief. So, if the conclusion were to be different ‑ ‑ ‑

GAGELER J: What do you mean, it could not be published at all?

MR HORTON: That is, that that relief was dispositive of the question of publication, on the way the case was put below before the court.

KIEFEL CJ: You were saying?

MR HORTON: I have remembered what it is I had to say, I am sorry, in the process of questioning. One was, it was that we say the majority analysis is correct first, to have said, as their Honours did below, that the process was exhausted by reference to what the CCC did in disposing of our corruption complaint, and there was nothing more that could lawfully be done in pursuit of that purpose. And second, just so it remains clear, at paragraph 44 of the majority reasons, core book 77, it was held, and this was always our position:

the PCCC neither required nor requested that this report be made and submitted to it.

What has being read to you as contained in paragraph 80 of the majority decision is a recitation of what was found by Justice Davis, not what we sought and which we argued against. But the majority that was dealing with a counterfactual, the world in which they are the facts, which even then do not underpin the claim of privilege on the analysis there given in paragraph 81 on core book 85.

KIEFEL CJ: Yes.

MR HORTON: Thank you, your Honour.

KIEFEL CJ: Thank you, Mr Horton. Reply, Mr Dunning?

MR DUNNING: Thank you, your Honour. May I first please deal, Justice Gageler, with the inquiry you made in relation to the secrecy provisions in the Crime and Corruption Act. There are two important ones and one of a lesser status. The first is section 213, which your Honours will find at 230 of the pamphlet.

KIEFEL CJ: Sorry, I missed that reference, Mr Dunning.

MR DUNNING: Sorry your Honour, it is section 213, and it is on page 230. The second, your Honour, is section 66, which appears at page 78 of the pamphlet, which creates a knock‑on obligation that is in section 67. Then, your Honours, to a considerably lesser extent in terms of its operation, section 202 on page 223, dealing with hearings. Your Honours, in relation ‑ ‑ ‑

KIEFEL CJ: What do we relevantly derive from these provisions?

MR DUNNING: Sorry, only that Justice Gageler was interested to know where the provisions were found. Sorry, I should have made that clear at the outset. I do not wish to make any submissions on them. Thank you.

Secondly, in an exchange with my learned friend, Justice Gordon raised the issue about the respondent’s attitude to whether this was a section 64 report. Our understanding is the one reflected in footnote 57 of the Court of Appeal’s decision, Justice Freeburn’s decision, which your Honours will find in the core appeal book at page 86.

Can I then turn, please, to the discussion around the powers and functions of the parliamentary Crime and Corruption Commission and might I just, in light of the exchanges that have occurred with both the interveners and also our learned friend, Mr Horton, observe these things. Can I ask your Honours please to go to section 292 of the Act, page 313 of the pamphlet. And your Honours see there in section 292 the opening words:

The parliamentary committee has the following functions –

(a) To monitor and review the performance of the commission’s functions –

I shall come back to “monitor” in a moment. But may I ask your Honours, please, to notice the coincidence of language between, at the end of (a):

of the commission’s functions –

and what appears in section 64(1) page76 of the pamphlet:

The commission may report in performing its functions.

And one of the functions of the committee is to monitor the performance of the Commission’s functions, now, one of those functions is reporting. Might we also notice - - -

KIEFEL CJ: No, its function is not reporting, it reports about its functions.

MR DUNNING: It reports about its – yes.

KIEFEL CJ: In that it reports in the performance of its functions.

MR DUNNING: It reports in the performance of its functions. Yes, my apologies, I should have stated it with that precision. But allowing for that infelicity, one of the – in the discharge of its functions, the Commission may report one of the functions of the committee is to monitor those functions, and the discharge of them will include reporting. What, then, in ordinary language, that means, is under 292(1)(a) there is a function of the committee, in our submission, to observe and check the progress for quality and things and the like of those functions at a particular time, and in doing that would involve the superintendence of the preparation of those reports and the decision whether to give a direction or not.

So, in our respectful submission, essentially, the committee was concerned with the reviewing of the reports and the decisions in relation to them by the language of section 292(a) alone. One sees that also, in our respectful submission, in relation to 292(c) on page 314 of the pamphlet, because one of the functions is to examine the Commission’s other reports.

KIEFEL CJ: Well, they are reports that are – you are not talking about section 49 reports, though, are you?

MR DUNNING: No.

KIEFEL CJ: Presumably, it is about the Commission’s carrying‑out of its – discharging its functions.

MR DUNNING: Yes, correct, and the committee is given wide powers to do that, which one sees in section 293. We have already looked at subsection (1) previously, but can I particularly draw your Honours’ attention to subsection (2):

the parliamentary committee has the power –

(a) necessary to enable the committee to properly perform its functions –

Now, that language alone, in our submission, is sufficient for the committee to have had the dealings here in relation to a section 64 report and for it to have the consequences for which we contend, and whether one uses a shorthand expression “oversight” or not – we stick to the statutory language – one arrives at the same conclusion.

There are two other matters, contextually, that point to the committee’s business, including the review of a report such as this and the decision as to whether to table it. The first is section 71. Even if it were thought that somehow the functions of the committee as set out in section 292 did not extend to the consideration of a report such as this, section 71 gives an express power.

GORDON J: With their consent.

MR DUNNING: With their consent, but what that must mean is part of that which the committee is charged with is considering reports such as this.

GAGELER J: When you say “such as this”, you mean a section 69 report? Are you assuming that it is a “report” within the meaning of section 69, or – what do you mean by that expression?

MR DUNNING: In relation to – may I break up my answer into two parts. In relation to section 71, that would apply to any report, because section 71 is in those terms.

GAGELER J: Meaning, any document that is called a report that is given by the Commission? Is that what you mean, or do you mean something more specific?

MR DUNNING: No, that was as specific as I was meaning to be. Section 71 would cover wider communications than something that was styled as a report. But the most critical indication is section 69 itself, because, if it lay outside the Commission’s function to consider a report such as this and to consider tabling it ‑ ‑ ‑

GAGELER J: You mean a piece of paper that is called a report? I just do not – I do not know what you mean by that qualification.

MR DUNNING: I understand. Certainly.

KIEFEL CJ: It must be a report as comprehended otherwise in the statute, is it not?

MR DUNNING: Yes, so a section 64 report.

KIEFEL CJ: Section 69 does not create a new report.

MR DUNNING: No, it does not. Justice Gageler, I am sorry, the point I was meaning to make, but evidently poorly, is to meet the suggestion that it lay outside the committee’s functions to consider a section 64 report, we rely not only upon the language of section 292, the provisions of which I have taken your Honours to, but also section 69, because if it were right that it lay outside the Commission’s remit, section 69 would be rendered otiose.

Your Honours, can I then move to another topic, and moving to the suggestion of our learned friends that the Commission’s functions and, necessarily, it seems, powers in respect of this matter were spent upon the delivery of reports under section 49 of the Act. Can I simply direct your Honours’ attention to these ‑ ‑ ‑

KIEFEL CJ: Is that the correct way of referring it to it – spent? – I mean, that has other connotations. What it is really being said is that there are a number of reports to particular entities that it could be given; such as they are available, they either were or were not given, and that is an end of it. There is nothing else to be done about a complaint about corrupt conduct.

MR DUNNING: I will choose another descriptor – I hope not unfairly. If we understand our learned friend’s argument that was ultimately accepted below, the statutory functions of the Commission in relation to this corruption investigation were complete upon the delivery of reports under section 49, such that it had available to it no further reporting ‑ ‑ ‑

KIEFEL CJ: Further reporting function.

MR DUNNING: Yes. Against that proposition, in our respectful submission, it lies inconsistently with the tenor of the Act. Can I just briefly give your Honours these references starting firstly at section 35 of the Act, which your Honours will see on page 48 of the pamphlet – 35(1):

Without limiting how the commission may perform its corruption functions, it performs its corruption functions by doing 1 or more of the following –

Twice in the one chapeau Parliament reinforces that there are many ways in which the Commission may discharge its corruption functions. In our respectful submission, that lies inconsistently as a matter of context with the notion that section 49 is the exclusive reporting function of the Commission. I will not trouble to take your Honours to it, but you will recollect I took you to section 33 in relation to those corruption functions, and also 24(g).

KIEFEL CJ: But apart from section 35(1)(a) or (b), what is relevant in section 35 to what occurred here? We are just speaking in generalities, otherwise, instead of specifically to this case. It is just not always very helpful.

MR DUNNING: No, no. Section 35(1) makes it clear that those matters that are enumerated from (a) onwards are without limitation to the ways in which ‑ ‑ ‑

KIEFEL CJ: But it is listing what its corruption functions are “by doing 1 or more of the following” – (a) and (b) are, obviously, referable to this case but there is nothing else I can see in subsection (1) that is.

MR DUNNING: Respectfully, we would submit differently to that, that what section 35 sets out is how the function does perform. It is 33 that sets out the functions themselves, and one has to read 33 together with 24(g) for the reasons I have previously identified, so ‑ ‑ ‑

KIEFEL CJ: Yes, I see – 24(g).

MR DUNNING: Yes.

KIEFEL CJ: I should have added (e), of course.

MR DUNNING: Yes.

KIEFEL CJ: Section 35(1)(a), (b) and (e) ‑ ‑ ‑

MR DUNNING: One might also ‑ ‑ ‑

KIEFEL CJ: ‑ ‑ ‑ we have discussed.

MR DUNNING: Yes, and one might also add (f) and (g) but I did not want to delay. The point I was ultimately seeking to make was, in answer to the suggestion that section 49 has the operation I earlier described, these are matters that sit inconsistently with that. Can I also direct your Honours’ attention to some other provisions that, in our submission, are to a like effect? Can I ask your Honours, please, to go to section 51 of the Act, it appears on page 66 of the pamphlet. But could I also ask your Honours, please, to notice from page 64, one sees section 49 set out.

GORDON J: Sorry, I missed that, Mr Dunning.

MR DUNNING: Sorry, your Honour.

GORDON J: I have 51. What was after 51?

MR DUNNING: Can I ask your Honours to go back two pages to section 49?

GORDON J: Thank you.

MR DUNNING: And your Honours will see 49 and 51 sit within Division 5, entitled “Action following investigation”. We have spoken about 49, I will not take your Honours to that again, but when one goes to section 51, nothing in this part limits the action that may lawfully be taken by the Commission or a unit – well, for our purpose the Commission – to discipline or otherwise deal with, a person for corruption. Can we also ask your Honours, please, to notice ‑ ‑ ‑

KIEFEL CJ: I am sorry, what do we take from that?

MR DUNNING: What one takes from it is, contextually, something that tends against the suggestion that section 49 sets out the limits of the matters upon which the Commission may report in respect of a corruption investigation.

KIEFEL CJ: You are not suggesting section 51 is an extension of the reporting function?

MR DUNNING: No.

KIEFEL CJ: I should say, the reporting permission.

MR DUNNING: No, your Honour. I was not, I was ‑ ‑ ‑

KIEFEL CJ: It is just talking about disciplinary proceedings or other methods of dealing with the person in a disciplinary kind of way.

MR DUNNING: I accept that. The purpose that I relied upon, contextually, is that it sits uncomfortably with the notion that section 49 had the consequence that there was no reporting function that sat outside the matter. There is the topic of sections – sorry, Justice ‑ ‑ ‑

GAGELER J: It does mean corruption, though. I mean, it means where corruption is found, does it not? Section 51 is talking about corruption being found, there is no limitation on the things that the Commission can do deal with that. It would surprise me if it were to be read as allowing a person to be dealt with in circumstances where corruption has not been found in an investigation.

MR DUNNING: As a proposition, Justice Gageler, I would agree with that. May I simply, though, add these two things. Firstly, one would need to read “corruption” in section 51 as including suspected corruption.

GAGELER J: Yes.

MR DUNNING: And, consistent with my answer to the Chief Justice a moment ago, I do not rely on section 51 to provide some freestanding entitlement of the Commission. The purpose of my reference to section 51 was to indicate that when you read that with section 49 and together with the other provisions I have taken your Honours to, and I am about to, it sits uncomfortably with the notion that section 49 delimits the Commission’s reporting power in respect of a corruption investigation.

GORDON J: It may tell you the opposite, actually. It might suggest ‑ ‑ ‑

KIEFEL CJ: They are running in parallel.

GORDON J: It might suggest that there is an express permission to do something in addition to 49 that it is expressly provided for.

KIEFEL CJ: Yes. Otherwise, section 49 is it.

MR DUNNING: Yes. Can I then move, please, to section 63, that Justice Jagot raised earlier on, and for the reasons that I will not expand upon again, contextually, a matter that sits uncomfortably with the notion that is put – and also section 64(2) and section 71, all of which we have been to so many times I would not inflict it upon your Honours to go back to them.

But all of that is ultimately a long way of saying this: section 49 nominates what it deals with, and it does not deal with all reporting powers. It deals with reports of a certain kind, and one can understand why. Section 64 does intend to deal broadly with a reporting power in language apt, in 64(1), to pick up a report of this kind, and if that were not enough of Parliament’s indication, in 64(2) it tells you what it does not apply to. In our respectful submission, that disposes of the matter as shortly as that.

Can I then move, please, to what I will describe as our learned friends’ Ainsworth, Balog precept argument, and might I respectfully adopt that argument by way of submission to your Honours, because it speaks well, if we may respectfully submit, to exactly why the Act has the construction for which we contend and why the majority was in error below. It is right to look at the legislative scheme in light of the known law. Now, what we knew from those two cases – and I will not rehearse those matters I went through yesterday, as have others – is each of them were decided against a particular statutory formulation of which this one is notably different in the ways identified to your Honours yesterday.

And more powerfully, in the case of Ainsworth, it is the predecessor statute to this statute. So, to the extent Ainsworth tells us anything, it tells us that this is a different scheme Parliament has found. Parliament has mediated the competing interests between personal reputation – I will go so far as to say dignity – and the competing public interest of investigating such matters and chosen the lines it has now drawn in terms of the reporting functions in the Act. So, in our submission, that precept tells in favour of the construction, not against it.

Can I then turn to the question of why does the declaration matter, is there a way of the formulation of a declaration that could set compatibly with the existing law in relation to parliamentary privilege? We pause to make the submission, nobody asserts that there should be any departure from this Court’s earlier holdings as recently as Egan v Willis as to how one approaches that question. In our respectful submission, the problem with any declaration, no matter how skilled its preparation, no matter how elegant the linguistic form, ultimately, any such declaration is an authoritative statement by the court that a document does not have a character that Parliament has acted upon.

GORDON J: With those last words “has acted upon”, are you going to address the discussion between Bench and Bar with Mr Horton about “acted upon” consistent with Justice Crispin’s analysis, where one can have a document which is subject to privilege but privilege not otherwise being established?

MR DUNNING: Yes. I was going to deal with that on that on the question of purpose, Justice Gordon.

GORDON J: That is fine.

MR DUNNING: Well, may I, at the risk of dealing in two parts, deal with this part of it now?

GORDON J: Absolutely. I am really picking up your words “has acted upon”.

MR DUNNING: Yes. When one looks to has acted upon – or, put another way, what are the purposes of . . . . . it is the purpose of the Assembly. That will always involve a question of fact, and we say the legislative scheme here, in relation to the CC Act and the Parliament Act, is a very important feature of answering that question here. Here, you would have a report that the committee was, on our case, prepared for the committee to consider whether to give a direction for it to be tabled, and a declaration that, however one framed it, would ultimately say that report does not bear the characteristics of a report of the kind which the committee accepted it as.

If I might take up, please, Justice Gageler, the option that your Honour posited of, well, might such a declaration, in effect, be a way to communicate to the Speaker that the Speaker might choose not to rely upon the report. I apologise if I have not precisely picked up the language your Honour used, but I hope I picked up the essence of it.

GAGELER J: The essence of it was that the Speaker – if it is not a report within the meaning of section 69, then the duty to table the report, in section 69(4), is not activated.

MR DUNNING: Yes. Picking up that formulation, in our respectful submission, it provokes two problems – well, certainly, these two problems. The first is, it is necessarily a statement by the court to the Speaker that the Speaker should pause – if I might adopt some language we used yesterday – before acting upon something the committee has chosen to refer. So, it invites, at a minimum, the Speaker to calibrate the parliamentary – the choice of the parliamentarians in the committee against the decision of the court.

GAGELER J: Why would the parliamentarians wish to make a decision as to the legal character of the document that is different from its true legal character?

MR DUNNING: My answer to your Honour’s question is that is, ultimately, not the comparison because the function of the court is to determine, in this case, the statutory construction against a particular document. The function of the Parliament is to make those political decisions that sit around those matters that present themselves in the course of its deliberation – of which this would one. So, it would not be, in our respectful submission, a situation of comparing the parliamentarians’ assessment of the proper construction of the document with the courts but, rather, the parliamentarians’ political dealings with that document corroded – pejoratively – but, ultimately, corroded by the court’s conclusion that the document does not wear the character that the committee considered it did.

GAGELER J: It is a very odd choice of words that a declaration of legal right can be corrosive of a political decision. I understand what you are saying, but it is a really quite strong use of words.

MR DUNNING: Then I will take it back, because I do not want to overstate the point. I take back the expression “corrode”, but the point I am seeking to make is that document is one that the Parliament will make a political decision on and, for better or for worse, it should make its decision with the benefit of its processes. It is one of the lines we have chosen to draw. In our respectful submission, the exchange with my learned friend, Mr Horton, and Justice Edelman around the difficulties concerning a section 49 report is just an exemplification of the difficulties in this regard.

Your Honours, can I then move to the question of purpose – and Justice Gordon might have returned to the topic I was making submissions on shortly before. Can I ask your Honours, please, to take up section 9 of the Parliament of Queensland Act. Ultimately, what we are concerned with here is – when we talk of purpose and the discussion that we have had over the last two days regarding purpose, we have been rightly focused on 9(2)(e). Now, the purpose we are there speaking of is the purpose of the preparation of a document and, to the extent that the discussion goes into objective and subjective and the views of a particular person or the actions of a particular person, in our respectful submission, it is a question of fact as to what the purpose of the document’s preparation was for and by the terms of subsection (e), that obviously picks up subsection (c) of 9(2).

That question of fact is to be assessed by the evidence relevant to the discernment of its purpose. In a sense, one needs to be careful not to conflate that with other areas of the law where subjective and objective intention might or might not be permissible in that factual inquiry. Here, the factual inquiry is for the purpose of the document. If one proceeds on that basis and therefore the relevant question is what is relevant – what is probatively relevant or persuasive in respect of that question – it will turn on the facts of the individual case as to those matters. The objective background will always be important, but it may well be that the human actors involved, and what they did, and what they said ‑ ‑ ‑

EDELMAN J: But, Mr Dunning, documents do not have purposes. I mean, here the statute is not attributing a purpose to a document, it is attributing purposes to an assembly or a committee, which is comprised of human actors, but is a collective. It is an attributed purpose.

MR DUNNING: That is correct. We accept exactly that. So, when one looks in 9(2)(e):

preparing a document for the purposes of –

one is looking for what was the purpose for the preparation of that document. The point I was seeking to make was that enquiry is answered by looking at what matters evidentially are relevant to that question. They will almost always – in fact, it is hard to conceive circumstances where the objective circumstances surrounding the preparation of the document would not bear upon that factual inquiry.

It may be – and indeed often will be – that the actions of the human actors will – and perhaps on occasions be subjective intentions – and perhaps I can illustrate the distinction this way. The Member of Parliament who requests the staffer to produce a document for asking a question in the House – now, the subjective intention will not matter; one will be able to determine the purpose of the preparation simply by knowing, as a fact, this request was made by a person as a Member of Parliament, and as a fact, in response to that, a document was prepared. But it will obviously turn on its own facts.

That is the point we seek to make in the last sentence of paragraphs 7 and 11 of our propositions. I will not trouble your Honours to take them out. But, effectively, it is the statutory framework here that is an important consideration as to what the purpose of the preparation of this document was.

Your Honours, in relation to the arguments around what was and was not decided, can I simply give your Honours these additional references to those your Honours have already been given. Can I take your Honours, first of all, please, to the section 55 certificate for two purposes. It is the respondent’s further materials. May I ask your Honours to please go to page 93. Your Honours will note, please, paragraph 2:

A document, attached as “Attachment 1”, is an extract from a transcript of a private meeting between the Parliamentary Crime and Corruption Committee and the Crime and Corruption Commission –

That is the first of the transcripts your Honours were taken to – and again in paragraph 3. So, there is a suggestion that this was some, in effect, private exchange between the two commissioners. The certificate was that it was, in fact, a meeting of the committee.

I do not want to go further into the parsing what was said in the transcript any more than necessary, but can I just for clarity – I hope for clarity – may I simply ask your Honours, please, to notice this. If I can ask your Honours to go to page 95, that is the first of the meetings that the certificate refers to, and what one sees is the chair saying:

Did you say you are proposing to prepare a report in relation to this matter –

I think it is now uncontroversial, this matter is referable to the investigation that produced this report. The response from the chair of the Commission is:

We have not decided finally, but for the reasons you are articulating I think –

one should be. Then, when we go to – if I may ask your Honours, please, to go to the next meeting, which is a couple of months later: 11 September 2020, page 96 of that bundle. It is right, as our learned friend was taught and directed your Honours’ attention, that the first reference, the chair:

You will be seeking a direction under section 69 for tabling of that report?

Is not related to this report. But it is important for two reasons. The first of them is it, as is what follows – makes clear that what follows relates to a discussion about the prospect of a section 69 report. Secondly, that the tenor of the conversation is about the presentation of such a report to the committee for consideration. One sees that it is right to say the first two sentences next to Mr MacSporran:

Yes. That is where that is.

is a reference to the other report. From then on, we move to the circumstances relevant to this report:

In the Public Trustee matter –

which is why . . . . . with here:

we –

being the Commission:

were in the same position.

That position is the position that one sees in relation to the discussion of the previous report:

CHAIR: You will be seeking a direction under section 69 for the tabling of that report?

Mr MacSporran: Yes.

Then Mr MacSporran goes on to say, in relation to the Public Trustee matter:

we were in the same position.

The reason he says that is apparent from what follows:

We were trying to get that to you today –

but then certain matters needed to be accommodated to achieve that. Now, any fair reading of it is consistent, in our submission, with matters that the Chief Justice had suggested in relation to these exchanges. On 19 June, the committee raise with the Commission – or the Commissioner of the Commission – whether such a report should be prepared, and nominates a reason why the Commission might consider it:

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

And that when one gets to the exchange on 20 September, the only reason that the section 69 report – or what purported to be a section 69 report – is not, in fact, discussed is for the reasons that it delayed its production, as set out there.

In any event, your Honours, in our submission these were matters dealt with by Justice Davis at first instance, at paragraph [121], page 46 of the core appeal book – I have taken your Honours to them previously, I was not going to take you to them – and [141], at page 50 of the core appeal book. Justice Freeburn, in dissent in the Court of Appeal, deals with them at paragraphs [178] to [179], at page 108 of the core appeal book.

Your Honours, finally, in our respectful submission, the consequence of the majority’s decision, were it to be upheld in this Court, has broader application than simply this report because, at its heart, it seems that if that be accepted in relation to section 9(2) of the Parliament of Queensland Act, it means that 9(2)(e) and, therefore, (c), will only operate in relation to a document that is prepared where its creation was not ultra vires or unlawful.

If that is accepted as a proposition, in our submission – given a document is just a communication or act – what is set out in section 9(2) – as is plain from its terms – is a non‑encyclopedic list of the, quote, “words spoken and acts done”, referred to in section 9(1) of the Parliament of Queensland Act. We note that subsection 9(1) speaks of all words spoken and acts done and the notion of purposes is deployed in both sections.

Yet, in our submission, if the majority below were correct, only those words spoken or acts done that were not ultra vires or unlawful would attract the privilege. Now, take ourselves the four walls of the Assembly and, in relation to those matters that Members of the Assembly would do in the ordinary discharge of the wide definition in 9(1) of proceedings in the Assembly, it would give a basis for challenge not only to somebody in the position of the CCC but, potentially, corrosive of a Member of the Assembly, certainly in relation to communications outside Parliament.

Does the member have to be satisfied that the words spoken and acts done that the member is engaged with in the community were not unlawful or were not being provided in relation to something that was ultra vires, the person providing them, or dealing with departmental officers. Now, in our respectful submission, it has that effect. One should not see it just in terms of the impact it is apt to have on an agency such as the Commission, because if it is correct, then this notion of ultra vires or unlawfulness inhibiting otherwise the operation of subsection 9(2), would seem to have a like effect in relation to 9(1) and will involve anybody who is involved in those communications, certainly outside the chamber itself.

Can I ask if I can assist your Honours any further? Excuse me, your Honours. Sorry, there was one matter, your Honours, that I forgot to mention that we referenced a little earlier back in this and I can deal with it very briefly. If the submissions in relation to section 49 being the only reporting functions the Commission has in relation to a corruption investigation, it means there is no capacity for the Commission to present a report under section 64 and seek its tabling pursuant to section 69 that completely exonerates somebody. And it is not fanciful. If someone is the subject of significant and highly damaging allegations in the public sphere, a public servant, let us say, the allegations are referred to the Commission, as they properly should.

The investigation is taken and completed, and the Commission wishes to produce a report to say we investigated and there was nothing in this. The processes in that Department were in fact adequate to deal with it. Now, on the majority’s construction, no such report could be issued, and one only has to look at the Warsama decision I took your Honours to yesterday to see that the illustration I give is not a fanciful one because, in material respects, that was that case.

Unless I can assist your Honours any further, they are our submissions. Thank you, your Honours.

KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 3.43 PM THE MATTER WAS ADJOURNED